P. Vincent vs Balupillai and 2 others

S.M. Sidickk, J.—This Revision is directed as against the Judgment of the learned Judicial Magistrate No. 1 at Kuzhithurai dt. 10.4.97 made in STC. No. 454 of 1995 acquitting the Respondents 1 and 2 accused 1 and 2 for the charge under S. 284 of IPC.

The 3rd Respondent police filed the charge sheet as against the Respondents 1 and 2 accused 1 and 2 on the basis that on 3.11.1994 at about 3:30 p.m. in a drinking water well located in the coconut grove of one Kamalan, the Respondents 1 and 2 accused 1 and 2 poured Furudan, which is a poisonous carbonate compound used as insecticides and made the water in the well poisonous affecting the Public Health, and so the Respondents 1 and 2 accused 1 and 2 are liable to be punished under S. 284 of IPC. There are 11 witnesses cited in the charge sheet. Out of them the first witness by name Vincent. S/o. Balayyan, examined as P.W. 1 before the trial Magistrate gave the complaint, and the witnesses 2 to 7 in the charge sheet are persons to speak about the occurrence and to corroborate the evidence of other witnesses, and out of these seven witnesses, P.W. 1 Vincent S/o. Balayyan, P.W. 2. Thangaswami and P.W. 3 Vincent S/o. Thangaswami were alone examined on the side of the Prosecutions. The 8th witness in the charge sheet is cited to speak about the mahazar, and the 9th witness in the charge sheet is to speak about the taking of the sample of the water from the well and about the testing of the said water and about the chemical analysis report, and the 10th witness in the charge sheet is also a mahazar witness who happened to be the Village Administrative Officer, and the 11th witness in the charge sheet is the Sub-Inspector of Police, Arumanai Police Station by name Soundarapandian. Thus out of 11 witnesses only first three witnesses were examined and others were not examined. In such circumstances the learned trial Magistrate has adversely commenced on the prosecution case and delivered a Judgment in STC. No. 454/95 in Tamil in the following words:

The Revision petitioner herein is none other than the complainant, who was examined as P.W. 1 before the learned Trial Magistrate.

After hearing the Learned Counsel for both parties the point that arises for determination in this Revision Petition is to what relief are the parties entitled.

Point: As already stated there are 11 witnesses cited in the charge sheet and out of 11 witnesses only three witnesses were examined and the rest of them were not examined on the side of the prosecution. It seems from the Judgment of the learned Magistrate that several summons were issued to those witnesses, and the final communication was also sent to the Superintendent of Police, and in spite of summons and the communication to the Superintendent of Police, the learned Magistrate could not secure the presence of the persons to be examined as witnesses in this case. It appears from the judgment of the learned Magistrate that no coercive steps have been taken as against any one of the witnesses, who were not examined.

In such circumstances the learned Senior counsel appearing for the Revision Petitioner Mr. M. Ravindran argued that the learned Magistrate was constrained to observe in paras 4, 7 and 8 of his Judgment that the witnesses including the Investigating Officer viz., the then Sub- Inspector of Police, Arumanai Police Station were not produced in spite of the report sent to the Superintendent of Police, and the prosecution failed to produce the important witnesses before the trial Court, and more so the prosecution has not made any efforts to examine the Chemical Analyst or the Investigating Officer. Notwithstanding the allegations of the prosecution that the well water has become poisonous and in view of the conduct of the Sub-Inspector of Police, Arumanai Police Station in Kanyakumari District in not prosecuting the case as per the provisions of Cr.P.C, the case has ended in acquittal, and in those circumstances- the Revision must be allowed, and the Judgment of the learned trial Magistrate must be set aside, and the matter must be remanded back to the trial Magistrate for fresh disposal in accordance with law for examining the other witnesses cited in the charge sheet. In support of his contentions the learned Senior Counsel Mr. M. Ravindran also cited a Full Bench decision of our Madras High Court reported in State v. Veerappan (1980 L.W. (Crl.) 187) and two other decisions reported in Selvarangam v. State (1984 (Crl.) M.L.J. 304) and M.J. Kumar v. Sahadevan and Three others (1997 (1) L.W. (Crl.) 34 (2) .

The Learned Counsel for the Respondents 1 and 2 accused 1 and 2 refuted the above contentions of the learned Senior counsel appearing on behalf of the Revision Petitioner/Complainant and contended that there are several contradictions in the testimony of P.Ws. 1 to 3 in this case, and P.Ws.2 and 3 have got criminal cases against them as admitted by them in their evidence, and there is enmity between the complainant examined as P.W. 1 and the accused herein, and therefore the learned trial Magistrate has applied his mind to the evidence adduced in this case and came to the conclusion that it is a fit case for an acquittal, and therefore the order of acquittal passed by the learned trial Magistrate need not be disturbed.

The matter was examined in detail by me by giving due consideration to the points raised by both the counsel. After hearing the rival contentions and after perusing the material papers and the order of acquittal of the learned Magistrate, I am of the opinion that nowhere in the order of acquittal passed by the learned trial Magistrate, he has considered the testimony of P.Ws. 1 to 3 and came to the conclusion one way or the other. In short the learned trial Magistrate did not advert to the testimony of P.Ws. 1 to 3 at all and he did not discuss about the evidence of P.Ws. 1 to 3 as to whether it has to be accepted or not, and the learned Magistrate has not considered the contradictions as pointed out by the Learned Counsel for the Respondents 1 and 2/accused 1 and 2 in this Revision Petition. Therefore there is no substance in the contention that the learned Magistrate has considered the evidence of P.Ws. 1 to 3 and came to the right conclusion that it is a fit case for acquittal not withstanding the non-examination of the other witnesses cited in the charge sheets.

At the risk of repetition I have to state that there are 11 witnesses in the charge sheet, out of whom three alone were examined, and in spite of efforts taken by the learned Magistrate to summon the other witnesses he could not succeed. Therefore the learned Magistrate acquitted the accused in view of the conduct of the prosecuting agency in not examining the other witnesses. This is evident from the several adverse remarks made by the learned Magistrate in Paras 4, 7 and 8 of his Judgment.

When the prosecuting agency has adopted a non-cooperative attitude, dien the learned Magistrate ought to have taken coercive steps for summoning the witnesses and he ought to have issued non-bailable warrant to the superintendent of Police for the arrest of the S.I. of police, Arumanai Police Station in Kanyakumari District for his non-appearance but he did not do so. The full Bench of our Madras High Court in the decision reported in 1980 L.W. (Crl.) 187 , went to the extent of stating that in case of chronic or persistent failure on behalf of the witnesses to appear in response to the summons, a complaint can be lodged by the trial Magistrate under S. 174 of IPC for non-attendance of the witless in obedience of an order of the Judicial Magistrate.

At this stage it is relevant to note the principles laid down by our High Court in the decided cases cited by the learned Senior Counsel for the Revision Petitioner.

In the decision reported in State v. Veerappan (1980 L.W. (Crl) 187) a Full Bench of our Madras High Court consisting of three learned Judges, His Lordship Justice Paul, Justice S. Natarajan and Justice Rat-navel Pandian, as they were then, laid down the law in the following words:

...It must be noted that as in S. 254 of Cr.P.C. relating to the trial of summons cases, the Magistrate even in warrant cases instituted on a police report is enjoyed under Sub-section (3) of S. 242 to take all such evidence as may be produced in support of the prosecution and a provision has been made in Sub-Section (2) of S. 242 for the issue of summons to any witness directing him to attend or produce any document or other thing on the application of the Prosecution. Therefore even in regard to warrant cases instituted on police report, a duty is cast on the Magistrate to take all evidence that may be produced by the prosecution as well as a duty to facilitate the production of evidence, by the prosecution, by issuing summons to witness on the application of the prosecution, and likewise, a duty has also been cast on the prosecution to produce all evidence in support of its case....

Thus the Court cannot absolve itself of its responsibility to summon and examine all witnesses whose evidence appears to it to be essential to a just decision of the case, merely because the prosecution does not produce such witnesses owing to its negligence or otherwise. It being clear that it is the duty of the Magistrate to issue summons and secure the presence of the witnesses and examine them, when the prosecution seeks the Court''s assistance by means of an application the Court is further obliged in discharge of its duty to arrive at the truth by all lawful means in furtherance of the administration of criminal justice to suo motu take all steps to secure the presence of witnesses where evidence appears to it to be essential to a just decision of the case.

We shall now proceed to indicate the powers which the Magistrate could exercise and the steps he could take under Crl.P.C. in the matter of securing the presence of witnesses.

Nevertheless where summons issued has not been served on the witnesses by a police officer under S. 62, repeatedly the Magistrate may resort to this provision of issuing the summons and sending it by registered post to the witness. Of course, if after due service the witness does not appear before the Court, the Court should issue coercive processes for securing the presence of the witness before the court. In suitable cases or in cases of chronic or persistent failure to appear in response to the summons, a complaint can be laid under S. 174 of IPC.

...The next question that would arose is whether if, even after having recourse to the above provisions, the Magistrate is not able to secure the presence of the witnesses and the prosecution on its part, even after having been given several opportunities, fails to serve the summons on the witnesses or to produce them, the Magistrate would be justified in acquitting the accused either under S. 255(1) of Crl.P.C. in summons cases or under S. 248(1) of Cr.P.C. in warrant cases. In almost all the decisions in which it has been held that an acquittal of the accused on the ground that the prosecution did not produce the witnesses was improper, the courts have pointed out that the duty to summon the witnesses in the course of the trial is that of the Magistrate or the court concerned, and that the entire responsibility of production of witnesses cannot be saddled on the prosecution and a duty is also imposed upon the Court for enforcing the attendance of witnesses by the processes provided in the Code, and it is duty of the Court to issue coercive processes if inspite of summons served on the witnesses, the witnesses do not appear before the Court, and the prosecution fails to produce the witnesses as directed. We are in respectful agreement with that view in so far as it emphasises the duty of the Magistrate of the Court.... No doubt there is no specific provision in either the relevant sections of Chapter XIX which deal with the trial of warrant cases instituted by the police report by Magistrates or Chapter XX relating to the trial of summons cases instituted on police report, for acquitting the accused on the ground that the prosecution has not produced its evidence Nevertheless provisions have been made in the present Code, for summons to be issued to the witnesses on the application of the prosecution and a duty is also cast on the prosecution to produce all its evidence. Thus there is a duty cast on an application by the prosecution to issue summons to the witnesses and secure the presence of witnesses by exercising all the powers conferred on it by the Code for that purpose and duty is also cast on the prosecution to produce all its evidence and to seek the assistance of the Court for so doing by applying to the Court for the issue of summons to the witnesses. Therefore in our view, an acquittal of the accused merely on the ground that the prosecution had not produced the witnesses would not be proper, if the Court had not, on an application by the prosecution, discharged its duty of summoning and enforcing the attendance of witnesses. We also notice that almost all the decisions which have held such an acquittal is improper dealt with cases in which the Magistrate, had not discharged the aforesaid duty.

Following the Full Bench decision of our Madras High Court, His Lordship Justice K.M. Natarajan in the decision reported in Selvarangam v. State (1984 (Crl.) M.L.J. (Crl.) 304) once laid down again the same principles about there non-examination of me witnesses on the following lines:

In Revision against the order of acquittal passed by the Judicial First Class Magistrate under S. 255(1) of Cr.P.C. on the ground that the evidence of eye witnesses, P.Ws. 1 to 3 is mutually contradictory, and that the Investigating Officer was not examined as a witness on the side of the Prosecution, it was held that duty to summon the witnesses in the course of the trial, is that of the Magistrate of the Court concerned, and that the entire responsibility of production of witnesses cannot be saddled on the prosecution and a duty is also imposed upon the Court for enforcing the attendance of the witnesses by process provided in the Code.... Only in case the presence of the witnesses, in spite of coercive steps taken by the Court, could not be secured and the prosecution, either on account of the pronounced negligence or recalcitrance does not produce the witnesses, then the Court being left with the other alternative, would be justified in acquitting the accused for want of evidence to prove the case. The trial court ought not to have closed the prosecution without taking coercive steps to secure the Investigating Officer.

Again His Lordship Justice M. Karpagavinayagam in the decision reported in M.J. Kumar v. Sahadevan and three others (1997 (1) L.W. (Crl.) 24 (2) reiterated the same and stated as follows:

The Magistrate acquitted all the three accused on the following reasons: (1) Though there were seven witnesses cited in the charge sheet, only five witnesses, namely eye witnesses were examined. But the Medical Officer, and the Sub-Inspector of Police were not examined on the side of the prosecution (2) In spite of the issuance of summons, both Medical Officer and the Sub-Inspector of Police were not produced, ... ... ... So on the mere reason that the Investigating and Medical Officer have not been examined, instead of taking effective and coercive process for ensuring the presence of these witnesses, the Magistrate cannot resort to acquit the accused without any valid reasons.

In view of the dictum laid by our Madras High Court the learned Magistrate in this case ought to have taken coercive steps, and he did not do so, and in those circumstances I am of the view that the order of acquittal passed by the learned trial Magistrate cannot be sustained, and it has to be set aside, and the case is remanded back to the Judl. Magistrate No. 1 at Kuzhithurai for fresh disposal in accordance with law, and I answer this point accordingly.

In the result this Revision Petition is allowed and the order of acquittal dt. 10.4.97 passed by the learned Judl. Magistrate No. 1 at Kuzhithurai in STC. No. 454 of 1995 is set aside, and the case in STC No. 454/95 on the file of Judl. Magistrate No. 1 at Kuzhithurai is remanded back to the learned trial Magistrate for fresh disposal in accordance with law, and the learned Judl. Magistrate No. 1 at Kuzhithurai will examine the other witnesses and the Investigating Officer cited in the charge sheet by taking coercive steps, if necessary to secure their attendance for the said purpose.