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2002 DIGILAW 815 (JHR)

Jodhi Yadav v. Kashi Yadav

2002-08-02

VISHNUDEO NARAYAN

body2002
ORDER Vishnudeo Narayan, J. 1. This criminal revision has been directed by the informant petitioner against the impugned judgment and order dated 19-6-1996 passed in G.R. Case No. 616 of 1995/Trial No. 656 of 1996 by Sri Quayum Khan, Judicial Magistrate 1st Class, Giridih whereby and whereunder opposite party Nos. 1 to 8 have been found not guilty for the offence under Sections 147, 323, 337 and 427 of the Indian Penal Code and they were acquitted on the ground that it is a case of no evidence. 2. The prosecution case has arisen on the basis of the written report of the informant petitioner aforesaid lodged before Jamua P.S. on 16-4-1995 at 2.00 hours regarding the occurrence which is -said to have taken place on 15-4-1995 at 9-00 p.m. near village Mangodih, P.S. Jamua, District Giridih and a case under Sections 147, 148, 149, 323, 337, 341 and 427, IPC was instituted against O.P. Nos. 1 to 8. The police after investigation has submitted charge-sheet for the offences aforesaid and cognizance in this case was taken on 15-7-95 by the CJM and case was transferred to the Court of Sri Md. Quayum Khan for disposal. The learned Magistrate explained the substance of accusation under Section 251, Cr. P.C. of the offence under Sections 147, 323, 337 and 427, IPC to O.P. Nos. 1 to 8 vide order dated 10-1-1996 since it was a summons case and directed the prosecution to produce witnesses for their evidence fixing 9-2-1996. Thereafter six adjournments were granted to the prosecution to adduce evidence but no witness was produced by the prosecution. It appears that the prosecution was accorded last chance for adducing evidence vide order dated 13-6-1996 and the learned Court below at his own accord also issued summons through S.P. on the witnesses for their evidence for which no application was filed by the prosecution and the case was adjourned to 19-6-1996. It appears that the prosecution examined P.W. 1, a formal witness, who has proved the signature of Sri S. K. Singh, O/C Jamua P.S. appearing on the formal FIR which was marked as Ext. 1. Since no witness was in attendance, the learned Court below closed the evidence for the prosecution, recorded the statement of O.P. nos. 1 to 8 aforesaid under Section 313, Cr. P.C. and finding it a case of no evidence, acquitted them, as stated above. 1. Since no witness was in attendance, the learned Court below closed the evidence for the prosecution, recorded the statement of O.P. nos. 1 to 8 aforesaid under Section 313, Cr. P.C. and finding it a case of no evidence, acquitted them, as stated above. It is relevant to mention here that the order sheet of the lower Court record does not show that the service report of the summons issued for the evidence of the witnesses through S.P. has been received. 3. Assailing the impugned judgment and order of the learned Court below it has been submitted by the learned counsel for the petitioner that the evidence of the prosecution has been could illegally by the learned Court below vide order dated 19-6-1996 without having received the S.R. of summons sent to the witnesses for their evidence through S. P. and as per the settled law the learned Court below ought to have exhausted all the processes for procuring the attendance of the witnesses of the prosecution before closing the prosecution evidence and as such the impugned order is improper, illegal and incorrect. In support of his contention reliance has been placed upon the case of State of Gujrat v. Nagin Amara Vasava, 1982 Cri LJ 1880 (Gujarat) and Rajdeo Singh v. Ramladu Singh 1979 BLJR 231. It has further been submitted that the case filed by the petitioner is the counter version of the case which O.P. No. 3 Sukhdeo Yadav has filed against the informant and others regarding the occurrence of the same day and as per settled law both the case and the counter case ought to have been tried by one and the same Court and this procedure was not followed which has caused prejudice to the petitioner. 4. It has been submitted by the learned A.P.P. that in spite of six adjournments no witness was brought for their evidence by the prosecution and in spite of according last opportunity the prosecution has only produced a formal witness whose name does not appear in the charge-sheet for proving the signature of the O/C on the formal FIR. It has also been submitted that the prosecution did not file any application under Section 254(2), Cr. It has also been submitted that the prosecution did not file any application under Section 254(2), Cr. P.C. for issuance of summons to the prosecution witnesses for their evidence but the learned Court below at his own accord had issued summons on them through S. P. for their evidence which is not permissible under the provisions of law as contained in Section 254(2) Cr. P.C. and as such it was not imperative for the Court to wait, for the receipt of the notice of the summons for closing the evidence of the prosecution case. It has also been contended that both the case laws relied upon by the learned Counsel for the petitioner has no application in this case as the provision under Section 242, Cr. P.C. regarding trial of warrant case is quite different to that of the procedure contained under Section 254(2), Cr. P.C. in respect of the trial of the summons cases. It has also been contended that the prosecution ought to have moved before the Sessions Court for transfer of both the cases for trial in one and the same Court if they are case and counter case but no attempt in respect thereof has so far been taken by the informant petitioner and for this it cannot be said that the informant petitioner stands prejudiced. 5. Chapter XIX of the Cr. P.C. prescribes the procedure to be allowed for trial in warrant case by Magistrate. Chapter XIX of Cr. P.C. begins with Section 238. The relevant Section under this Chapter is 242 which is quoted below : 242. Evidence of prosecution.-- (1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, the Magistrate shall fix a date for the examination of witnesses. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution : Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination." Chapter XX of the Cr. (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution : Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination." Chapter XX of the Cr. P.C. is in respect of trial in summons case which begins with Section 251 and the relevant Section involved in this revision is Section 254 of Cr. P.C. which runs hereunder : 254. Procedure when not convicted --(1) If the Magistrate does not convict the accused under Section 252 or Section 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 produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court." 6. A comparative scrutiny of Section 242 and Section 254 of the Cr. P.C. shows that under Section 242, Cr. P.C. the Magistrate may on the application of the prosecution issue a summons to any of its witnesses directing him to attend or to produce any document or other thing whereas under Section 254 of the Cr. P.C. in a summons trial case the Magistrate may, if he thinks fit, on the application of the prosecution or the accused issue a summons to any witness directing him to attend or to produce any document or other thing. It further appears that when application is filed by the prosecution for summoning the witness the Magistrate has no discretion of his own to withhold the issuance of summons under Section 242, Cr. P.C. and he has no opinion but to issue the same to procure attendance of the witeness whereas under Section 254(2) Cr. P.C. the learned Magistrate, if he thinks fit, he may issue summons to any witness for his evidence on the application of the prosecution. P.C. and he has no opinion but to issue the same to procure attendance of the witeness whereas under Section 254(2) Cr. P.C. the learned Magistrate, if he thinks fit, he may issue summons to any witness for his evidence on the application of the prosecution. Therefore, the issuance of summons under Section 254(2), Cr. P.C. solely rests on the discretion of the Magistrate judicially exercised in view of the facts and circumstances of the case. Here in this case in spite of six adjournments no witness was produced for his evidence by the prosecution. Last opportunity was accorded to the prosecution to pro- duce the witnesses. The prosecution has not filed any application before the Court below for issuance of summons on his witnesses for their evidence. The discretion of the Magistrate to issue or not to issue the summons comes into play only on the application made by the prosecution for issuance of summons on his witness for their evidence. If the learned Magistrate has issued summons to the witnesses of the prosecution for their evidence through S. P. suo motu without the application of the prosecution in that case it can be said that the learned Magistrate has acted beyond his jurisdiction not vested in him. Accordingly, it was not imperative for the learned Magistrate to wait indefinitely for the receipt of the service of summons sent by him suo motu in exercise of his jurisdiction not vested in him under Section 254(2), Cr. P.C. Therefore, the learned Magistrate has committed no illegality, if he has closed the evidence of prosecution case without the receipt of the service of the summons issued by him contrary to law as envisaged under Section 254(2), Cr. P.C. In a trial of summons case the Magistrate is under no obligation to issue process to compel the prosecution to produce evidence of any witness either on the application of the prosecution or of the accused. There is also nothing under Section 254(2), Cr. P.C. which shows or indicates that a Magistrate can compel the prosecution to produce evidence and if no evidence was produced or offered as referred to Section 254, the order that could be ordinarily passed is one of acquittal and as such the said order can never be said to be illegal. There is also nothing under Section 254(2), Cr. P.C. which shows or indicates that a Magistrate can compel the prosecution to produce evidence and if no evidence was produced or offered as referred to Section 254, the order that could be ordinarily passed is one of acquittal and as such the said order can never be said to be illegal. In the facts and circumstances of this case the learned Magistrate cannot be said to have failed in his duty when he closed the prosecution case when no witness was present despite several opportunities provided to the prosecution. The principle of law enunciated in the case of State of Gujarat (1982 Cri LJ 1880) (Gujarat)(supra) is in respect of a trial in a warrant case and is under Section 242(2), Cr. P.C. in which it has been held that if the prosecution fails to produce the witnesses or if in spite of due service of summons, the witnesses do not appear in Court to give evidence, it is the duty of the Magistrate to use all coercive methods to secure their attendance in Court, particularly when there is no material before him to show that they had been remiss-ness on the part of prosecution agency and under Section 350 of the Code, he has power to punish for non-attendance by a witness in obedience to summons and the Magistrate failed in discharge of his duties. The facts of that case is that the complainant was not present on the first hearing date though summons was served on him and thereafter bailable warrant was issued on the complainant for second hearing date but it could not be served. The prosecution filed an application praying that an opportunity be given to the prosecution to serve the summons on the complainant which was rejected and when the complainant or witnesses were not present, the learned Magistrate delivered the judgment and acquitted the accused persons. The facts of the case present before me is quite dis-similar and distinguishable. Therefore, the principle of law enunciated in the case of State of Gujarat (supra) has no relevancy regarding the matter in controversy in the present case. The case of Rajdeo Singh (supra) has also no application at all regarding the matter in controversy in this case and it is of no help to the petitioner. Therefore, the principle of law enunciated in the case of State of Gujarat (supra) has no relevancy regarding the matter in controversy in the present case. The case of Rajdeo Singh (supra) has also no application at all regarding the matter in controversy in this case and it is of no help to the petitioner. Regarding the second contention put forward on behalf of petitioner it is pertinent to mention that it was the duty of the informant or the prosecution itself to move the Sessions Court for transfer of the case and counter case for trial by one or the same Court and the informant/prosecution having not taken steps in that direction cannot be said to have been prejudiced if the trial of his case has been conducted by the learned Court below. Therefore, this contention of the learned counsel for the informant has no substance. 7. Viewed thus, I see no illegality in the impugned order of the learned Court below. There is no merit in the revision and it fails. The revision is hereby dismissed.