IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12..01..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl.R.C.No.1093 of 2009 Mrs.Kavitha W/o.Annadurai .... Petitioner Vs. 1.The State Rep. by The Inspector of Police, All Women Police Station, Coimbatore East, Coimbatore District. (Cr.No.11 of 2007) 2.Annadurai, S/o.Narayanasamy ... Respondents Memorandum of Grounds of Criminal Revision Petition filed under Sections 397 and 401 of Cr.P.C. praying to set aside the order dated 28.08.2009 passed in C.C.No.514 of 2007 by the Judicial Magistrate No.II, Coimbatore. For petitioner : Mr.B.Nedunchezhiyan For respondent (s): Mr.N.R.Elango, APP for R1 Mr.N.Manokaran for R2 ORDER Challenging the acquittal of the 2nd Respondent/Accused in C.C.No.514 of 2007 on the file of the learned Judicial Magistrate No.II, Coimbatore by judgement dated 28.08.2009, the petitioner, who is the de facto complainant in the said case, has come forward with this revision. 2. The 2nd respondent/accused was facing trial. On 26.07.2007 charges were framed against him for the for offences under Sections 417 and 506(ii) of IPC. Thereafter, from the records, it is seen that summons were issued to the de facto complainant and the second witness, who is the mother of the petitioner/de facto complaint, cited in the charge-sheet which were served on 02.04.2008. But, they did not appear. Thereafter, Non Bailable Warrants for their arrest were issued on 06.08.2009. Though, the case was listed for hearing on 14.08.2009, 19.08.2009 and 25.08.2009, the witnesses were not produced by the prosecution and as a matter of fact, there was no reply from the police as to whether the warrants had been executed or not. In those https://hcservices.ecourts.gov.in/hcservices/ circumstances, the learned Judicial Magistrate, relying on the principles laid down by this Court in State v. Veerappan , 1980 Crl. L.W. 187, acquitted the accused by judgement dated 28.08.2009. Curiously, the 1st respondent has not chosen to prefer any appeal against the order of acquittal. Aggrieved over the said order of acquittal, the de facto complainant therein is before this Court with this revision. 3. It is submitted by the petitioner that summons were never served on them by the 1st respondent police and they were not aware of the fact of issuance of warrants against them. The learned counsel appearing for the petitioner would submit that principles laid down in Veerappan's case cited supra have been erroneously applied to the facts of the present case. 4. The learned Additional Public Prosecutor appearing for the 1st respondent would submit that the trial Court was not right in acquitting the 2nd respondent/accused applying the principles laid down in Veerappan's case. According to him, the trial Court should have taken effective steps for the production of the victim and the other witnesses. 5. The learned counsel appearing for the 2nd respondent/accused would, however, oppose the revision. According to him, it is only the bounden duty of the prosecution to produce the witnesses as and when required by the Court. He would further submit that as per law, it is the duty of the prosecution to apply for summons and then to serve the same, so as to produce the prosecution witnesses in Court. Here, in this case, despite issuance of Summons and issuance of Non Bailable warrants, the prosecution has miserably failed to produce the witnesses and therefore, correctly applying the principles laid down in Veerappan's case, the trial Court acquitted the 2nd respondent/accused, he argued. 6. I have considered the rival submissions and I have also perused the records carefully. 7. At the outset , I have to state that speedy trial is not only a human right, but a fundamental right of an accused falling within the sweep and content of Article 21 of the Constitution of India. [vide Hassainara Khatoon v. State of Bihar, 1980 SCC (Cri) 23]. But, at the same time, speedy justice does not mean rash injustice to the victim of crime for non-production of prosecution witnesses by the police. While considering the case of the prosecution for acquitting the accused on the ground of delay in production of witnesses by the prosecution, the Courts are expected to have cautious approach to ensure that the ultimate ends of justice is not allowed to be defeated by the indifferent/wilful attitude of the prosecuting agency/police. Therefore, every endeavour should be made by the Court to impel the prosecution to produce witnesses and all steps, including coercive steps should be taken in this regard. In this case, though Non Bailable Warrants were issued for the arrest and production of the witnesses, https://hcservices.ecourts.gov.in/hcservices/ obviously, they were not executed. The 1st respondent/complainant did not even inform the Court as to why non bailable warrants could not be executed. The duty of the Court does not end with mere issuance of process under Chapter VI of the Code of Criminal Procedure, 1973 to the witnesses. In the case of summons, as required under Section 62(3) of the Code of Criminal Procedure, a receipt showing service of summons should be produced before the Court to show the service of summons. Likewise, if warrant of arrest is issued against a witness and the same has not been executed, it is the duty of the Police Officer to whom such warrant was issued for execution to report to the Court on the next date of hearing of the case, as to why the warrant could not be executed. If only such a report or memo is submitted to the Court, the Court would be in a position to decide about the further course of action to be adopted to secure the presence of the witness. In the case on hand, obviously, no such memo or report was submitted by the police officer concerned stating the reason for non execution of the warrants. In such event, the Court should not have closed the evidence and recorded an order of acquittal of the accused, as it would only amount to denial of justice to the victims of the the crime. If, this practice of closing the prosecution evidence and recording order of acquittal on the ground that either summons issued is not served or non bailable warrant is not executed is blindly followed, I am sure that it would only encourage unscrupulous elements to see the summons / warrants, kept idle without effecting service/execution and without reporting the same to the Court so as to facilitate the accused to get honourable acquittal for which he is not otherwise entitled to and the same would surely result in miscarriage of justice. 8. Turning to the judgement in State v. Veerappan, 1980 Crl. L.W. 187, relied on by the trial Court, the Full Bench of this Court in the said judgement has held as follows: "After carefully considering all the aforesaid decisions and the views expressed therein, we are of the view that if the prosecution had made an application for the issue of summons to its witnesses either under Section 242(2) or 254(2) of the Crl.P.C. it is the duty of the Court to issue summons to the prosecution witnesses and to secure the witnesses by exercising all the powers given to it under the Crl.P.C. As already indicated by us and if still the presence of the witnesses could not be secured and the prosecution also either on account of pronounced negligence or recalcitrance does not produce the witnesses after the Court had given it sufficient time and opportunities to do so, then the Court, being left with no other alternative, would be justified in acquitting the accused for want of evidence to prove the prosecution case, under S.248 Crl.P.C., in the case of warrant cases https://hcservices.ecourts.gov.in/hcservices/ instituted on a police report and under S.255(1) Crl.P.C. In summons cases, and we answer the two questions referred to us in the above terms." 9. In my considered opinion, the trial Court has erroneously applied the principles laid down in Veerappan's case cited supra to the facts of the present case. A careful reading of the said judgement would go to show that it is only in a case where the presence of the witness could not be secured by the Court by exercising all its powers and the prosecution either on account of pronounced negligence or recalcitrance does not produce the witnesses even after the Court had given sufficient time and opportunities to do so, then, only the Court would be justified in acquitting the accused, as the Court is left with no other alternative. But, in the case on hand, the trial Court has not exercised all its powers to secure the presence of the witnesses. As I have already stated, the Court has not even taken care to verify from the police officer as to why warrants had not been executed. It is also not the case that the prosecution was negligent or recalcitrant in not producing the witnesses for several hearings. 10. The records would show that though the charges were framed as early as on 26.07.2007; the summons were issued 02.04.2008; whereas the warrants were issued only on 06.08.2009. Thereafter, the case was listed on 14.08.2009, 19.08.2009 and 25.08.2009, during which the Court had no information about the fate of the warrants. This would reflect that the trial Court has not taken care to diligently exercise its powers to secure the presence of the witnesses. Thus, I find every justification in the grievance expressed by the petitioner / de facto complainant. 11. At this juncture, I deem it appropriate to observe as follows: It is common knowledge that pendency of the criminal cases in this State is also because of non production of the witnesses in time by the prosecuting agencies. Non appearance of official witnesses, like, the Police Officials is also not uncommon. Statistical information shows that several such cases are pending throughout the State in various Criminal Courts simply because the Non Bailable Warrants issued against the accused or to the witnesses are not executed/served by the police promptly. Despite several reminders sent by the Courts concerned and despite several meetings held at the District level by the heads of the Departments to impress upon the police to serve summons or to execute non bailable warrants promptly, the same has not yielded desired result. In this scenario, though cry for speedy justice could often be heard, the Courts remain helpless. In this back drop, taking note of the alarming situation, this Court (R.Regupathi. J.,) in V.G.K.Senthilnathan v. D.G.P. And others, 2009 CIJ 1217 Madras after having elaborately dealt with various provisions relating to service of summons and execution of warrants has issued certain guidelines for the effective service of summons and execution of warrants. But, it is disheartening to note that the said guidelines are seldom followed by the police officials. I https://hcservices.ecourts.gov.in/hcservices/ hope, at least from now on, the Police Officers, who are in charge of the Districts/Divisions would take effective steps to ensure that witnesses are produced promptly in time, summons are served and warrants are executed diligently, so that speedy delivery of justice to the litigant public could be ensured by the courts of law. 12. In the result, the revision is allowed, the impugned order of acquittal dated 28.08.2009 passed in C.C.No.514 of 2007 on the file of the Judicial Magistrate No.II, Coimbatore is set aside and the matter is remitted to the learned Judicial Magistrate for trial. The 1st respondent is directed to produce the witnesses promptly before the trial Court so that the case could be disposed of by the learned Judicial Magistrate within a period of six months from the date of receipt of a copy of this order. Both the de facto complainant as well as the the accused shall co-operate with the trial. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kmk To 1.The Judicial Magistrate No.II, Coimbatore. 2.-do- Thro The Chief Judicial Magistrate, Coimbatore. 3. The Public Prosecutor, High Court, Madras. 1 cc to Mr.N.Manokaran, Advocate, Sr.No.2612 1 cc to Mr.B.Nedunchezhiyan, Advocate, Sr.No.2531 Crl.R.C.No.1093 of 2009 AKR {CO} TP/28.1.2010. https://hcservices.ecourts.gov.in/hcservices/