A.D.Koshal, J. - (1.) THIS is a State Appeal against the order dated the 14th of August, 1967, of Shri R.P. Singh, Magistrate 1st Class, Gurgaon, acquitting the Respondent Mohan Singh, of offences under Section 279 and 338 of the Indian Penal Code without recording any prosecution evidence.
(2.) THE relevant facts are these. The Gurgaon police presented in the Court of the learned Magistrate a report under Section 173 of the Code of Criminal Procedure stating that the Respondent had driven rashly and negligently car No. DLI 8403 on the 25th of November 1966, and had caused grievous hurt to a girl named Veena. who was only seven years old, in consequence. The names and particulars of eight witnesses from whose testimony the prosecution intended to prove its case were cited in the calendar of witnesses appended to the report. On the 8th of May 1967, a charge under Sections 279 and 338 of the Indian Penal Code" was feared against the Respondent who pleaded not guilty to it. The case was adjourned to the 5th of June 1967, with a direction that the' prosecution evidence would be recorded on that date. On the adjourned hearing the accused was present with counsel and the spurdar with the case property (which consisted of the said car). No prosecution witness however. appeared and the learned Magistrate adjourned the case to the 19th of June, 1967, saying that he was thus giving the prosecution another opportunity to produce their evidence. On the 19th of June, 1967, however, again no prosecution witness appeared although the accused and his counsel were present. The learned Magistrate found that the summonses issued to the prosecution witnesses had not been received back. Nevertheless he granted just another adjournment of the case to the 17th of July 1967, making it clear that if no prosecution witness was produced even, on that day, the prosecution evidence would be deemed closed. On the 17th of July, 1967, only one prosecution witness (named Banwari) was present. The accused, who had also appeared, stated that the car above mentioned was cut of order and could therefore, not be brought to court. He further played for an adjournment which was granted. The case was posted for the 14th of August, 1967, with a direction that the car and all the prosecution witnesses be produced on that date. When the case was taken up on the 14th of August, 1967, the learned Magistrate found that the summonses issued to the prosecution witnesses had not been received back and that none of them was present. He declared the prosecution evidence closed and acquitted the accused for want of any inculpatory material against him. Mr. Mittal, appearing for the State, concedes that in proper cases the trial Court has the power to pass an order of the type of the impugned order but Contends that the prosecution should have been shown greater indulgence in the matter of production of its evidence. With this contention we do not find ourselves in agreement. Four clear opportunities each extending over a period of a fortnight or more were afforded to the prosecution to produce their witnesses and, except on one of the hearings, they did not care to produce any evidence whatsoever nor to have their witnesses served, although summonses were taker out for their service; the exception was the hearing fixed for the 17th of July, 1967, and on that date also only one witness, namely, Banwari, the photographer, who is said to have taken photographs of the scene of the crime soon after it is said to have been committed was present, the other seven witnesses having remained unserved. It is true that the adjournment of the case on that date to another was occasioned also by the failure of the spurdar to produce the car in question but that does not mean that the prosecution had not been remiss in the matter of production of their evidence. In these circumstances we are of the opinion that the learned Magistrate was fully justified in allowing no more adjournment of the case for the purpose of enabling the prosecution to produce their evidence it having failed to take advantage of no less than four opportunities granted to it in this behalf.
(3.) MR . Mittal relied upon The State v. Kali Ram, (1967) 69 P.L.R. 469, a case decided by a Division Bench of this court consisting of S.H. Capoor and Gurdev Singh, JJ. The facts of that case, however, are clearly distinguishable There, one Kali Ram was charged with offences under Sections 324 and 354 of the Indian Penal Code on the 29th of October, 1963, when the case was adjourned to the 12th of November, 1963, with a direction that the prosecution evidence be summoned for the date On the date last mentioned, however, Kali Ram failed to appear and continued to be absent on subsequent dates of hearing till the 12th of September, 1964, when the case was adjourned for four days. On the adjourned hearing it was found that the case property was not available. The Court directed that the prosecution evidence in the care would be recorded on the 26th of September, 1964. On that date, however, only one witness was present and his statement was taken down. Fresh summonses were directed to be issued to the other prosecution witnesses for the 14th of October, 1964. On the hearing fixed for that date the case was taken up by another Magistrate Shri Gogia by name, to whom it had been transferred in the mean time and was adjourned to the 22nd of October, 1964, for the reason the none of the prosecution witnesses was present On the 2nd of October. 1964, it was found that summonses had not been received back, Shri Gogia refused to grant any further adjournment to the prosecution closed its evidence and acquitted Kali Ram for want of proof against him. It was in these circumstance, that Gurdev Singh, J., who delivered the judgment of the Division Bench, observed: It is true that the trial had been pending for some time, but as the facts set out above disclose, the prosecution was not to blame for it. The Respondent had himself failed to appear before the Magistrate, and then the military authorities expressed their inability to spare him. Summons for the prosecution witnesses were obtained by the prosecution but they were not received back on 22nd October, 1964, when the Magistrate proceeded do acquit the Respondent. Only eight days were given to summon these witnesses, and there is nothing on the record to indicate that the police was responsible for non -service. In those circumstances, the Magistrate ought to have granted an adjournment and resummoned the witnesses. I thus find that the order of the Magistrate closing the prosecution evidence and acquitting the Respondent is illegal and improper. In the present case the facts are entirely different. As already stated, the prosecution was granted no less than four opportunities of producing its evidence, each extending over a period of at least a fortnight. To say the least, the prosecution was extremely negligent in pursuing its case and had failed without any excuse, reasonable or unreasonable, to bring its witnesses to court or to have them brought before it through coercive process, In a case of this type, the trial Court has ample power to cut short the proceedings which may otherwise amount to harassment of the accused. In this connection the following observations of Gurdev Singh, J. in the case above cited are pertinent: Before the amendment of the Code of Criminal Procedure in the year 1955, the procedure applicable to the trial of warrant cases, whether instituted on police report or otherwise, was the same. By the Code of Criminal Procedure (Amendment) Act, 1955, Section 251 -A was introduced laying down a new procedure for the trial of warrant cases instituted on police report. It is well known that the object of the various amendments introduced in the Code of Criminal Procedure in the year 1955 was to expedite criminal trials and enquiries under the Code, and it was with that end in view that a provision was made in Sub -section (7) of Section 251. A that on the date fixed for examination of prosecution evidence the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution'. The clear intention of the legislature was that to avoid delay the prosecution is to produce its witnesses on the date fixed for their evidence. Before this amendment, under Sub -section (2) of Section 252, which applied to warrant cases instituted on police report as well as on complaints a duty was cast upon the Magistrate to 'ascertain', from the complainant or otherwise, the names of any person likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and to summon' such of them as he thinks necessary. This provision has been retained so far as the trial of warrant cases instituted otherwise than on a police report is concerned, but there is no corresponding provision contained in Section 251 -A. From this it clearly follows that the Magistrate is not under an obligation to ascertain the names of the prosecution witnesses and to summon them, but it is for the prosecution to disclose the names of its witnesses and to produce them. He further remarked: This, however, does not mean that the Magistrate conducting the trial under Section 251 -A of the Code of Criminal Procedure must go on adjourning the trial till it suits the convenience of the prosecution to produce its evidence. Whether or not the Magistrate will proceed to enforce the attendance of the witnesses for the persecution and grant adjournment for that purpose would depend upon the facts and circumstances of each case. Though it is true that the Magistrate should not be in a hurry to close the prosecution evidence, yet at the same time the Magistrate must be vigilant enough to see that the process of the Court is not abused by the prosecution obtaining unnecessary adjournments resulting in harassment of the accused. In support of these observations Gurdev Singh, J., relied on his own remarks in Krishan Murari and Ors. v. State of Punjab,2 the following effect: In cases where the Magistrate finds that the prosecution is deliberately avoiding production of its evidence and seeks adjournment of the proceedings for no adequate reason, he must act with some firmness, and guard against giving an impression that he is a party to the harassment of the person proceeded against. With very great respect, we find ourselves in agreement with these observations. It is to the type of cases covered by them that the case in hand belongs, being, therefore, distinguishable from Kali Raw's case.;