K.V. Rathnam, Addl. J.C.
1. The State of Tripura has preferred this appeal against the order of the 1st Class Magistrate. Agartala acquitting the five accused in C. R, Case No. 249 of 1969.
2. The facts leading to the filing of this appeal are as follows:- On 29.4.67 one Ramesh Chandra Dey, the then Beat Officer. Golaghati Beat under P.S. Bishalgarh filed report before the Sub-divisional Magistrate. Agartala alleging that the 5 respondents have committed an offence punishable Under Section 26(1)(a) of the Indian Forest Act by clearing the jungle and cultivating a portion of the same. On the same day the Sub-divisional Magistrate. Agartala took the case on file under Section 26(1) of the Indian Forest Act and transferred the same to the 1st Class Magistrate for disposal, on 2.5.1967 the 1st Class Magistrate issued summons to the accused and posted the case to 1.7.67 for the appearance of the accused. As summons were not issued and as the accused were absent the case was adjourned to 1.8.67 for the appearance of the accused. On 1.8.67 three of the accused who were present were released on bail and the case was adjourned to 28.8.1967 for the appearance of the other accused. But on 28.8.1967 all the accused were absent. The learned Magistrate issued bailable warrants and posted the case to 27.9.67. As the warrants issued were not executed, on 27.9.1967 the Court ordered a reminder to be issued to the concerned police and adjourned the case to 14.11.1967 for the appearance of the accused. It appears some time later in the day four of the accused appeared. Consequently the Court recalled the warrants issued against them. On 14.11.1967 all the 5 accused appeared before the Court but the prosecution witnesses were not present and hence the Court ordered issue of summons to the prosecution witnesses to 5.12.1967 and on 5.12.1967 prosecution was ready with two witnesses and out of five accused only two were present. However for want of time the Court adjourned the case to 3.1.1968 on which date all the accused were present but the Court adjourned the case to 3.2.1968 for prosecution witnesses. As 3.2.68 was a public holiday the records of the case were put up on 5.2.1968 before the Magistrate. On that day all the accused were present, the complainant and the prosecution witnesses were also present. But the Court adjourned the case to 5.3.1968 and on 5.3.1968 the learned Magistrate passed the following order acquitting the accused:
All the accused excepting the accused Srikumar appearing today. This Srikumar is represented by his counsel. Summons once issued. No service return obtained.
Prosecution, however, produced witnesses. There is no reason that summons should be issued again. His prayer is, therefore, rejected.
There is no reason that the prosecution should not be producing his witnesses today.
The case therefore, fails in the absence of evidence. The accused are all, therefore, acquitted.
It is against this order of acquittal the State has preferred this appeal. The above order acquitting the accused for want of evidence is illegal and cannot be maintained. It is clear from the order sheet that when all the accused and some of the prosecution witnesses were present the learned Magistrate has chosen to adjourn the case; however taking advantage of the fact that some of the prosecution witnesses were not present on the adjourned date the learned Magistrate proceeded to acquit the accused on the ground that the case fails for want of evidence. It may be stated here as to under what provisions of law the learned Magistrate has chosen to acquit the accused is not mentioned in his order. The offence alleged against the accused is a summons case. For the non-appearance of the complainant the learned Magistrate could acquit the accused Under Section 247. Cr.P.C. But in the instant case from the order dated 5.3.1968 it is clear that the complainant was present and had requested the Court to issue summons to the witnesses, which prayer the learned Magistrate has rejected. That being so. the acquittal of the accused cannot be regarded as one under Section 247. Cr.P.C. From the 'order sheet it is seen that on 14.11.1967 four of the five and on 3.11.1968 and 5.2.1968 all the five accused appeared before the Court, but the learned Magistrate ha3 not even examined them under Section 242, Cr.P.C. It may also be pointed out that the learned Magistrate issued summons to prosecution witnesses for their appearance on 5.12.67 and two of the prosecution witnesses were present on 5.12.67. On 5.2.68 all the accused and the prosecution witnesses were present but the Magistrate adjourned the case to 5.3.68 without examining the accused Under Section 242. Cr.P.C. and recording the evidence of the witnesses present. There is nothing on record to indicate that the witnesses present on 5.2.68 were bound over to appear on 5.3.68 nor the order sheet would disclose that at any stage of the proceedings the prosecution has taken upon itself the responsibility of producing the witnesses. When the prosecutor has sought the assistance of the Court for securing the attendance of the witnesses it is not permissible for the Court to refuse to take steps for securing their attendance and at the same time pass an order acquitting the accused on the ground that the case fails for want of evidence. The Magistrate has no discretionary power to refuse to take steps for the attendance of the witnesses, to whom the Court had already issused summons on a prior occasion for their appearance.
In Public Prosecutor. Andhra Pradesh v. Pachiyappa Mudaliar : AIR1965AP162 it is held that even in a case where the prosecutor who took the responsibility to produce the prosecution witnesses at the next hearing date failed to produce them, it is not open to the Magistrate to acquit the accused on the ground that no evidence was produced but on the other hand, it is his bounden duty to take all necessary steps for procuring the attendance of the witnesses, if necessary, by taking coercive steps. No doubt that is a case of a warrant case but the principle laid down therein equally applies to a summon case.
In Suresh Chandra Goswami v. Suresh Chandra Deb Nath AIR 1965 Tripura 39 : 1965 (2) Cri LJ 139 this Court had an occasion to consider the legality and validity of an order of the same Magistrate acquitting the accused under identical circumstances. The phraseology of that order is also identical with the order under appeal. Quoting with approval the decision reported in : AIR1964Pat351 this Court has held that the Magistrate cannot pass an order of acquittal on the ground of want of evidence without taking necessary steps to secure attendance of the prosecution witnesses when the prosecution has taken recourse to the agency of the Court for the said purpose. As pointed out earlier in the instant case the learned Magistrate has not even examined the accused under Section 242. Cr.P.C. though on two occasions all the five accused have appeared before the Court and when the prosecution sought the agency of the Court for summoning the prosecution witnesses the learned Magistrate rejected the prayer of the prosecution and proceeded to acquit the accused on the ground of absence of evidence. As such and in view of the judicial pronouncement, referred to above, the order of the lower Court acquitting the accused which is illegal cannot be sustained.
3. In the result. the appeal is allowed, the order of the trial Magistrate acquitting the accused is set aside and the case is sent back to the 1st Class Magistrate. Agartala for disposal according to law.