Trilochan Mal vs Sripati Mal

K.K. Mitra, J.—This is an appeal u/s 417(3), Cr.P.C, preferred by the complainant and directed against the order of acquittal dated April 11, 1968, passed by Sri S.B. Dutta, Magistrate, First Class, Jangipur.

The complainant filed a petition of complaint against the Respondents in the Court of the Sub-Divisional Magistrate, Jangipur, making various allegations against the accused persons that they had trespassed into his house and assaulted him with lathi as a result of which he sustained injuries. The learned Magistrate after taking cognizance issued summons and after appearance of the Respondents proceeded with the trial. The prosecution examined seven witnesses to prove the allegations and the learned Magistrate on the evidence of those witnesses framed charges against the Respondents under Sections 147 and 447 of the I.P.C. and fixed April 11, 1968, as the date for cross-examination of the prosecution witnesses. But, on that date the witnesses examined by the prosecution were not present in Court, and a petition for adjournment was filed by the complainant. It was stated in the petition for adjournment that the witnesses were not present as there was a talk of compromise and that the case might be adjourned either for affording opportunities for making a compromise or for the appearance of the witnesses for their cross-examination. The learned Magistrate rejected the prayer. In the petition for adjournment, it was also mentioned that it was the duty of the Court to take steps to secure the attendance of the witnesses.

It is urged by the learned lawyer for the Appellant that the order of acquittal u/s 258, Cr.P.C, is bad in law inasmuch as there was no finding made by the learned Magistrate that the accused was not guilty and that the order passed is not a proper judgment as no reasons had been given for the decision that the accused be acquitted.

The procedure to be followed by the Magistrate in a warrant case instituted otherwise than on Police report is contained in Sections 252 to 259, Code of Criminal Procedure Apparently, after the framing of charge u/s 254 and the charge is read over and explained u/s 255 and the accused is asked if he pleads guilty or has any defence to make the stage for defence is reached in terms of the provision in Section 256 when the accused claims to be tried. Section 256, Cr.P.C, runs as follows:

If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross-examination and re-examination (if any) they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.

If the accused puts in any written statement, the Magistrate shall file it with the record.

Clearly a duty has been imposed upon the Magistrate to enquire from the defence if he wishes to cross-examine the witnesses for the prosecution who had been examined and take upon himself a duty to recall them for affording opportunities for their cross-examination and also re-examination, if any. The prosecution will then have the opportunity to examine the remaining witnesses, and for that as well opportunities must be given to the accused in the same manner for their cross-examination. In this way it is only after such cross-examination and re-examination of all the prosecution witnesses that the witnesses can be discharged and the time would arise for the accused to enter upon his defence and produce evidence in defence. Thus it is obligatory on the part of the Magistrate to enquire from the accused if he wishes to cross-examine any and, if so, which of the witnesses who had been examined by the prosecution. A further duty is imposed upon the Magistrate to recall such witnesses as named by the accused to afford opportunities to the accused to cross-examine them. It is as much the obligatory duty on the part of the Magistrate to enquire from the accused which witnesses as examined by the prosecution he wishes to cross-examine as to take proper steps for recalling the witnesses so named for the purpose of cross-examination.

In the case Nut Behari v. Sarada Prosad (1933) 37 C.W.N. 712 a Division Bench of this Court held that the Magistrate is not entitled to record an order of acquittal u/s 258, Cr.P.C, after the charge had been framed in a warrant case even though the complainant was found absent. A Division Bench of the Assam High Court held in the case of Kanakeswar Bora v. Asatu Kalita (1949) Cri.L.J. 1566 that where in a warrant case after the charge was framed the complainant was found absent and no cause was shown for the absence, such absence of complainant was no ground for acquitting the accused and that it was the duty of the Magistrate to secure the presence of the complainant and the witnesses examined by him by issuing coercive process. In the case Bepin Behari Maity Vs. Paban Sardar and Others, a Division Bench of this Court held that the duty of recalling the witnesses whom the accused wants to cross-examine is cast by the law on the Magistrate and the mere fact that the complainant has not taken steps in that matter does not absolve the Magistrate from his imperative duty to do so.

In fact, under the law there are two-fold duties cast upon the Magistrate u/s 256�(i) to ascertain on enquiry from the accused whether he wishes to cross-examine any witness and if so, which of the witnesses for the prosecution and (ii) to take steps for securing attendance of the witnesses so mentioned on recall for the purpose of their cross-examination by the accused. In the instant case, it is not noted if the learned Magistrate enquired from the accused which witnesses as examined by the prosecution he wished to cross-examine. But, at the same time, the learned Magistrate after framing of charge, when the accused pleaded not guilty and claimed to be tried, fixed January 29, 1968, for the cross-examination of all the P. Ws. and the examination of the remaining witnesses. Obviously, therefore, the order indicates that he must have ascertained from the accused on enquiry that he wanted to cross-examine all the prosecution witnesses who had been examined on that date.

In the case Kunj Behari Yadav Vs. Basdeo Yadav and Others, a Division Bench of the Patna High Court held that when the Magistrate neither took personal recognizances from the prosecution witnesses to appear for cross-examination nor issued summons for their appearance on the date fixed for cross-examination, there was noncompliance with the provision of Section 256 and the order of acquittal passed u/s 258, Cr.P.C, just because the witnesses for the prosecution were not present for cross-examination, was illegal. In that case the complainant himself had given an undertaking to produce his witnesses on a previous date, that is on February 17, 1955. But, the case was not heard on that date and it was fixed on March 17, 1955, for cross-examination of the witnesses and so in the absence of undertaking given by the complainant to produce the witnesses on that particular date it was found that he had no responsibility to produce the witnesses on such date. In the case N.R. Murty v. P.D. Narain AIR 1957 Mys. 18 where an order of acquittal u/s 258, Cr.P.C, had been passed on account of the absence of the complainant and the prosecution witnesses on the date fixed for further cross-examination of the prosecution witnesses it was held that the order was illegal as no duty had been cast upon the complainant to secure the witnesses for their cross-examination unless he had undertaken to produce them.

8.. There is, of course, a decision by a Division Bench of this Court in Sadek Mahammad Ahmad Hasan Vs. Jyotish Chandra Pandit and Another, wherein it was held that when the prosecution witnesses were not present and could not be cross-examined, their evidence in examination-in-chief should be expunged and as a result when there was no evidence for the prosecution, the accused was to be acquitted. But, it is not clear from that judgment whether the complainant himself had undertaken to produce for cross-examination the prosecution witnesses. It appears that in that case the lawyer for the complainant informed the Court that he had received no instruction to proceed with the case. It may be that when the complainant in spite of taking the responsibility to produce the witnesses did not produce them for cross-examination and that the Court took it that it was not necessary to issue processes for production of the witnesses for cross-examination as the complainant did not want that and so the evidence given by the prosecution witnesses could be expunged leaving no evidence for the prosecution to prove the case resulting in an order of acquittal. The facts and circumstances in this case are quite different as no undertaking had been given by the complainant that he took the responsibility for producing the witnesses for the purpose of cross-examination. Besides, this decision had been considered by their Lordships in the case of Bipin Behari Maity (Supra ) and it was pointed out that the provision of Section 256, Cr.P.C, was not considered in that case.

The learned lawyer for the Respondent referred to a Single Bench decision of the Orissa High Court in Govinda Prosad Bhagat v. Ram Prosad Bhagat AIR 1953 Or. 152 where on the date fixed for cross-examination the defence wanted to cross-examine the complainant first before cross-examining his witnesses and the complainant was not available. In such circumstances, an order of acquittal was passed after expunging the evidence on record. In this case as well the provision of Section 256, Cr.P.C, had not been considered and it was not known whether the complainant himself took the responsibility to produce the witnesses, relieving the Court from the duty) to recall them for cross-examination and re-examination before they would be finally discharged. The provision in Section 256, Cr.P.C, is clear whereby a duty had been imposed upon the Magistrate to ascertain from the defence which witnesses are to be cross-examined and then take all steps for recalling the witnesses. It is no part of the duty of the complainant to secure production of the witnesses unless he has given an unequivocal undertaking to produce them. The Court has no right to expunge the evidence on record just because the witnesses had not been cross-examined by the defence when the complainant has no duty to produce them and the law enjoins a duty upon the Magistrate specifically to make such witnesses available in Court for the purpose of cross-examination. In fact, the evidence given by the witnesses can be expunged only under circumstances when the witness is dead or that the witness cannot be produced after exhausting all processes of the Court by which attendance can be secured. The complainant had the witnesses examined to establish the offence and the Court admitted the evidence after being satisfied about the relevancy and admissibility of the evidence and, therefore, the Court must see that such evidence is not expunged except in accordance with law. It is as much necessary to guard against prejudice being caused to the accused as to the prosecution and that no part of the evidence should be thrown out except on cogent legal grounds.

In these circumstances, I hold that the learned Magistrate was clearly wrong when he failed to comply with the provision of Section 256, Cr.P.C, and in spite held that he could not depend upon the uncertified evidence of the P. Ws. who were not produced for cross-examination.

It is also to be noted that an order of acquittal is as much a judgment as an order of conviction and before passing an order of acquittal u/s 258, Cr.P.C, the Magistrate should have given reasons for finding the accused not guilty and hold him not guilty. He should have given reasons for his decision in terms of the provision of Section 367, Code of Criminal Procedure The learned Magistrate did not give any reasons for throwing off the evidence given by the prosecution witnesses though it seems that virtually he decided to expunge the evidence. He was clearly wrong in expunging the evidence for the prosecution just because the veracity of the testimony of the witnesses could not be tested by the cross-examination when he failed in his duty to take steps to secure their attendance for cross-examination. The order of acquittal u/s 258 (1), Cri.P.C, on a complainant can be passed only after making a finding as to not guilty with reasons there to as an acquittal of an accused might lead to such consequence as to expose the complainant to the risk of an action against him for malicious and vexatious prosecution.

In the result, the appeal is allowed. The order of acquittal passed by the learned Magistrate is set aside. The case is sent down for retrial in accordance with law and in terms of the directions given above.