SIBA PRASAD MAHARANA Vs. BISHNU MAHARANA AND ANR.

JUDGEMENT

(1.) THE complainant is the Petitioner. On the footing of his complaint, cognizance was taken of offences under Sections 323 and 379, Indian Penal Code. The procedure that was to be followed was undoubtedly the warrant -procedure. Prosecution witnesses were examined on 5 -9 -1967 and the charges were framed on 11 -11 -1967. Then the case was posted to 4 -12 -1967 for cross -examination of witnesses. The case was adjourned from day to day till 4 -3 -1968, when the magistrate passed the following order:

(2.) IT may be noted here that during all the previous adjourned dates, viz., 4 -12 -1967, 5 -1 -1968 and 9 -1 -1968, no prosecution witness had in fact been present in Court. The complainant filed an application then for recalling the order dated 4 -3 -1968 by which the evidence of the prosecution witnesses had been expunged, and to take steps for summoning the prosecution witnesses for cross -examination. He also indicated that he would produce them in Court. He stated in his application that he could not be present on 4 -3 -1968 due to illness and supported that averment by a medical certificate. The magistrate has rejected this application of the complainant holding that the Petitioner, if he was ill, should have sent information either to Court or to his counsel of his illness. It is a dereliction of duty on his part for having omitted to do so, and he should not take the benefit out of such dereliction. The second ground was that even though a warrant -trial was indicated, in which it was the duty of the Court to summon the prosecution witnesses for cross -examination, the complainant having taken upon himself the responsibility for producing them must be held thereby to have desired that the magistrate should not discharge his duty as enjoined upon him by law, and cannot now turn round and take a stand that it was the duty of the Court and not his, to produce witnesses for cross -examination.

(3.) I have gone through the order -sheet in this case. I do not find of any record in the order -sheet of the complainant 's undertaking to produce the prosecution witnesses which would have amounted to preventing the Magistrate from discharging his statutory duty under Section 256, Code of Criminal Procedure. The learned Chief Justice who decided the Orissa case, referred to above as long ago as 1960, specifically pointed out to the Magistrates that it is always advisable to take a P.R. Bond from the witnesses for appearance in Court at the next sitting. In face of this salutary direction of the Court, the magistrate who commenced the proceeding in this case on 12 -6 -1967 by taking cognizance, did not act in accordance therewith. The magistrate was alive to the position that in the present case the prosecution witnesses were not kept on P. R. Bond, but he drew an inference from the Petitioners filed by the complainant on the three adjourned dates, viz., 4 -12 -1967., 5 -1 -1968 and 9 -2 -1968, wherein the complainant stated that he could not produce his witnesses and wanted time for the same, that the complainant constructively undertook to produce the witnesses from time to time. The inference, to my mind, is clearly erroneous in face of the salutary instructions given to the magistrates by the learned Chief Justice in the case reported in Bharat Rana v. Rama Nahak : 36 (1960) C.L.T. 525 : A.I.R. 1960 Ori 185. Absence of any record of each an undertaking in the order -sheet would lead to the only conclusion that the complainant never gave a specific undertakings, but wanted to assist the Court, as far as possible, in procuring the attendance of the witnesses for cross -examination. The magistrate 's duty under Section 256, Code of Criminal Procedure is clear and categorical. This clear duty has been lightened by judicial interpretation that, in cases where the complainant gives a categorical undertaking which may be construed as inducing the Court Dot to discharge his duty, by taking upon herself the burden of producing the prosecution witnesses, the undertaking of the complainant must be recorded in the order -sheet. In the circumstances, the magistrate was wrong in drawing an inference of constructive undertaking by the complainant. If the magistrate is to be relieved from the burden of discharging his clear statutory duty laid upon him, it must be strictly within the limits of the judicial decisions referred to above. The only exception to the conditions is that the undertaking of the complainant must be recorded in the order -sheet.