State v. 1. Sivasakthi @ Sakthi2. Kumaravel @ Kumar3. Sivaraman @ Sivaramakrishnan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.07.2012CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.A.No.410 of 2007State represented by,Inspector of Police,Prohibition Enforcement Wing,Gobichettipalayam,Erode District.Crime No.967 of 2004... Appellant/Complainant.. Vs ..1. Sivasakthi @ Sakthi2. Kumaravel @ Kumar3. Sivaraman @ Sivaramakrishnan .. Respondents/AccusedPrayer:- Criminal Appeal filed under Section 378 of the Code ofCriminal Procedure, against the order of acquittal dated24.01.2007 passed by the learned Judicial Magistrate No.II,Gobichettipalayam, in C.C.No.418 of 2005.For Appellant: Mr.C.Iyyapparaj, Government Advocate (Crl.Side)For RR-1 and 2: Mr.N.ManokaranFor R-3: Mr.A.Thiagarajan SC for S. Ramesh Kumar- - - - - JUDGMENTThe respondents herein are the accused 1 to 3 in C.C.No.418of 2005 on the file of the learned Judicial Magistrate No.II,Gobichettipalayam. The charges were framed against the accusedfor the offence under Section 4(1)(aaa) of Tamil NaduProhibition Act and Sections 468, 471, 485, 486 and 487 I.P.C.,for illegal possession of spurious liquors. After framing thecharges, the case was pending for more than a year as thewitnesses were not produced by the prosecution. Hence, thelearned Magistrate had passed an order on 24.01.2007 acquittingthe accused/respondents herein under Section 248 Cr.P.C.Challenging the said acquittal, the State has preferred thiscriminal appeal before this Court. https://hcservices.ecourts.gov.in/hcservices/

2.The learned Government Advocate (Crl.Side) submittedthat after the charges being framed, the learned Magistrate,without recording the evidence of the witnesses, erroneouslyacquitted all the accused under Section 248 Cr.P.C. Thoughsummons were issued on 23.12.2005 to produce the witnesses onthe subsequent dates, as List Witness No.1, who is policeofficer, was transferred from Erode to Villupuram District andalso subsequently due to some local body election, thewitnesses, who are the police officials, could not be produced.Though List Witness Nos.3 to 5 were produced before the trialCourt on 28.07.2006, as List Witness No.1 was not present,L.Ws.3 to 5 were not examined. On 18.08.2006, though L.W.2 wasproduced before the Court, due to Advocates Boycott, the trialCourt had not chosen to proceed with the trial. The learnedMagistrate had issued a warrant against L.W.1 for his non-appearance on 17.11.2006 and L.W.1 had filed a criminal revisionpetition before the learned Principal Sessions Judge, Erode, andobtained stay against the warrant issued by the learnedMagistrate. Further, on 16.12.2006, the prosecution hadproduced only List Witness Nos.7 and 9, since other witnesseswere held up in the President Bandobust duty, but thosewitnesses were not examined by the trial Court. Ultimately, thetrial Court had acquitted the accused on 24.01.2007 withoutgiving an opportunity to the prosecution to produce thewitnesses. A memo signed by the Inspector of Police, P.E.W.Gobichettipalayam, Erode, showing the particulars with hearingdates was filed.3.Mr.N.Manokaran, learned counsel appearing for therespondents 1 and 2 submitted that several details, which werementioned in the memo filed by the learned Public Prosecutor, donot find place in the docket entry of the Court records. As perthe entries made, the prosecution had not produced the witnessesbefore the trial Court. In spite of the warrant being issuedagainst List Witness No.1 by the trial Court on 17.11.2006 andthe subsequent hearings, on 08.12.2006, 16.12.2006, 03.01.2007and 24.01.2007, witnesses were not produced by the prosecution.Only in the said circumstances, the learned Magistrate hadacquitted the accused under Section 248 Cr.P.C. and suchacquittal is also permissible as per the Full Bench decision ofthis Court reported in 1980 LW (Crl.) 187 [State V. Veerappanand others]. 4.The attention of this Court is drawn by the learnedcounsel appearing for the respondents to paragraph No.22 of thesaid decision which reads as follows:-"22.After carefully considering all the aforesaiddecisions and the views expressed therein, we are ofthe view that if the prosecution had made an https://hcservices.ecourts.gov.in/hcservices/ application for the issue of summons to its witnesseseither under S.242(2) or 254(2) of the Crl.P.C., it isthe duty of the Court to issue summons to theprosecution witnesses and to secure the witnesses byexercising all the powers given to it under theCrl.P.C., as already indicated by us and if still thepresence of the witnesses could not be secured and theprosecution also either on account of pronouncednegligence or recalcitrance does not produce thewitnesses after the Court had given it sufficient timeand opportunities to do so, then the Court, being leftwith no other alternative, would be justified inacquitting the accused for want of evidence to provethe prosecution case, under S.248, Crl.P.C., in thecase of warrant cases instituted on a police report andunder S.255(1), Crl.P.C., in summons cases, and weanswer the two questions referred to us in the aboveterms."5.This Court has considered the submissions made by thelearned counsel on either side and perused the records.6.Of course, as per the Full Bench decision of thisCourt cited above, after the charges being framed, though thereis no specific provision for acquitting the accused if witnessesare not produced by the prosecution under Section 248 Cr.P.C.,for want of evidence accused may be acquitted. Prior to passingsuch an order of acquittal, what is required is that the trialCourt should have taken all effective steps to procure thewitnesses and important duty is laid on the Court to see thatall the powers available to the Court for examination of thewitnesses are exercised for just decision of the case. Anacquittal of the accused merely on the ground that theprosecution had not produced the witnesses would not be properif the Court had not discharged its duty by enforcing theattendance of the witnesses.7.In this case, though the trial was pending for aperiod of one year, according to the prosecution, List WitnessNos.3 to 5 were produced on 28.07.2006; List Witness No.2 wasproduced on 18.08.2006 and List Witness Nos.7 and 9 wereproduced before the trial Court on 16.12.2006. It appears thatas List Witness No.1, who is the main witness, was not producedbefore the Court, the trial Court has not chosen to examine theother witnesses. Of course, the docket entry do not reveal aboutproducing other witnesses before the trial Court. The orderpassed by the learned Magistrate speaks only about the lethargicattitude of the prosecution and says that though sufficient timewas given to the prosecution to produce the witnesses, thewitnesses were not produced. The order does not reveal about https://hcservices.ecourts.gov.in/hcservices/ any coercive steps taken by the Court to procure the witnesses.Therefore, it is to be observed that the trial Court also hasnot discharged its duty for procuring the witnesses. 8.Though the order passed by the learned Magistrateacquitting the accused under Section 248 Cr.P.C. is improper,now more than 7 ½ years had elapsed from the date of the allegedoccurrence and more than five years had elapsed from the date ofjudgment acquitting the accused, this Court does not want tointerfere with the order of acquittal passed by the learnedMagistrate. 9.It is also observed in paragraph No.23 of the judgmentcited above as follows:-"23.Coming now to these appeals, we might notehere that the offences with which the respondents-accused have been charged are offences under S.4(1)(b)of the Tamil Nadu Prohibition Act, and thoseprosecutions were launched nearly four years ago.Furthermore, the prosecution had not, in spite ofnotices, attempted to produce the witnesses and infact were quite non-co-operative in their attitude.In view of these circumstances, while pointing outthat the acquittal of the respondents-accused in thecircumstances of these cases is not proper, inasmuchas the Court had not discharged its duty as indicatedby us as above, we do not want to interfere with thatacquittal at this length of time and hence we dismissthese appeals."10.In view of the above reasons, this Criminal Appeal isdismissed.jrlSd/-Deputy Registrar(J)//True Copy//Sub Asst. RegistrarTo1.The Judicial Magistrate No.II, Gobichettipalayam.2.The Public Prosecutor,High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. N. Manokaran, Advocate SR No.42507+ 1 cc to Mr. S. Ramesh Kumar, Advocate SR No.42775KJI(CO)SR/6.8.2012.CRL.A.No.410 of 2007