R.K. Das, J.
1. This is an appeal by the State of Orissa against an order dated 28-6-1961 passed by Sri P. B. Das, Magistrate, First Class in G. R. Case No. 1215 of 1961, acquitting the accused-respondent of a charge under Section 304A, Indian Penal Code.
2. The case against the accused was that on 19-12-1960 at about 4 P.M., the respondent-accused while driving the motor vehicle No. ORN. 1615 rashly and negligently caused the death of an old woman Randei Mundani. A prima facie case having been made out after investigation, charge-sheet was submitted against the accused on 8-2-1961 under Section 279/304A, I. P. C. After several adjournments on account of the absence of the accused the case was fixed to 4-4-1961, when ultimately the accused appeared and the case was transferred to the file of the aforesaid Magistrate. On 9-5-1961 a charge under Section 304A was framed against the accused to which he pleaded not guilty, and the Magistrate directed issue of summons for the prosecution witnesses fixing 25-5-1961. On 25-5-1961 the service returns were not back and so the case was again posted to 13-6-1961 on which date the prosecuting officer reported to the court that none of the witnesses was available at Rourkela and wanted time on that ground.
The Court directed that a set of summons and an extract of the order of the Court be issued to the investigating officer, and the case was posted to 23-6-1961 on which date also the witnesses could not be produced and ultimately it was again posted to 28-6-196.1. On 28-6-1961 the Court Sub-inspector filed a further petition for adjournment for production of witnesses as they were not available at Rourkela and so he prayed for some more time in order to ascertain their present addresses and to issue summons through special messenger to their village addresses. The learned Magistrate, however, rejected the petition, examined the accused under Section 342, Cr. P. C. and acquitted: him. The reason recorded by the learned Magistrate was that there was no evidence whatsoever produced by the prosecution to prove the case and therefore he acquitted the accused. Thus, the order of acquittal is not based upon the merits of the case, but merely on account of non-production of witnesses in the Court.
3. From the charge-sheet if appears that as many as eight persons were named as witnesses in support of the prosecution. The learned Advocate-General appearing for the State contended that the trying Magistrate had acted illegally in rejecting the petition of the prosecution to produce the witnesses in Court, and in any case summons would have been issued by the Court itself for enforcing the attendance of the witnesses; and merely because the prosecution was unable to produce the witnesses, there is no justification Whatsoever for ordering acquittal of the accused.
4. It is necessary here to examine the relevant provisions of the Code of Cr. P. C. After amendment of the Criminal Procedure Code by Act XXVI of 1955, a new section has been substituted for Section 251 and another Section 251-A has been inserted. Section 251 provides that in case of trial of Warrant cases by Magistrates, the Magistrates shall in cases instituted upon police report follow the procedure specified in Section 251-A, and in any other case follow the procedure specified in the other provisions of Chapter XXI.
5. The object of Section 251-A is to ensure speedy disposal of Warrant cases instituted upon Police Report, and the section is a self-contained one. This new section makes special provision with respect to the procedure to be followed in the trial of Warrant cases instituted by the Police. According to that section, on receipt of the Police Report, the Magistrate may, on the examination of the documents referred to in the charge-sheet, frame a charge against the accused, if he is of opinion that there is a ground for presuming that the accused has committed an offence triable under this Chapter. If the accused does not plead guilty and claims to be tried, he shall fix a date for examination of the witnesses and follow the procedure laid down under Sub-sections (4), (5) and (6) of Section 251-A of the Code.
Sub-section (7) provides for production of prosecution evidence. It runs as follows :
'(7) On the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution, provided....'
The word 'produced' as appearing in this subsection 'has given rise to some controversy. It was contended by learned counsel for the respondent that the Magistrate had rightly rejected the petition of the prosecution when it could not produce any evidence in support of its case. According to him the word 'produced' clearly indicates that the responsibility for such production lies on the prosecution and that it is not incumbent upon the Count to issue any process for production of such evidence. Since the prosecution after having taken several adjournments failed to produce the witnesses, the Magistrate was perfectly justified in acquitting the accused. The learned Magistrate also appears to have acted under the impression that it was the duty of the prosecution to produce the witnesses, and in the absence of such production, the court has no other duty than to acquit the respondent.
6. The learned Advocate-General, however, contended that no restricted meaning should be imported to the word 'produced' since it is not possible to produce any witness in the Court except through the legal process of issuing summons or warrants etc. I think there is much force in this contention. To my mind the word 'production' has no particular significance. It only means the production of oral or documentary evidence at the instance of the prosecution. In this connection Section 257 of the Code may also be noticed. The marginal note of Section 257 shows that the section makes provision for the process for compelling production of evidence alt the instance of (the accused. In that section provision has been made for issue of processes by the Magistrate. Section 540 gives a general power to the Court to summon and examine any person as a witness if his evidence appears to be essential to the just decision of the case. The object of this section obviously is to enable Court to arrive at the truth of the facts under investigation irrespective of whether a particular party chooses to summon him or not.
The Courts are not therefore absolutely powerless when the parties fail to produce evidence relevant in a case. On the other hand the power of the Court in this respect is very wide and the Court may at any stage of the proceeding summon any witness in order to deter mine the truth or otherwise of the facts of a case under trial before him. In the present case when the prosecution reported to the Court that after all efforts made by it, the prosecution witnesses could not be traced out at Rourkela and wanted some time on that score in order to make an attempt to trace the witnesses in their respective villages, and to summon them, the Court should not have rejected that prayer. In fact, was one of the duties of the Court to enforce attendance of witnesses even by coercive process. Merely because the prosecution could not produce the witnesses before the Court, that by itself, cannot be a ground to acquit the accused persons without making efforts to secure the presence of the material witnesses before the Court. As I have said before, the word 'produced' in Section 251-A cannot be given any restricted meaning as to saddle the prosecution with the entire responsibility of producing the evidence. As stated above, a duty also is cast upon the Courts for enforcing attendance of witnesses by the process provided in the Criminal Procedure Code.
7. In this case, it appears that the doctor A. K. Ghosh was examined on 23rd June 1981, whereas from the order-sheet of the learned Magistrate it appears that 'no PWs. are produced'. Obviously therefore, this is an error of record. From the order dated 28-6-1961, it appears that the Magistrate proceeded to examine the accused under Section 342, Cr. P. Code. The object of examination under this section, is to enable the accused to explain any circumstance appearing in the evidence against him. If in the present case according to the learned Magistrate there was no evidence adduced On behalf of the prosecution, then there was to meaning in examining the accused under Section 342.
8. An order of acquittal in a case instituted on public report is to be made under Sub-section (11) of Section 251-A. Sub-section (11) runs as follows:
'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.'
Though the Magistrate has not specifically recorded in his order that it is one under Sub-section (11), yet the order must necessarily be taken to be one under that sub-section as there is no other provision in the Code applicable to such cases. The learned Advocate-General contended that the order of acquittal contemplated under this subsection is an order based upon merits of the case, and the Magistrate had no justification to acquit the accused even without examining the witnesses. Section 367 provides as to what should be the contents of a judgment, and it contemplates that the judgment shall contain the point or points for determination, the decision thereon and the reasons for the decisions. It thus means that the Court must examine the evidence in order to arrive at the conclusion whether or not a case has been made out against the accused. If in fact no such evidence is at all given, before the Court, the question of coming to such a decision does not arise. In other words, recording of an order of acquittal based upon the finding of 'not guilty' is dependent upon the merits of the case supported by evidence. But in a case where no evidence is produced, it cannot be said to be a case decided on merits. Therefore, Section 251-A (11) does not contemplate a case of this nature which is disposed of without any evidence.
9. No doubt, there is some lacuna in the Code of Criminal Procedure itself, since it does not provide as to the nature of the order that is to be passed in a case of this kind where the prosecution does not produce any evidence at all. That lacuna can possibly be obviated to some extent if the court shall take all steps for production of the witnesses. If, however, despite that the witnesses are not available, then he may stay further proceedings in the case in which event the prosecution may come forward with its evidence at some stage later on. On account of the fact that Section 251-A has recently been enacted, there appears to be a derth of decisions on this point; but two cases were cited at the Bar touching on this question, viz., Nathuram Darjee v. Pannalal, AIR 1961 Assam 97 and State v. Aboobaker, 1960 Ker LT 1142 : (1961 (2) Cri LJ 92 (2).
In the Assam case, the prosecution was on the Police Report. After Framing the charge on the date fixed for evidence, the accused was present, but none of the prosecution witnesses was present and the prosecution presented an application for time which was refused by the court who proceeded to record an order of acquittal under Section, 258 (1), Cr. P. C. In the circumstances, their Lordships held that Section 258 (1) has no application to cases of this nature where the prosecution was lodged on the police report, which is covered by Section 251-A. They 'however, set aside the order of acquittal and directed the case to proceed as before. Their Lordships held that there was no adequate ground for the learned Magistrate to reject the petition for time.
The Kerala case is more on the point that is before me. In that case on account of non-examination of the prosecution witnesses an order of acquittal was recorded under Section 251-A (11), and their Lordships held that even in the absence of specific provision in Section 251-A, to summon witnesses, the Court has the inherent power to summon material witnesses and examine them under Section 540 of the Code of Criminal Procedure. Their Lordships observed that the Magistrate ought to have adjourned the case for production of prosecution witnesses by the investigating officer, particularly when there are justifiable reasons for non-production of the witnesses.
10. In the present case the prosecution madeall efforts to find out the witnesses and ultimatelymade a prayer for an adjournment on the groundthat they will take Out fresh summons by specialmessenger against the witnesses in their villageaddresses. Thus, the prosecution was taking allpossible steps for production of the witnesses inthe Court and the learned Magistrate had noground to reject the prayer for time and recordan order of acquittal. Section 251-A (11) doesnot contemplate an order of acquittalbased on the non-production of prosecution witnesses. It only applies to such cases whereafter consideration of all evidence produced bythe prosecution, the Court comes to a decision.that the accused is not guilty of the offence charged against him. It is thus clear that the orderof acquittal passed by the learned Magistratecannot be maintained, and is therefore set aside.The case must go to the file of the trying Magistrate for retrial of the accused. If he is notavailable at the station the District Magistratewill direct some other Magistrate to take the caseon his file and proceed with the trial in accordance with law, alter issuing due processes for theappearance of the accused and the prosecutionwitnesses. In the results the order of acquittal isset aside and the appeal is allowed.