D.H. Shukla, J.
1. The State of Gujarat, the appellant herein, is dissatisfied and aggrieved by the order of acquittal in respect of the present respondents Nos. 1 to 15 passed by the learned Judicial Magistrate, First Class, Jhagadia, on 23-4-1979 from the charge under Sections 143, 147, 148, 149, 426, 336, 337, 225 of the Indian Penal Code and Section 135 of the Bombay Police Act.
2. The prosecution case before the learned Judicial Magistrate was that the accused Nos. 13 to 15 (the present respondents Nos. 13 to 15) were apprehended while committing theft of cotton-pods. They were detained at the house of Police Patel, village Chikli. Therefore, accused Nos. 1 to 12 and some 150 other persons formed an unlawful assembly at 13-30 hours and attacked, equipped with weapons, the house of Police Patel and the water-works of the Panchayat. In the course of that attack, P. W. 2 was injured on his eyebrow.
3. The Rojkam of Criminal Case No. 1448 of 1978, shows that a charge-sheet was filed dated 10-7-1978. (The copy of the charge-sheet in the paperbook shows the date 1-5-1978). Before that, on 31-3-1978 the application for the remand of the accused was granted. The learned Magistrate framed a charge against the accused, which is as Exh. 3. It is dated 6-3-1979. The Magistrate then recorded the statements of the accused, all of whom pleaded not guilty to the charges levelled against them. These statements were recorded on 6-3-1979, as shown under the statements themselves. In the Rojkam, the date is shown as 16-3-1979. Apart from this discrepancy, which is not germane for our purpose, the Rojkam dated 16-3-1979 further reads that the accused pleaded not guilty and the matter was adjourned to 3-4-1979 and the Public Prosecutor was informed accordingly. On 3-4-1979, the complainant remained absent, although summons was served upon him to remain present on that day. A bailable warrant was therefore issued on the complainant to remain present on 23-4-1979. On 23-4-1979, the learned Asstt. Public Prosecutor submitted an application stating therein that this Criminal Case had been fixed on 3-4-1979 to record evidence, but the complainant did not remain present though served with a summons. a bailable warrant was, therefore, issued which could not be served on the complainant. It. was further submitted that it would not be in the interest of justice to close the prosecution evidence only on the ground that the warrant was not served on the complainant. It was further submitted that it had not happened that prosecution witnesses could not be kept present despite having given to the prosecution several opportunities to do so. It was further submitted that therefore one more opportunity may be given to the prosecution to serve the summons on the complainant. The learned Magistrate for the reasons stated in his order dismissed the aforesaid application submitted by the learned Assistant Government Pleader. It is pertinent to note that on 23-4-1979 a Vakalatnama of Shri Thakurkrishna R. Shah, advocate, Jhagadia was filed on behalf of the complainant. After rejecting the application for adjournment filed by the learned Assistant Public Prosecutor on 23-4-1979, the learned Magistrate delivered the judgment and acquitted all the 15 accused. He has stated, inter alia, in his judgment that it was not proper to grant an adjournment if the endorsement on the warrant was that it could not be served as the complainant was out of station. In his opinion, it would mean that the complainant did not intend to remain present on the day of hearing, Since the complainant was not present, and since no other witness was also present, the learned Magistrate came to the conclusion that prosecution had failed to prove its case.
4. The learned Public Prosecutor Mr. Vaidya submitted before me that there was no justification for the learned Magistrate in the first place to reject the application for adjournment filed by the A.P. P. before him and secondly there was no justification also for making an inference that the complainant was not serious to prosecute his complaint, and consequently the order of acquittal is neither just nor legal. Mr. Vaidya submitted strenuously before me, and rightly, that if the prosecution fails to produce the witness or if in spite of due service of summons, the witnesses do not appear in Court to give evidence, it becomes the duty of the Magistrate trying the case to use all coercive methods to secure their attendance in Court. Mr. Vaidya invited my attention to a ruling in the case of Muktipada Mondal v. Abdul Jabbar reported in 1973 Cri LJ 1246 (Cal), for the following proposition:
Section 251-A of the Code casts no duty upon a Magistrate for producing attendance of witnesses. But at the same time there is nothing in the Code which prevents him from issuing summons at the instance of the prosecution. Thus once the witnesses are summoned by the Magistrate at the instance of the prosecution, the Magistrate cannot dispense with the presence of those witnesses merely because they failed to appear on the appointed day particularly when there is nothing on record to show that the Magistrate considered their evidence unnecessary or that the case is protracted on the ground of prosecution praying for adjournments from time to time.
Mr. Vidya submitted that it was not the case that the matter was adjourned from time to time. The case had reached the stage of hearing once on 3-4-1979 and 23-4-1979 was the second date for hearing. Mr. Vaidya also relied on the case reported in the same volume, in the case of State of Mysore v. Ramu B., at page 1257 of 1973 Cri LJ. The following observations at para 3, of the judgment are relevant (at p. 1258):
It is clear from the record that no attempt has been made by the Court to take such coercive steps as were open to it to cause the presence of the witnesses concerned in the case. It seems to me that having regard to the provisions of Sub-section (7) of Section 251-A of the Cr. P.C. the entire responsibility of production of the witnesses cannot be saddled on the prosecution. A duty is also imposed upon the Court for enforcing attendance of witnesses by the processes provided in the Code. The Courts are not powerless when the parties fail to produce witnesses. In this view, it was the duty of the Court, in the instant case, to have issued coercive processes if the prosecution had failed to produce the witnesses as directed on 10-12-1971.
A citation in that ruling from the case of State of Mysore v. N. G. Narasimhegowda (1964) 2 Mys LJ 241 : 1965-2 Cri LJ 48 : AIR 1965 Mys. 167 is also pertinent and deserves to be noted (Para 7):
Having once issued summons to secure attendance of witnesses, it was the duty of the Magistrate to have enquired into the cause of non-service or non-return of summons and to have taken over steps as were necessary in the circumstances of the case to secure the attendance of witnesses particularly when there was no material before him to show that there had been any remissness on the part of the prosecution agency.
The aforesaid observations are apposite to the infirmity involved in the present case. The learned Magistrate not only did not make any attempt on his part to effect the presence of the complainant and the prosecution witnesses but even when the prosecution had urged to have more time to do so, he turned down the prosecution request, The Rojkam does not in any way justify the learned Magistrate. May be that the learned Magistrate was annoyed on finding that the complainant was absent when the case was called out for hearing, but it is expected that such annoyance does not make him oblivious of the duties which he has to discharge as a Judicial Officer. Haste does not help the cause of justice as much as the protracted delay does not do so. In the present case, it is further to be noted that there is an express provision under Section 242(2) of the Code of Criminal Procedure enabling the learned Magistrate on the application of the prosecution to issue a summons to any one of its witnesses directing him to attend or to produce any document or any other thing, and if the person to whom such a summons is served does not comply with it, a summary procedure for punishment for a non-attendance by a witness in obedience to summons is clearly provided in Section 350 of the Code of Criminal Procedure. The Judicial Officer, therefore, in such circumstances need not feel himself helpless, but he must see to it that the coercive machinery is availed of to secure the presence of a recalcitrant complainant or such witnesses. If this is not done, the Judicial Officer in charge of the matter would be failing in the discharge of his duties. The imparting of justice is always a matter of conscience and mere termination of a matter by itself means nothing. A trial Magistrate must indeed feel hurt by such a recalcitrant complainant and such witnesses, if they do not come forth to help the cause of justice and he must then make every permissible endeavour to see that a case is not frustrated or miscarried merely because those who have set the criminal law in motion later on change their minds and seek by their absence to get away from it.
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6. xx xx xx The matter is remanded to the trial Court for a further trial in accordance with law. xx xx xx xx