A.D.Koshal, S.S.Sidhu, JJ. - (1.) BY this judgment we shall dispose of Criminal Appeals Nos. 1100 and 1101 of 1974 which have been filed by the State of Haryana against the acquittal of Ram Kumar alias Kundu and Gaje Singh respectively, each of an offence under section 61(i)(a) of the Punjab Excise Act by Shri V.K. Jain, Judicial Magistrate 1st Class, Kaithal, on the 15th of June, 1970.
(2.) EACH of the respondents was prosecuted separately for the offence above mentioned with the allegation that he was found in possession of 15 Kilograms of lahan fit for distillation of illicit liquor, on the 14th of February, 19/0, in the area of village Geong. The charge was framed against each of the respondents by the learned Magistrate on the 13th of May, 1970, and both the cases were adjourned to the 15th of June, 1970 with the direction that evidence for the prosecution would be recorded on that date. Summonses were duly issued to the prosecution witnesses named in the calendar in each case for the 15th of June, 19740, but were not received back by then in Court after service and the Court passed the following order of acquittal in each case : Today the case was fixed for evidence of the prosecution. No P.W. was present today and neither the summonses were returned back. There was no ground for further adjourning the case and evidence of the prosecute on was closed I did not think it necessary to examine the accused. There is no evidence against the accused to prove the above charge. The accused is accordingly acquitted. According to Learned Counsel for the State, no duty is cast on the prosecution to bring its witnesses to Court and reliance for the proposition is placed on sub -section (7) of section 231 -A of the Code of Criminal Procedure „ 1898, which was the relevant provision of procedural law then in force. The sub -section states : (7) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution : This sub -section came up for interpretation before S.B. Capoor and Gurdev Singh, JJ., in State v. Kali Ram Nand Lal : A.I.R. 1968 P&H 87, it was held that the following consequences flowed from its language : (1) The trial Magistrate is not bound to ascertain the names of the prosecution witnesses, and to summon them and it is for the prosecution to disclose the names, of its witnesses and to produce them. (2) If the prosecution discloses the names of its witnesses and requires the assistance of the Magistrate to procure their attendance it is the duty of the Magistrate to summon them and cause their appearance in Court. (3) However, the Magistrate need not 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 prosecution and grant adjournment for that purpose would depend on the facts and circumstances of each case. Although the Magistrate should not be in a hurry to close the prosecution evidence, he must also 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. It is in the light of this interpretation of sub -section (7) that the appeals in hand are to be decided.
(3.) THEY one opportunity was afforded to the prosecution in each of tin cases to produce its witness Summonses were issued to the witnesses whose names were disclosed by the prosecution in each case to appear on the 15th of June, 1970, and were presumably entrusted to the prosecuting agency for service. It is true that the summonses were no received back in Court on the 15th of June, 1970, but there is nothing to indicate that this was because the prosecution was remiss in having the service effected. Its failure to return the summonses, served or unserved, to the Court by the 15th of June, 1970, could have been due to various reasons which the learned Magistrate made no attempt to ascertain In this situation has observation that "there was no ground for further adjourning the case and evidence of the prosecution was closed" appears to us to be wholly without justification. It was his duty to have the service effected. Of course, he could perform that duty only with the assistance of the prosecuting agency but before he held that agency to be remiss in rendering that assistance, the least that he should have done was to call for the reasons for the non -service of summonses and to find out whether for such non -service the agency was to blame. Without coming to a finding that such was the case he was bound in law to grant an adjournment for the purpose of service of summonses on witnesses and enforce their attendance. In our opinion, he shirked his duty and ordered the prosecution evidence closed when there was no reason to do so. The orders passed by him, therefore, cannot be sustained. Accepting the two appeals, we set aside those orders and remand the two cases to the Court of first instance for the trial in accordance with law.;