HIGH COURT OF CHHATTISGARH AT BISPUR Cab M Appeal No.333/96 SB: Hon’ble Shri Justice R.L. Jhanwar APPELLANT The State of M.P. (Now Chhattisgarh) Versus Pole Alias Jasvinder Singh Sikkha and 2 others RESPONDENTS ORDER Post for order on 3‘ .0320 10 S— R.L. Jhanwar Judge v1 v LA d/ and the respondents, who were members of the truck uniqgg, stopped the truck of complainant and abused them and also threatened them to kin. Thereafter, the matter was reported by the complainant in the police station Chhuriya and inveetigation started. After taking statements under Section 161 of the Cr.P.C. and after completion of investigation, challan was tiled before the Judicial Magistrate First Class, Dongargarh. 3. The learned Magistrate framed charge against the respondents under Sections 294, 323, 506 B and 34 of the I.P.C. and read over and explained to the respondents, who abjured their guilt and pleaded their innocence and false implication. 4. The charge sheet Was filed before the learned Magish‘ate on 05.11.1993, and charges under Sections 294, 323 and 506 B of thelfP.C. were framed on 1201,1995 and thereafter'the case was nxed for evidence on 07.04.1995. Opportunity was given to the prosecution to produce its witnesses on 18.05.1995 and 19.06.1995. In spite of that prosecution has failed to produce the witnesses. At that time ‘Pilot Project’ was going on, on the order of Madhya Pradesh High Court, therefore, the learned Magistrate had on 19.06.1995 when there was no evidence, despite opportunity being granted to the prosecution to adduce the evidence, the case of the prosecution was closed, resulting into acquittal of the respondents. Against this judgment, the State has preferred this appeal. 5. The learned Advocate for the State argued that learned lower Court has only once granted opportunity to the prosecution to adduce its evidence and when the prosecution was not able to produce witnesses, the matter was closed.> ,The learned lower Court ought to have afforded one more opportunity to the prosecution to produce witnesses and by not an‘ording opportunity to the prosecuu'on, the learned lower Cougt committed grave ermr. Therefore, the case be remanded back for‘ adducing evidence of the prosecution. . Learned §dvocate for the respondents argued that the learned lower Court has aEorded ample opportunity to the prosecution to prove its case but prosecution was not able to produce its witnesses to prove the case. In these circumstances, the Court below had left no other option but to close the evidence of‘the prosecution and it has rightly acquitted the respondents] accused. Therefore, the judgment is not perverse or illegal and it is maintainable. 7. 1 So far as this case is concerned, it is a case of warrant trial, therefore, for evidence the case comes under Section 242 of the rCode of Criminal Procedure 1973 (for short the Code). Section 242 of the Code reads as under : S. 242. (1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, the Magistrate shall hx a date for the examination of witnesses. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. (3) On the date so hxed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution : Provided that the Magistrate may permit the cross- examination of any Witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination. After perusal of the record, it is clearithat according to Section 242 (2) there is no prayer made by the prosecution for issuance of sumons to the Witnesses. But, it seems that in 6 m spite of this, Court has issued summons to the witnesses, therefors, it is clsar that oral prayer as made by the prosecution. 8. On perus1 of the order sheet dated 18.5.95, i is ound that Magisnate was on leave and no ay order o produce the Witnesses was made. The case was f1xed for 1.6.95 and on 19.6.95, Ease was closed for judgment and acquitted the respondent. It is lear from the order sheet of the court below that no any order for issuing the summons for witness has been passed on 18.5.5. The lower court has closed he evidence of prosecution. While hrst he has to order to produce the witnesses an after that ord, f no witnesses were produced by the proseution then he can close the case, but it was not one by the ourt below. No dt that the court belo has erred for not giving any more chance to the prosecuon to produce the witnsses. Therefre, the order dated 19.6.95 was not according to law. 9. Court below has not bothered to see that the summons were served or not and has closed the evidence of prosecution. Prosecution has not again requested to give time to produce the witnesses. However, even otherwise it is not a ht case Where interest of justice would be served by setting aside the order of acquittal and remanding the case for re—trial. The incident is 01d more than 16 years. 10. At this stage, however, I have no hesitation to hold that the learned Magistrate is not justihed in acquitting the accused and the order is not sustainable under the law. In this case, it is clear that Court has not given last opportunity to the prosecution w § t f n t 9 ( c se 9 t d er i c d c oub w ti e o and the prosecu11'on has also failcd to pmduce the vvimesS¢s, therefore, the tm'al Conn closed the evidence of the prosecution and acquitted the respondents. 11. The ground that the Magistrate failed to perform his obligatory dutycannot be a ground to direct a re—trial, for justice has to betwo sided. If it is incumbent to see that the guilty do not escap'e, it is even more necessary to see that persons accused of crime axe not kept under indefinite suspense. The nature and magnitude of the od‘ence alleged against the accused persons is lso not vely serious. Considerable di$culty may have to be also encountered in seeming plesence of witnesses in a case with respect to an incident said to have been taken place 16 years back. In these circumstances, this Conn is of the visw that this ’is not a tit case in which, a te-tn'al should be omemd. The tenhmation of the proceedings should not be interfered with. It will not be just and proper to interfere With the acquittal, although Wmngly done, (Machander Vs. Hyderabad StateAIR 1955 SC 792 and S. Guin Vs. Grindlays Bank Ltd., AIR 1986 SC 289 referred,) 12. In the result, I do not dud any need for interference in this appeal against the acquittal of the respondents. Thus, the appeal tiled by the appellant] State against the acquittal of the ~ respondents/accused persons is liable to be and is accordingly dismissed. ‘Sd/_ R.L. Jhanwar udah .3),t Fm ”jinn‘t’rin rants . .» W. a J