JUDGMENT
Shelat, J.
1. (After Stating the facts The charge-sheet cited besides Sukha Rayla and Kali, 8 other as witnesses. The charge-sheet also stated that summons should be issued by the Court to ensure the presence of the complainant and the witnesses. Before the charge was framed, notices were issued by the Court on the 18th June I960 calling upon the two accused to remain present. A vas arrested, w.s prdanced before the Court, whereas accused No. 2 remained present with not surety. The case was then adjourned to the 22nd June 1960, when copies of the papers relied upon by the prosecution were furnished to the two accused and receipts t in respect of those copies were obtained from them. The ase was then adjourned to the 29th of June i960. On the 29th June when the case was called out, both the accused and the Police Prosecutor were present. The learned Magistrate considered the investigation papers and after hearing the Police Prosecutor, framed a charge as aforesaid. He also recorded the statements of both the accused, who pleaded not guilty and claimed to be tried. The case was that adjourned for hearing on the 8th of July 1960, after the accused were informed of the adjourned date. The Boznama for-the 29th June 1960 indicates that though as many as 10 persons were cited as witnesses in the charge-sheet, the Police Prosecutor applied for summons only for witnesses Nos. 3 and 4. From the charge-sheet it appears that these witnesses were the injured woman Kali and her husband Sukha Rayla. On the 8th of July, that being the adjourned date, and when the case was called out, accused No. 1 was kept present having been brought from the jail, appellant 2 as present, No witnesses for the prosecution were kept present and the summonses which were issued against Bai Kali and Sukha Rayla were found to have been1 returned unsexed. As no prosecution witnesses were thus present, the learned Magistrate, it would appear, was obliged to adjourn the matter to the 20th July 1960.
2. The endorsement in the Roznama under the date 8th of July 19B0 shows that the learned Magistrate directed that the two prosecution witnesses, Kali and Sukha Rayla, in whose names the summons had been issued on the 29th June, should be informed of the adjourned date and that they should be ‘re-summoned’. We presume that by the word ‘re-summoned’, what was meant was that fresh summons should be issued against them, in view of the fact that the original summons had been returned unserved. On the 20th July I960, when the case was again called out, though both the accused were present, none of the witnesses for the prosecution was present and even the summons which had been issued in the names of Bai Kali and her husband Sukha Rayla and sent to the Police Station at Songadh to service, had not been returned either served or unserved by that Police Station. It seems that the Investigating Officer had remained absent on all these dates. The Police Prosecutor made an application for adjournment on the ground that the summons issued by the Court had net ewe served and returned. The ground urged by the Police Prosecutor in that application does not appear to be satisfactory, for it was not as if an attempt to serve the two witnesses had been made and the summons, were returned unserved. On the contrary the Roznama under the at Songadh had not cared to return the summons either aeryed or unnerved. The learned Magistrate, in these cir wmstances, rejected the application for adjournment, as there was nothing to show that the Police Station an Songadh had made any the firms on the two witnesses and had not even returned the summonses anserved to the Court. Even on the 20th July 1960, the P.S. I., Songadh, had not attended the Court, nor had he sent any; instructions to the Police prosecutor to the effect that he had not been able to serve the summons on the two witnesses owing to any valid reason.
3. The file of the Court of the learned Magistrate shows that after the case was adjourned on the 8th of July 1960 to the 20th of July 1960 an endorsement was sent by P. S. I., Songadh to the Head-Constable at Anchal with instructions to inform the two witnesses, Kali and her husband, of the order passed by the learned Magistrate. The file contains an endorsement purporting to be that of the Head Constable, Uchhal, to the effect that he had received the instructions of the P.S.I, on the 21 July 1960, that is to say after the adjourned date, namely, the 20th July 1960. On the 23rd July 1960, the P.S.I, made a report to the learned Magistrate stating therein that das to the postal strike, his Ins.mcuuis reg.rd.ng the learned Magistrate’s order, dated 8th’ July 1960, had not reached the Outpost and, therefore, neither the notices nor the summons to the two witnesses had been served. On the 20th July 1960, the learned Magistrate disposed of the case by acquitting the accused Under Section 251-A, Sub-section (H) of the Code of Criminal Procedure.
4. Looking at the various entries made by the learned Magistrate together with \the endorsements of the P. 3.1. Songadh and the Head-Constable, Uchhal, it is clear that the P.S.I., Songadh, had remained indifferent and had not made any serious effort to serve the summons on Bai Rail and her husband Sukha Rayla. The excuse that it was due to the postal strike that he had not been able to serve the summons on the two witnesses does not appear to be correct. Assuming that there was a postal strike ana’ letters therefore could not be despatched or delivered, the police officer, being aware of such a strike, could have sent his instructions contained in his endorsement, dated 9th July 1960 by a messenger. Even if that endorsement had been sent by him by post on the 9th of July 1960, he was bound to send a messenger to the Outpost at Uchhal when he did not receive any reply from the Head-Constable at Uchhal. Knowing that the case had been adjourned to th 20th July, 1960, it was highly unlikely that he would take no steps to enquire from the Head Constable whether he had been able to notify the witnesses to attend the Court on the 20th July as directed by the learned Magistrate. Assuming that it did not strike him to take any further steps, except sending Ms instructions by post, when ho found that there was no reply to him from the Head-Constable, Uchhal, he could have instructed the Police Prosecutor either by writing a letter or by remaining present in the Court at Vyara on the 20th July 1950 that he had not been able to serve the witnesses with the order passed by the learned Magistrate adjourning the case to the 20th July 1960. Evidently, the P.S.I., Songadh, did not care to inform the Police Prosecutor that he had not been able to serve the witnesses. It is clear that in spite of his knowing that the case had been adjourned at least on two occasions by reason of his not having been able to produce the prosecution witnesses in Court and in spite of has being aware that because of this reason the firs “raised, at any rate, had to remain in Jail custody, the P.S.I, had not taken any serious steps to produce the prosecution witnesses in the Court of the learned Magistrate. We are constrained to observe, In these circumstances, that the P. S. I., Songadh,, was not only indifferent to his duty but showed utter disregard and disrespect to the learned Magistrate’s Court. He appears to be also totally endangerment to the fact that owing to his dereliction of duty, the first accused had to remain in jail custody for a period than he would otherwise have been required to be If the prosecution witnesses had been produced by him for their evidence. It is somewhat strange that out cf the 10 witnesses cited by him in the charge-sheet, the Police Prosecutor had applied for summonses only for two witnesses, viz, Bai Kali and her husband Sukha Rayla. That would be on the footing that he expected no difficulty in producing the rest of the witnesses for their evidence; and yet, on both the occasions, when the case had to be adjourned, none of these other witnesses was kept present. If these wit-1 nesses had been kept present even though Bal Kali and her husband had not been served with summons, the case could have been proceeded with. In these circumstances, the learn d Magistrate was right in rejecting ‘die position for adjournment made on the 20th July by the prosecution.
5. The learned Assistant Government Pleader, however, contended that the learned trial Magistrate was not en titled to pass an order of acquittal on the ground of the absence of prosecution witnesses, as the case was a ‘warrant case on a police report and the learned trial Magistrate had already framed a charge against both the accused. It was contended that there is no provision in the Code to justify such an order of acquittal after a charge was framed against an accused person. In support of his contention, the learned Assistant Government Pleader relied upon a decision in Har Kishan Das v. Emperor A.I.R. 1937 AH 127. In that case also, the trial Magistrate had framed a charge and fixed the date for attendance of the complainant with for cross-examination the a c se J, and on the complainant and the witnesses having failed to appear, the learned Magistrate acquitted the accused, refusing to adjourn the case in spite of an ann caption made by the complainant for adjournment for a short time. In that case, the charge-sheet was submitted to the Court on the 7th May 1936. On the order-sheet on that date it was directed that the case should be put up for further cross-examination on the 11th May 1935 and the complainant was directed to bring his witnesses for further cross-examination, The complainant and his witnesses did not arrive in the Court although the learned Magistrate waited for more than an hour. The learned Magistrate, passed an order to the effect that the evidence which these witnesses had already given in examination-in-chief could not be taken into consideration unless they had submitted themselves for cross-examination by the accused. Bennet J. observed in that case that the application for adjournment was that the complainant’s witnesses had not arrived and that they were actually on the way to the Court and the adjournment applied for was only for 15 minutes. The learned Judge, in these circumstances, was of the view that the trial Magistrate acted with irregularity in refusing to grant such an application especially when the trial court was a court of a Special Magistrate, where there were no fixed house He was also of the view that the learned Magistrate had neglected the provisions of Section 256(1) of the Criminal Procedure Code, as they stood then, which provided that when the accused had pleaded to the charge-sheet, he should be required to state at ftp commencement of the next hearing of the case, or if the Magistrate for reasons to he did in writ so thinks fit forthwith whether he wished to cross-examine any and if so. which of the prosecution witnesses whose evidence had been taken. If the accused said that he wished to cross-examine the witnesses, the witnesses named by him should be recalled. It appears that the learned trial Magistrate had not recorded any reasons on the 7th May fantasy no that mansion nor had he entered in the order-sheet or the charge-sheet that he had in fact put any such question. Even on the 11th May, which was the next hearing, the learned Magistrate had failed to put this question and also failed to record any reply of the accused to such a question. On these omissions by the learned Magistrate, the High Court was of the view that the order of acquittal passed by the learned Magistrate was not proper; and was not in accordance with the provisions of the Code. On that basis, the order of acquittal, dated 11th May 1936 passed by the learn o Magistrate was seaside, and the craned strata was directed to proceed with the case from the stage when the charge was framed. The learned Magistrate was also directed to enquire from the accused Under Section 255(1) Cr.PC as it then stood, whether he desired to cross-examine the witnesses for the prosecution and to recall Such witness whose cross-examination the accused desire. It is difficult to see how on the facts stated above, the decision of Bennet J. can possiby assist the learned Assistant Government Pleader. It was clearly a case, where the learned Judge felt that the application for adjournment being only for 15 minutes and where the witnesses for the prosecution were actually on their way to the Court, the rejection of such sn application was improper, especially when the learned Magistrate himself had failed to act to accordance with the provisions of Section 256(1) of the Code, as they stood then.
6. The learned Assistant Government Peader alse relied upon the decision in Ramaswami Naicker v. Kan a-swami Naicker 48 Cr. LJ 97 : A.I.R. 1947 Mad 245 In that case, Yahya Ali J. of the High Court of Madras held that in a warrant case where, after the charge was framed, a case was transferred to. another Magistrate and such Magistrate granted a de novo trial, the effect of granting a de novo trial was not to wipe out the charge framed and, therefore, the Magistrate was not competent to pass an order of discharge of the accused Under Section 259 Cr.PC on the ground of absence of the complainant. It was there held that in such a case the High Court in revision could set aside the order of discharge even if it was viewed as an order of acquittal. In that case , the case against the accused was first tried by the Sub-Magistrate of Sattar, who, after examining the prosecution witnesses, framed a charge against the accused Under Sections 324 and 323 of the Penal Code. Subsequently, that case was transferred to another Magistrate, who took it on his file on June 38, 1945. Summons were then issued to the accused and notice was issued to the complainant. Subsequently, the accused applied to the Magistrate for a de novo trial. To application was granted and all the prosecution witnesses were re-summoned and re-heard and the case was then adjourned to September 18, 1945, for the examination et the medical witness, who was the only remaining prosecution witness. On the adjourned date, the complainant was absent when called out and thereupon the learned Magistrate discharged the accused. Yahya Ali J. on these farts observed that in a warrant case, where a charge hart been framed, the Magistrate was not competent in the absence of the complainant to pass an order of divan e Under Section 259 of the Code ignoring the charge already frame He also held that even if the order of discharge were be treated as one of acquittal, the High Court could Mt aside such an order, as such an order cannot be unite’. It is quite clear that so far as Section 259 was concerned, that leaned Magistrate had no authority to ness an order of discharge once a charge was framed against an accused. That order even If treated as one of acquittal could nit He upheld for the simple reason that evidence had airway been recorded in that case and a charge had been Tamil. It was, therefore, the duty of the learned Magistrate t consider such evidence as was produced before him in behalf of the complainant and then pass the necessary order. The mere f Act. therefore, that on the adjourned date the complainant was absent was no ground to pass an order of discharge or even an order of acquittal: The facts in that case were entirely different from those before us and, therefore, this decision also cannot assist the learned Assistant Government Pleader.
7. Under Section 68 of the Code of Criminal Procedure every summons Issued by a Court, signed and sealed by the presiding officer of such court, is to be served by a police officer. It was, therefore, the duty of the P.S.I, to make every endeavour to serve the summons issued by the learned Magistrate on an application made for them by the Police Prosecutor. Section 70 provides that where the person summoned cannot by exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family. If that cannot be done, then Section 71 provides that the serving officer should affix one of the duplicates of the summons on some conspicuous part of the house or homestead in which the persons summoned ordinarily resides; and thereupon the summons shall be deemed to have been duly served. As we have observed, the endorsements made by the P.S.. as also the Head Constable show that the proceittfa laid down in these sections had not been followed by either of them. The only thing that the P.S.I, can be said to have done on the 9th of July 1960, was to write to the Head-Constable, Uchhal, to inform the two witnesses of the adjourned date and the order passed by the learned Magistrate on the 8th of July 1960. It is quite .clear that the P.S.I, cannot be said to have used the necessary diligence in order to serve-the two witnesses. The result was that owing to his failure to carry out the provisions of Sections 69, 70 and 71 of the Code of Criminal Procedure, the first accused had to remain in jail custody.
8. Section 251-A lays down the procedure to be adopted in warrant cases instituted on police report. Under Sub-section (7) of that section, it is clearly provided that on the date fixed for hearing, the learned Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. The words of this sub-section show that the duty of the trial Magistrate is to take such evidence as would be produced before him in support of the prosecution. If for one reason or the other, the prosecution fails to produce such evidence before him, the only alternative left to the learned Magistrate would be to act under Sub-section (11) of that section, in cases where a charge has already been framed, and to make an order to the effect that he finds the accused not guilty as the prosecution has failed to produce any evidence in support of the charge and then to record an order oF acquittal. There being no provision Under Section 251-A for an order of discharge in a case where a charge has already been framed, the only provision on which he can act would be Sub-section (11). In out view, on the failure of the prosecution to produce the prosecution witnesses, the injured woman Bal Kali and her husband, and on the failure of the prosecution also to produce any other witnesses, though as many as 10 witnesses were cited in the charge-sheet, the only thing that the learned Magistrate could do was to pass an order of acquittal under Sub-section (11) of Section 251-A, Cr.PC It is true that an application for adjournment was made by the Police Prosecutor but the Police Prosecutor, as observed by the learned Magistrate, was not In a position to adduce any valid reason for such an adjournment. We are fortified in this conclusion by the decision of a Division Bench of the Calcutta High Court in Sadek Mahammad v. Jyotish Chandra 49 Cr LJ 12 : A.I.R. 1948 Cal 83. In that case, after a charge had been framed, the complainant and his witnesses remained absent on the day fixed for their cross-examination. The learned trial Magistrate thereupon passed an order discharging the accused Under Section 253 of the Code. It was there held that the learned Magistrate was not competent to pass the order of discharge in view of the fact that it was a warrant case and a charge had already been framed. It was observed that the proper order that the learned Magistrate should have passed was “As the prosecution witnesses are absent and cannot be cross-examineo, their evidence in examination-in-chief should be expunged and as there is no evidence in the case the accused i9 acquitted.” In this case though the witnesses for the prosecution had been examined, they remained absent on the day when they were to be cross-examined on behalf of the accused. The learned Judges there held that it was a case, where an order of acquittal could be properly passed on the ground that there was no evidence in support of the prosecution case and, therefore, the accused should be acquitted.
9. The facts before us also show that owing to the failure of the prosecution to produce their witnesses and owing also to the failure of the prosecution to make full endeavour to serve the summons, there was no evidence before the learned Magistrate and, therefore, the accused was acquitted under Sub-section (11) of Section 251-A, Cr.PC
10. In these circumstances, there Is no justification to interfere with the order passed by the learned Magistrate. The appeal, therefore, fails and is dismissed.
