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GAUHATI HIGH COURT
B.P.Saraf, J.
Ahmed Ali -Appellant
Versus
State of Assam -Respondent
Criminal Revision No. 23 of 1984
Decided On : 21-11-1989
CRIMINAL PROCEDURE CODE - SECTION 62, 69, 87 - SUMMONS AND WARRANTS - ISSUE AND SERVICE - MAGISTRATE'S DUTY - JUDICIAL DISCRETION - RECORDING OF REASONS - ACQUITTAL OF ACCUSED DUE TO NON-SERVICE OF SUMMONS - IMPROPER - COURT'S SUPERVISION AND CONTROL OVER MAGISTERIAL COURTS.
Fact of the Case:
The petitioner challenged the order of the Magistrate closing the criminal case and acquitting the accused persons due to non-service of non-bailable warrants against the witnesses. The Magistrate observed that the police officers were negligent in serving the summons and warrants.
Finding of the Court:
The Court found that the Magistrate's order was improper and illegal. The Magistrate failed to exercise judicial discretion and did not record reasons for issuing non-bailable warrants against the witnesses. The Court also noted the deteriorating standards of administration of justice in the trial courts and the growing inefficiency and irresponsibility of the courts.
Issues: 1. Whether the Magistrate's order closing the criminal case and acquitting the accused persons was proper and legal? 2. Whether the Magistrate exercised judicial discretion and recorded reasons for issuing non-bailable warrants against the witnesses?
Ratio Decidendi: 1. The Court held that the Magistrate's order was improper and illegal. The Magistrate failed to exercise judicial discretion and did not record reasons for issuing non-bailable warrants against the witnesses. The Court also noted the deteriorating standards of administration of justice in the trial courts and the growing inefficiency and irresponsibility of the courts. 2. The Court held that the Magistrate did not exercise judicial discretion and did not record reasons for issuing non-bailable warrants against the witnesses. The Court also noted that the Magistrate failed to ensure that summons were issued and served on the witnesses before issuing non-bailable warrants.
Final Decision: The Court disposed of the petition with the observations that it would be just and proper not to pass any order for fresh trial of the case and to allow it to remain closed.
Certainly. Based on the provided legal document, here are the key points summarized with appropriate references:
A Magistrate must exercise judicial discretion and record reasons before issuing non-bailable warrants against witnesses. The failure to do so renders the order improper and illegal. (!) (!) (!) (!) (!)
The exercise of judicial powers such as issuing summons or warrants must be done judiciously, considering the facts and circumstances of each case. Powers cannot be exercised arbitrarily or mechanically. (!) (!) (!) (!) (!) (!) (!)
The issuance of warrants in lieu of summons is an exception and requires the court to be satisfied that summons could not be served despite proper efforts, and that the conditions for issuing a warrant are met, including recording reasons in writing. (!) (!) (!) (!) (!) (!)
Proper service of summons is a prerequisite for issuing warrants; if summons are not issued or served, coercive measures against witnesses are unwarranted, and cases should not be closed or accused acquitted solely due to non-service. (!) (!) (!) (!) (!) (!) (!)
The case highlights the importance of the court's role in supervising process service and ensuring that procedural requirements are strictly followed to prevent miscarriages of justice. Delays and negligence in service can lead to wrongful acquittals and undermine public confidence in the justice system. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
The court emphasized that non-bailable warrants issued without proper adherence to legal provisions and without recording reasons are unlawful. Such actions reflect a failure to exercise judicial discretion properly. (!) (!) (!) (!) (!)
The court acknowledged the delays and inefficiencies in process service and the need for administrative improvements, but stressed that judicial powers must be exercised within the bounds of the law, and any deviations are liable to be scrutinized and corrected. (!) (!) (!) (!) (!) (!) (!) (!) (!)
Ultimately, the court disposed of the petition by observing that, given the long elapsed period and the circumstances, it would be just and proper not to order a fresh trial, allowing the case to remain closed to prevent further injustice to the accused. (!) (!)
Please let me know if you need further elaboration or assistance.
"it is unfortunate that the police officers consider the submission of the charge sheet as completion of their duty. Neither any memorandum in connection with the completion of service of warrant, notice and 'summon sent from the Court to the police station is returned to the Court nor they are returned with the reasons for non-service of the same. For such difficulty many cases have to be just closed after completion of procedure."
2. The aforesaid order has been challenged by the petitioner Ahmed AH who was informant in the instant case. The victims were his sisters and nephews. The case of the petitioner is that no process was ever served on the witnesses who were ready and willing to help the cause of administration of justice by giving evidence in the Court but failed to do so on account of non-receipt of any process or notice from the Court.
3. I have heard the learned counsel for the petitioner Mr. A. C. Bora as well as the learned Public 'Prosecutor. So far as the observations made by the learned Magistrate in regard to delay in service of summons and warrants by the police is concerned, there is no denial that such delays do very often occur. This Court can even take judicial notice of it. The Law Commission of India found it as back as in 1969 and in its Forty-First Report observed as follows:
"It is a standing complaint that there is a great deal of avoidable delay in the service of summons and that the execution of coercive processes is often unsatisfactory. Improvements in this regard can only be effected by administrative action and there is little that can be achieved by amendment of the law".
4. The prevailing situation in Assam in this regard was studied by the Assam Police Commission. In its report submitted in the year 1971, it observed :
i) During our tour to various districts, we heard a lot of complaints from the Magistrates and members of the Bar about unsatisfactory process service by police officers. They pointed out that owing to dilatory and defective process service, expeditious trial of cases is considerably handicapped.
ii) When we questioned police officers about the matter, they expressed their difficulty due to shortage of staff and the enormous increase in the volume of processes which are required to be dealt with by them...
(iii) It is clear...that the work relating to process serving is very heavy and the police station staff have also to shoulder the responsibility for execution and service of processes pertaining to complaint cases as also cases sent up by the Excise, Forest, Supply and other departments ".
The Commission made important recommendations with the view to streamline the existing procedure of process service. One of the recommendations was that Senior Police Officers should be entrusted with the responsibilities of exercising strict supervision on process serving work and taking prompt action against defaulting Thana Staff whenever any instance of inordinate delay is brought to their notice by trying Courts.
5. In 1978, the Law Commission of India in its Seventy-Seventh Report on "Delay and Arrears in Trial Courts" again made some concrete suggestions to avoid delay in service of processes and ensuring the presence of the witnesses on the date of hearing. It observed :
"It seems to us desirable that at least two police officials at every police station should be set apart for getting service effected upon witnesses for cases relating to that police station and for ensuring th
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