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Santhamma Radhamany Amma Vs. Kunju Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ247
AppellantSanthamma Radhamany Amma
RespondentKunju Pillai and anr.
Cases ReferredIn Sadasivan v. Rajagopalan
Excerpt:
.....praying that the order of acquittal passed therein may be quashed on the grounds that (1) the acquittal of the accused in the case on the ground that the prosecution failed to produce witnesses is illegal as it was the duty of the court to summon and examine witnesses, whether the prosecution produced witnesses or not; it was in this connection that the learned advocate contended that in a case like this, the proper order which ought to have been passed by the trial court was one under section 258 by releasing the accused and not acquitting him. rajagopalan 1970 ker lt 399 :1971 cri lj 159 in support of his argument that the acquittal o'f the accused on the ground of the failure of the prosecution to produce witnesses was wrong and illegal. an order of acquittal recorded by a..........decision of the case. there were justifiable reasons in that case for the non-production of the prosecution witnesses.5. in sadasivan v. rajagopalan 1970 ker lt 399 : 1971 cri lj 159 which also was a warrant case instituted on police report. p. w. 1 was examined in part on 4-7-1969 and the case was adjourned to 9-7-1969 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 18-7-1969 on which date p. ws. 1 and 2 were examined. during cross-examination of p. w. 1 three documents were ought to be proved through him but, after examination of p. ws. 1 and 2, the learned magistrate recorded 'no other witness' and then he posted the case for disposal to 23-7-1969 on which date he acquitted the accused. that.....
Judgment:
ORDER

S.K. Kader, J.

1. This is an application filed under Section 482 of the Cr. P.C. by the petitioner who is the de facto complainant in S.T. No. 228/77 on the file of the Judicial Magistrate of I Class, Adore (Sub-Divisional Judicial Magistrate, Adore), a case instituted on police report, praying that the order of acquittal passed therein may be quashed on the grounds that (1) the acquittal of the accused in the case on the ground that the prosecution failed to produce witnesses is illegal as it was the duty of the court to summon and examine witnesses, whether the prosecution produced witnesses or not; and (2) the only order that the Magistrate could have passed in the circumstances was to stop the proceedings under Section 258, Cr. P.C. without passing judgment and release the accused which release in effect amounted to a discharge.

2. At the time when the petition was taken up for hearing the first respondent and his advocate were absent. Both the grounds urged by the learned advocate appearing for the petitioner cannot be sustained either in law or on the facts of the case. No appeal has been filed against the order of acquittal by the State. Crl. R. P. No. 3/78 was flied by the present petitioner before the Court of Session, Qulin, challenging the order of acquittal and after hearing both sides, the revision petition was dismissed as there was no ground for interference in revision. It was after the dismissal of the revision petition that the petitioner has come up before this Court invoking its powers under Section 482, Cr. P.C.

3. This is a summons case instituted on police report. The offences alleged to have been committed by the accused are those punishable under Sections 323 and 341 I.P.C. The allegation was that the accused caught hold of the complainant by her hair and beat her with hands. The judgment of the trial court shows that the offence under Section 323 being a non-cognizable offence, Section 341 also was added to make it cognizable; that in spite of the specific directions issued to the police to produce witnesses no witness was produced by them; that the police also did not make any request to the court for issuing summons to any witness and that as there was no evidence in support of the prosecution case, the accused was acquitted. In this case, the accused appeared be'fore court and the particulars of the offences of which he was accused were stated to him and he was asked whether he was pleading guilty or he had any defense to make. The accused pleaded not guilty to the charge framed against him and it was thereafter that the case was posted for hearing. In a summons case the trial commences as soon as the accused appears before court and the particular of the offence are put to him; while in a warrant case the trial commences after framing of a charge against the accused. This appears to be the settled law and it has been so held by a Full Bench of this Court in Food Inspector v. Seetharam Rice & Oil Mills 1974 Ker LT 685 : 1975 Cri LJ 479. Recently in Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 : 1979 Cri LJ 41 the Supreme Court held that 'the trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry'. In a case where a trial has commenced against an accused, it, is concluded either by a conviction or by an acquittal and not by a discharge. The counsel argued that Section 255(1), Cr. P.C. has no application to this case, as that section contemplates only a case where the evidence referred to in Section 254 has been recorded and not a case where no such evidence has been recorded. What the provisions in Section 254 state is that if the Magistrate does not convict the accused under Section 252 or Section 253, he shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defense. There is nothing in this section, which shows or indicates that a Magistrate can compel the prosecution to produce evidence. If no evidence was produced or offered as referred to in Section 254, the order that could be ordinarily passed is one of acquittal. It was in this connection that the learned advocate contended that in a case like this, the proper order which ought to have been passed by the trial court was one under Section 258 by releasing the accused and not acquitting him. Section 258 is an enabling section and is one to be applied in very special and compelling circumstances. This section deals with the power of a Magistrate of I Class or any other Judicial Magistrate, with the previous sanction of the Chief Judicial Magistrate, to stop the proceedings at any stage without pronouncing any judgment for reasons to be recorded by him. If the magistrate chose to act under the section and stoppage of the proceedings is made after the evidence of the principal witnesses has been recorded he can pronounce a judgment of acquittal and in any other case, release the accused and such release shall have the effect of discharge. Section 258 has no application to the facts of the case and this section is not intended to apply to cases of this nature. There are no peculiar or unusual circumstances which made it difficult or impossible for the magistrate to proceed within the normal way under Section 254 Cr. P.C.

4. The counsel cited the decisions reported in State v. Aboobaker 1960 Ker LT 1142 : 1961 (2) Cri LJ 92 (2) and Sadasivan v. Rajagopalan 1970 Ker LT 399 : 1971 Cri LJ 159 in support of his argument that the acquittal o'f the accused on the ground of the failure of the prosecution to produce witnesses was wrong and illegal. Both these cases were dealing with warrant cases. I need not mention, that the procedure prescribed for the trial of warrant cases and summons cases are distinct and different. In State v. Aboobaker 1960 Ker LT 1142 : 1961 (2) Cri LJ 92 (2), summonses were actually issued by the trial court to the witnesses on more than one occasion. But as no policemen were available for service of summons due to certain political agitation then in existence in the State, summons could not be served. It is seen from the judgment in the above case that, the Sub-Inspector of Police reported to the court that due to the then existing situation he was not in a position to attend the court. The case was then adjourned to 1-7-1959 and fresh summons was ordered. But again summons could not be served and the case was finally adjourned to 22-7-1959 on which date, as no witnesses were present as no summons was served on them, the trial court acquitted the accused. It was argued in that case that unlike in Section 252 Cr. P.C. as it stood before amendment by Act 26 of 1955, there is no provision in Section 251A enjoining the magistrate to 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 prosecution and then summon them to give evidence before himself. Dealing with this argument, it was held in that case that although there is no specific provision in Section 251A enabling the magistrate to summon witnesses, the provisions in Section 540 corresponding to Section 311 of the New Code are wide enough and it gives sufficient discretion to the court to summon any person as a witness or recall and re-examine any person already examined if the evidence of that person appears to the court essential for a just decision of the case. There were justifiable reasons in that case for the non-production of the prosecution witnesses.

5. In Sadasivan v. Rajagopalan 1970 Ker LT 399 : 1971 Cri LJ 159 which also was a warrant case instituted on police report. P. W. 1 was examined in part on 4-7-1969 and the case was adjourned to 9-7-1969 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 18-7-1969 on which date P. Ws. 1 and 2 were examined. During cross-examination of P. W. 1 three documents were ought to be proved through him but, after examination of P. Ws. 1 and 2, the learned magistrate recorded 'No other witness' and then he posted the case for disposal to 23-7-1969 on which date he acquitted the accused. That was a case where the magistrate acquitted the accused without the examination of all the witnesses who were present in court. The point that arose for consideration there was 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. These two decisions have no application to the facts of the case on hand. This is a case where the prosecution undertook to produce the witnesses and did not produce witnesses, in spite of repeated and specific directions issued on several occasions. The prosecution also did not make any re-quest to the court to issue summons to the witnesses or make any sincere or serious attempt to produce witnesses in spite of the ample opportunities given to them. There was no justifiable reason or cause for the non-production of the prosecution witnesses. An order of acquittal recorded by a magistrate in a situation like this in a case of this nature cannot be said to be illegal. Under Section 254(2), on the application of the Prosecution, or the accused, the magistrate can issue summons to any witness directing him to attend or to produce any document or other thing. No such application was filed by the prosecution in the case to summon witnesses. There is no ground made out for interference with the order impugned in exercise of the power of this Court under Section 482 Cr. P.C.

In the result this petition is hereby dismissed.


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