At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE DAVID ANNOUSSAMY
K.R.Thiagarajan, for Petitioner. V.Gopinath, for Respondent Nos.1 to 4. T.Munirathina Naidu, for Public Prosecutor, for State.
This is a revision petition against an order of acquittal.
2. After completion of the investigation, a report was filed by the investigation officer under Sec.173, Criminal Procedure Code to the effect that respondents 1 to 4 herein appeared to have committed offences punishable under Secs.341, 323, 324 and 506, Part II, I.P.C. Charges were framed accordingly by the Court. Summons were issued at the request of the prosecution to witnesses 1 to 4 who are eye-witnesses including the complainant, the present revision petitioner, herein, an injured witness. On the day appointed for trial the prosecution reported that the witnesses refused to receive the summonses issued by the Court and to that effect the Constable was examined in the Court as C.W.1. He deposed that he attempted to serve the summonses on all the four witnesses and that all of them refused to receive the summonses. Thereupon, the court by judgment dated 27.2.1985 acquitted the accused under Sec.248(1), Crl.P.C. Against that order, the complainant has preferred this revision petition.
3. The revision petitioner?s case is that no summons was attempted to be served either on him or on other witnesses and that at no point of time summons was refused by any of the witnesses. Learned counsel for the revision petitioner would contend that once the court has taken a case on file it is the duty of the court to secure the witnesses by all means. He relied for that proposition on a decision of a Full Bench of this Court in Veerappan, In re. and others 1980 L. W. (Crl.) 187 (F.B.).
4. Once, on behalf of the State, a report is filed under Sec.173, Cr.P.C., it is the duty of the State to produce the evidence in support of the case as put forth in that report. In order to secure the witnesses, the prosecution can apply to the Court for issue of summons and if necessary warrant. The course adopted by the Public Prosecutor in this case, viz., to merely state that the witnesses refused to receive summonses is hard to understand. No citizen can refuse to receive summons issued by the Court to appear as a witness and the Public Prosecutor should not leave the matter there. But if the Public Prosecutor is convinced that no useful purpose would be served by procuring un-cooperative witnesses before Court, it would be open to him to withdraw from prosecution under Sec.321, Crl.P.C. In the present case, it is highly doubtful that the witnesses and especially the complainant herein who is an injured advocate would have refused to receive summons after filing the complaint. The fact that he has not lost interest in the case is apparent from the fact that he has come before this Court with this revision petition.
5. As far as the Court is concerned, it erred in acquitting the accused under Sec.248, Crl.P.C. This section would apply when some evidence has been let in and when such evidence is not satisfactory. Acquittal under this section is at the conclusion of a real trial. But when no evidence is forthcoming from the prosecution, if the prosecution finds itself in the predicament of not being able to produce any evidence in support of its case, but still does not formally withdraw from prosecution, the only course open to the court is to record clearly the circumstances, draw the conclusion that the course of action of the prosecution tantamounts to a withdrawal from prosecution and acquit the accused under Sec.321(b), Crl.P.C. Normally such a situation should not arise, because the Public Prosecutor would understand that it is his duty either to prosecute or to withdraw from prosecution and not leave the matter midway which would amount to a dereliction of duty.
6. Turning back to this case, since the complainant states unequivocally that summonses were not served upon him and other witnesses and since he is still very much interested in the case, there is no room to conclude that the prosecution is n
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ot in a position to adduce evidence and consequently is deemed to have withdrawn from prosecution. Therefore, the acquittal cannot stand even under Sec.321, Crl.P.C. 7. In the result, the revision petition is allowed, the order of acquittal is set aside and the Magistrate is directed to proceed afresh and to dispose of the case expeditiously in accordance with law. The office is directed to send back the papers immediately.