The Public Prosecutor Vs. Gundu Rao - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - a charge against the accused on being satisfied that there is a ground for presuming that an accused has committed an offence which, in his opinion, could be adequately punished by him. 8. when once the magistrate comes to the conclusion that on the material available on record and on hearing both sides that the accused should not be discharged and frames a charge against the accused under section 251-a (3) and when the accused pleads not guilty and claims to be tried, the magistrate cannot apply the provisions of section 251-a (11) and acquit the accused on the ground that the prosecution failed to produce evidence. taking a cognizance of case means that the magistrate prima facie is satisfied that the offence has been committed and in such a situation, it is necessary for the magistrate to find out who the culprit is and in this process he must adopt every method available to him under law for coming to the decision. birendranath air1960cal263 has taken the view that sub-section (6) of this section does not enjoin upon the magistrate any duty to compel the attendance of any witness, unless it is applied for and that there is no provision like sections 256 and 257 under which magistrate is bound to compel the presence of a witness if asked for by the person on trial. courts are not absolutely powerless when the parties fail to produce evidence. section 251-a on the footing that there is no evidence against them, merely because the prosecution failed to produce evidence. so even if the police failed to perform their duties and produce the witnesses, the court has the duty to enquire into the offences disclosed and to find out whether the accused was really guilty or not and for that purpose to examine the witnesses.punnayya, j.1. this appeal is directed against the order of acquittal passed by the judicial first class magistrate, gooty in c. c. no. 177/1972. the learned magistrate took into consideration the facts that the complaint was filed in 1972 by the excise sub-inspector under a. p. excise act and he did not choose to produce witnesses before the court, though several adjournments were granted and though summons for the production of witnesses were taken, they were not served or returned and hence passed the impugned orders holding that the prosecution has no witnesses to produce and they are not interested to prosecute the matter. he, therefore, applied the provisions of section 251a (11), cr. p.c. and acquitted the accused.2. sri srinivasa rao, the learned public prosecutor, contends that the magistrate has no power to acquit the accused under section 251-a (11), cr. p.c. since the case does not come under the said provision, he further contends that the magistrate should have taken coercive steps for securing the attendance of the complainant and other witnesses and the order of acquittal is, therefore, contrary to law.3. sri padmanabha reddy, the learned counsel for the respondent accused, on the other hand, contends that the order passed by the learned magistrate makes it clear that the court has issued summons, but they were not served nor returned though they were issued number of times and the prosecution also did not produce any witness in spite of such steps being taken by court and hence it is clear that the prosecution is not interested to prosecute the case or has no witnesses to support the prosecution case and in such a case, the only course open to the lower court is to apply the provisions of section 251-a (11). cri p. c. and hence the learned magistrate is justified in passing the impugned order.4. from the above facts it is clear that the case has been pending since 10.72 and the magistrate has been issuing summonses for the production of the witnesses since 1972, but the prosecution is not interested to see that the said summonses were served on the witnesses. the police also did not serve the summonses nor did they return them. it is, therefore clear that much harassment is being caused to the accused besides inconvenience to the court on account of non-production of witnesses by the prosecution.5. the court, therefore, will naturally feel as to how long the court should keep the matter pending on its file when the prosecution does not evince any interest in producing its witnesses.6. the learned magistrate thought it fit to apply the provisions of section 251-a (11) cr. p.c. (old) and accordingly acquitted the accused,7. in a warrant case instituted on a police report, the magistrate frames, under section 251-a (3) cr. p.c. a charge against the accused on being satisfied that there is a ground for presuming that an accused has committed an offence which, in his opinion, could be adequately punished by him. the magistrate frames such a charge only after considering the documents referred to in section 173 and after hearing the prosecution and the accused and considering that it is not a case fit for discharging the accused as provided in section 251-a (2) cr. p.c.8. when once the magistrate comes to the conclusion that on the material available on record and on hearing both sides that the accused should not be discharged and frames a charge against the accused under section 251-a (3) and when the accused pleads not guilty and claims to be tried, the magistrate cannot apply the provisions of section 251-a (11) and acquit the accused on the ground that the prosecution failed to produce evidence. duty is cast on the magistrate to take coercive steps to compel the attendance of the witnesses. merely because the prosecution is lethargic and neglectful in producing its witnesses, it does not follow that the magistrate has no power to compel the attendance of the witnesses.9. this court held in public prosecutor, a.p. v. panchiyappa : air1965ap162 that:in a warrant case, once the magistrate takes cognizance of a case, it becomes his bounden duty to go to the root of it and do justice in the matter. the criminal procedura code has given very wide powers to the magistrate only with a view to clear any possible obstacle in the way of the magistrate to do justice in a case. taking a cognizance of case means that the magistrate prima facie is satisfied that the offence has been committed and in such a situation, it is necessary for the magistrate to find out who the culprit is and in this process he must adopt every method available to him under law for coming to the decision. if the prosecution is slack and neglectful in its duties it does not follow that the magistrate also should fall in line with it. where the accused in a warrant case pleads not guilty and claims to be tried, but the police inspector fails to produce the witnesses on the date of hearing, it is for the magistrate to compel their attendance to dispose of the case according to law. the magistrate has to exhaust all his powers before he makes his mind to dismiss the case.10. but the calcutta high court in jyotirmayee bose v. birendranath : air1960cal263 has taken the view that sub-section (6) of this section does not enjoin upon the magistrate any duty to compel the attendance of any witness, unless it is applied for and that there is no provision like sections 256 and 257 under which magistrate is bound to compel the presence of a witness if asked for by the person on trial.11. with due respect, i am not able to accept the view expressed by calcutta high court as correct. under sub-section (6) of section 251-a. the magistrate fixes a date for examination of witnesses. it is under sub-section (7) of section 251-a, the magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. if the prosecution does not produce evidence, this section enjoins upon the magistrate the duty to compel the attendance of any prosecution witness, if the court feels it necessary in the interests of justice. the magistrate can proceed to take coercive steps either on an application submitted by the prosecution or on its own initiative. a magistrate cannot be deemed to act at the request of the parties alone. courts are not absolutely powerless when the parties fail to produce evidence. on the other hand, the power of the court in this respect is very wide and duty is cast on the court for enforcing the attendance of witnesses by the process provided in the criminal procedure code. it is wrong for the magistrate to acquit the accused under the sub-section (11) of. section 251-a on the footing that there is no evidence against them, merely because the prosecution failed to produce evidence.12. the kerala high court observed in state v. abubaker 1961 mad lj (crl.) 123 at p. 126 : (1961) 2 cri lj 92 (2) at pp. 94, 95.on a perusal of the relevant papers under section 173 cr. p.c. the district magistrate found that there was prima facie case to .frame charges of cognizable offence. so even if the police failed to perform their duties and produce the witnesses, the court has the duty to enquire into the offences disclosed and to find out whether the accused was really guilty or not and for that purpose to examine the witnesses.13. the madras high court in rangaswami naickar v. muruga naicker : air1954mad169 held:a judge is not placed in the high situation merely as a passive instrument of the parties. he has a duty of his own, independent of them and that duty is to investigate the truth.14. the mysore high court also took similar view in state of mysore v. narasimha gowda air 1965 mys 167 : 1965-2 cri lj 48 by holding that the order of acquittal passed in that case did not either in form or substance amount to an order passed under section 251-a (11) and was illegal.15. thus it is clear that the magistrate is not permitted to make use of the provisions of section 251-a (11) without exhausting all his powers before he makes his mind to dismiss the case.16. sri padmanabha reddy, the learned counsel for the respondent-accused, contends that no useful purpose would serve even if the case is restored to the file of the magistrate, as the police will execute the non-bailable warrants even if issued. if the magistrate takes coercive steps, the police, in all fairness, would be expected to co-operate with the court. the magistrate is given ample powers under criminal procedure code to get the witnesses produced. it is open to the magistrate to apply the provisions of section 251-a (11) if he exhausts all his powers to compel the attendance of the witnesses.17. at this stage, however, i have no hesitation to hold that the learned magistrate is not justified to acquit the accused and the order of acquittal passed by him is not sustainable. i, therefore set aside the impugned order and restore the case on the file of the magistrate. the magistrate is directed to take steps suggested above and dispose of the case according to law.18. in the result, the appeal is allowed.