Hon'ble Supreme Court of India observed as under, " The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under paragraph 19(1)(b) or till district Council passed laws under para 3(1)(g) … Doubtless when regulations are made….. The administrative authorities would be bound to follow the regulations so made or the laws so passed….
Non-framing of Rules does not curtail the power of the State Government to declare any area as air pollution control area by means of a notification published in the official gazette.”
Oct 16, 2010
Oct 15, 2010
State of M P Vs Kedia Leather & Liquor Ltd, AIR 2003 SC 3236
Hon'ble Supreme Court of India observed as under, " SDM of the area concerned served orders in terms of Section 133 of the Code directing the respondents who owned industrial units to close their industries on the allegation that serious pollution was created by discharge of effluent from their respective factories and thereby a public nuisance was caused. The preliminary issues and the proceedings initiated by the SDM were questioned by the respondents….
The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public….
some times there is a confusion between Section 133 and Section 144 of the Code. While the latter is more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings. One significant factor to be noticed is that person against whom action is taken is not an accused within the meaning of Section 133 of the Code. He can give evidence on his own behalf and may be examined on oath. Proceedings are not the proceedings in respect of offences….
Right to live with human dignity becomes illusory in the absence of humane and healthy environment….
There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, the intention is clearly not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another)….
The necessary questions to be asked are:
(1) Whether there is direct conflict between the two provisions.
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
(3) Whether the two laws occupy the same field. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does nothing more than giving effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions….
The Court leans against implying a repeal, “unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time”
The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public….
some times there is a confusion between Section 133 and Section 144 of the Code. While the latter is more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings. One significant factor to be noticed is that person against whom action is taken is not an accused within the meaning of Section 133 of the Code. He can give evidence on his own behalf and may be examined on oath. Proceedings are not the proceedings in respect of offences….
Right to live with human dignity becomes illusory in the absence of humane and healthy environment….
There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, the intention is clearly not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another)….
The necessary questions to be asked are:
(1) Whether there is direct conflict between the two provisions.
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
(3) Whether the two laws occupy the same field. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does nothing more than giving effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions….
The Court leans against implying a repeal, “unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time”
Oct 14, 2010
Pollution Murli S Deora Vs UOI, AIR 2002 SC 40
Hon'ble Supreme Court of India observed as under, “why should a non-smoker be afflicted by various diseases, including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously — “yes”….
Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places.”
Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places.”
Oct 13, 2010
Municipal Council, Ratlam Vs Vardichand, (1980) 4 SCC 162
Hon'ble Supreme Court of India observed as under, "The key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities ….
Had the municipal council and its executive officers spent half of this litigative zeal on cleaning up the street and constructing the drains by rousing the people’s sramdan resources and laying out the city’s limited financial resources, the people’s needs might have been largely met long ago….
So the guns of Section 133 go into action wherever there is public nuisance. The public power of the magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here. “All power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must exist.” Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise….
plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act….
under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless….
Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature’s pressure bashfulness becomes a luxury and dignity a difficult art. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights….
providing drainage systems- not pompous and attractive, but in working condition and sufficient to meet the needs of the people - cannot be evaded if the municipality is to justify its existence….
the court, armed with the provisions of the two Codes and justified by the obligation under Section 123 of the Act, must adventure into positive directions as it has done in the present case. Section 133 CrPC authorise the prescription of a time-limit for carrying out the order….
Magistrate only expected the Municipal Council and the Town. Improvement Trust to evolve a plan and to start planning about it within six months; the learned Magistrate has rightly not fixed the time-limit within which that plan will be completed….
Before us the major endeavour of the Municipal Council was to persuade us to be pragmatic and not to force impracticable orders on it since it had no wherewithal to execute the order. Of course, we agree that law is realistic and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out. From that angle it may well be that while upholding the order of the magistrate, we may be inclined to tailor the direction to make it workable. But first things first and we cannot consent to a value judgment where people’s health is a low priority. Nevertheless, we are willing to revise the order into a workable formula the implementation of which would be watch-dogged by the court….
We have no hesitation in holding that if these directions are not complied with the subDivisional Magistrate will prosecute the officers responsible. Indeed, this Court will also consider action to punish for contempt in case of report by the sub-Divisional Magistrate of wilful breach by any officer.”
Had the municipal council and its executive officers spent half of this litigative zeal on cleaning up the street and constructing the drains by rousing the people’s sramdan resources and laying out the city’s limited financial resources, the people’s needs might have been largely met long ago….
So the guns of Section 133 go into action wherever there is public nuisance. The public power of the magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here. “All power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must exist.” Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise….
plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act….
under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless….
Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature’s pressure bashfulness becomes a luxury and dignity a difficult art. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights….
providing drainage systems- not pompous and attractive, but in working condition and sufficient to meet the needs of the people - cannot be evaded if the municipality is to justify its existence….
the court, armed with the provisions of the two Codes and justified by the obligation under Section 123 of the Act, must adventure into positive directions as it has done in the present case. Section 133 CrPC authorise the prescription of a time-limit for carrying out the order….
Magistrate only expected the Municipal Council and the Town. Improvement Trust to evolve a plan and to start planning about it within six months; the learned Magistrate has rightly not fixed the time-limit within which that plan will be completed….
Before us the major endeavour of the Municipal Council was to persuade us to be pragmatic and not to force impracticable orders on it since it had no wherewithal to execute the order. Of course, we agree that law is realistic and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out. From that angle it may well be that while upholding the order of the magistrate, we may be inclined to tailor the direction to make it workable. But first things first and we cannot consent to a value judgment where people’s health is a low priority. Nevertheless, we are willing to revise the order into a workable formula the implementation of which would be watch-dogged by the court….
We have no hesitation in holding that if these directions are not complied with the subDivisional Magistrate will prosecute the officers responsible. Indeed, this Court will also consider action to punish for contempt in case of report by the sub-Divisional Magistrate of wilful breach by any officer.”
Oct 12, 2010
Forum Prevention of Environment & Sound Pollution Vs UOI, AIR 2006 SC 348
Hon'ble Supreme Court of India observed as under, "Restrictions on the use of loud speakers…. No religion ever says to force the unwilling to listen to expressions of religious beliefs. In the Bhagavad Gita, Krishna says to Arjuna: This secret gospel of the Gita should never be imparted to a man who lacks penance, nor to him who is wanting in devotion, nor even to him who lends not a willing ear; and in no case to him who finds fault with Me... He who, offering the highest love to Me, preaches the most profound gospel of the Gita among My devotees, shall come to Me alone; there is no doubt about it….
Before parting, we would like to clarify further that we may not be understood as diluting in any manner our holding in Noise Pollution. We are also not granting any exemption or relaxation in favour of anyone by our verdict.”
Before parting, we would like to clarify further that we may not be understood as diluting in any manner our holding in Noise Pollution. We are also not granting any exemption or relaxation in favour of anyone by our verdict.”
Oct 11, 2010
Goa Foundation, Goa Vs Diksha Holdings Pvt Ltd, AIR 2001 SC 184
Hon'ble Supreme Court of India observed, “It was also contended before the High Court that there exist large number of sand dunes and permitting the respondent to have the hotel complex on the plot of land will ultimately lead to irreversible ecological damage of the coastal area, and, therefore, the Court should prevent such construction.”
Narmda Bachao Andolan Vs UOI AIR 2000 SC 3751
Hon'ble Supreme Court of India observed, “The “precautionary principle” and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known….
Water is one element without which life cannot sustain. Therefore, it is to be regarded as one of the primary duties of the Government to ensure availability of water to the people….
The courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision….
Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them…
Public interest litigation should not be allowed to degenerate to becoming publicity interest litigation or private inquisitiveness litigation….
If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the court to go into and investigate those areas which are the function of the executive….
A hard decision need not necessarily be a bad decision….
Environmental concern has not only to be of the area which is going to be submerged but also its surrounding area. The impact on environment should be seen in relation to the project as a whole. While an area of land will submerge but the construction of the dam will result in multifold improvement in the environment of the areas where the canal waters will reach.”
Water is one element without which life cannot sustain. Therefore, it is to be regarded as one of the primary duties of the Government to ensure availability of water to the people….
The courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision….
Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them…
Public interest litigation should not be allowed to degenerate to becoming publicity interest litigation or private inquisitiveness litigation….
If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the court to go into and investigate those areas which are the function of the executive….
A hard decision need not necessarily be a bad decision….
Environmental concern has not only to be of the area which is going to be submerged but also its surrounding area. The impact on environment should be seen in relation to the project as a whole. While an area of land will submerge but the construction of the dam will result in multifold improvement in the environment of the areas where the canal waters will reach.”
Oct 10, 2010
Vellore Citizens Welfare Forum Vs UOI, AIR 1996 SC 2715
Hon'ble Supreme Court of India observed, “the tanneries are discharging untreated effluent into agricultural fields, roadsides, waterways and open lands….The traditional concept that development and ecology are opposed to each other is no longer acceptable. “Sustainable Development” is the answer….
We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development”. The “Precautionary Principle” - in the context of the municipal law - means:
(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The “onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign….
“Polluter Pays Principle” as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation…
Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law.”
We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development”. The “Precautionary Principle” - in the context of the municipal law - means:
(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The “onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign….
“Polluter Pays Principle” as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation…
Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law.”
no need for prosecution to apply for process to the witnesses
State v. K. A. Shariff
1971 CRI. L. J. 226
MYSORE HIGH COURT AIR 1971 MYSORE 60 (V 58 C 16)
Judgement
SANTHOSH, J. :- This appeal filed by the State is directed against the order of acquittal of the two respondents passed by the Judicial Magistrate, First Class, Second Court, Bijapur, in C. C. No. 1344 of 968. Charges under Sections 392 and 323 of the Indian Penal Code were framed against the respondents by the learned Magistrate and the case was posted for evidence. On 27-5-1969 as there were no witnesses present in the court on behalf of the prosecution, the learned Magistrate acquitted the respondents under Section 251-A(11) of the Code of Criminal Procedure, and it is this order of acquittal that is challenged by the State in this appeal.
2. The learned State Public Prosecutor appearing on behalf of the appellant, has contended that the said order of acquittal passed by the learned Magistrate is illegal. On 27-5-1969 as the Assistant Public Prosecutor was not well, and adjournment was asked on behalf of the prosecution which was not unreasonable and that the learned Magistrate was not justified in acquitting the respondents merely on the ground that no prosecution witnesses were present in Court. The learned Magistrate had no power to acquit the respondents under Section 251-A(11) of the Code of Criminal Procedure unless he records a finding that the respondents accused who were charged with the serious offence of robbery, were not guilty of the charge. He therefore argues that the impugned order of acquittal is not in accordance with law and deserves to be set aside.
3. The order-sheet in the case shows that on 24-2-1969 charges were framed against the respondents-accused and the case was posted for evidence to 11-3-1969. On 11-3-69 as no witnesses were present, the case was again posted for evidence to 10-4-69. On 10-4-1969 as the Magistrate was on leave the case was posted to 23-4-1969; that on 23-4-1969 as the counsel for the accused were absent and no witnesses were present, the case was posted to 27-5-1969. On 27-5-1969 the Head Constable represented that the Assistant Public Prosecutor was not well and the witnesses were not present and the learned Magistrate passed the following order :
"In this case, I do not see any reason to adjourn the case any more as a punishment to the accused for the laches on the part of the prosecution. Hence, I take the prosecution has no evidence to adduce and close the case. The accused are acquitted u/s. 251-A(11), Cr. P.C. and their bail bonds are cancelled."
4. In State of Mysore v. Narasimhegowda, (1964) 2 Mys LJ 241 : (AIR 1965 Mys 167) on which strong reliance is placed by the learned State Public Prosecutor in support of his contention that the learned Magistrate had no power to acquit the respondents without recording evidence under Section 251-A(11) of the Code of Criminal Procedure, Tukol and Chandrashekhar, JJ. held that in a case where the magistrate had framed charges and the case was adjourned for production of the prosecution witnesses and the summons issued to the witnesses had not been returned, the Magistrate could not have passed an order of acquittal under Section 251-A(11), Cr. P.C. without recording evidence and finding the accused to be not guilty. Having issued summons to the witnesses the Magistrate should have taken steps by issuing warrants if necessary to secure the presence of witnesses. Their Lordships observed in para 4 at p. 243 (of Mys LJ) : (Para 4 at p. 169 of AIR) as follows :-
"Sub-Sec. (11) lays down that 'if, in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.' The word 'finds' seems to have been used in the sense of 'decides', 'concludes' or 'holds' implying that the finding to be arrived at shall be after consideration of all the evidence adduced by the prosecution, the plea of the accused and the evidence adduced on his behalf if any. This Section occurs in Chapter XXI of the Code which also provides for the procedure for trial of warrant cases 'instituted otherwise than on a police report' and embodies in Section 258(1) provisions identical with those of Sub-Section (11). The Code does not provide for or contemplate on order of acquittal being recorded merely on the ground that the prosecution or the complainant had failed to produce evidence on the date fixed by the Magistrate. We do not desire to express any opinion in the present case on the question whether the Magistrate cannot at all record an order of acquittal under any circumstance where the prosecution or the complainant persistently and unreasonably fails in his obligation to keep the witnesses present or secure their attendance."
In para 5 their Lordships also observed as follows :
"In warrant cases where the law requires the State to undertake the burden of prosecuting the offenders in public interest to ensure law and order, the Court also has its responsibility to see that justice is done by a fair and speedy trial. Passing orders of discharge or acquittal without just and sufficient grounds would be contrary to law and against public interest."
Mr. Swamy the learned counsel appearing on behalf of the respondents-accused, has relied on a decision of a single Judge of this Court reported in Basappa v. Kalappa, (1966) 2 Mys LJ 528 in which Honniah, J. held thus :
"Before the amendment Act of 1955 the Magistrate had a duty to ascertain the names of the prosecution witnesses and summon them, but there appears to be no analogous provision in S.251A. Under Sub-Section (7) of Section 251A the Magistrate is to take such evidence as is produced before him in support of the prosecution. If for one reason or the other, the prosecution fails to produce such evidence, the only alternative left to the Magistrate would be to act under Sub-Section (11), to make an order holding that the accused are not guilty as the prosecution has failed to produce any evidence in support of the charge and then record an order of acquittal."
The Bench decision of this Court (1964) 2 Mys LJ 241 : (AIR 1965 Mys 167) referred to earlier, was not brought to His Lordship's notice. Further in the said case the prosecutor had undertaken to produce the witnesses on the adjourned hearing. The acquittal was also not challenged by the State but by the complainant only.
It is contended by Mr. Swamy that in the instant case, no summons to the witnesses had been taken by the prosecution and the prosecution undertook to produce the witnesses. As the prosecution have not produced any witness in support of their case, the learned Magistrate, it is argued, was perfectly justified in acquitting the respondents-accused under Sub-Section (11) of Section 251A.
5. There is no force in the said contention of Mr. Swamy. In the charge-sheet filed by the Police, there was a specific prayer for issue of summons to the witnesses cited in the charge-sheet. In the order sheet of the case, it is nowhere stated that the prosecution undertook to produce the witnesses. In a case like this where the prosecution has not undertaken to produce the witnesses and where they have made a specific prayer in the charge-sheet to issue summons to the witnesses mentioned therein, it is the duty of the Court to issue summons to those witnesses and insist on their attendance. If the witnesses do not come to court in spite, of the summons, it is open to the Court to issue a warrant and see that the witnesses appear before the Court.
We may also point out that under sub-clause (2) of Section 207A of the Code of Criminal Procedure it is the duty of the officer conducting the prosecution to apply to the Magistrate to issue process to compel the attendance of any witness. Section 208(3) of the said Code also lays down that in proceedings instituted otherwise than on police reports, it is the duty of the complainant or the officer conducting the prosecution or the accused to apply to the Magistrate to issue process to compel the attendance of any witness. There is no such obligation cast, under Section 251-A(7) of the Cr. P.C. on the prosecution to apply for process to the witnesses. There is, therefore, no force in the contention advanced by Mr. Swamy that it is the duty of the prosecution to apply for summons to the witnesses they proposed to examine in the case.
6. It is also clear from the wordings of sub-clause (11) of Section 251-A that if in any case under this Section in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. As has been pointed by Their Lordships in (1964) 2 Mys LJ 241 : (AIR 1965 SC 167) to which we have already referred, the word 'finds' in sub-clause (11) of this Section is used in the sense 'decides' implying that the finding to be arrived at shall be after consideration of the evidence adduced by the prosecution, the plea of the accused and the evidence adduced on his behalf if any, and the Code does not provide for or contemplate an order of acquittal being recorded merely on the ground that the prosecution failed to produce the witnesses on the date fixed by the Magistrate.
The words used in sub-clause (11) are 'finds the accused not guilty' and 'record an order of acquittal'. If the legislature wanted merely that the accused should be acquitted, it could have simply used the words 'pass an order of acquittal'. There was no need for the legislature to use the specific words 'finds the accused not guilty'. 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 found him not guilty. We may also point out that the policy of law seems to be that in serious cases the accused should not be acquitted merely because of laches on the part of the prosecution. In summons cases instituted on complaint under Section 247 of the Cr. P.C. the Court is competent to acquit the accused merely because of the non-appearance of the complainant. Under Section 249 of the Cr. P.C. in any case instituted otherwise than upon a complaint, the Magistrate may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgement either of acquittal or conviction and may thereupon release the accused. Power is given to Court to stop proceedings for good reasons even in a case instituted otherwise than on a complaint.
Some Courts have taken the view that Section 249 applies only to summons cases as it is found in Chapter XX dealing with trial of summons cases. But the words used in the said Section are very wide and it says 'in any case' instituted otherwise than upon a complaint the Court for reasons to be recorded by it may stop the proceedings. It may also be mentioned that the very next Section 250, though it appears in Chapter XX dealing with trial of summons cases, refers to compensation to be awarded for frivolous accusations both in summons and warrant cases.
Referring to this Section 439 Cr. P.C. the learned author Sohoni in his Code of Criminal Procedure, 1966 Edition observes that "The Section though occurring in Chapter XX seems to be applicable to warrant cases also." All that we are interested in pointing out here is, that so far as Police charge-Sheets are concerned, there is no provision in Chapter XXI dealing with trial of warrant cases, for the acquittal of the accused merely on the ground of absence of the prosecutor or non-appearance of his witnesses. Section 259 is the only Section in the said Chapter which states that when the proceedings have been instituted upon complaint and on the day fixed for hearing the complainant is absent and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion at any time before the charge is framed, discharge the accused. It is needless to point out that Sec. 259 does not apply to cases instituted on police charge-sheets.
7. Apart from the question of law, we are of the opinion even on merits, the learned Magistrate was not justified in passing the impugned order. The order sheet shows that it was represented to him that the Assistant Public Prosecutor was ill on 27-5-69 the day on which he acquitted the accused. The order sheet further discloses that later in the day the Head Constable filed an application for issue of attendance certificates to five witnesses who are stated to have been present. The charge against the respondents was of a serious one viz. robbery. We have already pointed out that the order sheet does not disclose that the prosecution at any time undertook to produce any witnesses. We are, therefore, clearly of opinion that the learned Magistrate was not justified in passing the impugned order in the instant case. Disposal of cases in this fashion is not desirable.
8. For the reasons mentioned above, we allow this appeal and set aside the order of acquittal of the respondents passed by the learned Magistrate and we remand the case for a fresh disposal in accordance with law. We direct that the case should be disposed of expeditiously.
Appeal allowed.
1971 CRI. L. J. 226
MYSORE HIGH COURT AIR 1971 MYSORE 60 (V 58 C 16)
Judgement
SANTHOSH, J. :- This appeal filed by the State is directed against the order of acquittal of the two respondents passed by the Judicial Magistrate, First Class, Second Court, Bijapur, in C. C. No. 1344 of 968. Charges under Sections 392 and 323 of the Indian Penal Code were framed against the respondents by the learned Magistrate and the case was posted for evidence. On 27-5-1969 as there were no witnesses present in the court on behalf of the prosecution, the learned Magistrate acquitted the respondents under Section 251-A(11) of the Code of Criminal Procedure, and it is this order of acquittal that is challenged by the State in this appeal.
2. The learned State Public Prosecutor appearing on behalf of the appellant, has contended that the said order of acquittal passed by the learned Magistrate is illegal. On 27-5-1969 as the Assistant Public Prosecutor was not well, and adjournment was asked on behalf of the prosecution which was not unreasonable and that the learned Magistrate was not justified in acquitting the respondents merely on the ground that no prosecution witnesses were present in Court. The learned Magistrate had no power to acquit the respondents under Section 251-A(11) of the Code of Criminal Procedure unless he records a finding that the respondents accused who were charged with the serious offence of robbery, were not guilty of the charge. He therefore argues that the impugned order of acquittal is not in accordance with law and deserves to be set aside.
3. The order-sheet in the case shows that on 24-2-1969 charges were framed against the respondents-accused and the case was posted for evidence to 11-3-1969. On 11-3-69 as no witnesses were present, the case was again posted for evidence to 10-4-69. On 10-4-1969 as the Magistrate was on leave the case was posted to 23-4-1969; that on 23-4-1969 as the counsel for the accused were absent and no witnesses were present, the case was posted to 27-5-1969. On 27-5-1969 the Head Constable represented that the Assistant Public Prosecutor was not well and the witnesses were not present and the learned Magistrate passed the following order :
"In this case, I do not see any reason to adjourn the case any more as a punishment to the accused for the laches on the part of the prosecution. Hence, I take the prosecution has no evidence to adduce and close the case. The accused are acquitted u/s. 251-A(11), Cr. P.C. and their bail bonds are cancelled."
4. In State of Mysore v. Narasimhegowda, (1964) 2 Mys LJ 241 : (AIR 1965 Mys 167) on which strong reliance is placed by the learned State Public Prosecutor in support of his contention that the learned Magistrate had no power to acquit the respondents without recording evidence under Section 251-A(11) of the Code of Criminal Procedure, Tukol and Chandrashekhar, JJ. held that in a case where the magistrate had framed charges and the case was adjourned for production of the prosecution witnesses and the summons issued to the witnesses had not been returned, the Magistrate could not have passed an order of acquittal under Section 251-A(11), Cr. P.C. without recording evidence and finding the accused to be not guilty. Having issued summons to the witnesses the Magistrate should have taken steps by issuing warrants if necessary to secure the presence of witnesses. Their Lordships observed in para 4 at p. 243 (of Mys LJ) : (Para 4 at p. 169 of AIR) as follows :-
"Sub-Sec. (11) lays down that 'if, in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.' The word 'finds' seems to have been used in the sense of 'decides', 'concludes' or 'holds' implying that the finding to be arrived at shall be after consideration of all the evidence adduced by the prosecution, the plea of the accused and the evidence adduced on his behalf if any. This Section occurs in Chapter XXI of the Code which also provides for the procedure for trial of warrant cases 'instituted otherwise than on a police report' and embodies in Section 258(1) provisions identical with those of Sub-Section (11). The Code does not provide for or contemplate on order of acquittal being recorded merely on the ground that the prosecution or the complainant had failed to produce evidence on the date fixed by the Magistrate. We do not desire to express any opinion in the present case on the question whether the Magistrate cannot at all record an order of acquittal under any circumstance where the prosecution or the complainant persistently and unreasonably fails in his obligation to keep the witnesses present or secure their attendance."
In para 5 their Lordships also observed as follows :
"In warrant cases where the law requires the State to undertake the burden of prosecuting the offenders in public interest to ensure law and order, the Court also has its responsibility to see that justice is done by a fair and speedy trial. Passing orders of discharge or acquittal without just and sufficient grounds would be contrary to law and against public interest."
Mr. Swamy the learned counsel appearing on behalf of the respondents-accused, has relied on a decision of a single Judge of this Court reported in Basappa v. Kalappa, (1966) 2 Mys LJ 528 in which Honniah, J. held thus :
"Before the amendment Act of 1955 the Magistrate had a duty to ascertain the names of the prosecution witnesses and summon them, but there appears to be no analogous provision in S.251A. Under Sub-Section (7) of Section 251A the Magistrate is to take such evidence as is produced before him in support of the prosecution. If for one reason or the other, the prosecution fails to produce such evidence, the only alternative left to the Magistrate would be to act under Sub-Section (11), to make an order holding that the accused are not guilty as the prosecution has failed to produce any evidence in support of the charge and then record an order of acquittal."
The Bench decision of this Court (1964) 2 Mys LJ 241 : (AIR 1965 Mys 167) referred to earlier, was not brought to His Lordship's notice. Further in the said case the prosecutor had undertaken to produce the witnesses on the adjourned hearing. The acquittal was also not challenged by the State but by the complainant only.
It is contended by Mr. Swamy that in the instant case, no summons to the witnesses had been taken by the prosecution and the prosecution undertook to produce the witnesses. As the prosecution have not produced any witness in support of their case, the learned Magistrate, it is argued, was perfectly justified in acquitting the respondents-accused under Sub-Section (11) of Section 251A.
5. There is no force in the said contention of Mr. Swamy. In the charge-sheet filed by the Police, there was a specific prayer for issue of summons to the witnesses cited in the charge-sheet. In the order sheet of the case, it is nowhere stated that the prosecution undertook to produce the witnesses. In a case like this where the prosecution has not undertaken to produce the witnesses and where they have made a specific prayer in the charge-sheet to issue summons to the witnesses mentioned therein, it is the duty of the Court to issue summons to those witnesses and insist on their attendance. If the witnesses do not come to court in spite, of the summons, it is open to the Court to issue a warrant and see that the witnesses appear before the Court.
We may also point out that under sub-clause (2) of Section 207A of the Code of Criminal Procedure it is the duty of the officer conducting the prosecution to apply to the Magistrate to issue process to compel the attendance of any witness. Section 208(3) of the said Code also lays down that in proceedings instituted otherwise than on police reports, it is the duty of the complainant or the officer conducting the prosecution or the accused to apply to the Magistrate to issue process to compel the attendance of any witness. There is no such obligation cast, under Section 251-A(7) of the Cr. P.C. on the prosecution to apply for process to the witnesses. There is, therefore, no force in the contention advanced by Mr. Swamy that it is the duty of the prosecution to apply for summons to the witnesses they proposed to examine in the case.
6. It is also clear from the wordings of sub-clause (11) of Section 251-A that if in any case under this Section in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. As has been pointed by Their Lordships in (1964) 2 Mys LJ 241 : (AIR 1965 SC 167) to which we have already referred, the word 'finds' in sub-clause (11) of this Section is used in the sense 'decides' implying that the finding to be arrived at shall be after consideration of the evidence adduced by the prosecution, the plea of the accused and the evidence adduced on his behalf if any, and the Code does not provide for or contemplate an order of acquittal being recorded merely on the ground that the prosecution failed to produce the witnesses on the date fixed by the Magistrate.
The words used in sub-clause (11) are 'finds the accused not guilty' and 'record an order of acquittal'. If the legislature wanted merely that the accused should be acquitted, it could have simply used the words 'pass an order of acquittal'. There was no need for the legislature to use the specific words 'finds the accused not guilty'. 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 found him not guilty. We may also point out that the policy of law seems to be that in serious cases the accused should not be acquitted merely because of laches on the part of the prosecution. In summons cases instituted on complaint under Section 247 of the Cr. P.C. the Court is competent to acquit the accused merely because of the non-appearance of the complainant. Under Section 249 of the Cr. P.C. in any case instituted otherwise than upon a complaint, the Magistrate may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgement either of acquittal or conviction and may thereupon release the accused. Power is given to Court to stop proceedings for good reasons even in a case instituted otherwise than on a complaint.
Some Courts have taken the view that Section 249 applies only to summons cases as it is found in Chapter XX dealing with trial of summons cases. But the words used in the said Section are very wide and it says 'in any case' instituted otherwise than upon a complaint the Court for reasons to be recorded by it may stop the proceedings. It may also be mentioned that the very next Section 250, though it appears in Chapter XX dealing with trial of summons cases, refers to compensation to be awarded for frivolous accusations both in summons and warrant cases.
Referring to this Section 439 Cr. P.C. the learned author Sohoni in his Code of Criminal Procedure, 1966 Edition observes that "The Section though occurring in Chapter XX seems to be applicable to warrant cases also." All that we are interested in pointing out here is, that so far as Police charge-Sheets are concerned, there is no provision in Chapter XXI dealing with trial of warrant cases, for the acquittal of the accused merely on the ground of absence of the prosecutor or non-appearance of his witnesses. Section 259 is the only Section in the said Chapter which states that when the proceedings have been instituted upon complaint and on the day fixed for hearing the complainant is absent and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion at any time before the charge is framed, discharge the accused. It is needless to point out that Sec. 259 does not apply to cases instituted on police charge-sheets.
7. Apart from the question of law, we are of the opinion even on merits, the learned Magistrate was not justified in passing the impugned order. The order sheet shows that it was represented to him that the Assistant Public Prosecutor was ill on 27-5-69 the day on which he acquitted the accused. The order sheet further discloses that later in the day the Head Constable filed an application for issue of attendance certificates to five witnesses who are stated to have been present. The charge against the respondents was of a serious one viz. robbery. We have already pointed out that the order sheet does not disclose that the prosecution at any time undertook to produce any witnesses. We are, therefore, clearly of opinion that the learned Magistrate was not justified in passing the impugned order in the instant case. Disposal of cases in this fashion is not desirable.
8. For the reasons mentioned above, we allow this appeal and set aside the order of acquittal of the respondents passed by the learned Magistrate and we remand the case for a fresh disposal in accordance with law. We direct that the case should be disposed of expeditiously.
Appeal allowed.
Oct 9, 2010
State of Maharashtra Vs Himmatbhai Narbheram Rao, AIR 1970 SC 1157
Hon'ble Supreme Court of India observed as under, " “under the Constitution a proper balance is intended to be maintained between the exercise of the right conferred by Art. 19(1)(f) and (g) and the interests of a citizen in the exercise of his right to acquire, hold or dispose of his property or to carry on occupation, trade or business. In striking that balance the danger which may be inherent in permitting unfettered exercise of right in a commodity must of necessity influence the determination of the restrictions which may be placed upon the right of the citizen ‘to the commodity’.”
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