Vallabh Das Vs. Dr. Madan Lal & Ors [1970] INSC 83 (2 April 1970)
02/04/1970 HEGDE, K.S.
HEGDE, K.S.
SHAH, J.C.
CITATION: 1970 AIR 987 1971 SCR (1) 211 1970 SCC (3) 92
CITATOR INFO:
RF 1983 SC 786 (9)
ACT:
Code of Civil Procedure (Act 5 of 1908), O. 23, R. 1- Withdrawal of suit by plaintiff-court imposing condition for filing fresh suit on the same subject-matter-Meaning of subject-matter'.
HEADNOTE:
P was the owner of the suit properties. He had no children.
He gifted some of his properties to his wife on June 14, 1943. On April 29, 1946 the first 'respondent instituted a suit for a declaration that he was the adopted son of P and for partition and possession of his share in the family property. The first respondent claimed to have been adopted on July 12, 1943, P denied the said adoption and alleged that in fact he had adopted the appellant on April 10, 1946.
In view of that allegation the appellant was added as a supplemental defendant in the said suit, but no relief was claimed against him. During the pendency of that suit P died. Thereafter the first respondent moved the court to withdraw the suit. He was permitted to withdraw the 'same with liberty to file a fresh suit on the same cause of action on condition that he paid the defendants' costs of that suit before instituting a fresh suit. Thereafter P's widow bequeathed her properties to the first respondent and died soon after. On November 29, 1951 the first respondent brought a fresh suit without having paid the costs of the appellant in the earlier suit.. The appellant resisted the suit on several grounds. However the trial court and the High Court decided in favour of the first respondent.
Thereupon by special leave the present appeal was filed by the appellant. The main question that fell for consideration was whether the suit under appeal was maintainable when the condition precedent imposed by the court in the earlier suit-namely, the payment of defendants' costs by the plaintiff before bringing a fresh suit on the same cause of action-had not been complied with.
HELD : (i) Rule 1, 0. 23, Code of Civil Procedure empowers the courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The expression 'subject-matter' is not defined in the Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit it cannot be said that the subject-matter of the second suit is the same as in the previous suit. [213 G-214 B] (ii) The non-fulfillment of the condition imposed by the Court at the time of withdrawal of the first suit did not bar the present suit because the subject-matter of the two suits was not the same.
In the first suit the first respondent was seeking to enforce his right to partition and separate possession. In the present suit he sought to get possession of the suit properties from a trespasser on the basis of his, title. In the first suit the cause of action was the division of status between the first respondent and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff was seeking possession of the suit properties from a trespasser 212 In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of the title to the suit properties arose on the death of his adoptive father and mother. [214 B-D] Mere identity of some of the issues in the two suits did not bring about an identity of the subject matter in the two suits. [214 D-E] The appeal must accordingly be dismissed.
Rakhma Bai v. Mahadeo Narayan, I.L.R. 42 Bom. 1155 and Singa Reddy v. Subba Reddy, I.L.R. 39 Mad. 987, approved and applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 615 of 1966.
Appeal by special leave from the judgment and decree dated June, 25, 1962 of the Bombay High Court, Nagpur Bench in Appeal No. 191 of 1956 from original Decree,.
B. R. L. Iyengar, S. K. Mehta, for the appellant.
S. N. Kherdekar, G. L. Sanghi and A. G. Ratnaparkhi, for respondent No. 1.
The Judgment of the Court was delivered by Hegde, J. One Prem Sukh was the owner of the suite pro- perties. Parvatibai was his wife They had no children.
Prem Sukh gifted some of his properties to his wife on June 14, 1943. Dr. Madan Lal's (1st respondent in this appeal) case is that Prem Sukh adopted him on July 12, 1943.
Thereafter it is said that Prem Sukh adopted on April 10, 1946, the appellant Vallabh Das. On April 29, 1946, Dr. Madan Lal instituted a suit for a declaration that he is the adopted son of Prem Sukh and for partition and possession of his share in the family properties. Prem Sukh denied the adoption pleaded by Dr. Madan Lal. On the other hand he alleged that Vallabh Das was his adopted son. In view of that allegation, Vallabh Das was added as a supplemental defendant in that suit. No relief was claimed against him.
During the pendency of that suit Prem Sukh died. Thereafter Dr. Madan Lal moved the court to withdraw the suit. He was permitted to withdraw the same with liberty to file a fresh suit on the same cause of action on condition that he pays the defendants' costs of that suit before instituting a fresh suit. Thereafter Parvatibai bequeathed her properties to Dr. Madan Lal and died soon after. The suit from which this appeal arises was brought on November 29, 1951 even before the costs of Vallabh Das (the appellant herein) in the previous suit had been paid. Vallabh Das resisted the suit on various grounds. He contended that Dr. Madan Lal was not adopted by Prem Sukh; even if he 213 had been adopted, that adoption was not valid under the Benaras School of Hindu law by which the parties were governed as Madan Lal was a married man on July 12, 1943 and lastly the suit as brought is not maintainable as Dr. Madan Lal had not paid the costs due to him under the order in the previous suit before instituting the present suit. Both the trial court as well as the High Court in appeal rejected every one of the contentions taken by Vallabh Das and decreed the suit as prayed for. Thereafter this appeal was brought after obtaining special leave from this Court.
The factum of the adoption has been upheld both by the trial court as well as by the High Court. There is evidence to support that finding. No convincing circumstance was brought to our notice requiring us to review the evidence over again. This Court ordinarily does not interfere with concurrent findings of fact. We see no justification to disturb the concurrent finding of fact arrived at by the trial court and the High Court.
As regards the validity of the adoption, the contention of Vallabh Das that the adoption was invalid rests on the plea that on July 12, 1943, Dr. Madan Lal was a married man.
This plea has been negatived by the trial court as well as by the High Court. They have come to the conclusion that Dr, Madan Lal was not a married man on that date and that he was married subsequently. Here again there is no good ground for us to interfere with the finding of fact reached by those courts.
The only contention that was seriously pressed before us on behalf of the appellant was that the suit under appeal is not maintainable as the condition precedent imposed by the court in the earlier suit namely the payment of defendants' costs by the plaintiff before bringing a fresh suit on the same cause of action had not been complied with. We do not think that this contention is well founded.
Rule 1, Order 23, Code of Civil Procedure empowers the courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The terms imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject-matter that was in litigation in the, previous suit. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property 214 which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit. Now coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possession of the suit properties from a trespasser on the basis of his title. In the first suit the cause of action was the division of status between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession.
In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father 'and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision.
But that adoption was not the cause of action in the first nor is it the cause of action in the present suit. It was merely an antecedent even which conferred certain rights on him. Mere identity of some of the issues in the two suits does not bring about an identity of the subject matter in the two suits. As observed in Rakhma Bai v. Mahadeo Narayan(1), the expression "subject matter" in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words "subject matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis C.J. in Singa Reddi v. Subba Reddi(2), that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit.
For the reasons mentioned above this appeal fails and the same is dismissed with costs.
G.C. Appeal dismissed.
(1)I.L.R. 42 Bom.1155.
(2)I.L.R. 39 Mad. 987.
2)
In Satyadhyan Ghosal & Ors. Vs. Smt. Deorajin Debi & Anr., AIR 1960 SC 941, the Supreme Court considered the applicability of the doctrine in the proceedings at different stages in the same Suit and held as under:-
"The principle of res judicata is based on the need of giving a finality to judicial decision. What it says is that once a res is judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation....... This principle of res judicata is embodied in relation to Suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation...... The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court, having, at an earlier stage, decided a matter in one way, will not allow the parties to re-agitate the matter again at the subsequent stage of the same proceedings."
Section 11 of the Code of Civil Procedure, 1908 defines Res Judicata as:
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II. For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V. Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI. Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII. The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII. An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. The doctrine of res judicata is based on three maxims
(a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause)
(b) Interest republicae ut sit finis litium ( it is in the interest of the state that there should be an end to a litigation); and
(c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct)
(b) Interest republicae ut sit finis litium ( it is in the interest of the state that there should be an end to a litigation); and
(c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct)
3)
Referring to the opinion of the Judges expressed in 1776 in the Duches of Kingston's Case (2 Smith's L.C. 13th edn. 644, 645.) to which reference has been invariably made in most of the cases by the Indian courts. It was said in that case:
"From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : first the judgment of a Court of concurrent jurisdiction, directly upon the points, is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of a Court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment."
Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence "Interest reipublicaeut sit finish litium" (it concerns the State that there be an end to law suits) and partly on the maxim "Nemo debet lis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the Court but operates as a par to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a Court, competent to try the subsequent suit in which such issue has been raised.
3
Equivalent citations: AIR 1980 Mad 260
Bench: Paul, Natarajan, R Pandian
The State (Tamil Nadu) vs Veerappan And Ors. on 24/3/1980
JUDGMENT
Paul, J
1. These appeals, which have been preferred by the State represented by the learned. Public Prosecutor against the orders of the learned Judicial Second Class Magistrate of Namakkal acquitting the respondent-accused in each case of an offence punishable under Section 4(1)(b) of the Tamil Nadu Prohibition Act are before us, inasmuch as on a reference by one of us, before whom the appeals originally came up for hearing, the matter has been placed before this Full Bench since the matter involved a question of law of public importance, in regard to which question of law there have been divergent views of various High Courts.
2. Of the two questions which have been referred to this Full Bench, the first one, namely, whether under Section 255(1) Cr. P. C., a Magistrate can acquit the accused if the prosecution fails to apply for the issue of summons to any witness and does not produce the witness for several hearings and does not serve summons on the witnesses despite having been granted sufficient opportunity to serve the summons or to produce the witnesses, is the one that directly arises for determination in these appeals. The second question which arises for determination by us incidentally is whether a Magistrate can acquit the accused under Section 248(1) Cr. P. C., if the prosecution does not apply for the issue of summons to any of the witnesses and does not produce the witness for several hearings and does not serve the summons on the witnesses despite having been granted sufficient opportunities to serve the summons on the witnesses or to produce the witnesses.
3. In all these appeals, the learned Magistrate acquitted the accused under Section 255(1) Cr. P. C., on the ground that even though the cases had been posted for hearing on various dates and summons had been issued to the witnesses for all the hearings, the witnesses were not produced on any of the hearing dates and in spite of a notice issued that the case would be disposed of without examining the witnesses if they are not produced the prosecution did not choose to let in any evidence and as such the Magistrate found that the prosecution had no evidence to let in.
4. Section 81 Cr. P. C. 1861, the Magistrate to issue a warrant.
5. We shall first examine the provisions of the Criminal Procedure Code of 1973, which have relevance to this matter.
6. Section 255(1), Cr. P. C., under which the accused have been acquitted in these cases states as follows:
"If the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal".
Section 254, Cr. P. C., states as follows:
"(1) If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
(2) The Magistrate may if, he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in court.
7. It will be noticed that under subsection (1) of Section 254, the Magistrate is enjoined to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. It was to be noted that under that sub-section a duty is cast on the prosecution to produce its evidence and likewise on the accused to produce evidence in his defence, sub-section (2) of Section 254 makes provision for the production or the accused to seek the assistance of the court in producing its or his evidence by applying for issue of summons to any witness directing him to attend or to produce any document or other thing. It may also be noted that this sub-section gives discretion to the Magistrate to so issue summons on the application of the prosecution or the accused by using the words 'the Magistrate may if he thinks fit'. Thus an emphasis is placed by Section 254 on the duty of the prosecution or the accused to produce all evidence in support of its case or his defence.
8. Section 255(1) makes provision for the Magistrate upon taking the evidence referred to in Section 254 to take such further evidence, if any, as he may of his own motion cause to be produced. Under Section 255(1) a Magistrate can record an order of acquittal if he finds the accused not guilty upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may of his own motion cause to be produced. Section 244 Cr. P. C. of 1898, (corresponding to Section 254 of the Code of 1973), as it was in force before the Criminal Procedure Code of 1973 came into effect, also contained similar provisions.
9. Section 258 Cr. P. C., 1973, which is analogous to Section 249 of the Cr. P. C. of 1898, reads as follows:-
"In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release the accused, and such release shall have the effect of discharge".
In all the cases now before us, the Magistrate could have very well resorted to this section. But, instead, he has acquitted the accused under Section 255(1) Cr. P. C. and it is this acquittal which has been challenged by the State in these appeals on the ground that the Magistrate cannot acquit the accused under Section 255(f) Cr. P. C., when he has not taken the evidence referred to in Section 254 Cr. P. C.
10. We shall also now examine the provisions relating to the trial of warrant cases instituted on a police report. We might note here that the cases now before us are summons cases, but in order to answer the question No. 2, referred to us in the reference, it is necessary to examine the position regarding the trial of warrant cases instituted on a police report, for those provisions also help to throw light on the first question which has been referred to us and which relates to summons cases. Under Section 240, if upon consideration of the Police report and the documents sent with it under Section 173, and examination of the accused, if any, as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence tribal under Chapter XIX which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. Under Section 242 Cr. P. C., 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, on his plea of guilt the Magistrate should fix a date for examination of the witnesses and the Magistrate may on the application of the prosecution issue summons to any of its witnesses directing him to attend or to produce any document or other thing and on the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. Section 243 states that the accused shall then be called upon to enter upon his defence and produce his evidence, and if the accused puts in any written statement, the Magistrate shall file it with the record, and if the accused after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination or the production of the document or other things, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such grounds shall be recorded by him in writing.
It might be noted that as in Sec. 254 Cr. P. C., relating to the trial of summons cases, the Magistrate even in warrant cases instituted on a police report is enjoined by sub-section (3) of Sec. 242 to take all such evidence as may be produced in support of the prosecution and a provision has been made in subsection (2) of Section 242, for the issue of summons to any witness directing him to attend or produce any document or other thing on the application of the prosecution. It may, however, be noted that while under Section 254(2) the Magistrate 'may if he thinks fit' issue such summons under Section 242, the Magistrate 'may issue' such summons. Apparently, the words 'if he thinks fit' have been included in Section 254(2) in summons cases in order to give the Magistrate the power to refuse to issue such summons if he thinks it proper to do so. The words 'if he thinks fit in sub-section (2) of Section 254, further indicate that the Magistrate has to apply his mind when an application is made by the prosecution or the accused to issue such summons. Therefore, even in regard to warrant cases instituted on police report a duty is cast on the Magistrate to take all evidence that may be produced by the prosecution as well as a duty to facilitate the production of evidence by the prosecution, by issuing summons to witnesses on the application of the prosecution and likewise a duty has also been cast on the prosecution to produce all evidence in support of its case. Since both in Section 254(1) as well as in Section 242(3), the words as may be produced in support of the prosecution' have been used it is necessary for us to examine the connotation of the words 'as may be produced'.
11. In State of Orissa v. Sibcharan Singh, AIR 1962 Orissa 157, it has been observed as follows: (Head-note):
"The word 'produced' in sub-section (7) of Section 251 (a) Cr. P. C., 1898 and analogous to Section 242(3) cannot be given any restricted meaning as to saddle the prosecution with the entire responsibility of producing the evidence. A duty also is cast upon the courts for enforcing attendance of witnesses by the process provided in the Criminal Procedure Code. The courts are not therefore absolutely powerless when the parties fail to produce evidence relevant in a case".
In State v. Nandkishore, , it has been observed as
follows (Head-note):
"The word 'produced' in sub-sec. (7) includes the bringing forward of the witnesses by the prosecution at its own instance or through the process of the court whom it desires to examine at trial. Besides in the administration of criminal justice a duty is cast upon the court to arrive at the truth by all lawful means though the primary responsibility of prosecuting cognizable offence is on the executive authorities".
We are in respectful agreement with the aforesaid observations of the Orissa and the Rajasthan High Courts. The Rajasthan High Court went on to point out that the Magistrate should not feel himself helpless in such situations and should exercise his inherent powers under Section 540 to summon such witnesses as he thinks necessary for the ends of justice. If the prosecution by its negligence or otherwise fails to discharge its responsibility in producing witnesses, it is incumbent on the court to examine such witnesses as it considers necessary in the ends of justice.
12. Section 510 Cr. P. C. 1898, states as follow:
"Any Court may at any stage of enquiry, trial or other proceeding under this Code summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the court shall summon and examine or recall and examine any such person if his evidence appears to it essential to the just decision of the case".
The analogous and corresponding provision in the present Code of Criminal procedure is Section 311. Thus the court cannot absolve itself of its responsibility to summon and examine all witnesses whose evidence appears to it to be essential to a just decision of the case, merely because the prosecution does not produce such witnesses owing to its negligence or otherwise. It being clear that it is the duty of the Magistrate to issue summons and secure the presence of witnesses and examine them, when the prosecution seeks the court's assistance by means of an application, the Court is further obliged in discharge of its duty to arrive at the truth by all lawful means in furtherance of the administration of criminal justice to suo motu take all steps to secure the presence of witnesses where evidence appears to it to be essential to a just decision of the case.
13. We shall now proceed to indicate the powers which the Magistrate could exercise and the steps he could take under the Criminal Procedure Code in the matter of securing the presence of witnesses. Section 62 Cr. P. C., reads as follows:
"(1) Every summons shall be served by a police officer or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant".
Section 64 states "where the person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him and the person with whom the summons is so left shall if so required by the serving officer sign a receipt therefore on the back of the other duplicate".
Section 65 Cr. P. C., states -
"If service cannot by the exercise of due diligence be effected as provided in Section 62, Section 63 or Section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house of homestead in which the person summoned ordinarily resides and thereupon the court after making such enquiries as it thinks fit may either declare that the summons has been duly served or order fresh service in such manner as it considers proper".
Section 69, which makes provision for service of summons on witnesses by post reads as follows: -
"(1) Notwithstanding anything contained in the preceding sections of this Chapter, a court issuing a summons to a witness may in addition to and simultaneously with the issue of fresh summons direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.
(2) Where an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received the court issuing the summons may declare that the summons has been duly served".
This provision is a new one incorporated in the Criminal Procedure Code of 1973 and was not in the old Criminal Procedure Code. This provision, in our experience, has not been resorted to by any Magistrate as far as we know. Of course, it is not practicable to adopt this procedure in every case, for it would result in heavy expenditure to the State. Nevertheless, where summons issued has not been served on the witness by a police officer under Section 62, repeatedly, the Magistrate may resort to this provision of issuing the summons and sending it by registered post to the witness. Of course, if after due service, the witness does not appear before the Court, the Court should issue coercive processes for securing the presence of the witness before the court. In suitable cases, or in cases of chronic or persistent failure to appear in response to the summons, a complaint can be laid under Section 174 I. P. C. Then again, the explanation (2) in Section 309 Cr. P. C., also can be made use of in suitable cases by the Magistrate, for that explanation states 'the terms on which an adjournment or postponement may be granted include in appropriate cases the payment of costs by the prosecution or accused'. We might also note here that no rules have been framed by the State Government under Section 62 Cr. P. C. Therefore, as it is, there appears to us to be no bar to the serving of summons by an officer of the court or other public servant.
14. The next question that would arise is whether even after having recourse to the above provisions, the Magistrate is not able to secure the presence of the witnesses and the prosecution on its part, even after having been given several opportunities, fails to serve the summons on the witnesses or to produce them, the Magistrate would be justified in acquitting the accused either under Section 255(1) Cr. P. C., in summons cases or under Section 248(1), Cr. P. C. in warrant cases.
15. In State of Madh. Pra. v. Kaluthawar, 1972 Cri LJ 1639, a Division Bench of the Madhya Pradesh High Court observed as follows:
"It was the duty of the prosecution to make necessary arrangements for the production of its witnesses.... The Police must always remember that it has got a duty to the court and they cannot just send a challan and think that the rest will be done by the court. When nobody appeared in t he court to inform what the reason was for non-appearance of the witnesses, the court could legitimately come to the conclusion that the police was not very serious in prosecuting the offence which was a minor one. Under Section 245, the Magistrate can record an order of acquittal if there is no evidence to hold the accused guilty. If the prosecution did not take proper steps to produce the witnesses, or ask the court to give them time to do the same, or to issue fresh summons, the court was not bound to fix another date. The police has a duty towards the citizen. When the accused is brought before the court and the prosecuting department does not take any steps it will be an abuse of the process of the court to continue the trial. Bringing a person before the court accusing him of some offence is a serious matter and however petty the offence may be, the prosecuting department, must do its duty towards the accused as well as the court. When once the accused is challaned there is no privilege given to the police to remain absent".
In that case the accused was prosecuted under Section 34 of the Police Act. The case was to be tried according to the procedure prescribed in the Criminal Procedure Code, 1898, for the trial of summons cases, that is, under Section 244 Cr. P. C. of 1898. The case was posted to a particular date for recording evidence and earlier at the instance of the prosecution summons had been issued to the prosecution witnesses, but on the date of hearing the witnesses did not turn up and the learned Magistrate forth with passed an order of acquittal, aggrieved by which an appeal against acquittal was preferred by the State which appeal was eventually dismissed by the Division Bench of the Madhya Pradesh High Court with the above observations. That was an extreme case.
16. There are quite a number of decisions in which it had been held that an acquittal of the accused on the failure of the prosecution to produce the witnesses is not legal. (Vide State v. Kaliram Nandlal, ), the State of Mysore v. Ramu, 1973 Mad LJ (Crl.)
116: (1973 Cri LJ 1257) (Mys); State of Mysore v. Kalilulla Ahmed Sheriff. AIR 1971 Mys 60; Kanduri Misra v. Sabadev Kunda, (1962) 2 Cri LJ 295; State of Orissa v. Sibcharan Singh, ; State of Mysore v. Somala, 1972 Mad LJ (Cri) 476: (1972 Cri LJ 1478) (Mys); State of Mysore v. Shanta,1972 Mad LJ (Cri) 589 (Mys); State v. Nagappa, 1973 Cri LJ 548 (Mad); Public Prosecutor v. Sambangi Mudaliar, ; State of Kerala v. Kunhiaraman, 1964 Mad LJ (Cri)
330 (Ker); State of Mysore v. Narasimha Gowda, AIR 1965 Mys 167; State of Gujarat v. Thakorbhai Sukhabhai, , State of U.P. v. Ramjani, All LJ 1126; Lakshmiamma Kochukuttiamma v. Raman Pillai, AIR 1952 Trav-Co 268; State v. Madhavan Nair, 1959 Mad LJ (Cri) 633 (Ker); Emperor v. Varadarajulu Naidu, AIR 1932 Mad 25 (2); State of Kerala v. Desan Mary, 1960 Mad LJ (Cri) 378 (Ker); Kesar Singh v. State of Jammu and Kashmir, 1963-1 Cri LJ 765: (AIR 1963 J & K 23); R. K. V. Motors and Timbers Ltd. v. Regional Transport Authority, Trivandrum, ; K. K. Subbier v. K. M. S. Lakshmana Iyer, 1942 Mad WN (Cri) 64: (AIR 1942 Mad 452 (1)); State of Tripura v. Niranjan Deb Barma, 1973 Cri LJ 108 (Tripura); Apren Joseph v. State of Kerala, 1972 Mad LJ (Cri) 10: (1972 Cri LJ 1162) (Ker). As against these decisions, there are the following decisions in which it has been held that acquittal on the ground of non-production of witnesses by the prosecution was proper.
17. State v. John Abraham, 1959 Mad LJ (Cri) 814: (1961 (2) Cri LJ 92 (1) (Ker)) State v. Lakshmanan, 1966 All LJ 342; Smt. Jyotirmoyee Bose v. Birendra Nath Prodhan, ; State v. Ramlal 1961 (2) Cri LJ 331 (All).
18. In the first mentioned case, State v. John Abraham, 1959 Mad LJ (Cri) 814. (1961 (2) CA LJ 92 (1) (Ker)), the case was one of theft and when the case came up for the prosecution to adduce evidence, the prosecution filed a report stating that the witnesses had refused to execute kychits and seeking orders, but there was no prayer to issue process for compelling the attendance of witnesses. The learned single Judge of the Kerala High Court repelled the argument advanced on behalf of the State that under Section 251A (7) of the Cr. P. C. 1898, the Magistrate was bound to examine all the witnesses mentioned in the police report and issue process for their appearance in case the prosecution fails to produce them and the learned Judge held that the duty of the court is only to take evidence which is ready when the case is taken up for hearing and the Magistrate is not bound to go on adjourning the case until all the witnesses mentioned in the police report are examined.
19. In State v. Lakshmanan, 1966 All LJ 342, it was held that when the witnesses were not present and did not appear when called and there was nobody on behalf of the prosecution although the Magistrate contacted the A. P. P. and also the Public Prosecutor and no request was made to the court for any assistance to procure the attendance of the witnesses, it was held that the Magistrate could not be said to have acted illegally if he closed the case and acquitted the accused.
20. In Smt. Jyotirmoyee Bose v. Birendra Nath Prodhan, , a Division Bench of the Calcutta High Court observed that sub-see. (6) of Section 251A, Cr. P. C., 1898, does not enjoin upon the Magistrate any duty to compel the attendance of any witness unless it was applied for and in a case tried under Section 251A, Cr. P. C. the Magistrate is not compelled as he is if the case is tried as a warrant case instituted other than on a police report, to proceed in terms of Sections 256 and 257 of the Code.
21. In State v. Ramlal, (1961) 2 CA LJ 331, a single Judge of the Allahabad High Court observed as follows-
"S. 252, Cr. P. C. imposes a duty upon the Magistrate to ascertain the names of the witnesses who can give evidence on the relevant points and to summon those witnesses in evidence. But, by providing an entirely new procedure, under Section 251-A, Cr. P. C., 1898 in cases instituted by the police, the Legislature has deliberately departed from that procedure and in the new procedure has made no provision for summoning of the prosecution witnesses. There is therefore no authority in law for the proposition that the Public Prosecutor can make an application for summoning of prosecution witnesses and in such a case the Magistrate is bound to summon those witnesses........ The whole object of the section appears to have been that the police should be prepared to produce its witnesses when the case is called upon for hearing and it should not be permitted to take shelter behind the absence of witnesses on account of want of summons by the court".
It may be noted that in the old Criminal Procedure Code, before the amendment of 1973, and Section 251A which dealt with the trial of warrant cases instituted on police report there was no provision whereby the Magistrate on the application of the prosecution could issue summons to any of its witnesses directing him to attend or produce any documents or other thing. In the present Code, there is such a provision in Section 242(2) in regard to the trial of warrant cases instituted on a police report and in Section 254(2) in regard to the trial of summons cases. Therefore the aforesaid four decisions would no longer be good law.
22. In almost all the decisions in which it has been held that an acquittal of the accused on the ground that the prosecution did not produce the witness was improper, the courts have pointed out that the duty to summon the witnesses in the course of the trial is that of the Magistrate or the Court concerned, and that the entire responsibility of production of witnesses cannot be saddled on the prosecution and a duty is also imposed upon the Court for enforcing the attendance of witnesses by the processes provided in the Code and it in the duty of the court to issue coercive processes if in spite of summons served an the witnesses they do not appear before the court and the prosecution f , ails to produce the witnesses as directed, We are in respectful agreement with that view in so far as it emphasises the duty of the Magistrate or the court. In some of those decisions it has been held that finding the accused not guilty implies that the court has applied its mind to the merits of the case after recording evidence and then only has found him not guilty. (Vide State of Mysore v. Kalilullah Ahmed Sheriff, AIR 1971 Mys 60 and State of Gujarat v. Thaker Bhai Sikhabi, ; State of Rajasthan v. Mukhtiar Singh, (1965) 2 Cri LJ 835 (Raj); State of Mysore v. Somala, 1972 Mad LJ (Cri) 476: (1972 Cri LJ 1478 (Mys)); K. K. Subbier v. Lakshmana Iyer, 1942 Mad WN (Cri) 64: (AIR 1942 Mad 452, (l)) and State v. Nagappa, 1973 Cri LJ 548 (Mad)). We are not however able to subscribe to that view. No doubt, there is no specific provision in either the relevant sections of Chapter XIX which deal with the trial of warrant cases instituted on the police reports by Magistrates or Chapter XX relating to the trial of summons cases instituted on police report, for acquitting the accused on the ground that the prosecution had not produced its evidence. Nevertheless provisions have been made in the present Code, for summons to be issued to the witnesses on the application of the prosecution and a duty is also cast on the prosecution to produce all its evidence. Thus there is a duty cast on the court on an application by the prosecution to issue summons to the witnesses and secure the presence of witnesses by exercising all the powers conferred on it by the Code for that purpose and duty is also cost on the prosecution to produce all its evidence and to seek the assistance of the court for so doing by applying to the court for the issue of summons to the witnesses. Therefore, in our view, an acquittal of the accused merely on the ground that the prosecution had not produced the witnesses would not be proper if the court had not on an application by the prosecution discharged its duty of summoning and enforcing the attendance of witnesses. We also notice that almost all the decisions, which have held such an acquittal as improper dealt with cases in which the Magistrate had not discharged the aforesaid duty. We would also like to refer to a few other decisions, which have a bearing on this matter. The first one is the decision in Public Prosecutor v. Sambangi Mudaliar , to which we have already made a reference,
Ramakrishnan, J. held that in warrant cases where the court had already framed a charge under Section 251A, Cr. P. C, against the accused, an important duty was laid on it to see that all the powers available to the court for the examination of witnesses were exercised for a just decision of the case irrespective of the laches of the complainant. Therefore, this court had already emphasized the important duty laid on the court to see that all the powers available to the court for the examination of witnesses were exercised for a just decision of the case. Likewise, in Poban Chandra Majumdar v. Dulal Ghosh it was held that the order of acquittal was
unwarranted by law when in a case instituted on a police report, the Magistrate ordered summons to be issued to the prosecution witnesses, but after certain adjournments without taking any step for procuring the attendance of witness to whom summonses were issued he proceeded further and after examining the accused who pleaded not guilty, passed an order of acquittal. In State of Bihar v. Polomistry , it was observed by a single Judge of the Patna High Court as follows:
"Where the prosecutor in a criminal trial has himself undertaken to produce the prosecution witnesses the entire responsibility for the production of the evidence in support of the prosecution case is that of the prosecutor. But when the prosecutor has taken recourse to the agency of the Court for securing the attendance of the prosecution witnesses it is undoubtedly the duty of the Magistrate to take steps for securing the attendance of the prosecution witnesses in his court. Where, therefore, in the latter case, none of the prosecution witnesses turn up in spite of the service of the summons issued by the court on them and there are no materials to indicate that there was any reasonable cause for their failure to appear, the proper course for the Magistrate is to take necessary steps to compel the attendance of the witnesses and it is wrong on his part to proceed to acquit the accused on the footing that there in no evidence against them."
It was further observed - "It to undoubtedly the duty of the Magistrate to take steps for securing the attendance of the prosecution witnesses in his court and it cannot be held that the entire responsibility for securing the attendance of prosecution witnesses lies upon the prosecutor alone. It is only where the prosecutor finds himself unable to produce the prosecution witnesses through his own agency that he relies upon the agency of the Court for securing the attendance of the prosecution witnesses; in such an event, it is the duty of the Magistrate concerned to take all such measures as may be found necessary under the law to compel the attendance of the prosecution witnesses."
23. On the question as to whether the Magistrate can acquit an accused at all under Section 251A (11), Cr. P. C., if the prosecution failed to produce their witnesses, a Division Bench of the Gujarat High Court observed in State of Gujarat v. Bava Bhadya (1962)'2 Cri LJ 537 (2), as follows:
"Where a charge Is framed In a warrant case on police report, if owing to the failure of the prosecution to produce their witnesses and owing also to the failure of the prosecution to make full endeavour to serve the summonses according to the provisions contained in Sections 69, 70 and 71, Cr. P. C., 1890, there is no evidence before the Magistrate, the Magistrate can acquit the accused under Section 251A (11)."
In State of Karnataka v. Subramania Setti 1980 Mad LJ 138: (1980 CA LJ NOC 129), a Division Bench of the Karnataka High Court referring to the decisions in State of Mysore v. Narasimha Gowda (1964) 2 Mys LJ 241: (AIR 1965 Mys 167) and the State of Mysore v. Abdul Hameed Khan(1969) 1 Mys LJ 4: (1970 Cri LJ 112 (Mys)), observed that the real distinction between the two decisions is as to whether there was remissness and want of diligence on the part of the prosecuting agency in producing the witnesses before the Court and therefore the principle laid down in Abdul Hameed Khan's case applied to the facts of the case with which the Division Bench was concerned. We may riots here that in Abdul Hameed Khan's case, it was found on the facts that the prosecution was not at all diligent as the non-bailable warrants issued to the witnesses had neither been served nor returned to the court by the concerned police and it was therefore held that where the prosecution was not diligent in producing its witnesses and had failed to serve the bailable warrants on the witnesses and return the same the Magistrate would be justified in refusing to grant an adjournment and to proceed to acquit the accused on the material on record. We may note here that in State of Karnataka v. Subramania Setti 1980 MLJ 138 the Division Bench was dealing with a summons case instituted on a police report.
24. 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 Criminal Procedural Code 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 Criminal Procedure Code, 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 Section 248, Cr. P. C., in the case of warrant cases instituted on a police report and under Section 255(1), Cr. P. C. in summons cases, and we answer the two questions referred to us in the above terms.
25. Coming now to these appeals, we might note here that the offences with which the respondents-accused have been charged are offences under Sec. 4 (1) (b) of the Tamil Nadu Prohibition Act, and those prosecutions were launched nearly four years ago. Furthermore the prosecution had not, in spite of notices, attempted to produce the witnesses and in fact were quite non-cooperative in their attitude. In view of those circumstances, while pointing out that the acquittal of the respondents accused in the circumstances of these cases is not proper, inasmuch as the court had not discharged its duty as indicated by us as above, we do not want to interfere with that acquittal at this length of time and hence we dismiss these appeals.
26. Order accordingly.
JUDGMENT
Paul, J
1. These appeals, which have been preferred by the State represented by the learned. Public Prosecutor against the orders of the learned Judicial Second Class Magistrate of Namakkal acquitting the respondent-accused in each case of an offence punishable under Section 4(1)(b) of the Tamil Nadu Prohibition Act are before us, inasmuch as on a reference by one of us, before whom the appeals originally came up for hearing, the matter has been placed before this Full Bench since the matter involved a question of law of public importance, in regard to which question of law there have been divergent views of various High Courts.
2. Of the two questions which have been referred to this Full Bench, the first one, namely, whether under Section 255(1) Cr. P. C., a Magistrate can acquit the accused if the prosecution fails to apply for the issue of summons to any witness and does not produce the witness for several hearings and does not serve summons on the witnesses despite having been granted sufficient opportunity to serve the summons or to produce the witnesses, is the one that directly arises for determination in these appeals. The second question which arises for determination by us incidentally is whether a Magistrate can acquit the accused under Section 248(1) Cr. P. C., if the prosecution does not apply for the issue of summons to any of the witnesses and does not produce the witness for several hearings and does not serve the summons on the witnesses despite having been granted sufficient opportunities to serve the summons on the witnesses or to produce the witnesses.
3. In all these appeals, the learned Magistrate acquitted the accused under Section 255(1) Cr. P. C., on the ground that even though the cases had been posted for hearing on various dates and summons had been issued to the witnesses for all the hearings, the witnesses were not produced on any of the hearing dates and in spite of a notice issued that the case would be disposed of without examining the witnesses if they are not produced the prosecution did not choose to let in any evidence and as such the Magistrate found that the prosecution had no evidence to let in.
4. Section 81 Cr. P. C. 1861, the Magistrate to issue a warrant.
5. We shall first examine the provisions of the Criminal Procedure Code of 1973, which have relevance to this matter.
6. Section 255(1), Cr. P. C., under which the accused have been acquitted in these cases states as follows:
"If the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal".
Section 254, Cr. P. C., states as follows:
"(1) If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
(2) The Magistrate may if, he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in court.
7. It will be noticed that under subsection (1) of Section 254, the Magistrate is enjoined to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. It was to be noted that under that sub-section a duty is cast on the prosecution to produce its evidence and likewise on the accused to produce evidence in his defence, sub-section (2) of Section 254 makes provision for the production or the accused to seek the assistance of the court in producing its or his evidence by applying for issue of summons to any witness directing him to attend or to produce any document or other thing. It may also be noted that this sub-section gives discretion to the Magistrate to so issue summons on the application of the prosecution or the accused by using the words 'the Magistrate may if he thinks fit'. Thus an emphasis is placed by Section 254 on the duty of the prosecution or the accused to produce all evidence in support of its case or his defence.
8. Section 255(1) makes provision for the Magistrate upon taking the evidence referred to in Section 254 to take such further evidence, if any, as he may of his own motion cause to be produced. Under Section 255(1) a Magistrate can record an order of acquittal if he finds the accused not guilty upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may of his own motion cause to be produced. Section 244 Cr. P. C. of 1898, (corresponding to Section 254 of the Code of 1973), as it was in force before the Criminal Procedure Code of 1973 came into effect, also contained similar provisions.
9. Section 258 Cr. P. C., 1973, which is analogous to Section 249 of the Cr. P. C. of 1898, reads as follows:-
"In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release the accused, and such release shall have the effect of discharge".
In all the cases now before us, the Magistrate could have very well resorted to this section. But, instead, he has acquitted the accused under Section 255(1) Cr. P. C. and it is this acquittal which has been challenged by the State in these appeals on the ground that the Magistrate cannot acquit the accused under Section 255(f) Cr. P. C., when he has not taken the evidence referred to in Section 254 Cr. P. C.
10. We shall also now examine the provisions relating to the trial of warrant cases instituted on a police report. We might note here that the cases now before us are summons cases, but in order to answer the question No. 2, referred to us in the reference, it is necessary to examine the position regarding the trial of warrant cases instituted on a police report, for those provisions also help to throw light on the first question which has been referred to us and which relates to summons cases. Under Section 240, if upon consideration of the Police report and the documents sent with it under Section 173, and examination of the accused, if any, as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence tribal under Chapter XIX which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. Under Section 242 Cr. P. C., 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, on his plea of guilt the Magistrate should fix a date for examination of the witnesses and the Magistrate may on the application of the prosecution issue summons to any of its witnesses directing him to attend or to produce any document or other thing and on the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. Section 243 states that the accused shall then be called upon to enter upon his defence and produce his evidence, and if the accused puts in any written statement, the Magistrate shall file it with the record, and if the accused after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination or the production of the document or other things, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such grounds shall be recorded by him in writing.
It might be noted that as in Sec. 254 Cr. P. C., relating to the trial of summons cases, the Magistrate even in warrant cases instituted on a police report is enjoined by sub-section (3) of Sec. 242 to take all such evidence as may be produced in support of the prosecution and a provision has been made in subsection (2) of Section 242, for the issue of summons to any witness directing him to attend or produce any document or other thing on the application of the prosecution. It may, however, be noted that while under Section 254(2) the Magistrate 'may if he thinks fit' issue such summons under Section 242, the Magistrate 'may issue' such summons. Apparently, the words 'if he thinks fit' have been included in Section 254(2) in summons cases in order to give the Magistrate the power to refuse to issue such summons if he thinks it proper to do so. The words 'if he thinks fit in sub-section (2) of Section 254, further indicate that the Magistrate has to apply his mind when an application is made by the prosecution or the accused to issue such summons. Therefore, even in regard to warrant cases instituted on police report a duty is cast on the Magistrate to take all evidence that may be produced by the prosecution as well as a duty to facilitate the production of evidence by the prosecution, by issuing summons to witnesses on the application of the prosecution and likewise a duty has also been cast on the prosecution to produce all evidence in support of its case. Since both in Section 254(1) as well as in Section 242(3), the words as may be produced in support of the prosecution' have been used it is necessary for us to examine the connotation of the words 'as may be produced'.
11. In State of Orissa v. Sibcharan Singh, AIR 1962 Orissa 157, it has been observed as follows: (Head-note):
"The word 'produced' in sub-section (7) of Section 251 (a) Cr. P. C., 1898 and analogous to Section 242(3) cannot be given any restricted meaning as to saddle the prosecution with the entire responsibility of producing the evidence. A duty also is cast upon the courts for enforcing attendance of witnesses by the process provided in the Criminal Procedure Code. The courts are not therefore absolutely powerless when the parties fail to produce evidence relevant in a case".
In State v. Nandkishore, , it has been observed as
follows (Head-note):
"The word 'produced' in sub-sec. (7) includes the bringing forward of the witnesses by the prosecution at its own instance or through the process of the court whom it desires to examine at trial. Besides in the administration of criminal justice a duty is cast upon the court to arrive at the truth by all lawful means though the primary responsibility of prosecuting cognizable offence is on the executive authorities".
We are in respectful agreement with the aforesaid observations of the Orissa and the Rajasthan High Courts. The Rajasthan High Court went on to point out that the Magistrate should not feel himself helpless in such situations and should exercise his inherent powers under Section 540 to summon such witnesses as he thinks necessary for the ends of justice. If the prosecution by its negligence or otherwise fails to discharge its responsibility in producing witnesses, it is incumbent on the court to examine such witnesses as it considers necessary in the ends of justice.
12. Section 510 Cr. P. C. 1898, states as follow:
"Any Court may at any stage of enquiry, trial or other proceeding under this Code summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the court shall summon and examine or recall and examine any such person if his evidence appears to it essential to the just decision of the case".
The analogous and corresponding provision in the present Code of Criminal procedure is Section 311. Thus the court cannot absolve itself of its responsibility to summon and examine all witnesses whose evidence appears to it to be essential to a just decision of the case, merely because the prosecution does not produce such witnesses owing to its negligence or otherwise. It being clear that it is the duty of the Magistrate to issue summons and secure the presence of witnesses and examine them, when the prosecution seeks the court's assistance by means of an application, the Court is further obliged in discharge of its duty to arrive at the truth by all lawful means in furtherance of the administration of criminal justice to suo motu take all steps to secure the presence of witnesses where evidence appears to it to be essential to a just decision of the case.
13. We shall now proceed to indicate the powers which the Magistrate could exercise and the steps he could take under the Criminal Procedure Code in the matter of securing the presence of witnesses. Section 62 Cr. P. C., reads as follows:
"(1) Every summons shall be served by a police officer or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant".
Section 64 states "where the person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him and the person with whom the summons is so left shall if so required by the serving officer sign a receipt therefore on the back of the other duplicate".
Section 65 Cr. P. C., states -
"If service cannot by the exercise of due diligence be effected as provided in Section 62, Section 63 or Section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house of homestead in which the person summoned ordinarily resides and thereupon the court after making such enquiries as it thinks fit may either declare that the summons has been duly served or order fresh service in such manner as it considers proper".
Section 69, which makes provision for service of summons on witnesses by post reads as follows: -
"(1) Notwithstanding anything contained in the preceding sections of this Chapter, a court issuing a summons to a witness may in addition to and simultaneously with the issue of fresh summons direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.
(2) Where an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received the court issuing the summons may declare that the summons has been duly served".
This provision is a new one incorporated in the Criminal Procedure Code of 1973 and was not in the old Criminal Procedure Code. This provision, in our experience, has not been resorted to by any Magistrate as far as we know. Of course, it is not practicable to adopt this procedure in every case, for it would result in heavy expenditure to the State. Nevertheless, where summons issued has not been served on the witness by a police officer under Section 62, repeatedly, the Magistrate may resort to this provision of issuing the summons and sending it by registered post to the witness. Of course, if after due service, the witness does not appear before the Court, the Court should issue coercive processes for securing the presence of the witness before the court. In suitable cases, or in cases of chronic or persistent failure to appear in response to the summons, a complaint can be laid under Section 174 I. P. C. Then again, the explanation (2) in Section 309 Cr. P. C., also can be made use of in suitable cases by the Magistrate, for that explanation states 'the terms on which an adjournment or postponement may be granted include in appropriate cases the payment of costs by the prosecution or accused'. We might also note here that no rules have been framed by the State Government under Section 62 Cr. P. C. Therefore, as it is, there appears to us to be no bar to the serving of summons by an officer of the court or other public servant.
14. The next question that would arise is whether even after having recourse to the above provisions, the Magistrate is not able to secure the presence of the witnesses and the prosecution on its part, even after having been given several opportunities, fails to serve the summons on the witnesses or to produce them, the Magistrate would be justified in acquitting the accused either under Section 255(1) Cr. P. C., in summons cases or under Section 248(1), Cr. P. C. in warrant cases.
15. In State of Madh. Pra. v. Kaluthawar, 1972 Cri LJ 1639, a Division Bench of the Madhya Pradesh High Court observed as follows:
"It was the duty of the prosecution to make necessary arrangements for the production of its witnesses.... The Police must always remember that it has got a duty to the court and they cannot just send a challan and think that the rest will be done by the court. When nobody appeared in t he court to inform what the reason was for non-appearance of the witnesses, the court could legitimately come to the conclusion that the police was not very serious in prosecuting the offence which was a minor one. Under Section 245, the Magistrate can record an order of acquittal if there is no evidence to hold the accused guilty. If the prosecution did not take proper steps to produce the witnesses, or ask the court to give them time to do the same, or to issue fresh summons, the court was not bound to fix another date. The police has a duty towards the citizen. When the accused is brought before the court and the prosecuting department does not take any steps it will be an abuse of the process of the court to continue the trial. Bringing a person before the court accusing him of some offence is a serious matter and however petty the offence may be, the prosecuting department, must do its duty towards the accused as well as the court. When once the accused is challaned there is no privilege given to the police to remain absent".
In that case the accused was prosecuted under Section 34 of the Police Act. The case was to be tried according to the procedure prescribed in the Criminal Procedure Code, 1898, for the trial of summons cases, that is, under Section 244 Cr. P. C. of 1898. The case was posted to a particular date for recording evidence and earlier at the instance of the prosecution summons had been issued to the prosecution witnesses, but on the date of hearing the witnesses did not turn up and the learned Magistrate forth with passed an order of acquittal, aggrieved by which an appeal against acquittal was preferred by the State which appeal was eventually dismissed by the Division Bench of the Madhya Pradesh High Court with the above observations. That was an extreme case.
16. There are quite a number of decisions in which it had been held that an acquittal of the accused on the failure of the prosecution to produce the witnesses is not legal. (Vide State v. Kaliram Nandlal, ), the State of Mysore v. Ramu, 1973 Mad LJ (Crl.)
116: (1973 Cri LJ 1257) (Mys); State of Mysore v. Kalilulla Ahmed Sheriff. AIR 1971 Mys 60; Kanduri Misra v. Sabadev Kunda, (1962) 2 Cri LJ 295; State of Orissa v. Sibcharan Singh, ; State of Mysore v. Somala, 1972 Mad LJ (Cri) 476: (1972 Cri LJ 1478) (Mys); State of Mysore v. Shanta,1972 Mad LJ (Cri) 589 (Mys); State v. Nagappa, 1973 Cri LJ 548 (Mad); Public Prosecutor v. Sambangi Mudaliar, ; State of Kerala v. Kunhiaraman, 1964 Mad LJ (Cri)
330 (Ker); State of Mysore v. Narasimha Gowda, AIR 1965 Mys 167; State of Gujarat v. Thakorbhai Sukhabhai, , State of U.P. v. Ramjani, All LJ 1126; Lakshmiamma Kochukuttiamma v. Raman Pillai, AIR 1952 Trav-Co 268; State v. Madhavan Nair, 1959 Mad LJ (Cri) 633 (Ker); Emperor v. Varadarajulu Naidu, AIR 1932 Mad 25 (2); State of Kerala v. Desan Mary, 1960 Mad LJ (Cri) 378 (Ker); Kesar Singh v. State of Jammu and Kashmir, 1963-1 Cri LJ 765: (AIR 1963 J & K 23); R. K. V. Motors and Timbers Ltd. v. Regional Transport Authority, Trivandrum, ; K. K. Subbier v. K. M. S. Lakshmana Iyer, 1942 Mad WN (Cri) 64: (AIR 1942 Mad 452 (1)); State of Tripura v. Niranjan Deb Barma, 1973 Cri LJ 108 (Tripura); Apren Joseph v. State of Kerala, 1972 Mad LJ (Cri) 10: (1972 Cri LJ 1162) (Ker). As against these decisions, there are the following decisions in which it has been held that acquittal on the ground of non-production of witnesses by the prosecution was proper.
17. State v. John Abraham, 1959 Mad LJ (Cri) 814: (1961 (2) Cri LJ 92 (1) (Ker)) State v. Lakshmanan, 1966 All LJ 342; Smt. Jyotirmoyee Bose v. Birendra Nath Prodhan, ; State v. Ramlal 1961 (2) Cri LJ 331 (All).
18. In the first mentioned case, State v. John Abraham, 1959 Mad LJ (Cri) 814. (1961 (2) CA LJ 92 (1) (Ker)), the case was one of theft and when the case came up for the prosecution to adduce evidence, the prosecution filed a report stating that the witnesses had refused to execute kychits and seeking orders, but there was no prayer to issue process for compelling the attendance of witnesses. The learned single Judge of the Kerala High Court repelled the argument advanced on behalf of the State that under Section 251A (7) of the Cr. P. C. 1898, the Magistrate was bound to examine all the witnesses mentioned in the police report and issue process for their appearance in case the prosecution fails to produce them and the learned Judge held that the duty of the court is only to take evidence which is ready when the case is taken up for hearing and the Magistrate is not bound to go on adjourning the case until all the witnesses mentioned in the police report are examined.
19. In State v. Lakshmanan, 1966 All LJ 342, it was held that when the witnesses were not present and did not appear when called and there was nobody on behalf of the prosecution although the Magistrate contacted the A. P. P. and also the Public Prosecutor and no request was made to the court for any assistance to procure the attendance of the witnesses, it was held that the Magistrate could not be said to have acted illegally if he closed the case and acquitted the accused.
20. In Smt. Jyotirmoyee Bose v. Birendra Nath Prodhan, , a Division Bench of the Calcutta High Court observed that sub-see. (6) of Section 251A, Cr. P. C., 1898, does not enjoin upon the Magistrate any duty to compel the attendance of any witness unless it was applied for and in a case tried under Section 251A, Cr. P. C. the Magistrate is not compelled as he is if the case is tried as a warrant case instituted other than on a police report, to proceed in terms of Sections 256 and 257 of the Code.
21. In State v. Ramlal, (1961) 2 CA LJ 331, a single Judge of the Allahabad High Court observed as follows-
"S. 252, Cr. P. C. imposes a duty upon the Magistrate to ascertain the names of the witnesses who can give evidence on the relevant points and to summon those witnesses in evidence. But, by providing an entirely new procedure, under Section 251-A, Cr. P. C., 1898 in cases instituted by the police, the Legislature has deliberately departed from that procedure and in the new procedure has made no provision for summoning of the prosecution witnesses. There is therefore no authority in law for the proposition that the Public Prosecutor can make an application for summoning of prosecution witnesses and in such a case the Magistrate is bound to summon those witnesses........ The whole object of the section appears to have been that the police should be prepared to produce its witnesses when the case is called upon for hearing and it should not be permitted to take shelter behind the absence of witnesses on account of want of summons by the court".
It may be noted that in the old Criminal Procedure Code, before the amendment of 1973, and Section 251A which dealt with the trial of warrant cases instituted on police report there was no provision whereby the Magistrate on the application of the prosecution could issue summons to any of its witnesses directing him to attend or produce any documents or other thing. In the present Code, there is such a provision in Section 242(2) in regard to the trial of warrant cases instituted on a police report and in Section 254(2) in regard to the trial of summons cases. Therefore the aforesaid four decisions would no longer be good law.
22. In almost all the decisions in which it has been held that an acquittal of the accused on the ground that the prosecution did not produce the witness was improper, the courts have pointed out that the duty to summon the witnesses in the course of the trial is that of the Magistrate or the Court concerned, and that the entire responsibility of production of witnesses cannot be saddled on the prosecution and a duty is also imposed upon the Court for enforcing the attendance of witnesses by the processes provided in the Code and it in the duty of the court to issue coercive processes if in spite of summons served an the witnesses they do not appear before the court and the prosecution f , ails to produce the witnesses as directed, We are in respectful agreement with that view in so far as it emphasises the duty of the Magistrate or the court. In some of those decisions it has been held that finding the accused not guilty implies that the court has applied its mind to the merits of the case after recording evidence and then only has found him not guilty. (Vide State of Mysore v. Kalilullah Ahmed Sheriff, AIR 1971 Mys 60 and State of Gujarat v. Thaker Bhai Sikhabi, ; State of Rajasthan v. Mukhtiar Singh, (1965) 2 Cri LJ 835 (Raj); State of Mysore v. Somala, 1972 Mad LJ (Cri) 476: (1972 Cri LJ 1478 (Mys)); K. K. Subbier v. Lakshmana Iyer, 1942 Mad WN (Cri) 64: (AIR 1942 Mad 452, (l)) and State v. Nagappa, 1973 Cri LJ 548 (Mad)). We are not however able to subscribe to that view. No doubt, there is no specific provision in either the relevant sections of Chapter XIX which deal with the trial of warrant cases instituted on the police reports by Magistrates or Chapter XX relating to the trial of summons cases instituted on police report, for acquitting the accused on the ground that the prosecution had not produced its evidence. Nevertheless provisions have been made in the present Code, for summons to be issued to the witnesses on the application of the prosecution and a duty is also cast on the prosecution to produce all its evidence. Thus there is a duty cast on the court on an application by the prosecution to issue summons to the witnesses and secure the presence of witnesses by exercising all the powers conferred on it by the Code for that purpose and duty is also cost on the prosecution to produce all its evidence and to seek the assistance of the court for so doing by applying to the court for the issue of summons to the witnesses. Therefore, in our view, an acquittal of the accused merely on the ground that the prosecution had not produced the witnesses would not be proper if the court had not on an application by the prosecution discharged its duty of summoning and enforcing the attendance of witnesses. We also notice that almost all the decisions, which have held such an acquittal as improper dealt with cases in which the Magistrate had not discharged the aforesaid duty. We would also like to refer to a few other decisions, which have a bearing on this matter. The first one is the decision in Public Prosecutor v. Sambangi Mudaliar , to which we have already made a reference,
Ramakrishnan, J. held that in warrant cases where the court had already framed a charge under Section 251A, Cr. P. C, against the accused, an important duty was laid on it to see that all the powers available to the court for the examination of witnesses were exercised for a just decision of the case irrespective of the laches of the complainant. Therefore, this court had already emphasized the important duty laid on the court to see that all the powers available to the court for the examination of witnesses were exercised for a just decision of the case. Likewise, in Poban Chandra Majumdar v. Dulal Ghosh it was held that the order of acquittal was
unwarranted by law when in a case instituted on a police report, the Magistrate ordered summons to be issued to the prosecution witnesses, but after certain adjournments without taking any step for procuring the attendance of witness to whom summonses were issued he proceeded further and after examining the accused who pleaded not guilty, passed an order of acquittal. In State of Bihar v. Polomistry , it was observed by a single Judge of the Patna High Court as follows:
"Where the prosecutor in a criminal trial has himself undertaken to produce the prosecution witnesses the entire responsibility for the production of the evidence in support of the prosecution case is that of the prosecutor. But when the prosecutor has taken recourse to the agency of the Court for securing the attendance of the prosecution witnesses it is undoubtedly the duty of the Magistrate to take steps for securing the attendance of the prosecution witnesses in his court. Where, therefore, in the latter case, none of the prosecution witnesses turn up in spite of the service of the summons issued by the court on them and there are no materials to indicate that there was any reasonable cause for their failure to appear, the proper course for the Magistrate is to take necessary steps to compel the attendance of the witnesses and it is wrong on his part to proceed to acquit the accused on the footing that there in no evidence against them."
It was further observed - "It to undoubtedly the duty of the Magistrate to take steps for securing the attendance of the prosecution witnesses in his court and it cannot be held that the entire responsibility for securing the attendance of prosecution witnesses lies upon the prosecutor alone. It is only where the prosecutor finds himself unable to produce the prosecution witnesses through his own agency that he relies upon the agency of the Court for securing the attendance of the prosecution witnesses; in such an event, it is the duty of the Magistrate concerned to take all such measures as may be found necessary under the law to compel the attendance of the prosecution witnesses."
23. On the question as to whether the Magistrate can acquit an accused at all under Section 251A (11), Cr. P. C., if the prosecution failed to produce their witnesses, a Division Bench of the Gujarat High Court observed in State of Gujarat v. Bava Bhadya (1962)'2 Cri LJ 537 (2), as follows:
"Where a charge Is framed In a warrant case on police report, if owing to the failure of the prosecution to produce their witnesses and owing also to the failure of the prosecution to make full endeavour to serve the summonses according to the provisions contained in Sections 69, 70 and 71, Cr. P. C., 1890, there is no evidence before the Magistrate, the Magistrate can acquit the accused under Section 251A (11)."
In State of Karnataka v. Subramania Setti 1980 Mad LJ 138: (1980 CA LJ NOC 129), a Division Bench of the Karnataka High Court referring to the decisions in State of Mysore v. Narasimha Gowda (1964) 2 Mys LJ 241: (AIR 1965 Mys 167) and the State of Mysore v. Abdul Hameed Khan(1969) 1 Mys LJ 4: (1970 Cri LJ 112 (Mys)), observed that the real distinction between the two decisions is as to whether there was remissness and want of diligence on the part of the prosecuting agency in producing the witnesses before the Court and therefore the principle laid down in Abdul Hameed Khan's case applied to the facts of the case with which the Division Bench was concerned. We may riots here that in Abdul Hameed Khan's case, it was found on the facts that the prosecution was not at all diligent as the non-bailable warrants issued to the witnesses had neither been served nor returned to the court by the concerned police and it was therefore held that where the prosecution was not diligent in producing its witnesses and had failed to serve the bailable warrants on the witnesses and return the same the Magistrate would be justified in refusing to grant an adjournment and to proceed to acquit the accused on the material on record. We may note here that in State of Karnataka v. Subramania Setti 1980 MLJ 138 the Division Bench was dealing with a summons case instituted on a police report.
24. 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 Criminal Procedural Code 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 Criminal Procedure Code, 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 Section 248, Cr. P. C., in the case of warrant cases instituted on a police report and under Section 255(1), Cr. P. C. in summons cases, and we answer the two questions referred to us in the above terms.
25. Coming now to these appeals, we might note here that the offences with which the respondents-accused have been charged are offences under Sec. 4 (1) (b) of the Tamil Nadu Prohibition Act, and those prosecutions were launched nearly four years ago. Furthermore the prosecution had not, in spite of notices, attempted to produce the witnesses and in fact were quite non-cooperative in their attitude. In view of those circumstances, while pointing out that the acquittal of the respondents accused in the circumstances of these cases is not proper, inasmuch as the court had not discharged its duty as indicated by us as above, we do not want to interfere with that acquittal at this length of time and hence we dismiss these appeals.
26. Order accordingly.
4)
SUPREME COURT REQUESTS GOVERNMENT TO CONSIDER THE MERCY PETITIONS EARLY
with one comment
Excerpts from Criminal Appeal No.338/2007
In T.V.Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC 68 and Ediga Anamma vs. State of Andhra Pradesh (1974) 4 SCC 443 it has been held that a delay of two years was permissible beyond which the sentence ought to be converted to life. In Bhagwan Bux Singh & Anr. vs. The State of U.P. (1978) 1 SCC 214 similar observations were made with respect to a delay of two and a half years and in Sadhu Singh vs. State of U.P. (1978) 4 SCC 428 to a delay of three and a half years. We find, however, that as per the latest position in law, no hard and fast rules can be laid down with respect to the delay which could result as a mitigating circumstance, and each case must depend on its own facts. We have in this connection gone through the judgment in Vivian Rodrick vs. The State of West Bengal (1971) 1 SCC 468 and this is what the Court had to say:
“It seems to us that the extremely excessive delay in the disposal of the case of the appellant would by itself be sufficient for imposing a lesser sentence of imprisonment for life under Section 302. Section 302, IPC prescribes two alternate sentences, namely, death sentence or imprisonment for life, and when there has been inordinate delay in the disposal of the appeal by the High Court it seems to us that it is a relevant factor for the High Court to take into consideration for imposing the lesser sentence. In this particularcase, as pointed out above, the appellant was committed to trial by the Presidency Magistrate
as early as July 31, 1963, and he was convicted by the Trial Judge on September 4, 1964. It is now January 1971, and the appellant has been
for more than six years under the fear of sentence of death. This must have caused him unimaginable mental agony. In our opinion, it would be inhuman to make him suffer till the Government decides the matter on a mercy petition. We consider that this now a fit case for awarding the sentence of imprisonment for life. Accordingly, we accept the appeal, set aside the order of the High Court awarding death sentence and award a sentence of imprisonment for life. The sentences under Section 148,IPC
and Section 5 of the Explosive Substances Act and under Section 302, IPC, shall run concurrently.”
Likewise in State of U.P. vs. Sahai & Ors. (1982) 1 SCC 352 which pertained to a murder of four persons in a particular ghastly manner, it observed as under :
“The next question that remains is as to the sentences to be imposed on the respondents. Although the Sessions Judge had given all the respondents, excepting Sahai, sentences of life imprisonment under Section 302 read with Section 149 of the Indian Penal Code, he had passed the sentence of death on Sahai because he alone had shot dead three of the deceased persons. The occurrence took place sometime in December 1972, and more than eight years have elapsed since. The accused had been convicted by the Sessions Court but acquitted by the High Court. The present appeal has been pending for five years. Having regard to the reasons given above, therefore, we feel that although the murders committed by Sahai were extremely gruesome, brutal and dastardly, yet the extreme penalty of death is not called for in the circumstances of this particular case.”
It is true that in some of the cases referred to above, a delay beyond two or three years has been said to be excessive but in Sher Singh vs. State of Punjab (1983) 2 SCC 344, this Court while agreeing with the broad proposition with regard to the delay in death penalty cases, declined to accept the outer time limit of two years for the execution of a death sentence, failing which it would be incumbent on the court to commute it to life but at the same time had some very pertinent observations to make. We reproduce some of them herein below:
“But we must hasten to add that this Court has not taken the narrow view that thejurisdiction to interfere with a death sentence can be exercised only in an appeal against the judgment of conviction and sentence. The question which arises in such appeals is whether the extreme penalty provided by law is called for in the circumstances of the case. The question which arises in proceedings such as those before us is whether, even if the death sentence was the only appropriate sentence to
impose in the case and was therefore imposed. It will be harsh and unjust to execute that sentence by reason of supervening events. In very recent times, the sentence of death has been commuted to life imprisonment by this Court in quite a few cases for the reason, inter alia, that the prisoner was under the spectre of the sentence of death for an unduly long time after the final confirmation of that sentence, consequence upon the dismissal of the prisoner’s special leave petition or appeal by this Court.” and further
“The prolonged anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional, and physical integrity and health of the individual can render the decision to execute the sentence of death an inhuman and degrading punishment in the circumstances of a given case.”
“Death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land. We do not, all of us, share the views of every one of us. And that is natural because, every one of us has his own philosophy of law and life, moulded and conditioned by his own assessment of the performance and potentials of law and the garnered experiences of life. But the decisions rendered by this Court after a full debate have to be accepted without mental reservations until they are set aside.”
The Bench also relied on a sociological study “Condemned to Die, Life Under Sentence of Death” by Robert Johnson which we too have found appropriate to quote to complete the narrative :
“Death row is barren and uninviting. The death row inmate must contend with a segregated environment marked by immobility, reduced stimulation, and the prospect of harassment by staff. There is also the risk that visits from loved ones will become increasingly rate, for the man who is “civilly dead” is bandoned by the living. The condemned prisoner’s ordeal is usually a lonely one and must be met largely through his own resources. The uncertainties of his case – pending appeals, unanswered bids for commutation, possible changes in the law – may aggravate adjustment problems. A continuing and pressing concern is whether one will join the substantial minority who obtain a reprieve or will be counted among the to-be-dead. Uncertainty may make the dilemma of the death row inmate more complicated than simply choosing between maintaining hope or surrendering to despair. The condemned can afford neither alternative, but must nurture both a desire to life and an acceptance of imminent death. As revealed in the suffering of terminally ill patients, this is an extremely difficult task, one in which resources afforded by family or those within the institutional context may prove critical to the persons’s adjustment. The death row inmate must achieve equilibrium with few coping supports. In the process, he must somehow maintain his dignity and integrity. Death row is a prison within a prison, physically and socially isolated from the prison community and the outside world. Condemned prisoners life twenty-three and one-half hours alone in their cells…..”
The Court concluded with the following significant observations :
“A prisoner who has experienced living death for years on end is therefore entitled to invoke the jurisdiction of this Court for examining the question whether, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed. That is the true implication of Article 21 of the Constitution and to that extent, we express our broad and respectful agreement with our learned Brethren in their visualisation of the meaning of that Article.
The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our
Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable.”
The judgments rendered aforesaid have thrown model underlying philosophy of the aforesaid judgments has already indicated above stem out not only from Article 21 of the Constitution but from the judgments rendered by the 8th Amendment in the US Constitution ratifying way back in 1791 which provide that no cruel and unusual punishment shall be inflicted. While construing this provision, the Court of the Magistrates while observing that the Eight Amendment does not prohibit capital punishment did indicate that as pending execution had it dehumanizing effect and lengthy imprisonment prior to execution and the judicial and administrative procedures essential to the due process of law are carried
out. Penologists and medical experts agreed that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture. Relying on Coleman vs. Balkcom, 451 U.S. 949, 952 (1981) observed that “the deterrent value of incarceration during that period of uncertainty may well be comparable
to the consequences of the ultimate step itself” and when the death penalty “ceases realistically to further these purposes,…..its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” The Courts have, however, drawn a distinction whereby the accused himself has been responsible for the delay by misuse of the judicial process but the time taken by the accused in pursuing legal and
constitutional remedies cannot be taken against him. The Court nevertheless cautious which we have reproduced as under:
“We must take this opportunity to impress upon the Government of India and the State Governments that petitions filed under Article 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice. Several instances can be cited, to which the record of this Court will bear testimony, in which petitions are pending before the State Governments and the Government of India for an inexplicably long period. The latest instance is to be found in Criminal Writ Petition Nos. 345-348 of 1983, from which it would appear that petitions filed under
Article 161 of the Constitution are pending before the Governor of Jammu & Kashmir for anything between five to eight years. A pernicious impression seems to be growing that whatever the courts may decide, one can always turn to the executive for defeating the verdict of the court by resorting to delaying tactics. Undoubtedly, the executive has the power, in appropriate cases, to act under the aforesaid provisions but, if we may remind, all exercise of power is pre-conditioned by the duty to be fair and quick. Delay defeats justice.”
