T.K. Tukol, J.
(1) This is an appeal by the State against the order of acquittal passed by the Munsiff Magistrate, Holenarasipur, on 30-5-1963 in Criminal Case No. 132 of 1963 on his file.
(2) The facts relevant to the determination of the points at issue are few and simple. A charge sheet was filed against the respondents for an offence punishable under S. 324 of the Indian Penal Code on 5-2-1963. When the accused appeared after service of summons, the Magistrate satisfied himself that the documents referred to S. 173 of the Code of Criminal Procedure had been furnished to them and framed a charge against the accused for the offences for which they have been charge sheeted. The accused pleaded not guilty and so the case was adjourned for production of prosecution witnesses. After some adjournments caused either by the absence of the accused, want of time for the Court or the absence of the prosecution witnesses, the case was adjourned 25-10-1963. On that date Accused No. 1 was absent and his Advocate undertook to keep him present on the next date, i.e., 22-11-1963. The Court ordered summons to be issued to the prosecution witnesses for appearance on the later date.
The order sheet of 22-11-1963 discloses that all the accused were present but that the prosecution had not produced the property under witnesses. It is not clear as to what had happened to the summons issued on the previous date. So the Magistrate recorded that he was giving the last chance and directed the issue of fresh summons to the witnesses for appearance on 13-12-1963. On the later date he passed the following order of acquittal which has been impeached by the State in appeal :
'Govt. by Pr. S. I.
Accused A 2 to A 4 present
Exemption application in respect of A1 filed allowed.
The I.O. is absent. No witnesses are in attendance inspite of final chance given. Ss. of witnesses not returned. As the Court has given sufficient warning and witnesses are not in attendance, there is no evidence as such against the accused person. They are, therefore, acquitted under S. 251-A (!1) Cr. P.C.''.
(3) It has been contended by the learned Government Pleader appearing for the State that the Magistrate could not have passed the order of acquittal under sub-section (11) of S. 251A of the Code of Criminal Procedure without recording evidence and finding the accused to be not guilty, that having issued summons to the witness he should have taken steps by issuing warrants if necessary, to secure the presence of the witness and that the order of acquittal passed under the circumstances was contrary to law. Mr. R.N. Narasimha Murthy the learned Advocate for the respondents accused submitted that the Magistrate was justified in recording an order of acquittal as the prosecution had failed to keep the witness present and that an order of acquittal could be passed under sub-section (11) of S. 251A even where no evidence is produced for the prosecution.
In support of this contention he placed reliance on the decision of the Gujarat High Court in State of Gujarat v. Bava Bhadya, 1962 (2) Cri LJ 537 (2)(Guj). On facts their Lordships found that the P.S.I. and the Head Constable had remained indifferent and made no serious efforts to serve the summons and the grounds put forward for their failure to serve the witness in time were not sound. The following extract from Paragraph 8 of the judgment sums up the view which their Lordships took in that case in upholding the order of acquittal:
'....There being no provision under S. 251-A for an order of discharge in a case where a charge has already been framed, the only provisions on which he can act would be Sub-section (11). In our view, on the failure of the prosecution to produce the prosecution witness, the injured woman Bai Kali and her husband, and on the failure of the prosecution also to produce any other witness, though as many as ten witness were cited in the charge sheet, the only thing the learned Magistrate could do was to pass an order of acquittal under sub-sec.(11) of S. 251-A Cr. P.C.'
Their Lordships relied upon the decision of the Calcutta High Court in Sadek Mahammad v. Jyothish Chandra : AIR1948Cal83 . But that decision was rendered before S. 251-A was introduced by the amendment of the Code in 1955.
(4) Before dealing with the authorities bearing on the relevant point, it is necessary to refer to the scheme of S. 251-A which is one of the two sections substituted for the old S. 251 by Act No. 26 of 1955. The scheme of action is so framed as to ensure speedy disposal of warrant cases instituted on police Report without in any way prejudicing the accused. As soon as the accused appears or is brought before the Magistrate, the latter has to satisfy himself that the documents referred to in S. 173 of the Code have been furnished to the accused and after giving the prosecution and the accused an opportunity of being heard, the Magistrate is either free to discharge the accused if he considers the charge against him to be groundless or to frame in writing a charge against him if he is of the opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case. The charge has then to be read over to the accused and if he pleads guilty it is open to the Magistrate to convict him. If he refuses to plead or pleads not guilty, sub-section (7) of that section requires the Magistrate to proceed to take all such evidence 'as may be produced in support of the prosecution'. The accused is then entitled to cross examine such witness and can thereafter be called to enter upon his defence and produce his evidence.
Sub-section (9) specifically provides that if the accused, after he has entered upon his defence, applies to the Magistrate to issue any process of compelling the attendance of any witness for the purpose of examination or cross examination or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on any of the grounds mentioned therein. Before summoning any witness on such an application, discretion is given to the Magistrate, by sub-section(10) to require reasonable expenses to be deposited in court by the accused. It is necessary to note that none of the sub-sections of Section 251-A provide for issue of summons to the witness for the prosecution at the instance of the prosecutor. But Chapter VI of the Code contains various provisions dealing with powers of the Court to issue summons, warrants for arrest, search warrants, etc. Where a prosecution is instituted on behalf of a State it is open to the prosecutor to keep the witness present if their attendance could be secured without the assistance of the Court. Where it is not possible for the prosecutor to secure the attendance of any of the witness without summons, he can pray to the Court to render the necessary assistance by issuing any process for compelling attendance of any witness for the purpose of giving evidence in the case.
Sub-section (11) lays down that 'if, in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal'. The word 'finds' seems to have been used in the sense of 'decides', 'concludes' or 'holds' implying that the finding to be arrived at shall be after consideration of all the evidence adduced by the prosecution, the plea of the accused and evidence adduced on his behalf if any. This section occurs in Chapter XXI of the Code which also provides for the procedure for trial of warrant cases 'instituted otherwise than on a police report' and embodies in Section 258(1) provisions identical with those in sub-section (11). The Code does not provide for or contemplate an order of acquittal being recorded merely on the ground that the prosecution or the complainant had failed to produce evidence on the date fixed by the Magistrate. We do not desire to express any opinion in the present case on the question whether the Magistrate cannot at all record an order of acquittal under any circumstance where the prosecution or the complainant persistently and unreasonably fails in his obligation to keep the witness present or secure their attendance.
(5) In the present case the order sheet does not disclose fully what was the nature of the request made by the Prosecuting Officer who was present in court. Having issued summons for securing the attendance of the witness, the Court should have enquired as to why the summons had not been returned or whether diligent efforts had been made to serve the witness with the summons. No such enquiry seems to have been made by the Magistrate. When once the summons are issued for securing the attendance of witness, the Court has also to see that the prosecuting agency exercise due diligence in the execution of those process and to render further assistance in suitable cases by issue of warrant where the witness summoned and served fails to attend the Court. In warrant cases where the law requires the State to undertake the burden of prosecuting the offenders in public interest to ensure law and order, the Court also has its responsibility to see that justice is done by a fair and speedy trial. Passing orders of discharge or acquittal without just and sufficient grounds would be contrary to law and against public interest.
(6) That an order of acquittal like the one impugned in the present case is unsustainable is supported by decisions of numerous High Courts. In Nathuram v. Pannalal, AIR 1961 Assam 91 the accused had been charge sheeted by the Police for an offence of theft. The Magistrate passed an order of acquittal after refusing adjournment to the prosecution holding on the affidavit filed by the accused that the prosecution witness were deliberately avoiding to attend the court. In setting aside the order of acquittal a Division Bench of that High Court held that the order of acquittal passed in that case did not either in form or substance amount to an order passed under Section 251-A(11) of the Code and was illegal. A similar view has been taken by the Kerala High Court in State of Kerala v. Gopalan, : AIR1962Ker3 where the accused had been acquitted on the ground that the first informant was absent, even without examining any of the witness present in the court. It was held that the Magistrate had erred in passing the order of acquittal without examining the witnesses and that he has got a right to record an order of acquittal under Section 251-A(11) only if he finds the accused not guilty (See also State of Kerala v. Krishna, : AIR1962Ker8 . In the State of Orissa v. Sib Charan Singh, : AIR1962Ori157 on a charge-sheet filed by the Police the Magistrate had framed a charge against the accused under S. 304-A and had directed the issue of summons for the prosecution witness fixing 25-5-1961 for hearing. On that date and subsequent dates the prosecution was not able to serve the summons and finally on 28-6-1961 the Prosecuting Sub-Inspector filed a further petition for adjournment for production of witness on the ground that they were not available and prayed for issue summons through a special messenger. The learned Magistrate rejected the petition, examined the accused under S. 342 of the Code of Criminal Procedure and acquitted him on the ground that there was no evidence whatsoever produced by the prosecution to prove the case. The facts of this case are almost identical with the facts of the instant case. In setting aside the order of acquittal, the Court referred to the provisions of Section 251-A(11) and came to the conclusion that recording of an order of acquittal based upon the finding of not guilty is dependent upon the merits of the case supported by the evidence and that the said provision did not contemplate a case being disposed of by acquittal without any evidence. The Court noticed that there was some lacuna in the Code of Criminal Procedure as it does not provide for recording an order of acquittal where the prosecution does not produce any evidence. The court opined that the lacuna can possibly be obviated to some extent if the court takes all steps for the production of the witness. The Patna High Court in State of Bihar v. Polo Mistry, : AIR1964Pat351 also took the view that
' It is undoubtedly the duty of the Magistrate to take steps to securing attendance of prosecution witness in his Court, where the Prosecutor has taken recourse to the agency of Court for securing the attendance of the prosecution witness.'
In that case the Magistrate had framed charges against the various accused charge-sheeted by the Police for offences under sections 324, 325 etc. The Magistrate had ordered summons to be issued for the appearance of the prosecution witness on three consecutive dates. None of the prosecution witness appeared though the summons had been returned served. He recorded an order of acquittal under section 251-A(11) on the ground that there was no evidence against the accused. The order was set aside on the ground that it was wholly erroneous and misconceived.
(7) On a careful consideration of the provisions contained in Section 251-A and the other provisions contained in the Code relating to the trial of warrant cases and the issue of process against the witness, we are of the opinion that having once issued the summons to secure attendance of witness, it was the duty of the Magistrate to have enquired into the causes of non-service or non-return of the summons and to have taken further steps as were necessary in the circumstances of the case to secure the attendance of witness, particularly when there was no material before him to show that there had been any remissness on the part of the prosecuting agency. We accordingly allow the appeal, set aside the order of the acquittal and remit the case back to the Court of the Magistrate for disposal according to law.
(8) Appeal allowed.