JUDGMENT
J.U. Mehta, J.
1. The State has approached this Court against the judgment and order dated 19-9-1990 passed by the learned Judicial Magistrate, First Class, Junagadh in Criminal Case No. 4899 of 1988 acquitting the accused-respondents.
2. In the present case, the respondents were charged for offences punishable under Sections 147, 148, 324, 326, 337, 427, 506(2) of I.P.C. and Section 135 of the Bombay Police Act. The charge was framed on 26-2-1990 and the accused pleaded not guilty to the charge. Thereafter, the matter was adjourned to 17-3-1990 for taking evidence. On 17-3-1990, further the matter was adjourned to 24-4-1990. Then on 24-4-1990 again the matter was adjourned to 19-6-1990. On 19-6-1990, it is stated in the Rojnama that a Resolution was passed by the Bar Association to go on strike and, therefore, the matter is adjourned for taking evidence to 30-6-1990. On 30-6-1990 accused Nos. 2, 3, 4, 6, 13, 14, 16 and 17 were absent and on behalf of the said accused, exemption application was filed at Ex. 35 and the same was granted. On that day, the matter was adjourned for taking evidence to 4-8-1990. In the Rojnama it is shown that on 4-8-1990 because there was a Resolution of the Bar Association to go on strike, the matter was adjourned to 12-9-1990. On 12-9-1990 accused No. 4 was absent and an application was made on his behalf to exempt him from, appearing and the same was granted. The Rojnama shows that the prosecution witnesses were not present and the matter was adjourned for taking evidence to 19-9-1990. On 19-9-1990, according to the Rojnama, the accused were present. It is mentioned in the Rojnama that though summonses were issued to the prosecution witnesses, they have not remained present and on that day, on behalf of the prosecution the learned A.P.P. had given an application at Ex. 31 that even though the summonses were served, the witnesses arc not present and, therefore, bailable warrants be issued. The Court passed an order rejecting that application stating that many adjournments were given and, therefore, this application is rejected and then proceeded further and acquitted the accused under Section 248(1) of the Criminal Procedure Code.
3. Mr. D.K. Trivedi, learned Addl. Public Prosecutor appearing for the State submitted that it is not that at all times the matter was adjourned because the prosecution witnesses were not present, but on two occasions the Court adjourned the matter because there was a Resolution of strike on behalf of the Bar Association. He also submitted that in spite of the application, Ex. 38 requesting the Court to issue bailable warrants against the witnesses, the Court rejected the application made on behalf of the prosecution. Mr. D.K. Trivedi submitted that the trial Court ought to have issued bailable warrants against the prosecution witnesses instead of taking the easy course by acquitting the accused. He has also relied upon the judgment of this High Court in the case of State of Gujarat v. Nagin Amara Vasava and Ors; . I find much force in the submission made by the learned Addl. Public Prosecutor Mr. Trivedi.
4. On the other hand, Mr. S.M. Shah, learned Advocate appearing for the accused submitted that even though many adjournments were given, the prosecution did not choose to make a request at any point of time to issue bailable warrants against the witnesses and even in its Memo the State has not made any grievance that inspite of Ex. 38 requesting the learned Magistrate to issue bailable warrants, the learned Magistrate has failed to issue the warrants and acquitted the accused and the only grievance made is that the prosecution has not been given proper opportunity to lead evidence by examining the prosecution witnesses. He submitted that when the judicial discretion is exercised by the Court below in not granting further adjournment and acquitting the accused, this Court will not interfere as the incident occurred, according to the prosecution, on 11-6-1988. Mr. Shah vehemently supported the judgment of the trial Court. I do not see any substance in the argument advanced by Mr. Shah.
5. It is pertinent to note that while submitting the chargesheet by the Police, a request is made in the chargesheet itself by the prosecuting agency that all the 31 witnesses cited by the prosecution be called by issuing summonses. Under these circumstances, it was the duty of the Court below to issue summonses to all the prosecution witnesses and if the persons to whom such summonses arc served do not comply with it, then the trial Court ought to have seen that by coercive process the witnesses are brought before the Court. In the present case, initially even at the time of submitting the chargesheet the prosecuting agency had requested the Court to issue summonses to all the witnesses and also at Ex. 38 the learned A.P.P. made a request to the Court to issue bailable warrants to the witnesses as they did not remain present. However, the learned Magistrate rejected the said application stating that many adjournments were given and proceeded further by acquitting the accused. The State has made a grievance in the Memo that the learned Magistrate rejected the application filed by the A.P.P., which resulted in the miscarriage of justice. It is also stated that the learned Magistrate ought to have given an opportunity to the prosecution to lead evidence and, therefore, the order of acquittal is required to be set aside. It is also stated in the Memo that the learned Magistrate ought to have issued bailable warrants on the witnesses to procure their presence, looking to the seriousness of the offence and that the learned Magistrate committed an error in acquitting the accused. In my view, the State has made a grievance against acquitting the accused on the ground that the Court did not procure the presence of the witnesses by issuing warrants. Thus, it cannot be said, as contended by Mr. Shah, that no grievance is made by the State in the Memo regarding the rejection of the application of the prosecution by the learned Magistrate and non-procuring the presence of the witnesses by issuing such warrants. In my opinion, the trial Court committed an error in acquitting the accused without giving opportunity to the prosecution to lead evidence by examining the witnesses.
6. It will be necessary to examine the position regarding the trial of warrant cases instituted on a police report. Under Section 240, if upon consideration of the police report and the documents sent with it under Section 173, and examination of the accused, if any as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. Under Section 242 Cri. Pro. Code, if the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, on his plea of guilt, the Magistrate should fix a date for examination of the witnesses and the Magistrate may on the application of the prosecution issue summons to any of its witnesses directing him to attend or to produce any document or other thing and on the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. Section 243 states that the accused shall then be called upon to enter upon his defence and produce his evidence, and if the accused puts in any written statement, the Magistrate shall file it with the record, and if the accused after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination or the production of the documents or other things, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such grounds shall be recorded by him in writing. In Section 242(3), the words ‘as may be produced in support of the prosecution have been used. It is necessary for me to examine the connotation of the words ‘as may be produced’. In my opinion, the word ‘produced’ in Section 242(3) cannot be given any restricted meaning as to saddle the prosecution with the entire responsibility of producing the evidence. In my opinion, a duty also is cast upon the Courts for enforcing attendance of witnesses by the process provided in the Criminal Procedure Code. The Full Bench of the Madras High Court in the case of the State v. Veerappan and Ors., at para 22 has observed as under:
In almost all the decisions in which it has been held that an acquittal of the accused on the ground that the prosecution did not produce the witnesses was improper, the Courts have pointed out that the duty to summon the witnesses in the course of the trial is that of the Magistrate or the Court concerned, and that the entire responsibility of production of witnesses cannot be saddled on the prosecution and a duty is also imposed upon the Court for enforcing the attendance of witnesses by the processes provided in the Code and it is the duty of the Court to issue coercive processes if in spite of summons served on the witnesses they do not appear before the Court and the prosecution fails to produce the witnesses as directed. We are in respectful agreement with that view insofar as it emphasises the duty of the Magistrate or the Court.
7. No doubt, there is no specific provision in either the relevant Sections of Chapter XIX which deal with the trial of warrant cases instituted on the police reports by Magistrate or Chapter XX relating to the trial of summons cases instituted on police report, for acquitting the accused on the ground that the prosecution had not produced its evidence. Thus, there is a duty cast on the Court on an application by the prosecution to issue summons to the witnesses and secure the presence of witnesses by exercising all the powers conferred on it by the Code for that purpose and duty is also cast on the prosecution to produce all its evidence and to seek the assistance of the Court for so doing by applying to the Court for the issue of summons to the witnesses. Therefore, in my view, an acquittal of the accused merely on the ground that the prosecution had not produced the witnesses would not be proper if the Court had not on an application by the prosecution discharged its duty of summoning and enforcing the attendance of witnesses, by coercive process. I am supported by the judgment of this High Court in the case of State of Gujarat v. Nagin Amara Vasava and Ors; , wherein it is laid down that if the prosecution fails to produce the witness or if inspite of service of the summons the witnesses do not appear to give evidence, it becomes the duty of the Magistrate to use all coercive methods to secure their attendance in the Court. 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 witness, if they do not come forth to help the cause of justice and he must 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.
8. In the present case, the Court even after the application filed by the A.P.P. at Ex. 38 did not procure the presence of the prosecution witnesses by coercive process as provided under Section 350 Cri. Pro. Code and rejected the prayer of the prosecution and by adopting easy course, acquitted the accused and under the circumstances, the matter is required to be remanded to the trial Court for proceeding further in accordance with law and in light of the observations made above.
9. In the result, the appeal filed by the State is allowed. The judgment and order of acquittal, dated 19-9-1990 passed by the trial Court in Criminal Case No. 4899 of 1988 is quashed and set aside and the matter is remanded to the trial Court to proceed further in accordance with law and in light of the observations made in the judgment.
10. As the case is old one, the trial Court will give top priority in disposing of the case.