Rajvi Roop Singh, J.C.
1. This is a Criminal Reference made by the learned Sessions Judge, Tripura, in Criminal Motion No. 136 of 1063 with a recommendation for setting aside the order of the Magistrate 1st Class, Sadar, D/-19-7-63 passed in G. R. Case No. 973 of 1962.
2. The facts leading up to this reference are as follows:
3. On 19-9-62 the petitioner, Suresh Chandra Goswami, lodged an F I R at Sidhai P S to the effect that a mare purchased by him about a couple of years back from one Akramuddin of Jagatpur was missing from his courtyard since one night in the month of previous Baisakh, that while searching for the said mare, the petitioner received an information from one Badan Deb Barma that his mare was in the house of the accused opposite party Suresh Chandra Debnath and that he found out the mare at a place to the south west of the house of Suresh Debnath. The accused opposite party with the mare having been produced at the P S at the time of lodging the F I R was arrested. The Police having investigated and submitted a charge-sheet against the accused opposite party under Section 379/411, I. P. C., Shri K. P. Chakraborty, Sub-Divisional Magistrate took cognizance and transferred the case to the file of Shri W. U. Molla, Magistrate First Class, who framed a charge under Section 411, I. P. C. against the opposite party by his order D/- 16-3-63. The accused opposite party pleaded not guilty and the learned Magistrate by his order of the same date directed the issue of summonses on the P. Ws. fixing 18-4-63 for the examination of the P. Ws. He also directed issue of notice to the surety to produce the mare which had been earlier released on bail. On 18-4-63 the prosecution was present with 4 P. Ws; but as the mare was not produced by the surety, the learned Magistrate adjourned the case to 20-5-63 upon a direction on the surety to produce the same positively on that date. On 20-5-63 the prosecution was present with 4 P. Ws.; but the case was adjourned to 17-6-63 for P. Ws. on the ground that the conducting Court Sub-Inspector had been transferred and his reliever had not yet joined. On 17-6-63 no P. Ws. being present, the Court Inspector prayed for adjournment and for issue of processes on witnesses; and the learned Magistrate adjourned the case to 16-7-63 for P. Ws. upon an order to the following effect:
Accused is present. No P. Ws. to-day. Summons issued from the Court.' Further summons could not be issued. Prosecutor must be present with his witness on the next date.
On 16-7-63 as no P. Ws. were present, the Court Inspector made a prayer for time and processes and the learned Magistrate adjourned the case to 19-7-63 for P. Ws. after recording the following words:
Accused is present. No. P. Ws. today. Tadbir filed. Prosecution given last time. Prosecution must remain ready with all P. Ws. on the next date. No further time will be allowed. To 19-7-63 for P. Ws.' Thereafter on 19-7-63 the learned Magistrate passed the impugned order acquitting the accused Suresh Chandra. Debnath after recording the following orders:
The accused Suresh Chandra Debnath appears. No. P. W. present to-day. No special tadbir from the prosecution. The prosecution had sufficient time to produce his witnesses. I do not like to drag the case giving the prosecution time after time to produce witnesses. The prosecution case therefore fails for want of evidence.
The accused is not therefore found guilty under Section 411, I. P. C. as charged in the case. 1 he accused claims the mare involved in the case as his own being purchased from one Raimohan Debnath son or Mahesh Chandra Debnath of Champaknagar by a receipt dated 12-4-69 B. S. In the face of the evidence, the defence claim cannot be ignored.
Hence it is ordered
The accused Suresh Chandra Debnath is acquitted and set at liberty. The accused gets the mare with its young in due course of time.
4. Being aggrieved by this order the petitioner filed the revision petition before the learned Sessions Judge, Tripura and the learned Sessions Judge after hearing the counsel for the petitioner and the Government Advocate has made this reference for setting it aside.
5. After hearing the counsel on both sides, I am of the opinion that the order of the Magistrate is illegal and cannot, therefore, be maintained.
6. This is a case in which trial must be held in. accordance with the procedure for trial of warrant cases instituted on Police report as laid down under Section 251A, Criminal P. C. It is true that Sub-section (7) of Section 251A lays down that on the date fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. That however, does not mean that if on the date fixed the prosecution witnesses are not present, the learned Magistrate is competent to pass an order acquitting, the accused simply for that reason. Sub-section (11) of Section 251A, Criminal P. C. provides that if, in any case under this section in which a charge had been framed, the Magistrate finds the accused not guilty he shall record an order of acquittal. The language of Sub-section (11) of Section 251A, Criminal P. C. is exactly similar to that of Section 258 (1), Criminal P. C. which provides for acquittal of an accused in warrant case instituted otherwise than on a Police report. It is, therefore, clear that a finding of not guilty by the learned Magistrate is essential for acquitting an accused in all warrant cases,
It is however well settled that acquittal of an accused in any warrant case under the law, as it stood before Section 251A which makes special provision for trial of warrant cases instituted on Police reports was introduced in the Code of Criminal Procedure by way of amendment in 1956, and acquittal simply on the ground of absence of the witnesses was illegal unless it was a case where the prosecution had undertaken to produce the witnesses and that it was the duty of the Magistrate to secure attendance of the witnesses by issue of summons or, by coercive process, if necessary. Having regard to the similarity of language in Sub-section (11) of Section 251A and Section 258 (1), it follows that the Magistrate's duty, in the event of non-attendance of prosecution witnesses in a warrant case instituted on a Police report, remains the same even after the amendment.
In the recent Patna case State of Bihar v. Polo Mistry reported in : AIR1964Pat351 arising out of a revision petition against the order of acquittal by a Magistrate under Section 251A (11), Criminal P. C., his Lordship G. N. Prasad J, considered the true scope of Sub-section (7) of Section 251A. In that case his Lordship held that where the prosecutor in a criminal trial has himself undertaken to produce the prosecution witnesses, the entire responsibility for the production of the evidence in support of the prosecution case is that of the prosecutor; but when the prosecutor has taken recourse to the agency of the Court for securing the attendance of the prosecution witnesses, it is undoubtedly the duty of; the Magistrate to take steps for securing the attendanca of the prosecution witnesses in his Court. His Lordship set aside the order of acquittal passed on the accused in that case pointing out that in that case the prosecutor had relied upon the agency of the Court for securing the attendance of the prosecution witnesses and it was not left to the prosecutor himself to produce the prosecution witnesses for their evidence at the trial. His Lordship further made the following observation in this connection:
In the circumstances of the case, the obvious course which the learned Magistrate should have followed was to have taken steps to compel the attendance of the witnesses for giving their evidence in the case, It was quite wrong for the learned Magistrate to have proceeded to acquit the respondents on the footing that there was no evidence against them. The order of acquittal cannot therefore stand.
7. In my view, the above Patna ruling is clearly applicable to the present case. For in the present case, summonses were issued on the prosecution witnesses under the orders of the Court at the first instance and the prosecution witnesses appeared in response to such summons on 18-4-63 as also on 20-5-63. If any adjournments became necessary on 17-6-63 and 16-7-63 for the absence of P. Ws., it was because no further summonses were issued on them. It would appear that both on 17-6-63 and 16-7-63 the Court Inspector while praying for time also prayed for processes on the witnesses. Therefore, at no stage of the case, the prosecutor can be said to have undertaken to produce the prosecution witnesses. On the other hand, the fact : that summonses were issued on the prosecution witnesses at the first instance and that both on 17-6-63 and 16-7-63 the Court Inspector i. e. the prosecutor made prayers for issue of processes On the witnesses goes to show that the prosecutor had relied upon the agency of the Court for securing the attendance of the prosecution witnesses, it cannot, therefore, be held that it was left to the prosecutor himself to produce the prosecution witnesses for their evidence at the trial. The learned Magistrate, therefore, cannot be absolved of the responsibility of securing the attendance of the prosecution witnesses on the date fixed by simply ordering that 'Prosecutor must be present with his witnesses on the next date' or by passing an order to the effect 'Prosecution must remain ready with all P. Ws. on the next date. No further time will be allowed.' It was his bounden duty to have taken steps to compel the attendance of the witnesses by issue of fresh summonses or other-wise. In such circumstances, the order of acquittal of the accused opposite party on the ground of want of evidence is, in my opinion, entirely illegal.
8. The order of acquittal cannot, therefore, stand. I, therefore, accept the reference and set aside the acquittal order of the accused opposite party and send the case back for disposal according to law.