State of U. P. v. Mauzam Banjara — 1974 DIGILAW 407 (ALL)

JUDGMENT D. S. Mathur, C.J. - This is an appeal by the State of U. P. against the order of acquittal passed by the Sub-Divisional Magistrate, Gonda, acquitting the respondent, Mauzam Banjara, of the offence punishable under Sec. 25 Arms Act. 2. As appears on the document the Assistant Public Prosecutor submitted the charge-sheet to the court on 23-4-1971 and it was put up before the Sub-Divisional Magistrate on 20th or 22nd of May, 1971, 11-6-1971 was then fixed for the appearance of the accused. The accused, Mauzam Banjara, appeared before the court on that date. It was after a few adjournments that the statement of the accused was recorded on 29-10-1971 and a charge under Sec. 25 Arms Act was framed. 18-11-1971 was then fixed for recording prosecution evidence. On that date no witness was present and 28-11-1971 was fixed for the prosecution evidence. It is also mentioned the order sheet that the complainant was absent. It was further ordered that P. Ws. 1 to 3 be summoned and the Assistant Public Prosecutor informed about it. 3. On 29-11-1971 when the case was taken up the Presiding Officer was on tour and 20-12-1971 was fixed for the prosecution evidence and Assistant Public Prosecutor was to be informed accordingly. On 20-12-1971 no prosecution witness was present in court and 8-1-1972 was fixed for prosecution evidence. P. Ws. 1 to 3 were to be produced and Assistant Public Prosecutor o be informed accordingly. 4. On 8-1-1972 the Presiding Officer was on leave and the hearing was adjourned to 25-1-1972. The next date fixed was for recording prosecution evidence and Assistant Public Prosecutor was to produce the witnesses. 5. On 25-1-1972 witnesses were not present and as the Presiding Officer had to go out to hold identification proceedings the hearing was adjourned to 11-2-1972 for prosecution evidence. 6. It was on 11-2-1972 when no prosecution witness was present nor was the Assistant Public Prosecutor present in court that the learned Magistrate acquitted the accused for want of evidence. 7. From the record it further appears that on 7-2-1972 a Memo was sent to the Station Officer to secure the presence of two witnesses, but as per report dated 10-2-1972 the witnesses were not found. This Memo was not issued by the court and may have been sent by the Pairokar or by the Assistant Public Prosecutor. 7. From the record it further appears that on 7-2-1972 a Memo was sent to the Station Officer to secure the presence of two witnesses, but as per report dated 10-2-1972 the witnesses were not found. This Memo was not issued by the court and may have been sent by the Pairokar or by the Assistant Public Prosecutor. These papers must have been placed on the record after the acquittal of the accused, though incidentally it may be mentioned that the general index has been improperly prepared and these two papers purport to have been placed on record on 29-10-1971 which s not possible. 8. In the charge-sheet there is the usual note that witnesses may be summoned through the court. Except for this no application for summoning the witnesses had been moved by the Assistant Public Prosecutor. 9. It is contended by the learned Assistant Government Advocate that once the request for summoning the witnesses had been made, it was the duty of the court to summon the witnesses and if necessary to issue warrants for their appearance of the witnesses could not be placed upon the prosecution. It is thus contended that the order of acquittal has been passed on misconception of the law and, deserves to be set aside. 10. Sec. 251-A of the old Code of Criminal Procedure was incorporated under Act 26 of 1955 laying down a new procedure for the trial of warrant cases instituted on a police report. Sub-sec. (6) of Sec. 251-A was amended under U. P. Amending Act XXXI of 1961. 11. On the commencement of the trial the Magistrate has to satisfy himself that the documents referred to in Sec. 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished. (Sub-sec. (1) of Sec. 251-A). Under sub-sec. (2) the Magistrate can discharge the accused if he considers the charge to be groundless. Otherwise he has to frame a charge under sub-sec. (3) and to read it over and explain to the accused sub-sec. (4) and at the same time to call upon him to make a statement whether he is guilty or claims to be tried. On pleading guilty the accused can be convicted under sub sec. (5). Under sub-sec. Otherwise he has to frame a charge under sub-sec. (3) and to read it over and explain to the accused sub-sec. (4) and at the same time to call upon him to make a statement whether he is guilty or claims to be tried. On pleading guilty the accused can be convicted under sub sec. (5). Under sub-sec. (6) if the accused refuses to plead, or does not plead, or claims to be tried, the Magistrate shall fix a date for the exam nation of witnesses. By virtue of the amendment made under U. P. Act XXXI of 1961 it is the duty of the court to summon the witnesses, documents or things specified in he application made before-hand on behalf of the prosecution unless for reasons to be recorded he deems it unnecessary to summon all or any of them. 12. The contention of the learned Assistant Government Advocate is based upon the amendment to sub-sec. (6) of Sec. 251-A of the old Code. 13. It shall have to be kept in mind that the court has no independent agency for the service of summonses and the execution of warrants. Both summonses and warrants are served through the local police. If the provision of Sec. 251-A, as amended by U. P. Act XXXI of 1961, is given a very narrow meaning the courts of law shall become helpless if the local police is negligent in effecting service of summonses and warrants. It is not unusual on the part of the police not to return the summonses and warrants within time and at occasions they are returned unserved. If the courts are not to feel helpless in the matter it shall become necessary for them to take some drastic step and not merely issue fresh summonses and in the end warrants all of which may remain unserved. In the end, it may become necessary to report to the High Court to take contempt proceeding against the persons at fault. 14. The other view can be that when the police is the investigating agency and summonses and warrants are to be served by the same agency, the courts of law may after affording reasonable opportunity for securing appearances of the witnesses be strict and pass order in accordance with law i.e. to acquit the accused for want of evidence. 15. 14. The other view can be that when the police is the investigating agency and summonses and warrants are to be served by the same agency, the courts of law may after affording reasonable opportunity for securing appearances of the witnesses be strict and pass order in accordance with law i.e. to acquit the accused for want of evidence. 15. The second alternative would be conducive to maintaining healthy atmosphere at the station though by becoming too strict by adopting the first alternative the police may be compelled to take action promptly as directed by the court. 16. I am of opinion that the courts of law should adopt a via media, with the intention to have criminal cases decided expeditiously without causing any injustice to the citizen who are to a large extent affected by the decisions of criminal cases. If an order of acquittal is passed on insufficient grounds, it can also affect the law and order situation. 17. In the end, it may also be mentioned that a general prayer made in the charge sheet may remain unnoticed. The proceedings of this case also suggest that neither the court nor the Assistant Public Prosecutor had noticed the request for the summoning of the witnesses by the court as contained in the charge sheet. Further, charge-sheet cannot be placed in the same category as an application. Once an application is made it becomes necessary for the court to pass an order, but no such order is necessary on the charge sheet though on its basis the accused is summoned to undergo the trial. To put it differently, if the prosecution wishes to avail of the benefit of the amended part of sub-sec. (6) of Sec. 251-A it must make a formal application for the summoning of the witnesses or documents before the date fixed for the purpose. Even in such cases the responsibility for effecting service of summonses and warrants shall always rest on the local police until such time as the courts of law are not provided with some agency to themselves effect service of the summonses and warrants. 18. The courts of law possess certain inherent powers and they are to see that no one, neither the accused nor the prosecution, is put to unnecessary harassment and expenses. 18. The courts of law possess certain inherent powers and they are to see that no one, neither the accused nor the prosecution, is put to unnecessary harassment and expenses. Consequently, where unnecessary harassment is being caused to the accused the courts of law can adopt a strict attitude and in any case the High Court can refuse to interfere with the order of acquittal. The present is one of those cases and, therefore, the order of acquittal does not deserve to be set aside. 19. The Government appeal is hereby dismissed. The notice issued to the respondent is discharged. Bail bonds are also discharged and he need not surrender.