JUDGMENT
S.S. Sandhawalia, C.J.
1. What is the duty of the trying Magistrate for compelling the attendance of prosecution witnesses in a warrant case instituted on police report? What is his role in the event of their non-production by the prosecution (despite the issuance of coercive process) on account of its pronounced negligence or recalcitrance over a long period of time? This is the twin question which has come to the fore in this reference to the Division Bench.
2. The petitioner herein is the Bihar State Small Industries Corporation, and it is averred on its behalf that more than fifteen years ago – on the 6th of May, 1969 – Shri B. K. Banerjee, Controller of Accounts of the petitioner corporation, made a surprise check of one of its establishments, being the Industrial Estate situated at Digha, Patna. Respondent No. 2, Srideo Jha, at the relevant time, was posted as the Head Clerk-cum-Accountant thereat and the Controller of Accounts detected a defalcation of more than a lac of rupees and made a report (Annexure 1) to the Officer-in-Charge of the Digha Police Station, who registered a case under Sections 409,420,467, 468 and 471 of the Indian Penal Code against respondent No. 2. It is then the case that the police proceeded in a lackadaisical manner in relation to the investigation of the case, and it was not till more than five years later that it submitted a charge sheet dated the 9th of September, 1974 against the accused Srideo Jha, respondent No. 2, and the Magistrate took cognizance of the offence on the 17th of July, 1975. It is specifically averred in paragraph 3 of the petition that thereafter the case was transferred to the files of different Magistrates and in spite of summons and even warrants of arrest having been issued to ensure the attendance of witnesses named in the charge sheet the trying Magistrates found themselves unable to procure their presence in court in the absence of any report from the police regarding the service of the process. Ultimately, on the 19th of September, 1979 Shri A. K. Sinha, Judicial Magistrate, 1st Class, Patna, passed an order directing the prosecution to produce witnesses on the 29th of October, 1979. No witness, however, appeared on the said date and even on the next date of 21st of November, 1979. Thereupon, he directed summonses to issue on witness Nos. 1 to 3 for the 18th of December, 1979 and having not received any service report adjourned the matter to the 19th of January, 1980 and again on the non-appearance of witnesses directed the summons to reissue against witnesses Nos. 1 to 3 for the 13th of February, 1980. It is unnecessary to advert to the tortuous process of the attempts of the courts to compel attendance of the witnesses and ultimately on the 4th of October, 1980 the learned Magistrate issued a direction to the Assistant Public Prosecutor to ensure the attendance of witnesses on the next date of the 14th of October, 1980 with a warning that on their non-appearance the prosecution case may be closed. However, on the 14th of October, 1980 as well no witness appeared and the learned Magistrate observed that the prosecution was not interested in the case and, accordingly, for the ends of justice it was necessary that the prosecution be closed and the statement of the accused be recorded. Numerous adjournments followed thereafter till 2nd of July, 1981 when after hearing arguments in the case he passed the impugned order(annexure 3), the operative “part whereof is as follows:
3. The prosecution did not examine a single witness in support of the charge. On perusal of the record it appears that the charge was framed long back on 17-11-78 and since then the prosecution was given opportunity to produce the witnesses but he failed to do so. In the result the case was closed.
4. The accused denied the commission of the alleged occurrence in his statement.
5. I do not find on record any evidence or material against the accused. This is actually a case of no evidence and the accused deserves acquittal. He is acquitted under Section 251 A(l1) Cr. P. C. and discharged from the bail bonds executed by him.
3. It is the case of the petitioner corporation that no notice was served on it with regard to the progress of the aforesaid prosecution case and in despair on the 13th of December, 1978 a petition of complaint was filed in the court of the Chief Judicial Magistrate, Patna, on which the Magistrate called for a report about the investigation and the stage of the police case. Since no further information was forthcoming on the 26th of May, 1982, when the complainant was absent, the case was dismissed for non-compliance with the court’s order. It would appear that a revision was carried to the court of the Sessions Judge, Patna, against the said order which was ultimately withdrawn by the petitioner on the 26th of August, 1982.
4. It is, however, averred that thereafter the petitioner obtained copies of the relevant documens including the impugned order of acquittal dated the 3rd July, 1981 and preferred the present petition challenging the same of 10th of February, 1983. r-
5. In the counter affidavit filed on behalf of respondent No. 2 it is first pointed out that the impugned order of acquittal was passed way back on the 3rd of July, 1981 but the present petition has been preferred on 10th of February, 1983 – nearly 2 years thereafter – and thus, suffers from gross laches and delay and, consequently, deserves dismissal on that score alone. It is categorically averred that the petitioner was fully aware of the case and the dates fixed by the learned Magistrate and in order to deliberately harass and oppress the answering respondent if failed to produce witnesses and to diligently prosecute the case. It is stated that the case being palpably false and fabricated, not a single witness was willing to come forward to support the same, despite the issuance of process. Further the petitioner was fully aware of the proceedings and having withdrawn the revision petition before the Sessions Judge, Patna, is not now entitled to press the present proceedings. Lastly it is highlighted that the respondent has been obliged to undergo a harrowing period of investigation and trial for over 12 years extending from 1969 to 1981 and if the order of acquittal is now upset, it would be virtually asking the respondent to face these proceedings till he is alive.
5A. When this case came up for admission before my learned Brother, S. S. Hasan, J., sitting singly, he noticed that there was a lot of controversy as to what steps a trial court should take for ensuring the attendance of prosecution witnesses and inter alia adverted to State of Bihar v. Polo Mistry . Considering the significance of the question, the case was referred to a Division Bench for an authoritative decision and that is how it is before us now.
6. Though the principles which are attracted for consideration of the larger question posed at the outset are of general application, yet it would be apt to confine the issue to the trial of warrant cases by Magistrates instituted on a police report, as is the case here. Chapter XIX of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the ‘Code’) spells out the procedure for the trial of warrant cases by Magistrates in precise detail. In terms it provides for the issuance of compulsive process to witnesses directing them to attend or to produce any document or other thing at the instance of the prosecution or the defence. Herein three distinct situations may well arise and deserve to be categorised and dealt with individually for the sake of clarity.
(i) where the prosecution undertakes to produce its evidence on its own or in any case does not seek the assistance of the court for the issuance of summons or warrant for compelling the attendance of its witnesses;
(ii) where the prosecution applies for, and seeks the aid of the court for, the issuance of process either wholly or partially for the production of its evidence; and
(iii) where despite the issuance of summonses or warrants of arrest by the court the same are not executed by the prosecution agency and consequent upon such negligence or recalcitrance the witnesses do not appear over a prolonged period of time.
To my mind, the answer to the three situations aforesaid appears to be plain enough though inevitably there might appear a little confusion in the penumbral regions. As regards the first case, it necessarily follows that where the prosecution either expressly undertakes to produce the evidence on its own or in any case does not at any stage seek the aid of the court for the issuance of process then inevitably the duty of producing its evidence in court is saddled entirely on itself. On a failure to discharge its duty, the inevitable consequences therefrom must follow. In my view, the Magistrate would be under no duty or obligation to barge in on his own in the event of the refusal or failure of the prosecution to seek his assistance to issue any compulsive process. In such a situation it would be plain that if the prosecution fails to produce its witnesses altogether or does so insufficiently within a reasonable period of time granted by the court, the matter would have to be decided on the materials existing on the record. Total non-production of evidence by the prosecution would inevitably lead to the acquittal of the accused which is not only warranted by larger principle but equally by the express terms of the Code.
6A. In the second case, where the court’s assistance is sought for securing the attendance of prosecution witnesses, it is plain that ordinarily the same would be provided by the issuance of process. On a proper application for summons to witnesses and in the event of non-compliance therewith, for warrants, it would be the function of the court to compel attendance. This is not to say that the court has no discretion in the matter, but ordinarily in such a situation it would be in error in declining its aid or its power to compel attendance when express resort is made to it. Therefore, if the non-appearance of the prosecution witnesses is due to the court’s failure, refusal or negligence to issue the requisite process for compelling the attendance of its witnesses then the prosecution cannot possibly be saddled with the blame of the non-attendance. In such a situation if the court proceeds to discharge or acquit an accused, it may well be that such an order resulting from the non-production of evidence because of the court’s default in compelling attendance may not be well founded.
7. Coming now to the third situation which, indeed, is the case here, it must first be noticed that the court must give its aid of the compulsive process to secure the attendance of prosecution witnesses. However, having done so and issued the summons or warrant, as the case may be, does its duty extend even further in case of the non-execution of the said process by the prossecuting agency over prolonged period of time? Herein it is the petitioner’s own case in paragraph 3, that despite the issuance of summonses and even warrants of arrest against some of the prosecution witnesses named in the charge sheet, not one of them could ,be . produced in court over a period of six years from the date of the taking of cognizance by the Chief Judicial Magistrate on the 17th of July, 1975 to the 3rd of July, 1981 when the impugned order of acquittal was recorded. Faced with this uphill factual position, Mr. Balabhadra Prasad Singh, the learned Counsel for the petitioner had taken the extreme stand that it was the duty of the court alone to secure the attendance of the prosecution witnesses ‘ and if they did not choose to appear despite the issuance of process then it is the failure of the court itself and no acquittal or discharge can follow on the ground. Reliance was sought to be placed on (supra) and K. Madhusudanan Namboodiri v. Unni Nair 1975 Cri LJ 751 (Ker). Counsel then went to the length of contending that in case the prosecuting agency (which, in a case instituted on police report, is, in essence, the police) fails to execute even the non-bailable warrant, the duty would still remain on the shoulders of the court to secure their attendance one way or the other. It was the stand that the Magistrate in this context should initiate proceeding for contempt of court to be taken up by the High Court against the recalcitrant police agency.
8. With respect I am unable to subscribe to this extreme and what appears to me as a virtually doctrinaire stance. As would be noticed in detail hereinafter, the court’s obligation is to issue ultimately non-bailable warrants of arrest for the attendance of witnesses, where so warranted. Undoubtedly, it will give a reasonable time for their execution. However, the total burden of the production of witnesses and the execution of process cannot be saddled on the court’s shoulders but, to my mind, rests substantially on the prosecuting and the police agency. This is the more so in cases instituted on a police report. The claim that on the failure of its duty by the prosecution or the police agency to execute the warrants of arrest or other compulsive process and to produce its own witnesses in court, the Magistrate is bound to resort to the ultimate weapon of the proceeding by way of contempt of court for compelling attendance of prosecution witnesses appears to me as somewhat far-fetched. It is significant to recall that the lower judiciary has no power to punish for contempt of court in such a situation. To suggest that as a matter of routine whenever the prosecution fails to discharge the burden of executing compulsive process, the subordinate court should move the High Court for contempt of court proceeding against the recalcitrant official appears, in practical terms, to be a somewhat farcical proposition. There seems no option but to reject this submission of the learned Counsel for the petitioner.
9. Equally reliance on Polo Mistry’s case (1964 (2) Cri LJ 175) (Pat) (supra) is not well placed. Therein the Magistrate on application had issued summonses for the appearance of 15 witnesses on 17th, 18th and 19th of July, 1961 in equal batches. However, despite, the fact that summonses had been served, no prosecution witness appeared on those dates and the Assistant Public Prosecutor made a prayer for the issue of warrant of arrest against them but this was rejected. Thereafter, on the 19th of July, 1961, the learned Magistrate proceeded to acquit the respondents under Section 251 A(l 1) of the Code on the ground of want of evidence against them, and on some queer reasoning which the High Court found patently untenable. It is plain that this case is of no aid to the petitioner because in such a situation the Magistrate would be obliged to grant aid of compulsive process by way of warrants against the prosecution witnesses and having unreasonably declined to do so, it could not punish the prosecution for its own” default. The High Court was thus right in setting aside the order of acquittal. This case is wholly distinguishable and, indeed, hardly relevant to the issue. Similarly, reliance on K. Madhusudanan Namboodiris’ case (1975 Cri LJ 751) (Ker) (supra) is wholly irrelevant because it merely holds that it was the duty of the Magistrate under Section 256 to recall a witness for further cross-examination and not for the complainant to produce the said witness after a charge has been framed.
10. Now, examining the matter dispassionately, it would appear without pretending to be exhaustive in this context that the two compulsive processes for securing the attendance of witnesses are those of the issuance of summons and of warrant, the latter being further divisible into bailable and non-bailable one. In the event of a witness’s recalcitrance to appear in response to a summons after being duly served, the court is not powerless and thereafter can, if need be, in the first instance, resort to the issuance of bailable or non-bailable warrants. The most stringent in this field is, of course, the latter. It could not be seriously disputed before us that a non-bailable warrant by the nature of things, is usually directed to the police agency for execution. The execution of such a warrant may well involve the use of force for arresting or keeping the delinquent in custody, and inevitably the police is the primary agency for its execution.
11. Now, how far does the duty of the court extend in compelling attendance of Witnesses by virtually this last sanction of a non-bailable warrant of arrest? As has been noticed above, the execution or carrying out this command of the court is with the police agency. The function of the court is to grant the sanction of such a warrant giving a reasonable period of time for its execution, which would inevitably depend on the facts and circumstances of each case. However, the mandatory duty of the court, to my mind, would not extend much further. If the police agency on account of pronounced negligence or recalcitrance fails to execute the warrants of arrest for compelling the attendance of its own witnesses, it is not for the court either to carry them out itself or to fold its hands in helplessness and wait till eternity for the execution of the same. In cases instituted on police report the arm of the investigating agency itself is long enough to secure the attendance of its witnesses. However, when need be, on a proper application filed by it, adequate assistance through the process of court would be given to the prosecution agency. However, the duty to execute the ultimate compulsive process of non-bailable warrant of arrest can, by very nature of thing, lie on the police and the prosecuting agency. If they would fail to perform this duty, it does not get transferred to the shoulder of the court itself. Indeed, in our adversary system of justice, the court cannot inordinately take sides with either of the parties and turn itself into a prosecutor or a defence counsel. It must keep the scale of justice even betwixt the prosecution and the accused. It has been said authoritatively that the role of the court herein is to keep to the rules of game and act as a referee and not become the centre forward in the match. It cannot keep the sword of democles hanging over the head of the accused merely because of the pronounced recalcitrance of the prosecuting agency to secure attendance of its witnesses even after the ultimate aid of warrant has been granted by the court. In a recent Division Bench judgment in State of Bihar v. Ramdaras Ahir (G. A. No. 35 of 1976 decided on 6th August, 1984) (reported in 1985 Cri LJ 584) of this Court it has now been held that the right of a speedy public trial is now a constitutional right of the citizen and he cannot be made to wait indefinitely at the portals of the court at the mercy of, a negligent or even a callous prosecutor.
12. The view I am inclined to take is well buttressed by the conclusion arrived at by the Full Bench in The State v. Veerappan . Therein, after an exhaustive discussion and reference to a plethora of relevant case law on the point (some of which is conflicting) it has been observed:
After carefully considering all the aforesaid decisions and the views expressed therein, we are of the view that if the prosecution has made an application for the issue of summons to its witnesses either under Section 242(2) or 254(2) of the Criminal Procedure Code it is the duty of the court to issue summons to the prosecution witnesses and to secure the witnesses by exercising all the powers given to it under the Criminal Procedure Code, as already indicated by us and if still the presence of the witnesses could not be secured and the prosecution also either on account of pronounced negligence or- recalcitrance does not produce the witnesses after the Court had given it sufficient time and opportunities to do so, then -the Court, being left with no other alternative would be justified in acquitting the accused for want of evidence to prove the prosecution case, under Section 248, Cr. P. C, in the case of warrant cases instituted on a police report and under Section 255(1), Cr. P. C. in summons cases, and we answer the two questions referred to us in the above terms.
Faced with the above, Mr. Balabhadra Prasad Singh, the learned Counsel for the petitioner, had vainly attempted to distinguish the aforesaid conclusion on the ground that the same was not in line with some reasoning audoreference to authorities in the earlier part of the judgment. I am unable to appreciate this stance because the Full Bench had expressly formulated the two questions before it and in specific terms had answered the same in the aforesaid Paragraph 24 of the Report which inevitably is the ratio in the case.
13. To conclude, in answer to the question posed at the outset, it is held that in a case instituted on a police report if a proper application is made by the prosecution, it is ordinarily the duty of the Magistrate to issue process and secure the presence of witnesses by exercising the powers given to him under the Code for compelling their attendance. However, if despite the issuance of compulsive process and the performance of the duty aforesaid the prosecution, on account of pronounced negligence or recalcitrance, fails to-execute such process and does not produce the witnesses over a prolonged period of time then the court would be entitled to acquit the accused for want of evidence to prove the prosecution case.
14. Now applying the above, it is common ground that the case against respondent Srideo Jha was registered in January, 1969 and after a protracted investigation cognizance of the offence was taken by the learned Chief Judicial Magistrate on the 17th of July, 1975. Despite the issuance of summons and even warrants against the prosecution witnesses, not a single prosecution witness was examined for well-nigh six years. The learned Magistrate, was therefore, eminently justified and, indeed, in the circumstances of the present case, was virtually duty bound to acquit the accused. Consequently, no infirmity against the impugned order of acquittal can be found and the same must be upheld. The criminal miscellaneous petition is without merit and is, accordingly, dismissed.
S. Shamsul Hasan, J.
15. I agree.