N.G. Shelat, J.
1. The facts giving rise to this application in revision are quite simple. On a complaint made by the petitioner before the police against the opponent Bharvad Khengar Mahiji of Barejadi village, near Ahmedabad, in respect of an offence under Section 408 of the Indian Penal Code, the investigation was carried out by the P.S.I, attached to the Aslali Police Station. Thereafter the charge-sheet against the accused was sent up to the Court of the Judicial Magistrate, First Class at Narol. In that case the accused came to be discharged under Section 25 lA(ii) of the Criminal Procedure Code by the Court in respect of an offence under Section 408 of the Indian Penal Code on 24-1-67. Against that order, Revision Application No. 5 of 1967 was filed in the Court of the Sessions Judge at Narol, who set aside the order of discharge passed by the learned Magistrate and directed a further inquiry to be made in the matter. The case, however, was directed to be transferred to the Court of the 2nd Joint Civil Judge (J.D.) and Judicial Magistrate, First Class at Narol. That case was renumbered as No. 1315 of 1968.
2. It appears that the warrant of arrest was issued against the accused, and though the matter came to be adjourned from time to time, that warrant could not be served upon him. He was found to be evading service. At last on 12th February 1968, the accused was produced before the learned Magistrate and came to be released on bail on 22-2-1968. The case was then kept for hearing on 5th March 1968 and then adjourned to 28th March 1968. On that day charge as per Ex. 2 was framed under Section 408 of the Indian Penal Code against the accused to which he pleaded not guilty. On the next date of hearing, while the Police Prosecutor in charge of the case was not present, the complainant's advocate who was assisting the Police Prosecutor was present. When the case was called out, since the complainant had gone out for some urgent work after having attended the Court, his advocate presented an application to that effect and requested the Court to adjourn the matter. The learned Magistrate rejected his application and finding that neither the complainant nor his witnesses were present, he passed an order under Section 25 l-A(ii) of the Criminal Procedure Code whereby the accused came to be acquitted in respect of the charge leveled against him under Section 408 of the Criminal Procedure Code. Feeling dissatisfied with that order passed on 20-3-68 by Mr. K.K. Thakkar, 2nd Joint Civil Judge and Judicial Magistrate, First Class at Narol, the complainant has come in revision before this Court. It may be incidentally stated here that no appeal against the order of acquittal has been filed by the State of Gujarat. The State of Gujarat is, however, joined as opponent No. 2 in this application.
3. The contention made out by Mr. Abichandani, the learned advocate for the applicant, is that recording of an order of acquittal under Section 251(A)(ii) of the Code must invariably depend upon the merits of the case after the evidence is led, and it does not contemplate any such order of acquittal passed on nonappearance of the complainant and non-production of prosecution witnesses. In other words, his submission is that Section 25 l-A(ii) of the Code only applies to such cases where after consideration of all the evidence produced by the prosecution, the Magistrate finds the accused not guilty of the offence charged against him. Reliance was placed on a decision in the case of State of Orissa v. Sib Charan Singh : AIR1962Ori157 . It was then pointed out by Mr. Abichandani that on the date of hearing the complainant had gone out for some other urgent work and that way could not remain present at the tine when the case was actually called out. The duty of the Court in that event was to adjourn the case and, at any rate, give an opportunity to have the complainant called and examined in the case. Apart from that position, it was pointed out by reference to the charge-sheet produced in the case that the duty of the Court was also to summon the witnesses as requested therein by the investigating officer. Not having done so, the order of acquittal passed in the case cannot be sustained after the charge is framed against the accused. It was on the other hand, pointed out by Mr. Amin, the learned Counsel for the accused-opponent No. 1, that it was within the discretion of the Court to reject the application and if he did so, it would not be proper for this Court to interfere in revision. Besides, he referred to a decision in the case of Smt. Jyotirmoyee Bose v. Birendra Nath Prodhan and Ors. reported in : AIR1960Cal263 , where it was held that Sub-section (6) of Section 251A does not enjoin upon the Magistrate any duty to compel the attendance of any witness unless it was applied for. In a case tried under Section 251A of the Code, the Magistrate is not compelled as he is, if the case is tried as warrant case instituted other than on the police report to proceed in terms of Sections 256 and 257 of the Code.
4. Now, in order to appreciate the contentions raised, it would be essential to refer to Section 251A contained in Chapter XXI of the Criminal Procedure Code which lays down the procedure for the trial of warrant cases instituted on a police report. Section 251A is a self-contained one and for the trial of any warrant case which has been instituted on a police report, the procedure laid down therein has to be adopted. As provided therein on a receipt of the police report, the Magistrate after satisfying himself about the documents referred to in Section 173 having been furnished to the accused may, on the examination of the documents referred to in the charge-sheet, frame a charge against the accused if in his opinion there is a ground for presuming that the accused has committed an offence triable under this Chapter. If the accused does not plead guilty to the same and claims to be tried, the Magistrate is required to fix a date for the examination of witnesses as provided in Sub-section (6) thereof. Then comes Sub-section (7) which says that on the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. The word 'produced' used in this subsection has given rise to some controversy. On one hand it can be said that the responsibility for such production lies on the prosecution and that it is not incumbent on the Court to issue a process for production of any such evidence. That appears to be the view of the Calcutta High Court as referred to in the decision just cited above. The other view is that no such distinction should be imported to the word 'produced' and that it means the production of oral or documentary evidence at the instance of the prosecution. That has been so held in the Orissa Case which is referred to hereabove and we find it also so laid down in the case of Public Prosecutor v. M. Sambangi Mudaliar and Ors. : AIR1965Mad31 . We may incidentally mention that the Calcutta decision referred to above had come to be considered by the Madras High Court and it was held as under:
In warrant cases where the Court has already framed a charge under Section 251A Criminal Procedure Code against the accused, one important duty is laid on it to see that all the powers available to the Court for the examination of witnesses are exercised for a just decision of the case, irrespective of the laches of the complaint. Such powers include the powers under Section 540 Criminal Procedure Code to summon witnesses on the motion of the Court.
The words 'as may be produced in support of the prosecution' in Sub-section (7) of Section 251A of the Code have to be given a broad and reasonable meaning for, after all, it cannot be so said that in all cases that duty is cast on the complainant or on the police as the case may be. There may be cases where the investigating officer would himself undertake to produce the witnesses, and if he fails to do so and does not choose to obtain any help from the Court for securing the presence of any such witnesses, the Court may well be justified in saying that no attempt has been made to secure the presence of the witnesses in the case at the instance of the prosecution. There may arise cases where in the charge-sheet, the investigating officer has requested the Court to issue summon to the witnesses mentioned therein, or that at any subsequent stage a request in made by the police prosecutor to the Court for its assistance in securing the presence of such witnesses. In that event, it will be obviously the duty cast on the Court to secure the presence of such people and it is only after the Court satisfying itself that it has discharged its duty or obligation, that neither the complainant nor his witnesses have been coming forward, that it can pass an order of acquittal by saying that the prosecution has failed to discharge the burden laid down upon it in respect of the charge leveled against the accused in the case. It is in this light that Section 251 A(ii) has to be looked into for, it says, 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. It would be difficult to agree with the view taken by both the High Courts of Madras and Orissa in the cases cited above that in all cases invariably the matter must be decided on merits. In my view, even in the circumstances as stated above, after the Magistrate discharges the duty or obligation cast upon him under this provision of law and if he is satisfied that no useful purpose can be served by keeping the case alive, he is justified in finding the accussed not guilty in absence of any such evidence adduced in support of the prosecution or even at the instance of the prosecution. In other words, with respect, it is difficult to agree with the view taken by the Calcutta High Court which also goes to another extreme as also with the view of the Orissa and the Madras High Courts which take also the extreme view in the other direction.
5. We have, however, a decision of the Division Bench of this Court in the case of State of Gujarat v. Bava Bhadya and Anr. III G.L.R. 522. In that case, the Magistrate after considering the papers sent along with the charge-sheet had framed a charge against the accused and as on the date of hearing, the witnesses were not kept present by the prosecution, the Magistrate acquitted both the accused under Section 251 A of the Criminal procedure Code. There it was held that if for one reason or the other, the prosecution fails to produce such evidence before him, the only alternative left to the Magistrate would be to act under Sub-section (ii) of Section 251-A, in cases where a charge has already been framed, and to make an order to the effect that he finds that accused not guilty as the prosecution has failed to produce any evidence is support of the charge and then to record an order of acquittal. In this case, it was pointed out by Mr. Abichandani by reference to some facts stated therein that it was found that the P.S.I. Songadh had not attended the Court, nor had he sent any instructions to the police prosecutor to the effect that he had not been able to serve the summons on the two witnesses Kali and Sukha Rayla owing to any valid reason. At another stage it has been observed by the Court that inspire of his knowing that the case had been adjourned at least on two occasions by reason of his not having been able to produce the prosecution witnesses in Court and in spite on his being aware that because of this reason the first accused, at any rate, had to remain in jail custody, the P.S.I. had not taken any serious steps to produce the prosecution witnesses in the Court of the learned Magistrate. Then the Court had observed that in those circumstances the P.S.I. Songadh wasnot only indifferent to his duty but showed utter disregard and disrespect to the learned Magistrate's Court. In other words, the P.S.I. Songadh had himself undertaken to serve those witnesses and had then remained indifferent to his duty as also his obligation in the circumstances of the case. It is thus clear that it is not incumbent on Court to have evidence on record at all costs irrespective of the fact that the prosecution produces it or not, either itself of through the assistance of Court. Sub-section 251A(ii) also does not say so. All that is required is that the Court has a duty to help the prosecution in securing presence of witnesses intended to be examined and if with all that, the evidence is not forthcoming, it is not expected to wait ad infinitum, but it can legitimately pass an order of acquittal on the ground that the prosecution has not produced any material evidence to hold the accused guilty.
6. However, it appears that the duty and obligation to summon the witnesses lay upon the learned Magistrate and that was lost sight of with the result that he passed an order of acquittal on the basis that neither the complainant nor his witnesses were present. As already pointed out hereabove, at the back side of the charge-sheet at No. 3, the Court has been requested to issue summons to the witnesses whose names and addresses have been set out there under. Apart from that, an application for adjournment was given and the learned Magistrate was wrong in rejecting the request as the complainant had in fact attended the Court on all dates and the accused on the other hand was found absconding for some time. In fact he had come on that day and was required to go away from the Court for some other urgent work. That should have been treated as a sufficient and good ground to adjourn the matter for a day or two for that purpose. The complainant had engaged an advocate and was thus vigilant for his case. The mere fact that the police prosecutor was not present would not justify the Court to reject the application, and at any rate he could not ignore the request made for summoning the witnesses which he had to do, and more so, as on a consideration of the material in the case, he had already chosen to frame charge against the accused. Before therefore deciding the case and acquitting the accused under Section 251A(ii) of the Code, it was his duty to have the evidence of witnesses before the Court by summoning them, if available, and his action in acquitting the accused on non-production of any such evidence was illegal and improper.
7. In such a case where the evidence is shut out in consequence of the rejection of the complainant's application, much though no appeal is filed by the State under Section 417 of the Criminal Procedure Code, this Court would be justified in setting aside the order of acquittal in revision. It has obviously resulted in miscarriage of justice. The order is, therefore, liable to be set aside by exercising powers in revision in the circumstances of the case.
The order of acquittal of the accused passed in the case by the learned Magistrate is set aside and the case is sent back to the trial Court for proceeding further in accordance with law.