Full Judgment
Nripendra Kumar Bhattacharyya, J.
1. By this revision, the husband-petitioner has challenged the order dated 22nd November, 1974 passed by the learned S.D.J.M., Basirhat, 24-Parganas (North) in connection with Case No. M-128/87.
2. The short back-ground of the case is that in a proceeding under Section 125 of the Cr.P.C., the husband-petitioner herein cited the Sub-Postmaster, Katihar Post Office as one of his witnesses. Summons was duly served upon the said Sub-Postmaster, Katihar Post Office and also on the Head of the Office. Both of them received the summons. In spite of receipt of summons, the Sub-Postmaster, Katihar Post Office did not appear before the Court.
3. The learned Magistrate on a view that the case is a quasi-civil in nature, held that it is the duty of the petitioner or the party, who cited the presence of his witness, to produce him before the Court and on such finding, he refused to take further action in this matter and closed the evidence of the opposite party. This order is the subject matter of challenge before this Court.
4. The learned Advocate for the petitioner Mr. G. Srivastava submitted that as the summons have been already served upon the Sub-Postmaster, Katihar Post Office and as he has ignored the summons, the Court should take appropriate action or pass appropriate order in terms of Section 87 of the Cr.P.C., 1973. As the Court did not do so and instead closed the evidence of the opposite party the order impugned is illegal and suffers from jurisdictional error. The learned Advocate for the O.P. No. 1 Mr. P.N. Dubey submitted that the learned Magistrate has the power to fall back upon the provision of Section 87 of the Cr.P.C., 1973 in case of non-compliance of the summons as has been served upon the witnesses.
5. Heard the submissions of the learned Advocate appearing for the parties. Considered the materials on record. From the impugned order it appears that the Sub-Postmaster, Katihar Post Office and Head of Post Office were served with the summons and they received the same. In spite of receipt of the summons, the Sub-Postmaster, Katihar Post Office failed and neglected to appear before the Court in answer to the summons. The learned Magistrate Court ought to have taken steps according to law for securing the presence of the witnesses before him. Instead of doing the same, he simply avoided it saying that the matter is a quasicivil in nature and it is the duty of the person who cited them as witnesses to secure his presence before the Court. The part that is to be performed by the party who cites a witness is to deposit the requisite and if on his prayer the summons are issued then it becomes the duty of the Court to secure the presence of that witness if the summons are served upon that witness as the fiat of the Court has not been complied with. In the instant case, upon the prayer of the party summons were issued and served upon the witnesses but they ignored the summons and failed to appear before the Court. In such circumstances, the Court is to take steps for securing their presence before the Court as contemplated under the Cr.P.C. The learned Magistrate is, accordingly, directed to take appropriate steps to secure the presence of the said witnesses before the Court and for that he may consider the exercise of his power under Section 87 of the Cr.P.C., 1973.
6. With this direction, the revisional application is allowed. The impugned order is hereby set aside. The learned Magistrate is also directed to expedite the hearing as early as possible.