Giasuddin Mulla vs State Of West Bengal Ors.

This application has been filed by the petitioner against an order dated 29th December, 2017 passed by the learned 1st Additional Judicial Magistrate,

Basirhat in Minakhan Police Station Case no. 49 dated 9th December, 2000 under Sections 147/148/149/323/325/327/379/506 of the Indian Penal

Code. Heard Mr. Sanjay Ghosh, learned advocate appearing for the petitioner and Mr. Rana Mukherjee, learned Additional Public Prosecutor for the

State.

Mr. Ghosh, learned advocate appearing for the petitioner submits that the learned Magistrate acted illegally and caused complete failure of justice in

not taking coercive measures for securing the attendance of the said witnesses, inasmuch as the law is well settled that if a person failed to appear

before the Court in spite of service of summons on him, the learned Magistrate should take steps for securing the attendance of the witnesses under

Section 87 of the Code of Criminal Procedure, 1973.

Therefore, the learned Magistrate failed or neglected to issue warrant for securing the presence of the witnesses by closing the evidence and fixed the

date for hearing on 5th February, 2018 without complying with the procedure laid down under Section 87 of the Code of Criminal Procedure, 1973. In

support of his submission, Mr. Ghosh has cited a judgment reported in 1973 Criminal Law Journal page 1257 in the case of State of Mysore â€"vs-

Ramu B, wherein it was observed that â€

“It is clear from the record that no attempt has been made by the Court to take such coercive steps as were open to it to cause the presence of the

witnesses concerned in the case. It seems to me that having regard to the provisions of subsection (7) of Section 251A of the Criminal Procedure

Code, the entire responsibility of production of the witnesses cannot be saddled on the prosecution. A duty is also imposed upon the Court for

enforcing attendance of witnesses by the processes provided in the Code. The Courts are not powerless when the parties fail to produce witnesses. In

this view, it was the duty of the Court, in the instant case, to have issued coercive processes if the prosecution had failed to produce the witnesses as

directed on 10.12.1971. That such is the position is clear from the decision of a Division Bench of this Court in State of Mysore â€"vs- N.G.

Narasimhegwda, (1964) 2 Mysore Law Journal 241, that â€

“Having once issued summons to secure attendance of witnesses, it was the duty of the Magistrate to have enquired into the cause of non-service

or non-return of summons and to have taken over steps as were necessary in the circumstances of the case to secure the attendance of witnesses

particularly when there was no material before him to show that there had been any remissness on the part of the prosecuting agency.â€​

The order impugned herein, therefore, is clearly unsustainable. In the result, this petition succeeds and the order made by the learned Magistrate on

18.1.1972 is set aside. Consequently, he is directed to take the case on file and proceed with the further enquiry in accordance with law and in the

light of the observations made herein.â€​

In view of the above judgment, as no steps were taken by the learned Magistrate to cause presence of witnesses, this application succeeds. The

impugned order dated 29th December, 2017 passed by the learned Additional Judicial Magistrate, 1st Court, Basirhat in Minakhan Police Station Case

no. 19 dated 9th December, 2000 is thus quashed and set aside. The learned Magistrate is requested to proceed with the case in accordance with law.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.