GUJARAT AGRO INDUSTRIES v. STATE — 1980 DIGILAW 179 (GUJ)

D. H. SHUKLA, J. ( 1 ) THE petitioner the Gujarat Agro Industries through Mr. Goradia Manager had filed a complaint against respondent No. 2 Valji Arjan inhabitant of Block No. 15 Anandnagar Rajkot alleging that respondent No. 2 was guilty of an offence punishable under sec. 420 of the Indian Penal Code. It was a warrant triable case and during the proceedings in the case the learned Chief Judicial Magistrate Rajkot framed a charge against the accused. The charges was read over and explained to the accused but the accused pleaded not guilty to it. The following point for determination was framed by the learned trial Magistrate:- (1) Whether it is proved that on 8-9-75 accused gave cheque of Rs. 44934-15 N. P. to the complainant and misrepresented that it would be encashed knowing fall well that he had no sufficient fund in his Khata in the bank on that day and got the delivery of 900 of gunny bags of Razdane from the complainant? The finding of the learned trial Magistrate on this point for determination was in the negative for the reason that though the Prosecution was given ample opportunity to produce its witnesses none of them remained present. Hence there was no evidence on record to show that the accused misrepresented and obtained delivery of 900 bags of Razdane from the complainant and thereby cheated him. 2 Consequently the learned trial Magistrate acquitted the accused of the offence under sec. 420 of the Indian Penal Code under sec. 240 sub-sec. (1) of the Code of Criminal Procedure. Being aggrieved by this order of acquittal the original complainant the present petitioner the Gujarat Agro Industries has filed this Revision Application. . . . . . . . . . . . . . . . . . . . . 7 Mr. P. M. Thakkar who appeared for the petitioner Corporation invited my attention to several rulings to support his contention that in a warrant trial after the charge is framed it is not open to the Magistrate to acquit the accused without thoroughly satisfying himself that the accused not guilty. It was submitted by Mr. Thakkar that in the present case the learned trial Magistrate did not apply his mind on the record which was already there but was influenced by the fact that the Prosecution had not produced the witnesses on that day. It was submitted by Mr. Thakkar that in the present case the learned trial Magistrate did not apply his mind on the record which was already there but was influenced by the fact that the Prosecution had not produced the witnesses on that day. It was further submitted by Mr. Thakkar that under such circumstances. If the Prosecution had not produced the witnesses on the date of hearing it becomes the duty of the Court to make all reasonable efforts to compel the attendance of witnesses to satisfy his conscience after which only he can decide the relevant points at issue arising out of the charge. In support of his contention Mr. Thakkar relied upon several authorities but out of them I have found the following two apposite:8. In the case of PUBLIC PROSECUTOR V. M. SAMBANGI MUDALIAR AND OTHERS REPORTED IN A. I. R. 1965 MADRAS 31 the following observations are found:- "in warrant cases where the court has already framed a charge under sec. 251-A Cr. P. C. against the accused an important duty is laid on it to see that all the powers available to the court for the examination of witnesses are exercised for a just decision of the case irrespective of the laches of the complaint. Such powers include the powers under sec. 540 Cr. P. C. to summon witnesses on the motion of the court. " (Emphasis supplied ). Ramakrishnan J. who considered the scheme of sec. 251-A Cr. P. C. (Old) cited the following observation of the Kerala High Court in 1961 Madras L. J. Cr. 123 at page 126 with approval:- "on a perusal of the relevant papers under sec. 173 Cr. P. C. the District Magistrate found that there was prima facie case to frame charges of cognizable offence. So even if the Police failed to perform their duties and produce the witnesses the Court has the duty to enquire into the offences disclosed and to find out whether the accused was guilty or not and for that purpose to examine the witnesses. "ramakrishnan J. further cited the following passage from the case of RAMASWAMI NAICKER V. MURUGA NAICKER REPORTED IN 1952-2 MADRAS LAW JOURNAL 497 EQUIVALENT TO AIR 1954 MADRAS 169 rendered by Ramaswami J. :- "a Judge is not placed in the high situation merely as a passive instrument of the parties. "ramakrishnan J. further cited the following passage from the case of RAMASWAMI NAICKER V. MURUGA NAICKER REPORTED IN 1952-2 MADRAS LAW JOURNAL 497 EQUIVALENT TO AIR 1954 MADRAS 169 rendered by Ramaswami J. :- "a Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own independent of them and that duty is to investigate the truth (Emphasis supplied ). " after citing the abovestated passage Ramakrishnan J. observed In such circumstances before holding the charge to be unsubstantiated and acquitting the accused the court had a duty to consider whether the interest of justice did require the summoning of the witnesses on the courts own motion under Sec. 540 Cr. P. C. I may further cite the following passage from the same judgment as I consider it useful for the disposal of the present application:- "the real question is whether the application of sec. 251-A (II) to warrant cases instituted on a police complaint is justified for the sole reason that the prosecution has failed to produce its evidence as required under sec. 251-A (7 ). I am of the opinion that such a procedure is permitted by law only under sec. 247 Cr. P. C. in summons cases. In warrant cases where the Court has already framed a charge under sec. 251-A. Cr. P. C. against the accused an important duty is laid on it to see that all the powers available to the Court for the examination of witnesses are exercised for a just decision of the case irrespective of the laches of the complaint. Such powers include the powers under sec. 540 Cr. P. C. to summon witnesses on the motion of the court. ( 2 ) THE second ruling cited by Mr. Thakkar Which I consider apposite to the subject is a ruling in the case of STATE OF ORISSA V. 5th CHARAN SINGH REPORTED IN A. I. R. 1965 ORISSA PAGE 157. The relevant passages run as under:" (2) The case against the accused was that on 19-12-1960 at about 4 p. m the respondent accused while driving the motor vehicle No. ORN 1615 rashly and negligently caused the death of an old woman Randei Mundani. A prima facie case having been made out after investigation charge sheet was submitted against the accused on 8-2-1961 under sec. A prima facie case having been made out after investigation charge sheet was submitted against the accused on 8-2-1961 under sec. 279/304-A. I. P. C. after several adjournments on account of the absence of the accused the case was fixed to 4-4-1961 when ultimately the accused appeared and the case was transferred to the file of the aforesaid Magistrate. On 9-5-1961 a charge under sec. 304-A was framed against the accused to which he pleaded not guilty and the Magistrate directed issue of summons for the prosecution witnesses fixing 25-5-1961. On 25-5-1961 the service returns were not back and so the case was again posted to 13-6-1961 on which date the prosecuting officer reported to the Court that none of the witnesses was available at Rourkela and wanted time on that ground. The Court directed that a set of summons and an extract of the order of the Court be issued to the Investigating Officer and the case was posted to 23-6-1961 on which date also the witnesses could not be produced and ultimately it was again posted to 28 on 28-6-1961 the court sub inspector filed a further petition for adjournment for production of witnesses as they were not available at Rourkela and so he prayed for some more time in order to ascertain their present addresses and to issue summons through special messenger to their village addresses. The learned Magistrate however rejected the petition examined the accused under sec. 342 Cr. P. C. and acquitted him. The reason recorded by the learned Magistrate was that there was no evidence whatsoever Produced by the prosecution to prove the case and therefore he acquitted the accused. Thus the order of acquittal is not based upon the merits of the case but merely on account of non-production of witnesses in the Court. "" (3) From the charge sheet it appears that as many as eight persons were named as witnesses in support of the prosecution. The learned Advocate General appearing for the State contended that the trying Magistrate had acted illegally in rejecting the petition of the prosecution to produce the witnesses in Court. and in any case summons would have been issued by the Court itself for enforcing the attendance of the witnesses; and merely because the prosecution was unable to produce the witnesses there is no justification whatsoever for ordering acquittal of the accused. and in any case summons would have been issued by the Court itself for enforcing the attendance of the witnesses; and merely because the prosecution was unable to produce the witnesses there is no justification whatsoever for ordering acquittal of the accused. " in the light of the above stated facts and arguments of the learned Advocate General appearing for the State R. K. Das J. observed: "though the Magistrate has not specifically recorded in his order that it is one under sub-sec. (11) yet the order must necessarily be taken to be one under that sub-section as there is no other provision in the Code applicable to such cases. The learned Advocate General contended that the order of acquittal contemplated under this sub-section is an order based upon merits of the case and the Magistrate had no justification to acquit the accused even without examining the witnesses. Sec. 367 provides as to what should be the contents of a judgment and it contemplates that the judgment shall contain the point or points for determination the decision thereon and the reasons for the decisions. It thus means that the Court must examine the evidence in order to arrive at the conclusion whether or not a case has been made out against the accused. If in fact no such evidence is at all given before the court the question of coming to such a decision does not arise. In other words recording of an order of acquittal based upon the finding of not guilty is dependent upon the merits of the case supported by evidence But in a case where no evidence is produced it cannot be said to be a case decided on merits. Therefore sec. 251-A (II) does not contemplate a case of this nature which is disposed of without any evidence. "" (9) No doubt there is some lacuna in the Code of Criminal Procedure itself since it does not provide as to the nature of the order that is to be passed in a case of this kind where the prosecution does not produce any evidence at all. That lacuna can possibly be obviated to some extent if the Court shall take all steps for production of the witnesses. That lacuna can possibly be obviated to some extent if the Court shall take all steps for production of the witnesses. If however despite that witnesses are not available then he may further proceedings in the case in which event the prosecution may come forward with its evidence at some stage later on. On account of the fact that sec 251 has recently been enacted there appears to be a death of decisions on this point but two cases were cited at the Bar touching on this question viz. NATHURAM DARJEE V. PANNALAL AIR 1961 ASSAM 97 AND STATE V. ABOOBAKER 1960 0 KERLT 1142:- (1961 (2) CR. LJ 92 (2) ). " ( 3 ) THE two authorities which I have considered above are based upon the provisions of the Criminal Procedure Code which was in existence prior to the enactment of the Code of Criminal Procedure 1973 It is submitted before me by Mr. P. M. Thakkar as well as by Mr. K. J. Vaidya the learned Public Prosecutor that the relevant provisions in the Code of Criminal Procedure 1973 are pari materia with the corresponding provisions of the Code which was in existence prior to the new Code. Since there is no statutory change effected on the concerned point the duty of the Magistrate in a case wherein the charge has been framed would continue to be the same. ( 4 ) I have also perused the Rojkam of the case. It is true that on several prior dates also the complainant and the witnesses for the Prosecution did not remain present and this aspect was heavily emphasised by Mr. B. D. Shukla the learned Advocate who appeared for respondent No. 2. However if we peruse the entire Rojkam it also becomes clear that on several other dates even the accused did not remain present and that at one stage a stage before the final order was passed a warrant was required to be issued to procure the presence of the accused Mr. Shukla submitted that if the Prosecution did not choose to remain present on several dates to proceed with the matter what was learned Magistrate to do ? He is not supposed to keep the matter on his file indefinitely. Shukla submitted that if the Prosecution did not choose to remain present on several dates to proceed with the matter what was learned Magistrate to do ? He is not supposed to keep the matter on his file indefinitely. In his submission therefore the order of acquittal of the accused is quite justified and is quite proper and the learned trial Magistrate has rightly exercised his discretion in acquitting the accused under sec. 248 (1) of the Code of Criminal Procedure. With respect considering all the circumstance of the case stated above I do not agree with the submission made by Mr. Shukla. The learned Magistrate has himself made no endeavour to procure the presence of the witnesses who were the officers of the petitionercorporation and whose names with their respective addresses are stated in the very charge sheet itself. It was the duty of the learned trial Magistrate to have issued the process to procure the presence of those witnesses and he should have also taken steps if need be to issue further rigorous process to obtain their presence. In the present case the learned Magistrate has disposed of the matter by acquitting the accused without taking a recourse to the provisions of the Code of Criminal Procedure for procuring the presence of the witnesses. He seems to have made a short cut of the matter by acquitting the accused only on the ground that the witnesses were Dot produced by the Prosecution. ( 5 ) IN view of the aforestated circumstances the order of acquittal passed by the learned trial Magistrate cannot be sustained and is required to be set aside. Application allowed. .