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2003 DIGILAW 302 (CAL)

K. P. Pillai v. Dibyendu Chakraborty

2003-06-24

NARAYAN CHANDRA SIL

body2003
Judgment This is to consider an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 for setting aside the order of acquittal arising out of Titagarh Police Station Case No. 56 of 2000 dated 14.3.2000 under Sections 342/34 of the Indian Penal Code corresponding to G.R. Case No. 808 of 2000. 2. It appears from the record that Shri U. Mishra, learned Judicial Magistrate, 5th Court, Barrackpore, by his order impugned dated 6.10.2001 passed an order of acquittal under Section 255(1) Cr. P.C; in connection with the above case. The record further goes to show that the accused Dibyendu Chakraborty surrendered before the Court on 21.3.2000 and he was subsequently examined on 17.08.2000 under Section 251 Cr. P.C. for the offence under Section 342 I.P.C. Thereafter several dates were fixed for evidence but no witness did turn up and the learned Magistrate having not found any materials to examine the accused under Section 313 Cr. P.C. acquitted the accused under Section 255(1) Cr. P.C. 3. In the revisional application it has been specifically stated that the defacto-complainant had never received any notice and/or summons whatsoever to depose as witness in the case and the order of acquittal was passed absolutely behind the back of the defacto-complainant. It is alleged that the learned Magistrate proceeded under the misconception of law having denied the indifeasible right of the defacto-complainant to receive summons and to depose before the Court to substantiate his case. In fact, the revisional application has been instituted at the instance of the defacto-complainant, Sri K.P. Pillai. In the instant case the learned Advocate appearing for the State has supported the case of the defacto-complainant but it is argued on behalf of the O.P. No. 1 that considering the minor nature of the offence the learned Magistrate was justified in passing the order of acquittal. 4. In the instant case the learned Magistrate does not appear to be conversant with the procedure to be adopted at the time of examination of the accused under Section 251 of Cr. P.C. By order dated 17.08.2000 the learned Magistrate examined the accused under Section 251 Cr. P.C. I am tempted to quote the said order of the learned Magistrate as it appears in the certified copy supplied by the revisionist before this Court and the same reads as below:- Aced. on c.b. is present. P.C. By order dated 17.08.2000 the learned Magistrate examined the accused under Section 251 Cr. P.C. I am tempted to quote the said order of the learned Magistrate as it appears in the certified copy supplied by the revisionist before this Court and the same reads as below:- Aced. on c.b. is present. The case is taken up for examination of aced. under Section 251 Cr. P.C. The substance of the accusation under Section 342 C.P.C. is read over, explained to the aced. under Section 251 Cr. P.C. the aced. plead not guilty and claimed for trial. to 15.12.00 for evidence issue summon upon the witness Nos. 1 to 4 as per c.s." The terms of Section 251 of the Code of Criminal Procedure Accused on c.b. is present. To such and such date for evidence. Issue summons upon the witness. 5. The learned Magistrate does not appear to have applied his mind to verify as to whether his order for issuance of summons was at all complied with and the summons had been served upon the witness. All is not over with passing the order for issuance of summons in a criminal trial. It is always incumbent upon the Magistrate to see and to ensure that the summons upon the witness has not only been issued but it is either served or the service return has come back with specific endorsement of the serving agency as regards its service or not. It is also incumbent upon the learned Magistrate to ensure the service of summons upon the witnesses by adopting all possible ...... if not served at the first instance for the casual approach of the serving agency. And if the summons is served and the witness does not turn up or abstains himself from appearing before the Court intentionally without any sufficient cause it is also incumbent upon the Magistrate to take all coercive measures including one under Section 174 of I.P.C. for compelling the appearance of such recalcitrant witness. 6. The learned Magistrate does not appear to have adhered to the provisions made in Chapter VI of the Code of Criminal Procedure and Rules relating to "service of process through police" as appears in Rules 64 to 71 of the Criminal Rules and Order Vol. 1. 7. 6. The learned Magistrate does not appear to have adhered to the provisions made in Chapter VI of the Code of Criminal Procedure and Rules relating to "service of process through police" as appears in Rules 64 to 71 of the Criminal Rules and Order Vol. 1. 7. The impugned order, as it appears from the certified copy supplied by the revisionist, passed by the learned Magistrate reads as under:- "Accused on c.b. is present. Today is fixed for evidence as last chance. No P.Ws. turned up today. So considering the' nature of the case, Prosecution evidence is closed. Now the record is taken up for examination of the accused under Section 313 of Cr. P.C. Perused the case record it appears that prosecution has failed to produce any witness in support of its case. So there is no materials forthcoming against the accused for examination under Section 313 of Cr. P.C. Accordingly examination under Section 313 of Cr. P.C. has been dispensed with. Accordingly I hold that the accused is found not guilty after offence punishable under Section 342 of I.P.C. hence it is ordered, that the accused Dibyendu Chakraborty is being acquitted under Section 255(1) of Cr. P.C. and he is accordingly discharged from his bail bond." 8. Section 255 of the Code of Criminal Procedure comes under Chapter-XX which deals with "trial of summons cases by Magistrates" and Clause (1) of Section 255 of the Code of Criminal Procedure Reads as under :- "If the Magistrate, upon taking the evidence as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal Section 254 of the Code of Criminal Procedure reads as under: "(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. (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." Thus, it is clear that Section 255(1) shall come to operate only when the evidence in terms of the provisions of Section 254 Cr. P.C. is taken. It may also be pointed out here that Section 254(2) has clearly indicated as to who will issue the summons and it is again clear therefrom that on the application of the prosecution it is the duty of the Court to issue summons upon the witnesses and thereafter to ensure their appearance. 9. A question may arise as to what would be the situation if the learned P.P. or the learned A.P.P. does not file any application for production of the witnesses in terms of the provisions of Clause (2) of Section 254 of the Code of Criminal Procedure. On plain reading of the said clause, as quoted in the foregoing lines, it is clear that the discretion of the Magistrate is wide enough to proceed for issue of summons and to ensure attendance of the witnesses and this is not subjected to the filing of any application by the prosecution or accused only. 10. In a police case where charge-sheet has been submitted there is a list of the witnesses. Similar is the position with the complaint case where there is also a list of the witnesses. Now, on reading of Clause (1) of Section 254 of the Criminal Procedure Code as quoted in the foregoing lines, it appears that the Magistrate shall take all such evidence as may be produced in support of the prosecution. Thus, if Clauses (1) and (2) of Section 254 are read together the question of application to be filed either by the prosecution or by the accused for issue of summons to any witness as mentioned in Clause (2) of the said section may arise only when the prosecution wants to produce any witness not mentioned in the list. Thus, if Clauses (1) and (2) of Section 254 are read together the question of application to be filed either by the prosecution or by the accused for issue of summons to any witness as mentioned in Clause (2) of the said section may arise only when the prosecution wants to produce any witness not mentioned in the list. My above observation is fortified by the fact that Clause (2) has stated about the application of accused also for the production of witnesses because of the fact that in a criminal case the accused has no scope to give the list of the witness or to file any written objection either to the petition of complaint or to the F.I.R. 11. In the instant case the Magistrate appears to have taken a very short cut method and procedure to dispose of the case without discharging his duty as imposed upon him by the Statute and Orders and Rules. Thus, the order of acquittal passed under Section 255(1) Cr. P.C. is totally misconceived and cannot be tenable in view of what has been stated in the foregoing lines. 12. The revisional application is, therefore, allowed. The impugned order passed by the learned Magistrate is set aside. The learned Magistrate is directed to proceed with the case afresh from examination of the accused under Section 251 Cr. P.C. in the terms as indicated above. 13. A copy of this order along with the L.C.R. be sent down to the lower Court forthwith. 14. The Registrar General may circulate a copy of this judgment to all the District Judges of the State to inform the learned Magistrates as a matter of guidance. Let urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.