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1973 Supreme(Pat) 78
PATNA HIGH COURT
N.L.Untwalia and S.Sarwar Ali JJ.
State Of Bihar
Versus
Mangilal
Criminal Reference No. 33 of 1971 ;
Decided On : APRIL 13, 1973
Headnote:I. Criminal Procedure Code (Act V of 1898), Section 251 A (7)-Case instituted on a police report-witnesses failing to appear on the date fixed-Proper procedure-Duty of the Court in such cases.
Where in a case the argument advanced was that in case of witnesses failing to appear on the date fixed, it is the duty of the court to take all possible measures to compel their attendance.
Held that the correct position of law in this regard is that in a warrant case instituted on police report, the primary duty of the prosecution is to produce witnesses; but since the prosecution which is the state or the Public Prosecutor has no power or machinery to compel attendance of the witnesses, it is fully justified in seeking the help of the court for their production. Help of the court may be asked for by praying to the court to issue summons to the prosecution witnesses. If after service of summons a witness does not appear, the prosecution may ask the court to issue warrant of arrest. But unless such a prayer is made, it is not the duty of the court either to issue any summons to the prosecution witnesses or to issue warrant of arrest if a prosecution witness does not appear even after service of summons.
Held further that it is the duty of the court, meaning there by it is imperative for the court to allow the prayer of the prosecution to issue summons or to issue warrant of arrest. The court may refuse to do so, if it finds that the prosecution is guilty of remissness or laches. But then the court can not refuse the prayer mearly because sub section (7) of Section 251-A does not provide for this. AIR 1964 Pat 354 dissented from AIR 1968 Punjab 87 relied on.
(Paras 5 & 8)
II. Criminal Procedure Code (Act V of 1898), Section 251 A (7), 207 A (2), 208-Case instituted upon a police report and otherwise-Duty of the prosecution to produce witnesses-Comminent enquiry-Magistrate whether bound to issue processe to compel the attendance of witnesses-Such procedure whether can be applied in other cases instituted on police report.
Held that chapter XVIII of the Code relates to Commission of serious offences, the legislature has taken precaution in casting a duty in express language on the Magistrate to issue summons when asked to do so by the prosecuting officer. But then it does not mean that the Magistrate can whimsically or without any rhyme or reason refuse to issue summons when asked by the prosecution to do so in a warrant case instituted on police report. The distinction made by the legislature has got significance and this distinction must be borne in mind by the prosecutors in cases instituted on police report. They must realise that it is their primary duty to produce witnesses or to seek their prosecution if they do not come on the request. It is not the duty of the court to pursue the witnesses and get them produced in the court. The difference in the language of sub-section (2) of section 207 A and sub section (7) of section 251 A is not for the purpose of casting duty on the prosecution, in the former case to apply for issue of summons and in the latter not to apply for issue of summons but is for a different purpose.
(Paras 7 & 8)
UNTWALIA, J.
1. In G.R. Case No. 1084 of 1965 a Judicial Magistrate at Chaibassa by order dated the 19th December, 1970 refused to adjourn the case further and to issue summonses to the prosecution witnesses at its instance. He closed the prosecution case and proceeded to examine the accused under Sec.342 of the Code of Criminal Procedure hereinafter called the Code. There were two accused and they had been charged of having committed embezzlement of Rs. 85/-. Thus, they are said to have committed offences under Sections 409 and 120-B of the Penal Code. The State applied to the Sessions Judge of Singhbhum at Chaibassa for making a reference to this Court under Sec. 438 of the Code. The learned 3rd Additional Sessions Judge, Chaibassa, on the basis of some decisions of High Courts thought that the order passed by the Magistrate was not justified in law. According to him, the learned Magistrate "had committed fatal irregularities in having not allowed the prosecution to have adduced evidence for which the Court had already issued processes and to have closed the case without waiting for service return and after calling for a fresh list of witnesses without having issued processes as prayed for." In that view of the matter, the learned Additional Sessions Judge has recommended for quashing of the order of the learned Judicial Magistrate.
2. I shall state the facts of this case from the letter of reference, pointing out some inaccuracies here and there. The offence is said to have been committed in the year 1965. Charge-sheet was submitted on the 9th June, 1967, and upon police report, cognizance was taken by the Sub-divisional Magistrate on the 10th July, 1967. He transferred the case to the file of Shri C.N. Singh, Munsif Magistrate 1st Class, Chaibassa. The case was later on transferred to the Court of Shri H.K. Bhattacharya, Judicial Magistrate 1st Class, Chaibassa from the Court of Shri C.N Singh. After examining P.W. 1 on the 22nd December, 1969, Shri Bhattacharya was of the opinion that the case was such as was fit to be tried by him because it involved defalcation of a petty sum of Rs. 85/-. He did not think it necessary to proceed with the enquiry under Chapter XVIII of the Code and proceeded to try the case himself. Thereafter the next date fixed in the case was 3-2-1970 for examination of the remaining prosecution witnesses. Because of their absence on that date the case was adjourned to 14-3-1970 and again to 29-4-1970 for the same reason on 29-4-1970 no prosecution witness was present. The case was adjourned to 30-5-1970 and a direction was given to the prosecution to bring its witnesses. Summonses were also directed to be issued to the prosecution witnesses. I may state one fact here. When I proceed to discuss hereinafter the law relating to the trial of warrant cases instituted on police report, I shall point out that it is not always necessary or incumbent upon the trying Court to issue summonses to the prosecution witnesses unless and until prayer in that behalf is made by the prosecution. To resume the sequence of fact, on 30-5-1970 no prosecution witness was present and the prosecution was again directed to bring witnesses on 23-6-1970. It is not clear from this order whether summonses had been issued to or served upon the prosecution witnesses. Then, on the next date fixed, i.e. on 23-6-1970 the prosecution again failed to produce any witness. The learned Additional Sessions Judge has not stated one fact from the order-sheet of that date. What is recorded therein is that a petition was filed on behalf of the accused stating that the case had been fixed for hearing since long and the prosecution did not produce any witness so the accused may be discharged. After hearing this matter the learned Magistrate stated -
"On perusal of the record it appears that the summonses were issued against the witnesses but the S.R. has been received after service. A.D.P. is directed to produce his witness on the next date
