K.J. Vaidya, J.
1. Questions and/or errors that surface in this acquittal appeal are threefold --
Firstly, whether the Trial Court was justified in passing the order of acquittal in summons triable case without taking evidence referred to in Section 254 of the Code of Criminal Procedure?
Secondly, whether the trial court has conducted trial proceedings in a manner ordinarily expected of the court of law doing justice?
Thirdly, whether the case disposed of in a hot haste can be said to be a case decided and justice done?
2. To this short answer would be had the trial Court been little watchful and considerate the mishap of acquittal could have been safely avoided. Be it remembered that judicial function is a matter of clean conscience to be performed with the sense of diligence, dedication and social orientation in light of awareness only and that such a hurry and flurry as noticed in the present case in disposing of the case, never enhances the prestige of the Court doing justice.
3. The above acquittal appeal arises out of the judgment and order of acquittal dated 29th September, 1980 passed in Summary Case No. 3848/79 by the learned Judicial Magistrate, First Class, Bardoli (for short hereinafter referred to as 'trial court') wherein the respondent-accused came to be tried for the offences punishable under Sections 279 and 336 of the Indian Penal Code r.w. Sections 112 and 116 of the Motor Vehicles Act.
4. It is alleged by the prosecution that the incident took place on 8th April, 1979 at 8.30 hours in the limit of the village of Bajipura, near Sumul Dairy, when the respondent-accused Lalit Mohan driving his truck bearing No. GTC 5682 in a rash and negligent manner collided with the Motor Cycle No. GRB 551 coming from the opposite direction driven by Nitinkumar Dalpatbhai Mehta. As a result of the said accident both the scooterist and the pillian-rider Maganbhai Lallubhai fell down and sustained serious injuries. Ultimately, on a complaint being filed and case investigated, a charge-sheet was submitted before the trial court on 14th Nov. 1979 against the accused for the offence punishable under Sections 279 and 338 of the I.P.C. and Sections 112 and 116 of the Motor Vehicles Act.
5. In this summons triable case the plea of the accused was recorded on 24th June, 1980 whereupon he pleaded not guilty to the charge. During the trial prosecution has examined the following witnesses:--
(1) Panch Ranchhodbhai Govindbhai, P.W. 1 (Scene of offence Panchanama produced at Exh. 5).
(2) Dalpatbhai Jivarajbhai, P.W. 2 (father of injured Nitinkumar).
(3) Bhalchandra Durlabhbhai, P.W. 3.
6. After the examination of aforesaid P. Ws. was over, the prosecution submitted an application to the trial Court for --
(i) examining injured Nitinkumar on commission (as provided under Section 284 of the Code of Criminal Procedure) as he was being operated upon and was in Hospital at Bombay; and
(ii) adjourning the case as some of the prosecution witnesses were yet to be examined.
This came to be rejected and the trial Court proceeded ahead to acquit the accused by dubbing the case as 10 MONTHS OLD. Hence this appeal by the State.
7. Mr. Dipak Trivedi, the learned Additional Public Prosecutor appearing for the State has voiced just and legitimate grievance by submitting that a fair trial has been denied to the prosecution by shutting off the material evidence being recorded and abruptly terminating the trial proceeding acquitting the accused. Adds Mr. Trivedi, that this is nothing but a case of failure of justice and the matter deserves to be remanded with a direction to the trial Court to dispose of the same after affording prosecution adequate opportunity to examine witnesses.
As against this, Mr. D.I. Desai, the learned Advocate appearing for the accused has submitted that the trial Court has rightly exercised its discretion in not granting application of prosecution for examining witness on Commission. In the alternate, he submitted that in any event this is not a case which should be sent back for re-trial.
8. The judgment in Acquittal Appeal like the present one could have been over in two to three pages, but the abrupt manner in which the trial has been terminated is alarming and has constrained this Court to take a stock of the situation and for this reason even at the cost of being little lengthy this Court would like to refresh and re-emphasize the guidelines in relevant provisions contained in Code of Criminal Procedure, 1973 and the 'Criminal Manual' issued by the High Court of Gujarat at Ahmedabad for the benefit of erring Courts. This Court feels that once any patent illegality or irregularity in any action, procedure, judgment or order is noticed, then the Court ordinarily should not just rest content with merely quashing and striking down the same. The Court stopping at merely quashing and setting aside the orders is merely part performing their duty and that duty becomes complete only when it activates itself by giving suitable remedial direction.
9. To begin with it is necessary to have a close scrutiny of the Rojnama in the present case which reflects the real state of affairs in the conduct of the trial. The alleged offence took place on 8th April, 1979.
---------------------------------------------------------------------------------------
Date on which the No. of Proceeding. Date to which the
case comes before Exhi- case is adjourned.
the Court for pro- bit.
ceeding.
---------------------------------------------------------------------------------------
1 2 3 4
---------------------------------------------------------------------------------------
14-11-1979 Charge-sheet ordered to be taken on
record and summons ordered to be issued
against the accused. Matter adjoured
D. 21-12-1979.
Sd. Illegible.
JMFC Bardoli.
21-12-1979. Case called out. Parties present. Court
busy with other old case. Therefore case
adjd. for recording plea. 18-1-1980.
Sd. Illegible.
JMFC Bardoli.
18-1-1980 Case called out. Parties present. to 24-6-80
Court for recording plea on. 24-6-1980.
Sd : Illegible.
JMFC Bardoli.
24-6-1980. The case called out. Plea of the accused
recorded. Accused pleaded not guilty.
Matter adjd. to. 21-7-1980.
Sd : Illegible.
JMFC Bardoli.
21-7-1980. Case called out. Accused and Public
Prosecutor present. Evidence of P.W. 1
Ranchhodbhai Govind recorded. Other
witnesses not present. Hence case adjd.to. 12-8-1980.
Sd : Illegible.
JMFC Bardoli.
12-8-1980. Case called out, Parties present.
Vakilpatra on behalf of the injured Nitin-
kumar Dalpatbhai filed. Court's time over
adjd. to. 8-9-1980.
Sd : Illegible.
JMFC Bardoli.
8-9-1980. Case called out. Parties present. Court-
time over as busy in old matters. The case
adjd. for recording evidence. 29-9-1980.
Sd : Illegible.
JMFC Bardoli.
29-9-1980. Case called out. Public
Prosecutor present.
Accused absent. Application
on behalf of
the accused to exempt the
accused.Granted.
(i) Dalpatbhai Jivanbhai P.W. 2
evidence recorded.
(ii) Bhalchandra Durlabhbhai, P.W. 3
evidence recorded.
Other P.W. not present.
9. Public Prosecutor submitted
an application for issuance of
the Commission to examine Nitinkumar.
Rejected.
Heard arguments of both the sides.
Accused acquitted.
Sd. : Illegible.
JMFC Bardoli.
---------------------------------------------------------------------------------------
The aforesaid facts clearly disclose that though the alleged offence took place as back as on 8th April, 1979, the charge-sheet in the matter came to be filed before the trial Court on 14th November, 1979 i.e. after about 7 months. Why the Investigating agency was sitting tight over submission of the charge-sheet to the trial court when it is very clear that the investigation of the case at hand under no circumstances could have taken a period longer than a week or two for recording the evidence? Any inexcusable delay in investigation and belated filing of the charge-sheet is a matter of serious concern for same tantamounts to nothing but unwarranted softness to the accused and clear obstruction in the way of dispensing with the justice. The delay and inefficiency of the investigating agency is a matter of grave concern which the higher officers should take care of in every matter as in a given case the same could be considered as an act of indiscipline and insubordination to law.
10. Now coming to the Rojnama, it is difficult to understand as to why the trial Court went on care free adjournments of the matter dates after dates merely for recording the plea of the accused. One can understand that on the first day when the matter was called out the court for some genuine reason was not in a position to record the plea of the accused. But then the court cannot go on adjourning the matter from date to date for merely recording the plea of the accused. There is no sense in protracting the trial unnecessarily. It has got to be remembered that 'speedy trial is an essence of justice and part of the fundamental right guaranteeing life and liberty'. Further the case at hand is a summons triable case for which appropriate provision is made in Chapter XX of the Code of Criminal Procedure under the caption 'trial of the summons cases by Magistrate' (Sections 251 to 259). Said Section 251 of the Code of Criminal Procedure reads as under:
Section 251. Substance of accusation to be stated
When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.'
The above provision is clear enough to enjoin upon the court to record the plea of the accused the moment he is brought before it and rightly so because the moment the accused is brought before the Court, what the Court is required to do is merely stating of particulars of the offence of which he is accused of and whether he pleaded guilty or not. This requirement of law hardly takes any time to be not attended to forthwith. Section 252 of the Code reads as under:
'Section 252. Conviction on plea of guilty:--
If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon.'
The court while conducting the trial has got to be time-conscious as the time is a trumpcard in criminal trial and one who plays well with it is benefitted in ultimate analysis. If the investigation is vigilent, honest and efficient in collecting evidence and further if the learned Public Prosecutor in charge of the matter is equally alert enough to see that the witnesses are kept present on due dates and examined and further still if the trial court is equally sensitive and alive to the cause of justice, conscious of clock and calendar and conducts itself strictly according to law then nothing could prevent the justice being done in the matter. After the offence is committed if the Investigating agency takes more time than necessary and the trial gets unduly protracted then it is difficult to bring home the real justice. The quality of justice depends upon the definiteness and in turn the freshness of the evidence and this freshness gets withered away with the passage of time if the witnesses are not examined within the shortest possible time of the occurrence. Further the quality of justice depends upon the quality and memory of witnesses and, therefore, the Court ought not to be oblivious to the following factors adversely affecting the evidence.
(i) With the passage of time witnesses may not be available, either because : (a) they are dead, or (b) has become sick and infirm, or (c) coerced not to give evidence before the Court, or (d) persuaded to have a mercy on the accused and/ or his family members, or (e) has left the place of the ordinary residence.
(ii) if any of the above eventuality is not there and the witneses are yet available then also if the Court goes on adjourning the matter from time to time the witnesses get tired out and out of sheer inconvenience and harassment and disgust and are not inclined to come forward to co-operate with the court proceedings.
(iii) Not only that, but with the passing of time also, the memory of the witnesses becomes obscure and even then most truthful and honest witness will inadvertently commit some mistake while giving the evidence.
Thus, as a matter of fact, in every protracted trial it is the accuse who will have an upper hand and, therefore, likely to gain and it is only the cause of justice which has to suffer irreparably. To tolerate this and allowing such situation to take place, will it not be helping the criminals? All of us know, and of all accused know very well that the best way to defuse and frustrate the prosecution trial and ultimately the cause of justice is to protract the proceedings at every possible stage. As a matter of fact, there cannot be any easy and secured way of defeating the justice than this dilatory tactic alone. It is said and believed that 'time is the healer' but in the context of criminal case, its investigation and trial proceedings, the experience holds out otherwise, that is to say, 'time' 'delay' is a disease if not taken care of is capable of paralysing the judicial system.
11. The bare perusal of the Roznama shows that for about 7 months the Court went on adjourning the matter for recording plea of the accused. What explanation in the facts and circumstances of this case the trial Court has to offer for this obvious laxity, particularly when it has chosen to dispose of the matter dubbing the same as an old matter? In any event howsoever the Court was busy with other cases, this being a criminal matter it could have been certainly given a due preference and priority over the other matters as ultimately what was to be done was merely recording of the plea of the accused. The above protracted proceedings constrains this Court to further spotlight relevant elementary guidelines contained in 'Criminal Manual' issued by the High Court of Gujarat at Ahmedabad for the benefit of all concerned.
12. In Chapter IV, Para 76 of the said Manual reads as under:
'76. The proceeding sheet (Roznama) in Form No. 41 be kept in English or in Gujarati in Sessions Cases and in Special Cases in the Court of Session and in Gujarati in other Criminal Courts in all inquiries, trials and other proceedings. It is meant only as a guide and not intended to be exhaustive. The object of the Roznama is to show in concise form the proceedings taken in each case with the date of each proceeding. It is to be a faithful history of the case and correct list and description of the exhibits; and at the same time it should be so drawn up as to show all the details of the case and yet be as concise as possible. It is not to include a record of ministerial acts, such as receipt of bhatta or process fees, the preparation of summonses and the like.
It must be kept from day to day as an original document. It may be written by Clerk but must be initialled or signed by the Magistrate at the end of the proceeding recorded every day.'
13. In view of what is stated above, it hardly requires to be impressed upon the trial Court that whenever it adjourns a particular case on the ground that it was busy with another case or cases, number of the said proceedings is or are invariably mentioned in the Roznama so as to provide verifiable material on the record. In the present case Roznama is as general and as vague as it could be. To merely record that the court busy with old matter .......... court-time over ............matter adjourned to .......date ........ is highly unsatisfactory way of maintaining a Roznama.
14. Another important aspect which requires to be impressed upon the mind of the trial court is to take due care at the end of every proceedings wherein the Presiding Judge of the Court is required to place his signature. It is quite understandable that the signature may be illegible. But at the same time just below the signature name and surname of the Presiding Judge should be so written in legible letters as to make it clear who had signed it.
The criminal manual does not stop at para 76, by merely providing guidelines in the matter of Roznama but it has also given further useful guidelines to be followed by the trial Court as incorporated in (i) para 89 which pertains to the hearing and adjournment of the matter, (ii) Para 90 which pertains to precedence to be given to the matters in hearing case., (iii) Para 91 which pertains to how and when to consider the application for adjournment of the cases. (iv) Para 92 which pertains to the expeditious proceeding of the trial with reference to Section 309 of the Code of Criminal Procedure, 1973, (v) Para 93 which pertains to the examination of the witnesses when they are present in the court. (vi) Paras 94 and 95 which pertain to the length of adjournment to be given in the case. Those relevant guidelines are numberwise stated in detail as under:
'Hearing and Adjournment.
89. (1) The Magistrates should give priority to criminal work over other work and that every effort should be made to reduce, as far as possible, the hardship to parties and witnesses which the proceedings entail.
(2) The Magistrate should settle his Board personally and should not leave it to be done by his Bench Clerk. The Magistrate should fix on his board only such number of matters as he feels confident of being able to take up during the course of that particular day, keeping only exceptionally few more for contingency, and that, if the Magistrate feels that his file being heavy, he would not be able to take up the case fixed for hearing he should inform the Advocates and parties concerned in advance that they need not remain present on the fixed date and also intimate the adjourned date.
(3) The Magistrate should always sit punctually at the appointed hour so as not to keep people waiting. If the Magistrate finds that, owing to his absence from the Court or his being busy with other cases, it is not possible for him to hear any case on the date fixed for its hearing, he should so far as possible intimate to the parties in advance, so that parties and witnesses do not have to attend the Court unnecessarily.
90. Though no hard and fast rule may be laid down regarding the precedence in hearing cases, it will be useful to bear the following principles in mind:--
(i) Cases in which Juvenile Offenders are involved should normally be disposed of with the utmost expedition and as soon as possible after the offender is brought before the Magistrate.
(ii) Custody cases should take precedence over non-custody cases.
(iii) Cases in which Government servants and panchayats servants are involved as accused should be disposed of as expeditiously as possible.
(iv) Cases under the Indian Railways Act, and other petty non-cognizable cases, should be disposed of as soon as possible after the accused is produced before the Court.
(v) Part-heard cases and cases which are standing over from previous dates of hearing should take precedence over the cases to be heard for the first time.
(vi) Cases in which parties and witnesses come from a distance should, as far as possible, be given due preference
91. In order to minimize the hardship caused by unnecessary detention of parties and witnesses in cases which have to be adjourned for want of time, the Magistrate should, at the commencement of work on any day, consider applications for adjournment of cases in the day's list. Thereafter, he should assess the number of cases he would be able to take up during the course of the day. For this purpose, he should consider the position in regard to the part heard and new cases on the Board, due regard being given to the principles as to priorities indicated above. He should then discharge the cases which are not likely to be heard on that day so that the parties and the witnesses may not have unnecessarily to remain present in the Court. Before rising for the afternoon recess, the Magistrate may again assess the position, and if he be of the opinion, that any cases, which were not discharged earlier are not likely to be taken up, he may discharge such cases after giving suitable dates for the next hearing.
92. Section 309, Code of Criminal Procedure 1973 provides, 'in every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular when the examination of witnesses has once begun, the same shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for the reasons to be recorded.' The hearing of a case should, therefore, go on from day to day, and this practice should be strictly followed. Exception may be made only where an insistence on it would defeat the ends of justice as required by the law.
93. (1). Under the Second priviso so Sub-section (2) of Section 309, no adjournment shall be granted when witnesses are in attendance, without examining them except for special reasons to be recorded in writing. So far as possible, all witnesses who are present on any day should be examined.
(2). The reasons for not hearing a part heard case, and the adjournment of any case where the witnesses are in attendance should be recorded by the Magistrate.
(3). No case should be adjourned on the ground that all the witnesses, who have been summoned are not present.
94. Adjournments should not ordinarily exceed seven days when the accused is in custody, and 15 days when he is on bail. Adjournment for longer periods should be granted only for special reasons which would be recorded.
95. The convenience of lawyers should not ordinarily be regarded as a good ground for adjourning the case.'
With such illuminated guidelines, Courts ordinarily should not have any difficulties while conducting the trial and yet the fact remains that many a time justice fails solely because the trial Court becomes oblivious to the same. In substance, it is the duty of the Court to see that:
(i) trial commences at the earliest in right earnestness;
(ii) that the same is not unnecessarily dragged on to have a label of old one (ready);
(iii) that it does not overlook or overstep law, procedure and normal guidelines prescribed;
(iv) witnesses are not unnecessarily put to inconvenience;
(v) adjournments are not being given on mere asking by the parties;
(vi) due care, control and supervision are maintained over the agency entrusted with the summons and warrants;
(vii) that the cases are not disposed of in an unholy hot haste.
(viii) pressing and alluring temptations of cheap, speedy disposal is to be avoided;
(ix) nothing is said or done which shakes the faith of the people in the administration of justice.
15-16. Having screened and commented upon the Rajnama let this Court now advert to the actual proceedings which took place before the trial Court. To recall the charge-sheet was taken on record on 14th November 1979 and that for about 7 months proceedings went on in a very casual manner and the plea came to be recorded as far back as only on 24th June, 1980. Now, thereafter, so far as the actual trial is concerned, it was over within a short span of three months. The evidence of Pench Ranchhodbhai came to be recorded on 21st July 1980. The evidence of Dalapatbhai Jivarajbhai P.W. 2 and Bhalchandra Durlabhabhai P.W. 3 came to be recorded on 29th September 1980. It is interesting to note that on the very day i.e. on 29th September 1980 advocate appearing for the accused submitted an application Exh. 8 to the trial court stating therein that he had received information from the employer of the accused that the accused is sick and, therefore, his absence may kindly he condoned and the case may be proceeded with. This application was granted. Thereafter it appears that the learned Assistant Public Prosecutor also made an application at Exh. 9 praying therein that (i) since summons on the other witnesses have not been served and since the prosecution witness Gambhir Ziya who was an eye witness was required to be examined in the interest of justice the case be adjourned; and (ii) since injured Nitinkumar Dalapatbhai was at present in Bombay Hospital undertaking further treatment for the accidental injuries and was to be operated upon a commission Under Sections 284 and 285 of the Code of Criminal Procedure for examining him be issued. This application was rejected by the trial Court, observing 'Medical certificate is not produced' and, therefore, merely relying upon such application it is not proper to examine Nitin on commission. There was yet another separate order which came to be passed below very application Exh. 9 by the trial court observing 'in this matter enough time has been given. Today application for obtaining address of Gambhir Ziya has been given, but till this time his new address has not been obtained. Now, by giving time no useful purpose will be served. The case is 10 months old and, therefore, it is not proper to give time and hence application is dismissed.' Immediately after this order the trial court in hot haste went on to score and dispose Under Section 255(1) of the Code of Criminal Procedure by acquitting the accused. It is difficult to understand why such unholy haste and abrupt termination of the case acquitting the accused. How is it that the trial court could grant application Exh. 8 filed by the learned Advocate appearing for the accused on 29th September 1980 which was based on some hearsay information from the employer of the accused of which no medical certificate was produced? What was the yardstick for the trial court in rejecting the application Exh. 9 given by Assistant Learned Public Prosecutor on the very day to adjourn the matter and to issue commission for examination of Nitin-kumar? Why this double standard? Says the trial court, 'that the medical certificate is not produced for rejecting the application. Now in this regard it is to be noted that Dalapatbhai Jivrajbhai P. W. 2 father of Nitinkumar was examined on 29th September 1980 and that he in terms has stated that at present Nitin was in Harkishan Hospital at Bombay and taking treatment for accidental injury. His operation is to take place tomorrow and, therefore, he is not in a position to come.' This has not been disputed by the other side. Still, however, if indeed the trial court had some genuine doubt regarding the bona fide of the application Exh. 9 then in that case, it could have easily adjourned the matter to a future date asking the Public Prosecutor to produce the desired medical certificate from Bombay. Further still the trial court could also have asked the Public Prosecutor as to how much time Nitin was likely to take at Bombay after the operation and that when at the earliest his presence can be secured for recording evidence. If in a month or two Nitin was available for being examined before the court then in that case the court could have suitably adjourned the matter dispensing with issuance of the commission for examining him. The trial court surprisingly has not applied its mind to this vital aspect. Section 284 which pertains to the Commission for the examination of the witnesses has been enacted with definite object of seeing that the witnesses are examined in time for the ends of justice and that the matter is not delayed for some reason or the other. The Public Prosecutor in charge of the matter also appears to be quite anxious to see that the matter is not delayed further and decided soon. Thus, it could be seen on one hand that the trial court went on adjourning the matter from time to time for seven months for merely recording plea of the accused and as against that after recording the plea of the accused hurriedly disposed of the matter by adopting inconsistent approach of granting application of the accused rejecting most legitimate application for adjourning the case given by the Public Prosecutor. This approach of the trial Court is in clear contravention of the provisions contained in Sections 254 and 255 of the Code of Criminal Procedure, 1973. The relevant Sections 254 and 255 are reproduced as under:
'Section 254. Procedure when not convicted.
(1) If the Magistrate does not convict the accused under Section 252 or Section 253 the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purpose of the trial be deposited in Court.
'Section 255. Acquittal or Conviction.
(1) If the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal.
(2) Where the Magistrate does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
(3) A Magistrate may, under Section 252 or Section 255, convict the accused of any Offence triable under this Chapter, which from the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby.
17. It has got to be remembered that the cases are brought before the Courts of law for doing justice and the procedure prescribed in Criminal Procedure Code is not an idle formality. The learned Additional Public Prosecutor Mr. Trivedi, in order to make good his submission has invited my attention to the following two cases, viz. : (i) S. M. Basappa v. Ananda Rao, 1978 Cri LJ 294 (Kant) and (ii) The State v. Veerappan, AIR 1980 Mad 260 : (1980 Cri LJ (NOC) 155)(FB).
In a case reported in 1978 Cri LJ 294 (Kant) Para 4 it is observed as under:
'It is rather peremptory requirement for a Magistrate under Section 255 to take evidence referred to in Section 254 and such further evidence if any as he may, on his own motion, cause to be produced to find if the accused is not guilty upon such evidence and only thereafter, he can record the order of an acquittal. If he does not do so he commits an error of law which needs to be corrected by the appellate court.'
In a case reported at AIR 1980 Mad 260 : (1980 Cri LJ (NOC) 155) (FB), it has been observed as under:
'.....or Chapter XX, relating to the trial of summons cases instituted on Police report, for acquitting the accused on the ground that the prosecution had not produced its evidence. Nevertheless provisions have been made in the 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 the court 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, 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.'
The ratio of the aforesaid two decisions is that the Court is not justified in passing the order of acquittal, without taking evidence referred to in Section 254 of the Code of Criminal Procedure and that this court is in complete agreement with the same. It was not open to the trial court to abruptly terminate the proceedings in clear disregard of Sections 254 and 255 of Cr. P.C. by acquitting the accused without examining most material witness Nitinkumar in this case. The acquittal under the circumstances by shutting off evidence is clearly illegal. As a matter of fact the cause of justice do expect of the trial court to insist upon the examination of the material witnesses, more so, when it clearly appears to be necessary to reach just decision of the case. The courts of law as said earlier are meant for doing justice and it is only for this reason to enable it to realise the said ground that the legislature in its anxiety and wisdom has incorporated Section 350 in the Code of Criminal Procedure, which reads as under:
Summary procedure for punishment for non-attendance by a witness in obedience to summons.
'350:(1) If any witness being summoned to appear before a 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 and the court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such a witness should be tried summarily, the Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to fine not exceeding one hundred rupees.
(2) In every such case the Court shall follow as nearly as may be practicable, the procedure prescribed for summary trials.'
This Section 350 of the Code of Criminal Procedure clearly authorises the criminal courts to try witnesses summarily for disobedience of its summons. The legislative wisdom behind enacting such enabling provision is quite apparent. The said Section is enacted with the sole and avowed object of arming the criminal court with appropriate power to see that the criminal courts are not rendered helpless and placed at the mercy of recalcitrant witnesses. When thus on one hand the legislature had been keen to empower the criminal courts to resort to Section 350 of the Code for enforcing the presence of the witnesses for being examined before the trial Court, on the other hand, as against that, strangely enough, as seen in the present case, the Trial Court has chosen to impose fetters on the right of the prosecution to examine the witnesses. Thus reading Sections 251 to 259 of Criminal Procedure Code in conjunction with Section 350 of Cr. P. Code, it is quite clear that in summons cases the trial Court has to decide a case in strict compliance with the provisions contained in Sections 254 and 255 of the Code of Criminal Procedure, that is to say, the trial court shall take all evidence as may be produced in support of the prosecution and thereafter as warranted under Section 255 of the Code of Criminal Procedure, only upon taking due evidence that appropriate order of acquittal can be recorded by the Trial Court.
18. The gist of the above discussion is that disposals or acquittals like the case at hand cannot be strictly speaking termed as 'justice done' or 'judgment' given and in any event, to say the least can never enhance the reputation of the courts of law doing justice in the eye of the people. The case disposed-of can never be said to be a case decided. It has been rightly observed by Frank R. Prassel in his book 'Criminal Law, Justice and Society' that 'substance and procedure are both essential to any legal system and must operate in close conjunction. A legal cause may be lost on failure of either a substantive or a procedural element.' Accordingly in the case at hand, Sections 251, 254 and 255 of the Code of Criminal Procedure, and relevant paragraphs providing guidelines in the Criminal Manual have been clearly transgressed. One can appreciate the difficulty faced by the court and a bona fide mistake committed in interpreting ambiguous statutory provision or appreciating oral or documentary evidence on the record. But it is indeed difficult to conceive how a clear-cut statutory procedure or guidelines can be overlooked? The quient-essence object lesson hold out in this case is that undue delay, haste, transgressing statutory procedure and guidelines provided elsewhere require lots and lots of care to be taken by the court of law. Unless the court takes upon itself keen desire to take care to nurse to protect and further enhance the faith of the people in administration of justice meaningful 'rule of law' will remain mirage and a distant dream.
19. The result of the foregoing discussion is that the appeal against the order of acquittal must be allowed and is allowed accordingly. The impugned judgment and order of acquittal is quashed and set aside. The case is remanded to the trial court with a direction to proceed with the trial from the point it was terminated and to dispose of the same on merits according to law, after giving the prosecution due opportunity to examine witnesses.