Public Prosecutor, High Court of Andhra Pradesh vs Marikal Venkataiah

The State has preferred this appeal against the judgment passed by the Assistant Sessions Judge, Gadwal, in S.C. No. 249/92, dated 13-5-1993, whereby the respondent has been acquitted of the charges levelled against him u/s 436 of the Indian Penal Code.

The facts of the case lie in a very small compass. The respondent was prosecuted for setting fire to the hut of Banda Chandraiah on 6-2-1992 at 9 p.m. Charge u/s 436 of the Indian Penal Code was framed and explained to the respondent-accused on 18-3-1993. The trial Court posted the case for examination of the prosecution witnesses in instalments from 10-5-1993 to 12-5-1993. On 10-5-1993, 11-5-1993 and 12-5-1993, the witnesses who were summoned to appear on those dates remained absent and the case was adjourned to 13-5-1993 at the request of the Additional Public Prosecutor. On that day, the trial Court observed that the police people were absent in spite of issuance of summons and even after the Additional Public Prosecutor had informed them and, under these circumstances, further observed that adjournment would cause harassment to the respondent-accused and, therefore, closed the case. He acquitted the accused u/s 436 of the Indian Penal Code as there was no evidence on record.

Feeling aggrieved by the impugned judgment of acquittal, the State has preferred this appeal.

As noted above, on 18-3-1993 the trial Court framed the charge against the respondent-accused and had posted the case for evidence of the prosecution witness from 10-5-1993 to 12-5-1993, but no prosecution witness was present on these three days and, therefore, the case was closed.

u/s 230 of the Code of Criminal Procedure, when the accused denies his guilt, the Judge has to fix date for examination of the witnesses and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or the other thing. The trial Court had framed the charge and had explained to the respondent-accused who pleaded not guilty. Then, he had posted the case for recording the evidence of the prosecution witnesses and had ordered for issuance of summons. Thus, it is evident that after fixing the case for examination of the prosecution witnesses, the trial Court, at the request of the prosecution, had ordered for the issuance of process for compelling the attendance of the prosecution witnesses.

It is well settled that once the Court issues process against the witnesses, it is the bounden duly of the Court to enforce the attendance of the witnesses. If the prosecution fails to produce the witnesses or in spite of due service of summons, the witnesses do not appear, the Court may use all coercive methods to secure the attendance of the witnesses in Court. True it is that adjournment may be refused when in spite of attempts, the prosecution fails to produce the witnesses without acceptable explanation for non-service of summons or warrants as the case may be. But acquittal of the accused only on the ground of non-production of evidence of the prosecution at the first hearing is not desirable, particularly when cause is shown.

In the case of Excise Sub-Inspector, Pamidi v. Mune Naik (1979) 1 An WR 405, though the accused remained present, on every hearing, the case underwent as many as twelve adjournments and the prosecution had failed to produce its witnesses and, under these circumstances, the Court held that the complainant had no interest whatsoever in the matter and was constrained to infer that the prosecution had no witness on their behalf and then closed the case.

There is nothing on record from which it can be inferred that in pursuance of the orders of issuance of summons to the witnesses, summons were issued subsequent thereto. It is pertinent to note that, in the docket order, the Sessions Judge has not recorded a finding that the summons were issued on a particular date and in pursuance thereof, the summons were received by the concerned Station House Officer. In the absence of that finding, it cannot be said that, in pursuance of the orders passed by the trial Court, actually the summons were issued and received by the concerned Station House Officer to be served on the witnesses and, therefore, no fault can be found with the police in not serving the summons to the prosecution witnesses. It is also pertinent to note that the case was fixed for the first time for evidence of the prosecution witnesses and no further opportunity was given to produce the prosecution witnesses. Had the case been adjourned from time to time for production of the prosecution witnesses and the witnesses had remained absent after service of summons or warrants as the case may, things would have been different. The lower-Court has wrongly recorded in its impugned order that in spite of many opportunities given to the prosecution, it had failed to produce the witnesses. Even if it is assumed that in spite of service of the summons, the witnesses did not turn up, the Sessions Judge instead of closing the case at the first hearing for recording the evidence of the witnesses, should have compelled the attendance of the witnesses as provided u/s 230 of the Code of Criminal Procedure, which Section says that process shall be issued for compelling the attendance of the witnesses. For these reasons, the case of Excise/Sub-Inspector, (1979 (1) Andh WR (HC) 405) (supra) is distinguishable on facts.

For the foregoing reasons, the order of the trial Court, whereby the case of the prosecution has been closed, suffers from material irregularity which has resulted in failure of justice and, therefore, is liable to be set aside.

In result, the appeal is allowed and the judgment of acquittal is set aside and the lower Court is directed to issue fresh summons to the prosecution witnesses and try to compel the witnesses to appear before the Court and to proceed according to law. The respondent-accused is directed to appear before the trial Court on 26-3-1997 for further proceedings.

Appeal allowed.