STATE OF KERALA v. ABDULLA — 1984 DIGILAW 93 (KER)

Judgment :- 1. This is an appeal filed by the State challenging the acquittal of the respondent, accused in C. C. No. 1527 of 1979 on the file of the Judicial Magistrate of the First Class, Thaliparamba, who stood charged for offences under S.279 and 337 IPC. and S.89(a) and (b) read with S.112 of the Motor Vehicles Act. 2. The prosecution case was that on 24-10-1979 at about 9-15 p. m., on the public road at Kanhirangad in Kuttieri village, the respondent drove lorry KLD.1492 in a rash and negligent manner so as to endanger human life and caused the lorry to dash against Vammayeppilli Chacko who thereby sustained simple injuries and the respondent did not give timely intimation to the police nor attempt to secure medical attention to the injured. The injured, Cw.1 himself gave first information to the police on the basis of which Cw.10 registered a case. Cw.11 investigated the case and laid the charge sheet. In the charge, as many as 11 witnesses had been cited. Of them, Cw.1 was the injured and Cws. 2 to 7 eye -witnesses. The Motor Vehicle Inspector who inspected the lorry was cited as CW. 8 and the doctor who examined the injured and issued wound certificate was cited as C. W. 9. C. Ws. 3 to 5 were examined by the prosecution as pws.1 to 3. These witnesses stated that they did not see the occurrence and were cross-examined by the prosecutor by leave of court. No other witness was produced by the prosecution. Thereupon the learned Magistrate acquitted the respondent. 3. Learned Public Prosecutor contended that the trial court did not discharge its duty and function as enjoined by the provisions of the Code of Criminal Procedure (for short, the Code) and that has led to failure of justice which has to be rectified. Learned counsel for the respondent, on the other hand, contended that the prosecution did not make a sincere attempt to produce the witnesses or to have summons served on them or to secure their presence in court and therefore this court should not interfere with the acquittal. 4. This is a summons case triable in accordance with the provisions in Chapter XX of the Code. 4. This is a summons case triable in accordance with the provisions in Chapter XX of the Code. Under S.251 of the Code when the accused appears or is brought before the Magistrate, the particulars of the offence shall be stated to him and his plea shall be taken. As to what should be done when the accused pleads guilty is dealt with in S.252 and 253 of the Code. According to sub-section (1) of S.254, where there is no conviction under S.252 or 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produced in his defence. Sub-section (2) states that the Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue summons to any witness directing him to attend or to produce any document or other thing. 5. We may now notice the relevant provisions in Chapter XIX dealing with trial of warrant cases. S.238 deals with preliminary steps. S.239 empowers the court to pass an order of discharge where the charge is found to be groundless. S.240 deals with framing of charge. Under S.241 the plea admitting guilt may be accepted and the conviction recorded. Where trial is to take place, sub-section (1) of S.242 requires that the Magistrate shall fix a date for examination of the witnesses. Sub-section (2) empowers the Magistrate, on the application of the prosecution to issue summons to witnesses. Sub-section (3) states that on that date the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. Part B of the Chapter deals with cases instituted otherwise than on police report. Sub-section (1) of S.244 requires that the Magistrate shall take all such evidence as may be produced in support of the prosecution. Sub-section (2) empowers the Magistrate on the application of the prosecution, to issue summons to witnesses. The parallel provisions in the Code of Criminal Procedure, 1898 were more or less similar in content. 6. In this connection Ss 87 to 90 of the Code are also relevant. Sub-section (2) empowers the Magistrate on the application of the prosecution, to issue summons to witnesses. The parallel provisions in the Code of Criminal Procedure, 1898 were more or less similar in content. 6. In this connection Ss 87 to 90 of the Code are also relevant. Under S.87, in any case in which it is empowered by the Code to issue summons, court may issue, after recording reasons in writing, a warrant for the arrest of any person under certain circumstances, namely, where the court has reason to believe that the person has absconded or will not obey the summons or where he fails to appear inspite of service of summons and no excuse is offered for such failure. S.88 to 90 contain consequential provisions. 7. Learned counsel referred to four decisions of this Court viz. State v. John Abraham, 1959 KLT. 840, State v. Aboobaker,1960 KLT. 1142. Sadasivan v. Rajagopalan,1970 KLT. 399 and Radhamani Amma v. Kunju Pillai,1980 KLT. 393. 8. In John Abraham's case the accused charged with theft by the police was acquitted because the witnesses refused to execute kychits and there was no prayer to issue process for compelling the attendance of witnesses. T. K. Joseph, J. held that the duty of the court is only to take evidence which is ready when the case is taken up for hearing and the Magistrate is not bound to go on adjourning the case until all the witnesses mentioned in the police report are examined. Accordingly it was held that there was no irregularity in the procedure adopted, 9. This decision came up for consideration before a Division Bench of this Court in Aboobaker's case. That also related to a warrant case in which the witnesses though summoned did not attend court and bailable warrants were not executed because the police officers concerned were involved in controlling a public agitation. The prosecutor expressed helplessness in the matter and the court acquitted the accused. In Para.5 of the judgment, the court observed that literally construed, S.251A and 252(2) of the Code, 1898 might indicate that the Magistrate is not bound to issue process for securing the presence of the witnesses for prosecution as observed in John Abraham's case. The prosecutor expressed helplessness in the matter and the court acquitted the accused. In Para.5 of the judgment, the court observed that literally construed, S.251A and 252(2) of the Code, 1898 might indicate that the Magistrate is not bound to issue process for securing the presence of the witnesses for prosecution as observed in John Abraham's case. But in Para.6 the court observed that where the police fail in their duty of ensuring the attendance in court of prosecution witnesses or neglect their duty the Magistrate is not helpless. Even in the absence of a specific provision in S.251A of the Code, 1898 to summon witnesses, the court has always the inherent power to summon and examine them. It is clear that the Division Bench did not approve of the technical approach made in John Abraham's case. On the facts of the case, retrial was ordered. 10. In Sadasivan's case also this Court had to deal with a warrant case instituted on police report. The trial Magistrate examined two among the eye witnessess and thereafter acquitted the accused. The learned Magistrate thought that the evidence of other witnesses would not improve matters. This Court held that the Magistrate was not competent to record only a part of the evidence in a warrant case instituted on a police report, and to refuse to record the rest of it and to proceed to pass an order of acquittal. Where the police inspector fails to produce the witnesses on the date of hearing, it is for the Magistrate to compel their attendance to dispose of the case according to law. The Magistrate has to exhaust all his powers before he makes up his mind to dismiss the case. 11. In Rodhamany Amma's case, this Court was dealing with a summons case on a police report. Two witnessess were examined by the trial court. The court recorded that there was no other witness and acquitted the accused. This Court observed that there is nothing in S.254 of the Code which shows or indicates that a Magistrate can compel the prosecution to produce evidence and if no evidence is produced or offered as contemplated in S.254, the order that could ordinarily be passed is one of acquittal. The court considered the earlier decisions in Aboobaker's case and Sadasivan's case and held that those decisions had no application to the facts of the case on hand. The court considered the earlier decisions in Aboobaker's case and Sadasivan's case and held that those decisions had no application to the facts of the case on hand. That was because, in the case on hand, the prosecution undertook to produce the witnesses and did not produce witnesses inspite of repeated and specific directions issued on several occasions and the prosecution did not make any request to the court to issue summons to the witnesses or make any sincere or serious attempt to produce witnesses in spite of the ample opportunities given to them. There was no justifiable reason or cause for the non-production of the prosecution witnesses. In those circumstances this court declined to interfere with the acquittal. 12. With regard to the powers, function and role of the criminal court in matters like this, there is practically no difference between warrant cases or summons cases. In both cases it is the duty of the prosecution to produce the witnesses in court for their examination. It is open to the prosecution to seek the assistance of the court in securing the attendance of the witnesses on the application of the prosecution; it is not necessary that the application should be in writing. When the assistance of court is sought, it has to issue summons to the witnesses. Ordinarily, when such a step is taken, witnesses may be expected to be served and appear in court for their examination. But there may be cases where summons is not served or in spite of service of summons the witness may not attend court. Where the circumstances require and in appropriate cases the criminal court may have to pursue the matter and take coercive steps by issuing warrant of arrest. In the criminal judicial process, the prosecution must be enabled to produce all the necessary evidence before court, so also the defence. The helping hand of the court extended to the prosecution as well as the defence is to ensure fair trial and fair consideration of the prosecution case as well as the defence pleas. In this regard there could be no practical difference between a warrant case and a summons case. This is not to say that in each and every case and irrespective of the attitude of the police and the stand taken by the prosecution, the Magistrate must take coercive steps. In this regard there could be no practical difference between a warrant case and a summons case. This is not to say that in each and every case and irrespective of the attitude of the police and the stand taken by the prosecution, the Magistrate must take coercive steps. It is for the Magistrate to bestow his attention on the facts of each case coming up before him for consideration and issue fresh summons or see whether coercive steps may be taken or not and in appropriate cases pursue the matter under S.87 of the Code. It would be improper for the Magistrate, to take advantage of the inefficiency or recalcitrance of the police officers entrusted with the duty of serving summons, the lethargy of the prosecution or the reluctance of the witnesses to attend court and to cut short the trial and proceed to acquit the accused, irrespective of the facts and the requirements of justice in the case. 13. I have gone through the records in this case. On three occasions the learned Magistrate passed orders directing the prosecution to produce witnesses. No witness was produced. Evidently the prosecution was not in a position to produce witnesses. Thereupon, presumably on the oral application made by the Prosecutor, the court directed summons to be issued to Cws.1 to 4. This was repeated once again. At that stage Cws. 3 and 4 appeared and were examined as Pws.1 and 2. The court directed issue of summons to Cws. 1, 2 and 5 to 7. Thereafter Cw. 5 appeared and was examined as Pw3. The court then directed summons to be issued to Cws. 1, 2, 6 and 7. I find from the records that the police constable entrusted with the warrants submitted reports indicating that Cws. 1, 2 and 7 were not found and Cw. 6 had left the place and was in Madras. They are all eye witnesses. Their evidence became all the more important since Pws.1 to 3 went back on their earlier statements and declined to support the prosecution. The issue of summons to official witnesses, Cws. 8 to 11 was postponed awaiting the examination of the non-official witnesses. In the facts and circumstances of the case the learned Magistrate ought to have applied his mind and considered the question whether coercive steps ought to betaken. The issue of summons to official witnesses, Cws. 8 to 11 was postponed awaiting the examination of the non-official witnesses. In the facts and circumstances of the case the learned Magistrate ought to have applied his mind and considered the question whether coercive steps ought to betaken. Instead of doing so, the learned Magistrate adopted the short cut of closing the prosecution case and acquitting the accused for lack of evidence. The procedure adopted by the learned Magistrate was certainly arbitrary, unjust and highly irregular, in the facts and circumstances of the case. Interest of justice requires that the prosecution must be enabled to procure the witness which it wants to examine in court. The acquittal has therefore to be set aside and the case sent back for further trial. In the result the acquittal of the respondent by the trial court is set aside. The case is sent back to the trial court for further trial and disposal afresh in accordance with law. The appeal is allowed in this manner. Allowed.