M.N.Shukla - (1.) THIS is an appeal preferred by the State of U. P. under Sec. 378 of the Code of Criminal Procedure challenging the order of acquittal dated 8-5-1974 passed by the Sub-Divisional Magistrate of Nighan, District Kheri.
(2.) THE respondent was prosecuted under Section 25 of the Arms Act by the Station Officer, Singhal. On a consideration of the documents referred to in Section 173 Cr. P. C. the Magistrate framed a charge on 5th March 1973. On a request made on behalf of the prosecution summons were issued to a number of witnesses but they absented themselves on several dates. THEy, however, appeared before the Magistrate on 22-8-1973 but the Presiding Officer was on leave and hence the case was adjourned. THEreafter on successive dates the Magistrate ordered that the witnesses be summoned but they never appeared before him. Considerable delay was caused and inspite of repeated orders passed by the Magistrate for summoning the witnesses, they were not produced in Court. On 8th April 1974 the Assistant Prosecuting Officer made a request by making an endorsement on the order-sheet to the effect that prosecution witnesses Nos. 1, 2, 4 and 8 be summoned. THEy were accordingly summoned by the Magistrate for 8th May, 1974 but they did not come. THEreafter on date after date the case was taken up but the witnesses were not present till no request was ever made on behalf of the prosecution to the Court for taking coercive measures in order to compel the attendance of the prosecuting witnesses. In these circumstances since there was no evidence in the case the learned Magistrate passed the impugned order on 8th May 1974, acquitting the accused "for want of evidence." It has been contended on behalf of the applicant that in a warrant case like the one before me, it was the legal duty of the Magistrate to secure the attendance of the prosecution witnesses and consequently the order of acquittal was illegal. On the facts of the instant case I am unable to accede to this contention. The procedure applicable to the trial of warrant cases by Magistrates in cases instituted on police reports was governed by Section 251-A of the Code of Criminal Procedure, as it stood at the relevant time. In such cases if the accused claimed to be tried the Magistrate had to fix a date for the examination of the. witness and it was provided that "on the date so fixed the magistrate shall proceed to take all such evidence as may be produced in support of the prosecution." Prima facie the section did not impose any obligation on the Magistrate himself to have witnesses examined or secured their attendance. It did not cast any mandatory duty on him and in my opinion on a construction of the plain language of the section the initiative was to come from the prosecution itself. I am unable to construe the provision of this section in such a manner as to hold that it is implicit in the very submission of the charge-sheet that the witnesses mentioned therein must be summoned by the Magistrate. If the prosecuting agency does not bestir itself, surely it is none of the duty of the Magistrate to secure the attendance of witnesses. Of course, on a motion of the prosecution to secure witnesses if the Magistrate either rejects such request or overlooks it, he would commit an illegality and absence of witnesses in such situation would not justify an order of acquittal On the other hand, where either the prosecution is guilty of inertia or the Magistrate has passed an order summoning the witnesses from time to time and yet they are not forthcoming and the prosecution does not consider it to take steps for securing their attendance, the Magistrate would be perfectly acting within the ambit of Sec. 251-A (7) if he passes an order of acquittal on the ground of no witnesses being produced. It would be manifestly a case of complete absence of evidence which must in-law entail an order of acquittal. The prosecution does not enjoy a licence to allow unconscionable delay to take place in the trial of an accused person and thereby cause him to remain in a state of agonising suspense. After the procedure enjoined by law had been complied with, dilatoriness on the part of the prosecution against a person accused of an offence must not be permitted. On the facts of this case the Magistrate was completely justified in bringing the proceedings to an end by passing an order of acquittal. The learned Government Advocate referred me to a case K. K. Srivastava v. Ram Bilas, 1978 Lucknow LJ 180 in which a learned single Judge of this Court after referring to the earlier authorities held that in a warrant case a duty was cast on the Magistrate to secure the attendance of the complainant and his witnesses for further cross-examination, and if no such action was taken by him, he was not right in dismissing the complaint and acquitting the accused That case is distinguishable because it was commenced on a complaint for an offence under Section 7/16 Prevention of Food Adulteration Act. Under the old Code in a complaint case there was a provision for examination of witnesses at the earliest stage under Secs. 200 and 202 CrPC. Thus, even before the framing of a charge there used to be a modicum of evidence which could later be pressed into service for the final disposal of the case. On the other hand, in a case instituted on a police report the charge under Section 251-A as it then stood, had to be framed on the basis of the police papers, documents and records and there was hardly any other evidence as such which could be later utilised. Hence in such a case if no evidence was forthcoming there was nothing which could sustain an order of conviction. The learned counsel for the appellant relied on yet another decision in Parbati Devi v. State of U. P., 1972 Cr LJ 1644 (All) for the proposition that in a warrant case where a charge has been framed and on the date fixed for further examination of the prosecution witnesses the complainant and the witnesses fail to appear and so the Magistrate orders acquittal of the accused, the order is illegal because it is obligatory on the Magistrate to summon the witnesses whom the accused wishes to cross-examine. That order was, however, on a private complaint case and the ratio for that decision has no application to the facts of the present case. My attention was alsodrawn to an unreported decision of this Court in Cr. Reference No. 27 of 1961-Smt. Parbati Devi Tatnoo in which K. B. Srivastava, J. quashed an order of acquittal passed by a Magistrate in a case instituted on a police report because on a certain date the witnesses were absent. The facts of that case are also clearly distinguishable. Firstly, in that case a number of witnesses had already been examined and charge had been framed on that basis. They later absented themselves for cross-examination. Evidently in such a case it became the duty of the Magistrate to secure their attendance for cross-examination. Secondly, in that case the assistant prosecutor had made applications for adjournment on several dates and had also prayed for the presence of the witnesses but the Magistrate did not pass any order on those applications. Thirdly in that case it was also noticed that no summons had been issued and much less served on any of the witnesses. In the present case, however, summonses were actually issued for attendance of the witnesses and the Magis-trate had on numerous dates passed orders for summoning the witnesses. Fourthly, in the present case there was absolutely no application made by the prosecution to the Magistrate making a grievanoe of the absence of the witnesses or exercising the difficulty faced by it in securing their attendance and praying for adoption of coercive measures or other drastic steps to ensure their presence. Consequently, the Magistrate had no option but to confine himself to such evidence as the prosecution had chosen to adduce. Since there was no evidence in the case the order passed was that of acquittal. Thus, the impugned order of acquittal was neither improper nor vitiated by any error of law.
(3.) THERE is no force in this appeal. It is accordingly dismissed. Appeal dismissed.;