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2000 DIGILAW 1275 (RAJ)

Hanuman Ram v. State of Rajasthan

2000-10-18

BHAGWATI PRASAD

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JUDGMENT 1. - This petition is on behalf of the complainant and raises a question which reflects upon the state of affairs with which the criminal justice is administered by the prosecuting agency in the State of Rajasthan. 2. It is the responsibility of the prosecuting agency to assist the Courts in examination of witnesses. Whatever process is issued by the Courts is served through police officials which are integral part of prosecuting agency. 3. In the instant case, statement of police witness has not been recorded by the Court because he has not turned up on a number of occasions. His evidence was closed. After closure of evidence of police official, an application was made by the Public Prosecutor seeking indulgence of the Court for examination of that witness. The Court was magnanimous enough to permit examination of that witness and fixed the date for calling that witness. The public prosecutor in his application has stated in the following terms: " bl xokg dks is'k djus ds fy, vfHk;kstu dks ,d volj U;k; fgr esa vkSj iznku djs vkxkeh is'kh ij bl xokg dks is'k ugha djus ij C;ku eqyfteku fy;sa tk;s rks vfHk;kstu dks dksbZ ,rjkt ugha gksxkA " 4. By the said application, it is clearly stated that if on the next date of hearing, this witness does not turn up, then prosecution will not raise any objection if statement of the accused is taken that means closure of the prosecution evidence. Curiously enough, this witness did not turn up on such appointed date. Such situation is generally arising in Criminal Courts. The police witnesses do not appear as and when they are required to be present before the Court. The Court has noticed in this case that no reason has been recorded for his absence. In view thereof, evidence of this witness was closed. The prosecution has not chosen to challenge this order. 5. Learned Public Prosecutor's stand in not recommending the State to seek any redressal against the said order shows indifference of the Institution of the Public Prosecutor. That being the position, this Court is pained to note that fair trial is affected on account of the Agency which is responsible for investigating the case and prosecuting the accused. In fact, police witnesses should be kept ready by the prosecuting agency itself for examination. That being the position, this Court is pained to note that fair trial is affected on account of the Agency which is responsible for investigating the case and prosecuting the accused. In fact, police witnesses should be kept ready by the prosecuting agency itself for examination. Why it should be left to the Court to summon them. 6. The order impugned also records that statement of PW 20 Bharatlal was completed after the report of Malkhana Clerk. 7. The complainant in his revision stated that statement of Bharatlal was also incomplete because complete Malkhana was not there. The statement of learned counsel for the complainant runs contrary to the contents of the order of the Trial Court. The complainant wants that witness PW 20 Bharatlal should also be recalled under the powers conferred on the Courts under Section 311 Cr.P.C. He places reliance on the Supreme Court Decision in the case of Rajendra Prasad v. Narcotic Cell, 1999 (6) SCC 110 wherein it has been observed as under:- "Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the to prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. is After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 8. To support his contention, learned counsel for the complainant has also placed reliance on various decisions in the case of Sugni Devi v. State & Ors., 1998 Cr.LR (Raj.) 157 , Rikhab Chand v. State, 1991(1) RLW 305 , Padam Singh v. State, 1998 (2) RCD 1284 , Jassu Singh v. State, 1994 Cr.LR (Raj.) 262 and Hanuman & Ors. v. State, 2000 WLC (UC) (Raj.) 376 . 9. The counsel for the State has supported the petitioner. It has only been staled by the learned counsel for the State that witness may be recalled. v. State, 2000 WLC (UC) (Raj.) 376 . 9. The counsel for the State has supported the petitioner. It has only been staled by the learned counsel for the State that witness may be recalled. Learned counsel for the accused states that after complete latitude, prosecution evidence has been closed and giving indefinite latitude would tantamount to infringement of the right of the accused guaranteed under Art. 21 of the Constitution of India:- 10. I have heard learned counsel for the parties. 11. Non-appearance of Chunnilal, a police witness on a number of occasions and closer of his evidence shows indifference of the prosecuting agency. It is for the State Authorities to look into the matter and take remedial action. Why an officer of the Investigating Agency does not appear as and when called to appear ? The Trial Court was magnanimous enough to permit the prosecuting agency to call this witness after closer of his evidence again but on that occasion also, this witness was absent. This recalling was on the condition that Public Prosecutor will not raise any grievance. Once, this is given to understand to the Court that PP will not raise any grievance, then it cannot be said that PP in his wisdom was not clear enough that if this witness was not examined, no prejudice will be caused to the trial. That being the position, complaint's grievance is in contradiction with the opinion framed by the Public Prosecutor. 12. It is the Public Prosecutor who is incharge of a criminal case. The complainant cannot be permitted to assess merits of the case over and above the assessment of the Public Prosecutor. On this Count, complainant's revision is not considered to be of merit because his wisdom has the effect and colour of a man who in the words of the Supreme Court "cannot be permitted to wreck vengeance. 13. This Court in its revisional powers is not inclined to interfere with an order where prosecuting agency has neglected to produce a witness and closed its option. The complainant's rights to see a fair trial are to be guarded by the public prosecutor. The public prosecutor has not only chosen to not to examine the witness on a given date but has given in writing that Court may proceed to record the statement of the accused. The consequence of this may be of grave nature. The complainant's rights to see a fair trial are to be guarded by the public prosecutor. The public prosecutor has not only chosen to not to examine the witness on a given date but has given in writing that Court may proceed to record the statement of the accused. The consequence of this may be of grave nature. In this view of the matter, prosecuting agency cannot depend on Courts to assess the merits of its stand and suggest a remedial action. Examination of police witness is a question which requires a serious attention of the State. A copy of this order be sent to the Chief Public Prosecutor of the State for assessing the stand of the prosecution. May be that he is required to look into the problem from a larger aspect. Why are the Investigating Officers not appearing in Courts after repeated opportunities ? Should they ask for many opportunities for their appearance ? Is it not their duty to see that the trial is not delayed for the non-availability of a witness ? If such witness is a police witness then a clear policy is required to be made and instructions are required to be issued to the police officer. 14. However, this Court will refrain from giving any instructions in this regard at this stage. For the time being, it is left for the State to formulate a policy in this regard. Maybe in future, if the state of affairs do not improve, some directions by this Court may become necessary. 15. In the result, no interference is called for in revision. A copy of this order be sent to the Chief Public Prosecutor for taking appropriate action.Revision dismissed. *******