Delay in producing witness
Dinesh
(Querist) 21 December 2011
This query is : Resolved
HI
I had read about a judgment sometime back about delay in prosecution in producing the witness in a criminal case due to which the judge can treat the matter as closed. It is almost more than 7 years the case is been pending in criminal court . can anyone send me the judgement copy so that the same can be produced before the judge
Raj Kumar Makkad
(Expert) 21 December 2011
Jammu High Court
State vs Ajit Kumar on 15 July, 2005
Equivalent citations: 2006 CriLJ 930, 2006 (1) JKJ 90
Author: N Singh
Bench: N Singh
ORDER
Nirmal Singh, J.
1. Ajit Kumar accused is facing trial before the learned Judicial Magistrate 1st Class (Munsiff), Jammu for offence under Sections 419, 420 and 468, RPC.
2. The evidence of the prosecution was closed on 25-8-1995. Thereafter, prosecution moved an application under Section 540, Cr.P.C, on 27-8-1996 and same was dismissed on 12-1-1998. Another application under Section 540, Cr.P.C. came to be moved by the prosecution and same was also dismissed on 18-8-2003. Aggrieved by the order dated 25-8-1995 and 18-8-2003, dismissing applications filed under Section 540, Cr.P.C., State filed revision petition before the learned Sessions Judge, Jammu, who has referred the matter to this Court by observing as under :
...Thus in these circumstances the order dated 25-8-1995 closing the evidence of the prosecution in a serious matter of forging the order of the Apex Court in a contempt case when there is nothing to infer that the witnesses are not available is bad and improper and as such suffers from illegality, require to be set aside. The revision as such is sent to the Registrar Judicial High Court of J. and K. at Jammu for placing the same before the Hon'ble High Court for appropriate orders.
3. Before making reference to this Court, learned Sessions Judge has taken note of a Division Bench judgment of this Court in case S.K. Mahajan v. Municipality, Jammu 1982 Kash L.J 1 : 1982 Cri LJ 646, wherein it has been held that refusing to summon witnesses under Section 540, Cr. P.C. is an interlocutory order and attracts a bar under Sub-section (4-a) of Section 435 of Cr. P.C. The Division Bench has observed as under (para 14 of Cri LJ) :--
15. No party has a right to have a witness examined under Section
540. It can only draw the attention of the Court by making a prayer to that effect. Whether or not a witness is to be examined under this section, the discretion entirely lies with the Court, though it may be obligatory on its part to summon the witness in case his evidence appears to it to be essential for the just decision of the case. Nevertheless, it is the requirement of the Court and not that of the party to see whether or not a witness is to be examined. Viewed thus, an order granting or refusing the prayer of the party to have a witness examined under Section 540 cannot be said to have determined any right of the parties and consequently fails to acquire the flavour of a final order. It is an interlocutory order, pure and simple. I am not prepared to accept the proposition, which to me too narrowly stated, that unless the order brings an end to the proceeding in which it is made, it cannot be said to be a final order. This, in fact, was the connotation placed upon the expression "final order" in Kuppaswami's case 1948 (49) Cri LJ 625 (PC) (supra). But it was not. accepted by the Supreme Court in Madhu Limaye's 1978 Cri LJ 165 and V.C. Shukla's 1980 Cri LJ 690 cases (supra). The apparent conflict was, however, sought to be avoided by creating a third category of orders to be known as "intermediate orders" as would appear from the following observations made by His Lordships S.M. F. Ali, J. expressing the majority view in V.C. Shukla's case 1980 Cri LJ 690 at p. 706 (supra) :
To sum up, the essential attribute of an interlocutory order is that it merely decided some point or matter essential to the issues sought but not. a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the Judgment, Untwalia, J., in the case of Madhu Limaye v. State of Maharashtra 1978 Cri LJ 165 clearly convey that an order framing charge is not an interlocutory order but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol. 60. We find ourselves in complete agreement with the observations made in Corpus Juris Secundum. It is obvious that an order of framing the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term "interlocutory order" as used in Section 11(1) of the Act.
4. In view of the law laid down, note of which has been taken by the learned Sessions Judge, revision was not maintainable before the learned Sessions Judge but despite that the learned Sessions Judge has touched the merits of the case, which is beyond his jurisdiction. In case of interlocutory order, the High Court under Section 561-A, Cr. P.C. has inherent power to interfere with the proceedings of the subordinate Courts at any stage, if it finds that abuse of process of law is being carried on in the trial of the case or when such interference is necessary to secure the ends of justice. This power under Section 561-A, Cr. P.C. has to be used sparingly when party makes out an exceptional case and the Court is of the view that interference is necessary to secure the ends of justice. This proposition has been laid down in Amar Chand Agarwalla v. Shanti Bose and Superintendent and Remembrancer of Legal Affairs v. Mohan Singh .
5. In the case in hand, challan against the accused was presented on 30-12-1992 and the statement of last witness was recorded on 18-5-1993. After that no witness was examined. The witnesses were summoned but prosecution failed to produce any witness and ultimately the Court closed the evidence vide order dated 25-8-1995. The prosecution did not challenge the order by filing petition before the High Court under Section 561-A, Cr. P.C. Till that order is set-aside, application for summoning of witnesses is not maintainable.
6. The prosecution filed application on 27-8-1996 for summoning of witness and the same was dismissed on 12-1 -1998. Prosecution did not challenge the said order also but instead of that another application under Section 540, Cr. P.C. was filed, which was also dismissed on 18-8-2003. Thereafter, prosecution filed revision before the learned Sessions Judge after eight years. The prosecution has not given any explanation as to why the revision was not filed within the prescribed period of limitation. The accused remained present on each and every date of hearing before the trial Court as well as even before the revisional Court. It is also not the case of prosecution that after presentation of challan, the accused has remained absent or due to his fault proceedings have been delayed. Under Article 21 of the Constitution, the accused has fundamental right of speedy trial,
7. In Kadra Pahadlya v. State of Bihar AIR 1982 SC 1167 their Lordships has held as under (para 2) :--
A speedy trial is a fundamental right implicitly in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution. Any accused who is denied this right of speedy trial is entitled to approach the Supreme Court for the purpose of enforcing such right and the Supreme Court In discharge of its constitutional obligation has the power to give necessary directions to the State Governments and other appropriate authorities for securing this right to the accused.
8. Speedy trial is fundamental right of the accused as enshrined under Article 21 of the Constitution of India. Right of speedy trial is not only available to an accused who Is in custody but also to an accused who Is facing trial and the trial must be concluded within a reasonable time so that accused may prove himself innocent or prosecution may prove that he is guilty of charge. Therefore, while holding trial, the Courts have to keep balance between the prosecution and defence. If, due to fault of the prosecution the trial is not concluded for long time, the Court has no other alternative except to close the evidence by order. After the presentation of the challan 13 years have passed but despite that prosecution has failed to conclude the evidence, therefore, there was no other alternative before the learned trial Court except to close the evidence by order. Therefore accepting reference or exercising Inherent powers under Section 561-A, Cr. P.C. will not be in securing ends of justice rather it will be injustice to the accused.
9. In view of the above discussion, reference is declined.
10. File be sent back forthwith to learned Sessions Judge, Jammu who will direct the trial Court to conclude the trial within a reasonable time keeping in view the observations made hereinabove.
Shonee Kapoor
(Expert) 24 December 2011
Nice find Ld. Mr. Makkad.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
