JUDGMENT
Arun Kumar Bhattacharya, J.
1. The hearing arises from an application under Sections 397/401 read with Section 482 Cr.PC filed by the petitioner praying for revision of the order being No. 30 dated 23.03.99 passed by the learned Judicial Magistrate, 6th Court, Howrah in G.R. Case No. 34/95.
2. The circumstances leading to the above application are that the petitioner as defacto complainant filed a complaint under Sections 448/379/380 IPC against O.P. Nos. 2 to 4 which was referred to the Inspector-in-charge, Bally P.S. under Section 156(3) Cr. PC, and the police after completion of investigation of the said case being Bally P.S. Case No. 4/95 filed charge-sheet under Section 448 IPC. The accused persons filed a petition praying for discharge in view of the decision in Common Cause Case reported in AIR 1996 SC 1619 which was rejected by the learned Magistrate on 05.07.97. The criminal revision being CRR 2827/1997 preferred against the said order was dismissed on 23.09.98 with a direction to the learned Magistrate to dispose of the case within three months from the date of communication of the order. The evidence of the complainant and her witnesses were concluded and the case was posted for evidence of I.O. on 23.03.99. Summons upon the I.O. could not be served, and rejecting the prayer of learned A.P.P. for adjournment, the learned Magistrate fixed the case on 24.03.99 for examination of the accused persons under Section 313 Cr.PC. Though the petitioner filed a petition for adjournment for bringing stay order from this Court against the said order dated 23.03.99, the accused persons were examined under Section 313 Cr.PC on 24.03.99.
3. Being aggrieved by and dissatisfied with the said order dated 23.03.99, the petitioner has come up before this Court.
4. Mr. Banerjee, learned Counsel for the petitioner, on referring to the provisions of Sections 61, 62 and 64 Cr.PC and relying upon the case of Shethia Mining & Manufacturing Corporation Ltd. v. Khas Dharmaband Colliery Company Pvt. Ltd. reported in 1982(II) CHN 49 contended that merely because this Court directed the learned Court below to dispose of the case within a period of three months, it does not necessary follow that the learned Court below was free to violate the provisions of the Code to secure the attendance of the witnesses necessary for adjudication of the case thereby causing injustice to the complainant. Mr. Ahmed, learned Counsel for the State, while supporting the above of the learned Counsel for the petitioner submitted that a number of articles were seized by the investigating officer and as such examination of the I.O. was essential not only for proving the seizure list but also the part played by him during the course of investigation which would be beneficial for the prosecution as also the defence, as the defence would be able to elicit through him the contradictions of the witnesses with reference to their earlier statements recorded under Section 161 Cr.PC.
5. In the trial of summons case, the learned Magistrate on the application of the prosecution or accused, is to issue summons to any witness, as required under Sub-section (2) of Section 254 Cr.PC. In the event of summons being returned unserved, the Court shall take all steps to secure the attendance of the witnesses instead of closing the prosecution case and proceeding to Judgment. The guidelines laid down in the case of A.R. Antulay v. R.S. Nayak are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and (II) could not have been so prescribed or drawn and are not good law. The Criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time as prescribed by the directions made in the said cases. Right to speedy trial is not a right not to be tried. It only creates an obligation on the prosecutor to be ready to proceed to trial within a reasonable time, as was observed in the case of State of Rajasthan v. Ikbal Hussain reported in 2004 (4) AICLR (SC) 664. Similar is the observation in the case of P. Ramachandra Rao v. State of Karnataka .
6. In the present case, since no prosecution witness turned up, the learned Magistrate rejecting the prayer of the prosecution for time, closed the prosecution evidence and posted the case for examination of the accused under Section 313 Cr.PC which was totally improper, since it was the duty of the learned Magistrate to see first of all whether summons was served upon the witness (I.O.) and if there was no service, he should have taken steps for issuing fresh summons upon the witness in terms of Section 69 of the Code, and if after service of summons the witness failed to turn up the learned Magistrate was to secure his presence by taking appropriate action including issuance of bailable/non-bailable warrants, as the case may be and if still attendance of the witness/witnesses could not be secured then after exhausting all process, the prosecution evidence would be closed. It should be well understood that prosecution cannot be frustrated by the above method as adopted by the learned Magistrate and victims of the crime cannot be left in lurch. In this connection, reference may be made to the case of Sailendra Kumar v. State of Bihar .
7. Accordingly, the impugned order is not sustainable. As such, the revisional application be allowed and the impugned order is set aside.
Let a copy of this order be sent down at once to the learned Court below with a direction to proceed with the hearing of the case in the light of the above observation and in accordance with the law and to dispose of the case as expeditiously as possible.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible.