The matter that arises for consideration in these appeals filed by the State against the acquittal of the accused is whether it is appropriate to apply s. 251-A (11) of the Criminal Procedure Code and acquit the accused in a case where the prosecution has neglected to produce witnesses in support of the prosecution case as required under s. 251-A (7) of the Criminal Procedure Code The learned Additional First Class Magistrate, Kulitalai, who tried the case, observed in his judgment, that notwithstanding the peremptory order issued by the Court declining to grant further adjournments, the prosecution was not ready with its evidence on the date of hearing and that therefore the accused were entitled to an acquittal under s. 251-A (11) of the Cr.P.C The learned Public Prosecutor who has appealed to this Court, against the order of acquittal, has submitted, that such a procedure for acquittal, for want of diligence on the part of prosecution, in the matter of producing its witnesses is permissible in summons cases, under s 247, Cr.P.C, as has been pointed out in Arunachala Reddy v. Sellamuthu Goundan(1), but the position is quite different in the case of the trial of warrant cases, wherein, the Court cannot automatically acquit the accused for the laches of the complainant. No doubt that decision dealt with a case that arose before the amendment of the Cr.P.C in 1955 and when s. 252 applied to all warrant cases filed whether on a police report or otherwise. This section imposed an obligation on the Magistrate himself to summon the appropriate witnesses for the prosecution of the case.
The question for consideration, is whether after the commencement of the Cr. P.C in 1955, by the introduction of s. 251-A for dealing with the warrant cases taken on file on a police report, the position has altered and whether in such cases, the Magistrate can automatically acquit the accused where the prosecution has not been diligent in producing the evidence in support of its case. The learned Public Prosecutor referred me to a decision of the Assam High Court in Nathuram v. Pannalal(2), and the decision of the Kerala High Court in State of Kerala v. Aboobaker(3), both of which have been followed by the Orissa High Court in State Of Orissa…Complainant v. Sib Charan Singh…Accused .(4). A different view was taken by the Calcutta High Court in Jotirmoyee v. Birendranath(5). In this last mentioned decision there is a short observation that in a case tried under s. 251-A of the Code, the Magistrate was not compelled, as he would be if the case was tried as a warrant case instituted other than on the police report, to proceed in terms of ss. 256 and 257 of the Code. The Calcutta High Court observed that the case had been pending for over two years and had passed through various vicissitudes and consequently the Magistrate was perfectly right in acquitting the accused person and thereby saving them from further harassments and troubles. It may be held that the aforesaid decision of the Calcutta High Court really turned on the circumstances of the case, and therefore did not enter into a detailed discussion of the scope of the Magistrate's power under s. 251-A (11), Cr. P.C and the circumstances under which it can be exercised. Taking into account the scheme provided in the several sub-divisions of s. 251-A of the Cr. P.C, it can be stated that the intention of the Legislature as expressed in the provisions was not to extend the provision for acquittal under s. 251-A (11) to cases where the prosecution had been in default. Under the scheme of s. 251-A Cr. P.C the Magistrate has to consider the statements recorded in the case diary, and if he finds the charge to be groundless he can discharge the accused. But when he finds the charge to be prima facie substantiated, he is required to frame a charge and then follow the procedure indicated in the several sub-sections from (4) to (9) of s. 251-A. It is after this stage has been reached that he is permitted to acquit the accused under s. 251-A (11). What the Magistrate has done in this case is that when he found that the prosecution had failed to produce their witnesses as required under sub-s. (7) of S..251.A Cr.P.C, he has proceeded to record a finding of acquittal under S. 251-A(11). The Magistrate had already framed a charge against the-accused which implies that there is prima facie case against him which if unrebutted would warrant hit conviction. That would necessitate calling upon the accused in any event to enter upon his defence under s. 251-A (8) before 251-A (11) is applied in his case.
The Kerala High Court has observed in State of Kerala v. Aboobaker at page 126;
“On a perusal of the relevant papers under s. 172, Cr.P.C, the District Magistrate found that there was a prima facie case to frame charges of cognizable offence. So even if the police failed to perform their duties and produce the witnesses, the Court has the duty to enquire into the offences disclosed and to find out whether the accused was really guilty or not and for that purpose to examine the witnesses.”
In making the above observation the learned Judges of the Kerala High Court referred to the decision of this High Court in Rangaswami Naicker v. Muruga Naicker(6), where Ramaswami, J., has observed;
“A Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them and that duty is to investigate the truth.”
In the present case, the Court has considered the papers under s. 173, Cr.P.C and held that they warranted the framing of a charge and framed a charge accordingly. In such circumstances before holding the charge to be unsubstantiated, and acquitting the accused, the Court had a duty to consider whether the interests of justice did not require the summoning of the witnesses on the Court's own motion under s. 540 Cr.P.C I am therefore of the opinion that this is a case where the order of acquittal cannot be permitted to stand.
The learned Counsel for the respondent referred to the ample powers of the prosecution under s. 170, Cr.P.C and s. 495, Cr.P.C to put forward its case and summon its witnesses. But the reference to these two sections is beside the point for the question now under consideration. The real question is whether the application of s. 251-A (11) to warrant cases instituted on a police complaint it justified for the sole reason that the prosecution has failed to produce its evidence as required under s. 251-A (7). I am of the opinion that such a procedure is permitted by law only under c. 247, Cr.P.C, in summons cases. In warrant cases where the Court has already framed a charge under s. 251-A, Cr.P.C against the accused, an important duty is laid on it to see that all the powers available to the Court for the examination of witnesses, are exercised, for a just decision of the case, irrespective of the laches of the complainant. Such powers include the powers under s. 540, Cr.P.C, to summon witnesses on the motion of the Court. I therefore allow the appeals and set aside the acquittal of the accused and direct the cases to be disposed of according to law by the lower Court.
N.T.R —