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Kunchathy Sadasivan Vs. Vasu Asan Rajagopalan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1971CriLJ159
AppellantKunchathy Sadasivan
RespondentVasu Asan Rajagopalan and ors.
Cases ReferredIn Mahendra Pratap v. Sarju Singh
Excerpt:
- - tailing cognizance of a case means that the magistrate prima facie is satisfied that the offence has been committed and in such a situation it is necessary for the magistrate to find out who the culprit is and in this process he must adopt every method available to him under law for coming to the decision......sought to be proved through him. they were exts. dl to d3. after examination of p.ws. 1 and 2, the learned magistrate recorded that 'no other witness' and then he posted the case for disposal to 23-7.69 on which date the order of acquittal was passed in favour of the respondents under section 251a(u), criminal p.c.4. it is contended on behalf of the revision petitioner that the lower court was wrong in acquitting the respondents without the examination of all the witnesses who were pre. sent in court. with regard to the presence of the witnesses in court, there was no mention made anywhere in the record except the statement in the case sheet that ''no other witnesses.'but, at the same time, the learned magistrate in p. 3 of his judgment stated as fol. lows :as the evidence of the other.....
Judgment:
ORDER

E.K. Moidu, J.

1. In this revision petition, P.W. 1, Sadasivan, the first informant in Crime No. 278/68, Quilon East Police Station, challenges the order of acquittal passed in 0. 0. 356/69 on the file of the court of the Sub-Magistrate, Quilon 1. in favour of the respondents-accused, who stood charged for the offences Under Sections 447 and 427 read with Section 34, Penal Code.

2. The case against the respondents was that on the night of 30-10-68 at about 1 a. m. they in furtherance of a common intention to commit mischief and trespass forcibly entered upon the property described as a purayidom, which was in the possession of the wife of P.W. 1 thereby causing a loss of Bs. 25/. on account of the demolition of a fence on the southern side of the property and there, after uprooting some 200 vegetable plants thereby causing a further loss of Rs. 200/. and instead they planted tapioca plants in 8 cents of the said property by putting up a fence on the western side of a portion of the property which was also reduced to their possession. On the basis of the first information a crime was lodged and the investigation conducted by the police resulted in laying a charge against the respondents.

3. The case came up for hearing on 4 7.1969 when P.W. 1 was examined in part. The case was then adjourned to 9-7.69 with the direction that the prosecution will produce the remaining witnesses. On 9.7-1969 P.W. 1 was absent. So, the case was adjourned to 18-7-69 on which date P.Ws. 1 and 2 were examined and cross-examined. During the cross-examination of P.W. 1, three documents were sought to be proved through him. They were Exts. Dl to D3. After examination of P.Ws. 1 and 2, the learned Magistrate recorded that 'No other witness' and then he posted the case for disposal to 23-7.69 on which date the order of acquittal was passed in favour of the respondents Under Section 251A(U), Criminal P.C.

4. It is contended on behalf of the revision petitioner that the lower court was wrong in acquitting the respondents without the examination of all the witnesses who were pre. sent in Court. With regard to the presence of the witnesses in Court, there was no mention made anywhere in the record except the statement in the case sheet that ''No other witnesses.'

But, at the same time, the learned Magistrate in p. 3 of his judgment stated as fol. lows :

As the evidence of the other witnesses cited in the charge cannot improve matters the cage was taken up for disposal. The accused have marked Exts. 1 to 3.

Thereafter, the learned Magistrate on an examination of the evidence of P.Ws. 1 and 2 came to the conclusion that,

he cannot but find that this is essentially a civil dispute and it ia not for this Court to consider the merits of the rival contentions and decide as to who wag actually in possession of the property in question.

It is clear that the conclusion of the Magistrate was not based upon the evidence in the case. On the evidence on record he should have found the person in possession of the property. His finding that a civil Court alone can settle the dispute between the rival claims is not in keeping the tradition of Criminal Courts.

5. That apart, the learned Magistrate should have complied with the provisions of Sub-section (7)of Section 231A, Criminal P. C, which enjoins upon the Magistrate on the date fixed for the hearing of the case to proceed with : such evidence as may be produced in support of the prosecution. In the absence of any guidance from the records in the instant case, it cannot be said that the witnesses were not present. However, even if they were not present, the learned Magistrate should not have stated that the evidence of other witnesses cited in the charge cannot improve matters and, therefore, he was to take up the cage {or disposal.

5. The question for decision is whether in a warrant case instituted on a police report it is open to a Magistrate after recording some evidence to cut short the trial and refuse to examine the remaining prosecution witnesses and to proceed to record an order of acquittal. On this point, the following observation in State v. Bhimcharan Mandal : AIR1962Ori139 may be seen ;

Section 251A lays down a complete procedure to be adopted in cases instituted on police report. Clause 7 lays down the manner in which the prosecution witnesses were to be examined. It states that on the date so fixed, the Magistrate shall proceed to take all j Bucb evidence as may be produced in support of the prosecution, provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further Cross-examination, This clause seems to be mandatory and the Magistrate is bound to examine all such witnesses as are produced by the prosecution,

6. Again in State v. Suwa , a Division Bench case, more or less the game observation i3 it ade as follows ;

It is not competent for a Magistrate to record only a part of the evidence in a warrant case instituted on a police report, and to refuse to record the rest of it and to proceed to pass an order of acquittal

The provisions of Section 251-A (7) are of a mandatory nature and, on a plain reading thereof there can be little doubt that the Magistrate is bound to take all such evidence as may be produced in support of the prosecution. The Sub-section does not contemplate a premature termination of the trial by the Magistrate refusing to examine the relevant and proper evidence of the prosecution.'

7. A decision cited on the opposite side re. ported in Saharimuthu Ismalias v. Arunam. balam 1969 Ker L T 874 is seen to have been overruled by State v. Aboobaker 1960 Ker L T 114jS=(1961 (2) cri L J 92(2)) which upholds the view of the other High Courts inserted above. The Division Bench which consisted of Anna Chandy, J. and Govinda Menon, J. at paragraphs 6 and 8 made the following observation :

Even in the absence of a specific provision in Section 251A to summon witnesses, the Court has always the inherent power to summon material witnesses and examine them. Under Section 540 the Court has unrestricted powers of summoning a witness and it is not only the prerogative but also the plain duty of Court to examine such of those witnesses as it considers necessary for doing justice. Where parties do not produce evidence it is the duty of the Court in the interests of justice to summon such of the witnesses whose evidence is necessary for a just decision of the case. The Magisrate ought to have adjourned the case for the production of the prosecution witnesses by the investigating officer especially in this case where there are justifiable reasons for the non-production of the witnesses or he should have exercised his discretion Under Section 540 to summon and get the witnesses.

8. Jyotirmoyee Bose v. Birendra Nath : AIR1960Cal263 however, does not appear to have decided the point involved in the instant case. In that decision, the Sub-section (6) of Section 251A came up for consideration which, according to the learned Judges, did not Join upon the Magistrate any duty to compel the attendance of any witnesses unless it was applied for. That decision rested mainly on the requirement of examination of witnesses after the charge was framed by the Magistrate and in doing so. the difference in procedure between a warrant case and a Bummons case was pointed out and it had nothing to do with the examination of witnesses as required by Sub-section of Section 251A. I find, therefore, that the Magistrate was not correct in refusing to examine the remaining witnesses, who are to be' produced on behalf of the prosecution. '

For the guidance of the Magistrate, I may point out the observation made in Public Pro. secutor v. Pachiyappa Mudaliar : AIR1965AP16 which runs as follows :

In a warrant case, once the Magistrate takes cognizance of the case, it becomes his botmden duty to go to the root of it and do justice in the matter. The Criminal Procedure Code has given very wide powers to the Magistrate only with a view to clear any possible obstacle in the way of the Magistrate to do justice in a case. Tailing cognizance of a case means that the Magistrate prima facie is satisfied that the offence has been committed and in such a situation it is necessary for the Magistrate to find out who the culprit is and in this process he must adopt every method available to him under law for coming to the decision. If the prosecution is slack and neglectful in its duties, it does not follow that the Magistrate also should fall in line with it. Where, therefore, the accused in a warrant case pleads not guilty and claims to be tried, but the Police Inspector fails to produce the witnesses on the date of hearing, it is for the Magistrate to compel their attendance to dispose of the case according to law. The Magistrate has to exhaust all his powers before he makes his mind to dismigs the case.

9. The interference either in revision or in appeal as against an acquittal does not make any difference provided the interference cornea within the provisions of 13. 439, Criminal P.C. If a case is made out that interference is absolutely necessary Under Section 439, Criminal P.C., it is the duty of the court to st aside the acquittal and direct the lower court to conduct the retrial of the case. In Mahendra Pratap v. Sarju Singh : 1968CriLJ665 , the interference in revision asgainst an order of acquittal was directed to be made only if there was a glaring defect of procedure such as the court has no jurisdiction to try the case, or the court had shut out some material evidence ' which was admissible or attempted to take into account evidence which was not admissible, or which had over-looked some evidence. It is pointed out that the list given above is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision.

Taking into consideraion the facts and circumstances of this case I have to hold that the learned Magistrate's refusal to entertain further evidence in the case will amount to an over-looking of some evidence in the case. It is, therefore, necessary for the learned Magistrate to examine the witnesses who are to be produced by the prosecution and after hearing the evidence, he may > dispose of the case on merits in accordance with law. I make no opinion aa regards the conclusion which is already arrived at by the learned Magistrate, since the purpose for which a remand is to be made in this case is to permit the prosecution to examine their witnesses who were left out by the learned Magistrate.

10. In the result, this revision petition is allowed. The order of acquittal is set aside. The case is remanded to the court below for a retrial commencing from the place at which the learned Magistrate stopped the recording of evidence and to dispose of the case on merits and in accordance with law.


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