Mian Jalal-Ud-Din, J.
1. This is a reference made by the learned Sessions Judge Srinagar recommending that the order dated 10-5-1973 of (City Munsiff) Judicial Magistrate 1st Class Srinagar closing the prosecution evidence be quashed on the ground that it is improper and contrary to law.
2. It appears that in case State v. Omkar Nath pending trial in the Court of City Munsiff Judicial Magistrate 1st Class under Section 451. R. P. C. the Magistrate issued non-bailable warrants against one Dr. Maqbool P. W. in consequence of his non-appearance. On 19th April 1973 the said witness appeared with an application praying that the warrant of arrest issued against him be recalled. He undertook to present himself in the Court on the next date of hearing i. e., 10-5-1973, The witness, however, did not appear on the date as a result of which the learned Magistrate closed the evidence of the prosecution. The learned Sessions Judge has in his reference observed that the order closing the evidence of the prosecution could not be sustained in view of the fact that once the Court had issued process against the witness, it was the duty of the Court to enforce his attendance and for that matter even to issue non-bailable warrants against him. There was no justification for the Court below to have closed the evidence of the prosecution.
3. I have heard the learned Counsel for the respondents. He has not supported the reference. His contention is that the Magistrate was justified in closing the evidence of the prosecution as the witness had failed to turn up on the date fixed in the case. There wag no other alternative for the Magistrate but to have closed the evidence of the prosecution when it had committed wilful default in this regard. In support of his contention he has referred me to an unreported case of this Court (vide Cr. Reference No. 39 of 1968 (J & K). State v. Ramzan Naiku decided by the Hon'ble Chief Justice).
4. I have considered the matter and have also gone through the said judgment. In my opinion the facts of that case are distinguishable from the facts involved in the present case. That wag a case where the prosecution had failed to produce its witnesses on successive dates and the Court had closed the evidence of the prosecution. Hon'ble Chief Justice while deciding the reference observed, that Government servants who fail to turn up after summons are issued cannot be allowed to take advantage of their default. But that is not the case before us. Here the witness Dr. Maqbool against whom warrant for appearance was issued in consequence of his non-appearance did turn up at an earlier date and sought cancellation of the warrant issued against him. He undertook to present himself on the next date of hearing. If the witnesses subsequently did not turn up on the next date of hearing, it was not fault of the prosecution. There was an obligation cast on the Court to discharge its duty in enforcing his attendance and for that purpose to use all possible coercive methods. After all what is the responsibility of the prosecution towards the Court 2 It is to furnish particulars of the witnesses and seek the assistance for their production unless the prosecution undertakes to produce witnesses on its own responsibility. For default committed by witnesses for no fault of the prosecution the prosecution cannot be saddled with the responsibility and indeed should not be allowed to suffer on that score. In such a situation it becomes the bounden duty of the Court to exercise all its powers for procuring the attendance of the witnesses. If cases are dismissed because of wilful default committed by witnesses then a situation may arise where the Court as well as the party will be at the complete mercy of the witnesses. This will undoubtedly defeat the very ends of justice. Where, however, the blame lies on the prosecution for the default committed by it then of course the Court will be justified in knocking out its case. In the present case the learned Magistrate has failed to discharge the obligation that lay on him and therefore the impugned order cannot be upheld.
5. I, therefore, agree with the learned Sessions Judge that the order under revision needs to be set aside. The result is that the reference is allowed and the impugned order is set aside. The trial Court is directed to issue process against the witness and brine the case to its logical end.