A court is empowered to issue a warrant for the arrest of a witness who fails to appear in response to a summons and offers no reasonable excuse for such failure.

Shib Sadhan Sadhu, J.

1. This is an application under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 seeking to set aside/quash the impugned order No.02 dated 09.02.2015 passed by the Learned Sessions Judge, Suri, Birbhum in Sessions Case No.148 of 2014 whereby and whereunder he rejected the prayer for postponement of the trial despite pendency of a Special Leave Petition before the Hon’ble Supreme Court and directed issuance of bailable warrant of witness of Rs.500/- (Five hundred only) against the witnesses Hriday Ghosh and Sibani Ghosh (Petitioner Nos.1 & 2 herein).

2. Mr. Firoz Edulji, Learned Advocate appearing for the petitioners submitted that on 9th February, 2015 the case was fixed for examination of the petitioners as prosecution witnesses. On that date the petitioner No.3 who is the de-facto complainant filed an application before the Learned Sessions Judge, Suri to the effect that three Special Leave Petitions have been filed before the Hon’ble Supreme Court of India and she prayed that the examination of the witnesses be deferred till disposal of those SLPs. But the Learned Sessions Judge rejected the petition and issued warrant of arrest against the petitioner Nos.1 & 2 as they failed to appear to give evidence on that date. He further submitted that on 16th February, 2015 the petitioner No.3 wrote a letter to the District Magistrate, Birbhum for change of the Learned Public Prosecutor Mr. Ranjit Ganguly as he had political affiliation and was siding with the accused. As such she requested the District Magistrate to appoint an unbiased Public Prosecutor. But despite such fact the Learned Sessions Judge rejected the application filed by the petitioner No.3 for adjournment of examination of the witnesses and issued bailable warrant of arrest against the petitioner Nos.1 & 2 which has caused not only prejudice to the petitioners but also occasioned gross miscarriage of justice. He submitted yet further that the impugned order is a glaring example of non-application of judicial mind and so it is liable to be set aside. The Learned Sessions Judge ought to have considered that since the Special Leave Petitions were filed and pending before the Hon’ble Supreme Court the trial of the case should have been postponed till disposal of those SLPs.

3. Mr. Eduji continued to contend that administration of criminal justice is a very solemn duty and it involves the liberty and reputation of individuals and so the Learned Sessions Judge should have exercised the power of issuing warrant of arrest against the witnesses with great care and circumspection. He should have kept in mind that such exercise can infringe the fundamental right to life and liberty of the petitioners. A witness is different from a party to the case and he/she has no personal interest in the case or its result. So witnesses cannot be treated as criminals and they are entitled to all the courtesy which a free citizen is entitled from the fellow beings. If warrant of arrest is issued against witnesses for their absence it might be impossible to secure any witness in a criminal case.

4. He further contended that as per Section 350 Cr.P.C. when a witness fails to attend in obedience to the summons issued to him, and if after a summary enquiry it is found that he absented himself without a just cause, the maximum punishment which can be imposed on him is a fine of Rs.100/- and nothing more. The said Section does not contemplate a sentence of imprisonment upon a witness disobeying the summons. There is also no other provision in the Code of Criminal Procedure, 1973 which empowers a Magistrate to remand a witness to judicial custody if he fails to attend Court. If an application was filed by the Learned Public Prosecutor, summons should have been issued under Section 350 of the Cr.P.C. to show-cause as to why the petitioner Nos.1 & 2 did not appear to give evidence but that course was not adopted. Instead the Learned Session