Murlidhar - (1.) THIS revision by Jhunkhun is directed against an order of acquittal dated 29-6-1979. The polii:e had challaned 36 persons under Secs. 147, 323/149, 452 IPC with a supplementary report under Sec. 4 Untouchability Act, with regard to an occurrence of 5-2-1976 in which eight Hirijans including three women were alleged to have been beaten up by the accused persons. The Magistrate acquitted the accused for want of evidence. The applicant's contention is that the prosecution having applied to the Magistrate for securing the attendence of witnesses through warrants the Magistrate could not have dismissed the complaint for mere absence of the witnesses and should have made further efforts to secure their presence.
(2.) THE record shows the facts to be these. THE first date for evidence fixed was 25-1-1979 but the prosecution wanted time as the witnesses were not present. THE witnesses were then summoned for 10-4-1979, but they were again absent. THEreafter on the application of the! public prosecutor bailable warrants were ordered to be issued for some of them. On the third date 7-5-1979 again the witnesses were absent and non-bailable warrants appear to have been issued. Even so on the next date dated 20-6-1979 no witnesses turned up and on the application of the prosecutor non-bailable warrants were again ordered to be issued with the direction that no further time will be given. In spite of this on 29-6-1979 no witness turned up and the Magistrate proceeded to pass the acquittal order in question. It must also be noted that only one of these processes, namely, the warrant issued on 11-5-1979 against four witnesses happens to be on record. THE police report on this is that correct name of the village be supplied, it appears that instead of village Datauli the court office had put down the name of the village in this warrant as village Patauli. THE other processes are not on record and there is nothing to indicate whether these were issued and correctly issued from the court office. Much less do we knew if any attempt for service of those had been made or the reason for non-service. On behalf of the respondents a praliminary objection has been raised that revision by a private party in a State case where the State has not chosen to file an appeal should not be entertained. Satyendra Nath Datta y. Ram Narain, AIR 1975 SC 580 has been relied upon. This case in no way alters the principle laid down in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788 that revisional jurisdiction in fresh cases should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or a manifest error on a point of law resulting in a flagrant miscarriage of justice. The present case would clearly meet the condition of miscarriage of justice if the alleged illegality be present. The case pertains to the beating of a number of Harijans in connection with a controversy arising over allotment of land to them. Cases of this nature against the weakest section of the society require the most careful scrutiny by an actively alert court because the weak victims often lack the vigour to prosecute the cases energetically. It is for the court to watch their interest and not to pronounce against them on unwarranted technical, grounds. Then comes the question whether there is any defect in procedure. The provisions applicable is section 242 CrPC. The relevant sub-sections are quoted below : 242 (1).... ..... ..... ....... (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........................ ?....... Prior to the enactment of the Code of Criminal Procedure 1973 there was no specific provisions in section 251-A of the olid Code providing for the prosecution obtaining summons for its witnesses. Section 251-A (7) however, was in the same language as the present section 242 (3). Even under the old Code most of the High Courts took the view that the prosecution could ask for court process to secure attendance of the witnesses. It was also held that in such cases it was the duty of the Magistrate to see that his orders summoning or securing presence through warrants of the witnesses are complied with. Thus in State of U. P. v. Moti, 1973 ACrR 90 a learned Single Judge of this Court held that under Section 251-A (6) (old Code) the Magistrate was not justified in acquitting the accused for want of evidence where the witnesses failed to turn up in spite of service of summons. It was stated that it was his duty to take further steps for securing their attendance through coercive measures like action under Section 485 CrPC. In Paban Chandra v. Dulal Ghose, AIR 1955 Cal 387, a single judge of the Calcutta High Court took the same view. It was observed that under Section 251-A when the Magistrate had taken it on himself to summon the witnesses it was incumbent upon him to satisfy himself that the summons had been served upon them and the order passed by him had been carried out. The specific provision under Section 242 (2) entitling the prosecution to ask the court for issue of summons was added in the new Code on the recommendation of the Law Commission. The position of the prosecution is now stronger in that they have now an express right to request for court process for summoning witnesses, where such prayer has been allowed it is for the Magistrate to secure the attendance by seeing to the compliance of his orders. This involves the duty to make every reasonable effort to have the witnesses served. Then if they have been served but not appeared the Magistrate should also in appropriate situations take suitable coercive measures as may be regarded reasonable, if the witnesses have not been served it will be for the Magistrate to scrutinise the cause of non-service and give up further attempts to secure attendance through court process only if in all the circumstances of the case this is considered unfruitful or inadvisible. Thus, for example, if the witness's correct address is not available and he cannot be located even after reasonable efforts the court's duty would be over. In cases in which the witnesses have been summoned through court process but have remained unserved the Magistrate has to first see the necessary process were issued on the correct address by the court office and satisfy himself by scrutinising the service report that the police made a genuine efforts to serve the same. If these initial steps are lacking there will be no certainty that there has ever been an attempt to effect service. If the processes are returned unserved the court has to consider the report and decide what further action should be taken in all the circumstances of the case and whether to issue or re-issue summons or warrants or even take action under Sections 81 and 82 CrPC in suitable cases. If service of summons or bailable warrant has been effected but the witness remains absent the court has again to decide whether any further step or coercive measure should be adopted. Thus, it may re-issue the summons or issue bailable or non-bailable warrants, take action under sections 81 and 82 CrPC or even consider prosecution under Section 174 CrPC. In case of bailable warrant action under Section 446 CrPC for forfeiture of bonds may also be taken. It is not possible to lay down any hard and fast rule as to the degree and extent of the effort required of the Magistrate in any particular case before he stays his hands in the matter of securing wtinesses' attendance and goes ahead to decide the case. One factor that necessarily enters the picture in this connection is that police happens to be both the proseculting and process serving agency. In practice public witnesses residing in a district it is the police of the Thana concerned. While the two roles of police have to be kept separate, the consideration is a relevant one for deciding the stage at which the Magistrate will give up his efforts in a particular case. But Magistrate should not proceed as if the prosecution agency is itself responsible for non-service and therefore he can decide the case without taking any further steps that would be tantamount to holding that it is the responsibility of the prosecution to produce the witnesses irrespective of their having secured orders of the court for securing their attendance."
(3.) IN the present case on facts it is not possible to say that the Magistrate made reasonable efforts to summon the accused. The least that he should have done was to check that the summonses or warrants had been sent to the police for service but they had on so many occasions failed to comply. If he felt that further effort in this situation was not necessary, he should have noted this on the record. Actually in most cases some further efforts would be desirable for local police cannot be made the arbiter of whether the case will go with or without the evidence even after the court has summoned the witnesses. The order is, therefore, unsustainable. In the result, the impugned order is set aside and the case is sent back for further inquiry in the light of the observations made in this order. Ordered accordingly. on the container-Non compliance with mandatory provision of Rule 4 (3)_ Prejudice caused to accused as be was deprived of benefit of Sec, 13 -Conviction not sustainable.;