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State of Sikkim Vs. M.K.O. Nair and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1986CriLJ415
AppellantState of Sikkim
RespondentM.K.O. Nair and anr.
Cases ReferredState v. Narasimha Gowda
Excerpt:
- - 4-2-1985, that on the previous date the prosecution had itself undertaken to get the processes executed but they failed to do so and that ever since the case was transferred to him no progress could be made in the case in the absence of the two witnesses. 7. this leads me to the question whether in a trial governed by section 251 a, the court is bound to adjourn the case till all the witnesses have been examined, even if the prosecution had not acted diligently, and had failed to state as to what had happened to the summonses issued in pursuance of its request on the previous date that the prosecution would serve the summonses. to hang the fate of the accused indefinitely, on account of the failure of the prosecution to produce witnesses, will amount to grave injustice to the.....orderr. dayal, j.1. this revision challenges the validity of the order dt. 4-2-1985, passed by the learned additional sessions judge, gangtok, whereby the prayer made by the prosecution for adjournment and issue of fresh summonses to two witnesses, namely, shri k.p. chinnaswami, assistant director of education, tamil nadu, and shri g. krishnamoorthy, s.p., special branch, kerala, was at first allowed on payment of rs. 500/- as costs, but later on the prosecution declining to pay the costs, was refused and the prosecution evidence was closed.2. fir against both the accused-respondents was lodged on 23-3-1982, and they were arrested and released on bail some time in march or april, 1982. a charge-sheet was filed against them on 1-9-1982, by the sikkim vigilance police under section 120b.....
Judgment:
ORDER

R. Dayal, J.

1. This revision challenges the validity of the Order dt. 4-2-1985, passed by the learned Additional Sessions Judge, Gangtok, whereby the prayer made by the prosecution for adjournment and issue of fresh summonses to two witnesses, namely, Shri K.P. Chinnaswami, Assistant Director of Education, Tamil Nadu, and Shri G. Krishnamoorthy, S.P., Special Branch, Kerala, was at first allowed on payment of Rs. 500/- as costs, but later on the prosecution declining to pay the costs, was refused and the prosecution evidence was closed.

2. FIR against both the accused-respondents was lodged on 23-3-1982, and they were arrested and released on bail some time in March or April, 1982. A charge-sheet was filed against them on 1-9-1982, by the Sikkim Vigilance Police under Section 120B read with Sections 468, 471 and 417, Penal Code. Charges were framed against both the respondents under Sections 120B, 468, 471 and 417, Penal Code, by the learned Sessions Judge on 18th May, 1983, and the prosecution evidence commenced on 25-10-1983. On 9-10-1984, the prosecution made an application for issue of warrants of arrest against both the witnesses, namely, Shri K.P. Chinnaswamy, Asstt. Director, Technical Education, Government of Tamil Nadu, Madras, and G. Krishnamoorthy, S.P., Alleppey, Kerala. However, a radiogram message had earlier been received from Shri Krishnamoorthy making a request for sending sufficient advance TA for journey to Sikkim and back and also for one month's notice for getting sanction for proceeding to Sikkim. The learned Sessions Judge observed that no advance could be sent to the witness for want of any provisions in this regard in the relevant rules. Regarding Chinnaswami no intimation had been received. Therefore the learned Sessions Judge ordered the issue of fresh summons to Krishnamoorthy and bailable warrant against Shri Chinnaswamy for 5-11-1984. Further, in view of the fact that the learned Sessions Judge was proceeding on long leave, he transferred the case to the learned Additional Sessions Judge. On 5-11-1984, the learned Additional Sessions Judge found that the processes had not been received back after service. However, a letter dt. 1-10-1984, had been received from the Director, Technical Education, Madras stating that the summons had been served on K.P. Chinnaswamy on 21-9-1984, and he had already made a request for obtaining the orders of the Government of Tamil Nadu to attend the Court in Sikkim and also for sanction of necessary T.A. advance. He further stated that the Government of Tamil Nadu was being addressed to accord necessary permission to attend the case in Sikkim. He made a request to adjourn the case and further stated that as soon as the orders of Government of Tamil Nadu were received, the fact would be intimated to the Court to fix a date for appearance of the officer. In view of this letter and also because no report was received about the service of the summons in repsect of the other witness, the learned Additional Sessions Judge ordered the issue of summonses to both the witnesses for 10-12-1984. On 10-12-1984, the processes were not received back after execution and on the request of the prosecution, summonses were directed to be issued again for 7-1-1985, with the direction that the prosecution should see that the processes were executed and returned in time. However, in the meanwhile another letter dt. 3-12-1984, was received from the Director of Technical Education, Madras, Tamil Nadu, who, while returning the summons relating to Chinnaswamy issued for 5-10-1984, stated that summons should, in future, be sent through the Commissioner and Secretary to the Education Department, Government of Tamil Nadu, as already stated in his earlier letter dt. 1-10-1984. It was further stated that it was only after the receipt of the permission from the Government of Tamil Nadu that Shri Chinnaswamy could be deputed for appearing in the Court in connection with the case. By this letter also, a request was made for adjourning the case stating that as soon as the order of the Government of Tamil Nadu was received, the fact would be intimated to the Court to fix a date for appearance of the officer. On 13-12-1984, a prayer was made on behalf of the prosecution to issue summonses to the witnesses through the Vigilance Department for execution. This request was allowed and the summonses were ordered to be issued for 4-2-1985. By 4-2-1985, also the summonses were not received after execution. On that date even, the Vigilance Department did not intimate to the Court as to what had happened to the summonses which had been issued by the Court on the previous date through them for execution. On the other hand, the prosecution moved an application on that date stating that it was not known if the summonses had been received by the witnesses or not. A prayer was also made for issue of fresh summonses to the witnesses through their respective departmental heads under registered post and that summonses should be signed by the Presiding Officer himself and not by the Reader. The learned Additional Sessions Judge observed in his order dt. 4-2-1985, that on the previous date the prosecution had itself undertaken to get the processes executed but they failed to do so and that ever since the case was transferred to him no progress could be made in the case in the absence of the two witnesses. He further observed that one of the accused, namely, Shri Koshi John, had to come to the Court all the way from Kerala only for this case and the prosecution had had several opportunities to produce the two witnesses. With these observations, the learned Additional Sessions Judge passed an order adjourning the case on payment of Rs. 500/- as costs; but immediately thereafter the prosecution expressed inability to pay the costs, adding that the Court might proceed further with the case. Consequently, adjournment was refused and prosecution evidence was declared closed. Feeling aggrieved, the State of Sikkim has filed this revision.

3. Shri V.J. Rao, the learned Advocate-General appearing on behalf of the petitioner challenges the validity of the impugned order on three grounds, firstly, that the summonses were not proper inasmuch as they bore the signatures of the Reader and not of the Presiding Officer of the Court; secondly, that there is no provision in the Cr. P.C. for awarding costs and, therefore, the order imposing costs was in violation of law; and thirdly, that it is not only the duty of the prosecution to produce evidence in a cognizable case instituted on a police report but also the duty of the Court to see that all the witnesses are examined before the stage is reached to decide the case and, therefore, evidence could not be closed by the Court until all the witnesses had been examined.

4. Sikkim became a component State of the Indian Union by and under the Constitution (Thirty-sixth Amendment) Act, 1975, which inserted Article 371F in the Constitution. Code of Criminal Procedure, 1973, has not yet been extended to Sikkim by means of a Notification which could be issued under Clause (n) of that Article or otherwise. Therefore, as per Article 371F(k) the law of Criminal Procedure which was applicable in Sikkim on 26th April, 1975, is still the law in force in Sikkim and that law is, according to the declaratory enactment the Sikkim Criminal Procedure Act, 1976, the Code of Criminal Procedure, 1898, subject to the exceptions and modifications mentioned in the Schedule to that Act. According to the Schedule the provisions contained in Chapters XVIII and XXIII, Cr. P.C, 1898, are not applicable, and the trial before the Court of Session is to proceed according to the provisions of Chapter XXI of the Code. In other words, Section 251A, Cr. P.C, 1898, governs the procedure for trial in a warrant case instituted on a police report, before the Court of Sessions in Sikkim.

5. Before entering into the procedural controversy relating to Section 251A, it would be convenient to consider the first two objections raised by the learned Advocate-General. As regards the signing of summonses, Section 68(1), Cr. P.C, 1898, states that every summons issued by a Court shall be in writing in duplicate, signed and sealed by the Presiding Officer pf the Court or by such other officer as the High Court may from time to time by rule direct. It is the common case of theparties that no directions have been issued by the High Court by any rule in this regard. Therefore, to meet the requirement of the Section 68, the summonses should have been signed by the learned Addl. Sessions Judge himself and not by the Reader. Though in the application dated 4th February, 1985, the prosecution had stated that the summonses should be signed by the Presiding Officer himself and not by the Reader, the learned Additional Sessions Judge did not make any comment about it in his order of that date. Since the summonses were not received back by the Court, it cannot be said with certainty as to whether the summonses had been signed by the Reader or the Presiding Officer. But even if the summonses had been signed by the Reader, the learned Advocate-General could not show that any prejudice had been caused to the prosecution for that reason. In other words, it could not be shown that the service could not be effected for that reason or the witnesses did not appear on that ground. On the other hand, it would appear from the facts as stated earlier, that one witness was asking for advance T.A; and the other was getting letters issued from the Director, Technical Education that the date for hearing should not be fixed until the Director was to intimate the Court that the sanction had been received from the Tamil Nadu Government permitting the witness to appear in the Court. I hope that the criminal Courts in Sikkim shall in future, be following the provisions of Section 68, if they are not already following the same. However, so far as the present case is concerned, this ground of attack is of no consequence on the facts of the case.

6. As regards the other contention of the learned Advocate-General regarding the imposition of costs, Sub-section (1), Section 344, Cr. P.C. 1898, provides that in every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded Sub-section (1A) provides that if from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable. The expression 'on such terms' is wide enough to empower the Court to impose costs. Therefore, where there is a scope for the use of the Court's discretion to adjourn or to refuse to adjourn, it is very much within the power of the Court to adjourn subject to payment of costs. As such, the question that remains for consideration is whether the Court was bound to adjourn and did not have the discretion to refuse to adjourn, on the facts of the case. If the Court did not have the discretion and was bound to adjourn the case, the petitioner must succeed on the third submission which is yet to be discussed. However, in case the Court is found to have had the discretion to refuse the adjournment, the petitioner is not entitled to succeed on the ground that costs could not be imposed legally.

7. This leads me to the question whether in a trial governed by Section 251 A, the Court is bound to adjourn the case till all the witnesses have been examined, even if the prosecution had not acted diligently, and had failed to state as to what had happened to the summonses issued in pursuance of its request on the previous date that the prosecution would serve the summonses.

8. The scheme of Section 251 A, Cr. P.C. 1898, is so framed as to ensure speedy disposal of a warrant case instituted on a police report. As soon as the accused appears or is brought before the Magistrate, the latter has to satisfy himself that the documents referred to in Section 173 of the Code have been furnished to the accused, and after considering these documents and giving the prosecution and the accused an opportunity of being heard, he may either discharge the accused if he considers the charge against him to be groundless, or 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 and explained to the accused and if the accused pleads guilty, the Magistrate may, in his discretion, convict him, but if the accused refuses to plead or does not plead guilty, he has to fix a date for the examination of the witnesses under Sub-section (6). Sub-section (7) provides that on the date fixed for the examination of the witnesses the Magistrate shall proceed to take all such evidence, as may be produced in support of the prosecution. Then, the accused is entitled to cross-examine such witnesses and, thereafter has to be called upon 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 for 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 the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Sub-section (10) empowers the Magistrate to get deposited in Court the reasonable expenses to be incurred by the defence witnesses in attending the Court, before the witnesses are summoned on the request of the accused. Sub-section (11) says that if in any case in which the charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal. Section 251A nowhere specifically enjoins upon the Court the duty to summon prosecution witnesses though it provides for the summoning of the defence witnesses. Sub-section (7) which requires the Magistrate to take all such evidence as may be produced in support of the prosecution is in contrast with Sub-section (2), Section 252, applicable to a warrant case instituted otherwise than on a police report, which provides that the Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give before himself such of them as he thinks necessary. It is also noteworthy that the Code of Criminal Procedure, 1973, has also provided in Sub-section (2) of Section 242 which is applicable to a warrant case instituted on a police report that the Magistrate may, on the application of the prosecution, issue summons to any of its witnesses directing him to attend or to produce any document or other thing. It would also be relevant to mention that before amendment was made in the Code by the Amendment Act of 1955, the provisions of Section 252 were applicable even to a case instituted on a police report. Before the amendment, the procedure for the trial of warrant cases, whether instituted on a police report or otherwise, was the same and so Section 252(2) was applicable even to a case instituted on a police report. It was after the amendment was effected by the Amendment Act of 1955 that Section 251A was introduced to govern the procedure in respect of warrant cases instituted on a police report The absence of the provision regarding issue of summonses in Section 251A led the different High Courts (to) have divergent views as to the duty of the Court regarding the production of the prosecution witnesses. In some cases, an extreme view was taken that because of the clear distinction in the language of the procedure prescribed in Section 251A and Section 252, the Court has no duty or obligation to summon any witness even if asked for, by the prosecution if the case is instituted on a police report. On the other hand, in some cases an extremely contrary view was taken that it is the duty of the Court to summon prosecution witnesses and to take all possible measures to compel their attendance including issuance of warrants of arrest. The view was expressed that if the prosecution fails to produce witnesses, the Court has the power and a duty cast upon it, under Section 540 to enable the Court to arrive at the truth and to decide the case. The expression 'finds' in Sub-section (11), Section 251A was interpreted in the sense of 'decides', 'concludes' or 'holds', implying that the finding shall be arrived at after consideration of the evidence of all the witnesses and it was stated that until the entire prosecution evidence was on record, the stage was not reached to decide the case under Sub-section (11) of Section 251A and, therefore, to reach that stage, it was the duty of the Court to procure the evidence of all the prosecution witnesses. With respect, neither of these two extreme views appears to be correct. In some cases balancing views were also expressed. The correct position appears to be that in a warrant case instituted on a police report, the primary duty is of the prosecution to produce witnesses, but since the prosecution has no power to compel the attendance of the witnesses, it is fully justified in seeking the help of the Court for their production. The help may besought by making a prayer for issuance of summonses to the prosecution witnesses, or to issue warrants of ' arrest, if necessary. But unless such a prayer is made, it is not the duty of the Court to issue any summons or warrant of arrest. It is one thing to say that the Court has the power to issue a process to compel the attendance of a witness if the Court thinks it necessary to do so, and quite another to say that the Court has the duty to do so. There is nothing in Sub-section (7), Section 251-A, to cast a duty on the Court to procure the attendance of the witnesses, if not asked for, by the prosecution. It follows from this that if the prosecution has been negligent in procuring the presence of the witnesses, the Court has the power to refuse the adjournment, or to allow adjournment on payment of costs. The police must remember that it has a duty towards a citizen and it is the prosecution's duty to make necessary arrangement to produce evidence and they cannot just send a challan and think that the rest will be done by the Court. When the accused is brought before the Court to stand trial in a criminal case and the prosecuting department does not take steps for expeditious production of the witnesses, it will be an abuse of the process of the Court to go on adjourning the case, merely on the asking. Justice means justice to both the parties. To hang the fate of the accused indefinitely, on account of the failure of the prosecution to produce witnesses, will amount to grave injustice to the accused, particularly if the accused has to come from a distant place. Injustice so caused will be even more pronounced, if the case has been pending for a long time, as in the present case. It is a fundamental principle of criminal law that an accused is presumed to be innocent until the Contrary is proved. To make an accusation as the commission of a crime is a grave matter and to hold a man under that accusation for an unduly long period and that too on account of laches of the prosecution by postponing continually the decision as to the guilt or innocence of the accused is too serious to be taken lightly. In my view, the expression 'finds' in Sub-section (11) of Section 251-A means finding on the basis of the evidence on record, and there is no warrant for holding that to find whether the accused is not guilty, it is the duty of the Magistrate to procure all the prosecution evidence or to adjourn the case until all the prosecution witnesses have been produced. To hold otherwise would mean that the Magistrate has the duty not only to adjudge whether the accused is guilty or not, but also to step into the shoes of the prosecution, where the prosecution has lacked in prosecuting the accused. In this view, I find support from Jyotirmoyee v. Birendra Nath : AIR1960Cal263 where it was observed that Sub-section (6), Section 251-A does not enjoin upon the Magistrate any duty to compel the attendance of any witness unless it was applied for. In State v. John Abraham 1961 (2) Cri LJ 92(1) observations were made to the effect that the words 'to take all such evidence as may be produced in support of the prosecution' in Section 251-A (7) do not mean that the Court is bound to examine all the witnesses whose names are mentioned in the police report. The duty of the Court is only to take evidence which is ready when the case is taken up for hearing and the Magistrate is not bound to go on adjourning the case until all the witnesses mentioned in the police report are examined. In another case in State v. Ram Lal 1961 (2) Cri LJ 331 the Allahabad High Court took the view which was properly summarised in the head note as under:

Section 252 imposes a duty upon the Magistrate to ascertain the names of the witnesses who can give evidence on the relevant points and to summon those witnesses in evidence. But by providing an entirely new procedure under Section 251-A, Cr. P.C., in cases instituted by the police, the Legislature has deliberately departed from that procedure and in the new procedure has made no provisions for summoning of the prosecution witnesses. There is, therefore, no authority in law for the proposition that the public prosecutor can make an application for summoning of the prosecution witnesses and in such a case the Magistrate is bound to summon these witnesses and in the absence of issuing summons the Magistrate is unable to proceed with the case. The whole object of the section appears to have been that the police should be prepared to produce its witnesses when the case is called upon for hearing and it should not be permitted to take shelter behind the absence of witnesses on account of want of summons by the Court.

Similarly, the Gujarat High Court observed in State of Gujarat v. Bava Bhadya 1962 (2) Cri LJ 537(2):

8. Section-A lays down the procedure to be adopted in warrant cases instituted on police report. Under Sub-section (7) of that section, it is clearly provided that on the date fixed for hearing, the learned Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. The words of this sub-section show that the duty of the trial Magistrate is to take such evidence as would be produced before him in support of the prosecution. If for one reason or the other, the prosecution fails to produce such evidence before him, the only alternative left to the learned Magistrate would be to act under Sub-section (11) of that section, in cases where a charge has already been framed, and to make an order to the effect that he finds the accused not guilty as the prosecution has failed to produce any evidence in support of the charge and then to record an order of acquittal. There being no provision under Section 251-A for an order of discharge in a case where a charge has already been framed, the only provision on which he can act would be Sub-section (11). In our view, on the failure of the prosecution to produce the prosecution witnesses, the injured woman Bai Kali and her husband, and on the failure of the prosecution also to produce any other witnesses, though as many as 10 witnesses were cited in charge-sheet, the only thing that the learned Magistrate could do was to pass an order of acquittal under Sub-section (11) Section 251 A, Cr. P.C.

9. A division bench of the Patna High Court observed through Untwalia, C. J. (as he then was) in State v. Mangilal 1974 Cri LJ 221:

The correct position of law in this regard is that in a warrant case instituted on police report, the primary duty is of the prosecution to produce witnesses; but since the prosecution which is the State or the Public Prosecutor has no power on machinery to compel attendance of the witnesses, it is fully justified in seeking the help of the Court for their production. Help of the Court may be asked for by praying to the Court to issue summonses to the prosecution witnesses. If after service of summons a witness does not appear, the prosecution may ask the Court to issue warrant of arrest. But unless such a prayer is made, it is not the duty of the Court either to issue any summons to the prosecution witnesses or to issue warrant of arrest if a prosecution witness does not appear even after service of summons. I must hasten to add that there is a difference between 'power of a Court' and 'duty of a Court'. Even if the prosecution does not make a prayer for issue of summons or for issue of warrant of arrest in a given case, the power is there as some of the cases have said, under the general powers of the Court, meaning thereby the inherent power of the Court, or such power to issue summonses may be spelt out under Section 450 of the Code and the power to issue warrants of arrest is surely there under Section 90 of the Code. It may be exercised suo motu or may be exercised on being asked to do so. But then to say that even if the prosecution is negligent or does not make a prayer to issue summonses or to issue warrants of arrest, it is imperative for the Court to follow suo motu the prosecution witnesses like a prosecutor, to say the least, is not justified. It is also not correct to say that it is not the duty of the Court to issue summons or warrant of arrest when the prosecution asks the Court to do so. But ordinarify and generally, unless there are special reasons to refuse the prayer, it is the duty of the Court, meaning thereby, it is imperative for the Court to allow the prayer of the prosecution to issue summons or to issue warrant of arrest, as the case may be. The Court may refuse to do so, if it finds that the prosecution is guilty of remissness or laches. But then the Court cannot refuse this prayer merely because Sub-section (7) Section 251-A does not provide for this.

6. If on the facts and the circumstances of a case the Court finds that the prosecution has not been able to produce its witnesses even if the helping hands of the Court were extended to it, then it is justified, rather it will be its duty in a hard case where the accused has been harassed to attend the Court on many dates, to close the prosecution case and proceed to conclude the trial in accordance with law as provided in various sub-sections of Section 251-A after Sub-section (7).

In State of Karnataka v. Subramanya Setty 1980 Cri LJ NOC 129 (Kant) the view was expressed that where there was remissness and want of diligence on the part of the prosecution in producing witnesses before the Court, it would be justified in refusing to grant an adjournment and to proceed to acquit the accused on the material on record under Section 255. A Full Bench of the Madras High Court observed in State v. Veerappan : AIR1980Mad260 :

After carefully considering all aforesaid decisions and the views expressed therein, we are of the view that if the prosecution had made an application for the issue of summons to its witnesses either under Section 242(2) or 254(2) Cr. P.C. it is the duty of the Court to issue summons to the prosecution witnesses and to secure the witnesses exercising all the powers given to it under the Cr. P.C, as already indicated by us and if still the presence of the witnesses could not be secured and the prosecution also either on account of pronounced negligence or recalcitrance does not produce the witnesses after the Court had given it sufficient time and opportunities to do so, then the Court, being left with no other alternative would be justified in acquittingthe accused for want of evidence to prove the prosecution case, under Section 248, Cr. P.C, in the case of warrant cases instituted on a police report and under Section 255(1), Cr. P.C, in summons cases, and we answer the two questions referred to us in the above terms.

10. It has already been observed that Section 242(2) of the new Code specifically enjoins upon the Court the duty to issue a summons on an application of the prosecution, which duty is not specific under Section 251-A of the old Code. The provisions of Section 251-A of the old Code are in no way more favourable to the prosecution than the provisions of Section 242 of the new Code and I am in respectful agreement with the view expressed in Veerappan's case. Similar view was taken in a later decision by the Calcutta High Court in Easin Ali V. Abdul Obdud 1982 Cri LJ 1052 by observing that Section 242 (2) and (3) gives a discretion to the Magistrate to issue summons to the prosecution witnesses on the application of the prosecution and casts a duty on the Magistrate to take all such evidence as may be produced by the witnesses on the date fixed.

11. Learned Advocate-General referred to three decisions in support of his contention that the prosecution evidence was closed by the learned Additional Sessions Judge contrary to the provisions of law. The first case cited by him is State of Bihar v. Polo Mistry : AIR1964Pat351 . In that case the prosecution witnesses had failed to appear in Court in spite of service of summonses upon them and there was no material before the learned Magistrate to indicate that there was reasonable excuse for the failure of the prosecution witnesses to appear in response to the summonses of the Court. Therefore, the prosecution made a prayer for the issue of warrants of arrest against the witnesses but the prayer was unjustifiably refused on the ground that the prosecution witnesses were reluctant to attend the court. In these circumstances, it was held that the learned Magistrate should have taken steps to compel the attendance of the witnesses for giving their evidence and it was wrong for the Magistrate to have proceeded to acquit the accused on the footing that there was no evidence against them. This case in no way supports the petitioner. Since there were no laches on the part of the prosecution in that case, the refusal to issue warrants of arrest against the witnesses was clearly unjustified. Even in that case it was observed that where the prosecutor has himself undertaken to produce the prosecution witnesses, the entire responsibility for production of the evidence in support of the prosecution case is that of the prosecutor. But where 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 attendance of the prosecution witnesses before the Court. It was in this context, that it was observed that in such a case, it cannot be held that the entire responsibility for securing attendance of the prosecution witnesses lies upon the prosecutor alone. Thus this decision is an authority for the proposition that where the prosecution undertakes to produce the prosecution evidence, the entire responsibility for production of prosecution witnesses is that of the prosecution; but where the prosecution seeks the assistance of the Court, the assistance should be given. It does not lay down that the Court is bound to adjourn the case even where the prosecution was negligent in makingprayer for issue of proper process or in complying with the undertaking to serve the summonses on the witnesses. The second case cited by the learned Advocate-General is Public Prosecutor v. M. Sambangi : AIR1965Mad31 where a single Judge of the Madras' High Court held that in a warrant case after the charge has been framed under Section 251-A, Cr. P.C. an important duty is laid upon the Court to see that all the powers available to the Court for the examination of the witnesses are exercised for a just decision of the case, irrespective of the laches of the complainant. This case was considered in the Full Bench case in State v. Veerappan : AIR1980Mad260 (supra) where a contrary view was taken. The other case cited is State v. Narasimha Gowda AIR 1965 Mys 167 : 1965(2) Cri LJ 48. In that case witnesses had not been produced by the prosecution despite the last opportunity having been givan, and there was nothing on the record to show as to what had happened to the summonses issued on the previous date. On the date fixed for hearing, the Magistrate recorded an order of acquittal under Section 251-A(11) on the ground that as the witnesses were not in attendance in spite of last chance given, there was no evidence as such against the accused person. It was held that having once issued the summonses it was the duty of the Magistrate to have enquired into the causes of non-service or non-return of the summonses and to have taken further necessary steps to secure the attendance of the witnesses particularly when there was no material before him to show that there had been any remissness on the part of the prosecuting agency. It was further observed that in a warrant case where the law required the State to undertake the burden of prosecuting the offenders in public interest to ensure the law and order, the Court also had the responsibility to see that justice was done by a fair and speedy trial. There is nothing to show that there was any remissness or negligence on the part of the prosecution in that case. It was clearly stated towards the end of para 4 of the judgment that the Court did not desire to express any opinion on the question whether the Magistrate could not 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 witnesses present or secure their attendance.

12. In the present case when the witnesses were not appearing despite the issue of summonses, it was the duty of the prosecution to apply for appropriate process to be issued in the circumstances of the case. On 13th December, 1984 the prosecution made a request for issue of summonses to the remaining prosecution witnesses through the Superintendent of Police, Vigilance Department, Gangtok for execution. That request was accepted by the learned Additional Sessions Judge. It was, thereafter, the duty of the prosecution to see that the summonses were served and to file the report accordingly; and if for any justifiable cause, the summonses could not be served, to bring to the notice of the Court the reason why the summonses could not be served. After intimating to the Court as to what had happened to the summonses it was the duty of the prosecution to take appropriate steps for the attendance of the witnesses. But the prosecution failed to say as to what had happened to the summonses and made a prayer for adjournment and issue of fresh summonses. On account of the failure of the prosecution to show its diligence in complying with the undertaking given on the previous date, the Court was not bound to grant the adjournment and order the issue of fresh summonses. Thus the Court would not have been acting beyond jurisdiction or contrary to law, if the request for adjournment were refused outright. It was equally open to the Court to grant adjournment subject to payment of costs and when the prosecution expressed unwillingness to pay the costs, the Court was perfectly justified in refusing the adjournment and in closing the prosecution evidence. Thus the impugned order does not suffer from any illegality or irregularity.

13. The petition is, therefore, dismissed. In the circumstances of the case, there shall be no order as to costs.


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