ORDER
1. The petitioner has filed this petition under S. 482, Cr.P.C. to reverse or set aside the order dated 30-10-91 passed in C.C. No. 5125/91 directing the registration of a case against him under S. 350 of the Code of Criminal Procedure.
2. The petitioner while he was in charge of Girinagar Police Station as Sub-Inspector of Police had registered a case in Crime No. 1212/90 against one Venkatesh for an offence under S. 324, IPC. Subsequently a charge-sheet was also filed against the said Venkatesh in C.C. No. 3783/90 on the file of the Second Additional Chief Metropolitan Magistrate, Bangalore.
3. The petitioner was one of the witness in the said case. The trial Court issued witness summons through a police constable Basavaraj for service who was then attached to Girinagar Police Station. He returned the said summons to the Court with an endorsement that the petitioner refused to receive the same. Thereupon the learned magistrate ordered registration of a case against the petitioner under S. 350 of Cr.P.C. and called upon the petitioner to show cause as to why he should not be punished under the said section.
4. After receipt of the said notice, the petitioner appeared before the trial Court and filed his reply along with the notes of inspection of the Deputy Commissioner of Police stating inter alia that at his instance, action had been taken against the said police constable Basavaraj for dereliction of duty and the said police constable with a view to wreak revenge against him had made a false shera on the back of the summons stating that he refused to receive the summons and returned the same to the Court. Unfortunately, the learned Magistrate straightway directed registration of a case against the petitioner under S. 350, Cr.P.C. and recorded the evidence of P.W. 1.
5. Sri C. V. Nagesh, learned counsel for the petitioner contended that the learned Magistrate ought not to have initiated action against the petitioner under S. 350, Cr.P.C. inasmuch as the petitioner was not served with any Court summons and he did not know when and where he was required to appear. He also contended that section 350, Cr.P.C. does not dispense with mens rea as an ingredient for the offence and it is necessary for Courts to find out whether the summons has been served and the accused had the knowledge of it and disobeyed the summons thereafter.
6. Chapter VI of Cr.P.C. deals with process to compel appearance. Section 62 deals as to how summons will have to be served by a police officer. Section 66 deals with service of summons on Government servants. According to this section, where the person summoned is in the active service of the Government, the Court issuing the summons shall ordinarily send it in duplicate to the Head of the Office in which person is employed, and such Head shall thereupon cause the summons to be served in the manner provided by S. 62, and shall return it to the Court under his signature with the endorsement required by that section.
7. In the instant case, it is not in dispute that the petitioner on the relevant date was in the active service of the Police Department, Government of Karnataka. Therefore, the Court should have sent the summons in duplicate to the Head of the Officer in which he was employed at that time and such Head should thereupon have caused the summons to be served in the manner provided under S. 62 and return the same to the Court under the signature with the endorsement required by that section. Such signature shall be the evidence of due service as mentioned in sub-section (2) of S. 66 of the Cr.P.C. Notwithstanding anything contained in Ss. 61 to 68 the Court may in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain as provided under S. 69 of the Cr.P. Code. According to sub-section (2) of S. 69 when an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the summons may declare that the summons has been duly served.
8. In the instant case, the Court did not issue summons to the petitioner by registered post also. I have perused the records of the trial Court and the order sheet dated 15-10-91 maintained by the trial Court reads thus :
'15-10-91. State by APP. A-1, A-2 OB.
SS to C.W. 1, 2, 3, 4 served.
C.W. 5 not found. C.W. 6 spl. duty. C.W. 7 and 8 refused. Not present.
Application to release property, issue notice warrant to C.Ws. 1 to 4. Registered case u/s. 350, Cr.P.C. against the C.W. 7 and 8, issue show cause notice to C.W. 7 and 8 by 15-10.'
C.W. 8 mentioned in the Order-sheet is the petitioner herein. Having perused the endorsement on the back of the summons it was not even declared by the learned Magistrate that service was sufficient. In the first place, the learned Magistrate ought to have ordered service of summons on the petitioner as provided under S. 66 of the Code and, secondly, in the absence of a declaration that service was sufficient he ought not to have ordered warrant merely on the refusal shera made on the back of the summons that too, by a police constable who had some kind of grievance against the petitioner for having made a report against him to his superiors for dereliction of duty.
9. Section 350 of Cr.P.C. can be invoked only when the witness being summoned to appear before the Criminal Court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart.
10. As already stated above, the petitioner did not know when and where to appear since he was not served with any summons. Even assuming for the sake of argument that the petitioner had refused to receive the summons it did not necessarily mean that he was aware as to the place and time where he had to appear. Therefore, it follows that a person who has not received any summons or refused to receive the summons cannot be said to have committed an offence under S. 350, Cr.P.C. in the absence of any other evidence.
11. Under sub-section (2) of S. 69 on the basis of an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons, the Court issuing the summons may declare that the summons has been duly served. As already observed, the Court had not declared that the summons had been duly served on the refusal shera made on the back of the summons by the police constable. Even otherwise, only in cases where the service of summons on witness by post is sent and an endorsement purporting to be made by the postal employee that the witness has refused to take delivery of the summons, the Court issuing the summons will have the right to declare that the summons has been duly served. In the case on hand, the learned Magistrate has committed a serious mistake in blindly accepting the refusal shera written on the back of the summons by the police constable and issuing warrant of arrest to the petitioner and also ordering an inquiry under S. 350, Cr.P.C. against him.
12. Section 350 of Cr.P.C., 1973 is analogous to S. 485-A of the old Code. While dealing with the said section in re, Govinda Rao, : AIR1959AP428 , it has been held thus (at page 959 of Cri LJ) :
'The section is plain in making non-attendance of a witness summoned to appear before a Criminal Court as entailing the awarding of punishment. But, the language of this section does not support the view that a person who has not received any summons and does not know when and where to appear could be brought before a Court as it cannot be said that the person accused of an offence in those circumstances, has intentionally neglected or refused to attend the Court at that particular place and time.
Therefore inasmuch as this section does not dispense with mens rea as an ingredient for the offence, it is necessary for Courts to find whether the summons has been served and the accused had the knowledge of it and did disobey the summons thereafter. I should therefore hold that where the police constable takes the summons and is asking to wait for a while but he endorses on the summons that the summons has been refused, such a case would not fall within the purview of S. 485-A of the Cr.P.C.'.
The aforesaid case is applicable to the present case in all its fours. On the facts and circumstances of the case there is no material to come to the conclusion that the petitioner either wilfully and deliberately failed to appear before the Court even after the receipt of summons. For the forgoing reasons, I am of the view that the impugned order is wholly illegal and the same is liable to be set aside.
13. In the result, the criminal petition is allowed and the impugned order is hereby set aside stopping all further proceedings initiated against the petitioner. Since the main case has already been disposed of by the Court no further directions are necessary.
14. Revision allowed.