1. Respondent Kalu and Bapu were prosecuted under Section 34 of the Police Act. The case was fixed for 29-11-1963 for recording evidence. Earlier, at the instance of the prosecution summons had been issued to prosecution witnesses but on the aforesaid date of hear-ins the witnesses did not turn up. The learned Magistrate forthwith passed an order of acquittal aggrieved by which this appeal was preferred by the State.
2. It is contended for the appellant that it was the duty of the trial Court to await return of the summons which had been issued or to issue fresh summons for attendance of the prosecution witnesses; and. in either case another date ought to have been fixed. Learned counsel for the respondent contends that the trial Court was right in not fixing another date for hearing because the police prosecutor was also not present on 29-11-1965 so that there was no one on behalf of the Prosecution to apply for issuance of fresh summons. The argument is that the Magistrate is not bound to issue a fresh summons to a witness unless there is an application for that purpose.
Section 244 (2) of Cr. P.C. reads thus:
Magistrate may if he thinks fit on the application of the complainant or accused issue a summons to any witness directing him to attend or to produce any document or other thing.
There can be no doubt that the Court should see that its summonses and warrants are duly executed and that having issued a process the court ought to enforce the attendance of the witness before acquitting the accused.
3. But in the present case the real question that arises for consideration is different. Cognizance was taken by the trial Court on the report of a Police Officer. Therefore Sub-section (2) of Section 244. Cr. P.C. has no application to this case. Power is given to the Magistrate under this sub-section to issue a summons to the witness when the 'complainant' or the accused applies for it. In the Criminal Procedure Code the word 'Complainant' has a technical meaning. When a challan is put up by the police the prosecution cannot avail itself of the Sub-section. This is all the more so because there are separate provisions in the Code to secure the attendance of a prosecution witness in a challan case. The officer in-charge of a police station is authorized under Section 170(2) to require a witness to execute a bond for appearance before Magistrate for giving evidence. It is true that in view of the provisions of Section 171 a police officer cannot compel a witness to accompany him to the Court nor can he subject him to unnecessary restraint or inconvenience vet. where a witness refuses to attend or execute a bond as aforesaid the police officer may forward him in custody to the Magistrate who may detain him in custody until the witness executes such a bond or until the hearing of the case is complete Thus quite apart from Section 244 (2) a complete machinery is provided in the Code to secure attendance of prosecution witnesses in a case where prosecution is initiated on the report of a police officer. This is evidently the reason for restricting the application of Section 244 (2). Cr. P.C. to the case of a witness whom the 'Complainant' or the accused requires to attend or to pro-duce any document or other thing. This position is confined to the trial of a summons case. It is different in that of a war-, rant case as will be clearly seen in Section 252 (2) of the Code.
4. The present case being under Section 34 of the Police Act was a summons case. The provisions of Section 244 (2). Cr. Procedure Code did not apply. It was the duty of the prosecution to make necessary arrangements for the production of its witnesses. But far from that even the officer incharge of the case did not appear when it was called on for hearing on 29th November 1965.
5. The police must always remember that it has got a duty to the Court and they cannot just send a challan and think that the rest will be done by the Court. When nobody appeared in the Court to inform what the reason was for non-appearance of the witnesses, the Court could legitimately come to the conclusion that the Police was not very serious in prosecuting the offence which was a minor one. Under Section 245 the Magistrate can record an order of acquittal if there is no evidence to hold the accused guilty. If the prosecution did not take proper steps to produce the witnesses or ask the Court to give them time to do the same or to issue fresh summons the Court was not bound to fix another date The Police has a duty towards the citizen. When the accused is brought before the Court and the prosecuting Department does not take any step it will be an abuse of the process of the Court to continue the trial. Bringing a person before the Court accusing him of some offence is a serious matter and. however petty the offence may be the prosecuting Department must do its duty towards the accused as well as the Court When once the accused is challenged there is no privilese given to the Police to remain absent.
6. The appeal is dismissed