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2004 DIGILAW 158 (PNJ)

Swaran Kaur v. Gurdev Singh

2004-02-11

NIRMAL SINGH

body2004
ORDER Nirmal Singh, J. - The relevant facts for disposal of this appeal are that the appellant filed a complaint under Sections 406, 498A, 506, 34 Indian Penal Code. 2. After recording the preliminary evidence, the respondents were summoned to face the prosecution. After summoning, the appellant, Swaran Kaur, appeared as PW-1 and Chain Singh as PW-2 and were cross-examined. After recording the pre-charge evidence, the respondents were charge-sheeted under Sections 406, 498-A and 506 Indian Penal Code, to which they pleaded not guilty and claimed further cross-examination of the witnesses and the case was fixed for further cross- examination on 9.4.1994 and thereafter on 6.5.1994 and 18.5.1994. Ultimately, the case was fixed for hearing before the learned Judicial Magistrate Judge Ist Class, Balachaur, who closed the evidence of the prosecution vide order dated 1.6.1994 and dismissed the complaint and the respondents were acquitted of the charges. 3. Aggrieved by the order, the appellant has preferred the present appeal. 4. I have heard learned counsel for the parties and carefully gone through the record. 5. Mr. K.S. Dadwal, counsel for the appellant, submitted that the order of closing the evidence by order and acquitting the respondents is pulpably erroneous one. He further contended that once the charge has been framed in a warrant case, even though in a complaint case, it becomes a State case and the learned Magistrate, as per law, was bound to adopt the coercive method for securing the presence of the witnesses. He also pointed out that the complainant was present in the Court as per the impugned order but she has not been cross-examined by the respondents and, therefore, it was the fault of the respondents not to cross-examine her and for their fault, the complainant cannot be punished. He further submitted that while passing the impugned order, learned Magistrate has over-looked the provisions of Section 246(4) of the Code of Criminal Procedure. It the Court is to close the evidence, then on the basis of the evidence already led, the complaint should have been decided on merits and not on a technical ground. 6. On the other hand, Mr. R.K. Trikha, counsel for the respondents, submitted that sufficient opportunity has already been given to the appellant but after taking number of adjournments, she had not produced her evidence. 6. On the other hand, Mr. R.K. Trikha, counsel for the respondents, submitted that sufficient opportunity has already been given to the appellant but after taking number of adjournments, she had not produced her evidence. He further contended that once a last opportunity had been given, it was the duty of the complainant to produce her witnesses. He also contended that it was not a State case and, therefore, it is not for the Court or State to procure the presence of the witnesses. 7. Before considering the rival contentions, it will be appropriate to notice the relevant provisions of the Code of Criminal Procedure, which deal with the trial of warrant case by Magistrate. The same have been incorporated in Chapter XIV from Sections 207 to 250. The abovesaid Chapter deals with the warrant cases either instituted on a police report as referred under Sections 238 to 243 or instituted otherwise than on a police report as referred under Sections 244 to 247. The relevant Sections 244(1), 245 and 246 read as under :- "244. Evidence for prosecution. - (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) xx xx xx xx xx 245. When accused shall be discharged. - (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considered the charge to be groundless. 246. Procedure where accused is not discharged. - (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged." 8. The conjoint reading of the above Sections make it clear that after a charge has been framed against the accused, he is entitled to have the witness of the prosecution recalled for the purpose of cross-examination. The accused has a right to cross-examine all the witnesses of the prosecution, who have been examined in per-charge and if he wants, he can leave some of them. Sub- clause (5) of Section 246 cast a duty on the Magistrate to recall the witnesses. At this stage, after the framing of the charge for further cross- examination, the witnesses are being recalled on the request of the accused and not on the request of the complainant. Therefore, a duty is cast upon the Magistrate to recall those witnesses. Similar view has been taken by a Division Bench of Patna High Court in Kunj Behari Yadav v. Basdeo Yadav and others, AIR 1958 Patna 104. In the instant case, after the framing of the charge, admittedly the summons have not been issued to the witnesses for their further cross-examination by the trial Court, which, the Court was duty bound to issue. If the witness refused to accept the summon, then it was the duty of the Court to secure the presence of the witness by coercive method. If the witness refused to accept the summon, then it was the duty of the Court to secure the presence of the witness by coercive method. However, no such method has been adopted by the trial Court. Even on the day when the evidence had been closed and the accused had been acquitted, the complainant was present in the court alongwith counsel. The complainant had not refused to step into the witness box for further cross-examination. This shows that the learned Magistrate was in a hurry to close the evidence simply on the ground that the complaint has become old. Therefore, the order passed by the learned Magistrate, closing the evidence and acquitting the respondents is palpably erroneous. 9. For the reasons mentioned above, the appeal is accepted and the order dated 1.6.1994 passed by the learned trial Court is set-aside and the case is remanded back to learned trial Court to decide it afresh according to law. The parties, through their counsel, are directed to appears before the trial Court on 2.4.2004. Appeal allowed.