Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 125 (JK)

State v. Gurjeet Singh

2002-05-02

S.K.GUPTA

body2002
1. Heard Mr. H.A. Siddiqui, learned additional Advocate General, for the State as well as Mr. Kamal Chopra, learned advocate, for the respondent, at length. 2. A challan was presented against Mr. Gurjeet Singh to stand his trial for the commission of offence under Sections 304-A/338/337/279 RPC and 66/92 of Motor Vehicles Act in the Court of Chief Judicial Magistrate, Rajouri. The Trial Court, after hearing the parties and perusing the material assembled on record, framed a charge against the accused and on the latters pleading not guilty, proceeded with the recording of the prosecution evidence. The Trial Court issued process against the doctor at the first instance and directed the prosecution to produce the remaining witness. Thereafter, the Trial Court also issued process including bailable and non-bailable warrants to other witness on different dates to procure their attendance in the case and for recording evidence. At one point of time, the Trial Court took a serious note of the conduct of the prosecution for its non-cooperation in securing the attendance of the witnesses in executing coercive process on them issued by the Court. Ultimately, last opportunity was afforded to the prosecution for producing witnesses on 7-12-1999 and followed a pre-emptory order of final opportunity for recording prosecution witnesses and in case otherwise, will entail appropriate orders from the Court. The Trial Court, ultimately, found that the delay in non-execution of the warrants and summons, and production of witnesses in consequence thereof and attributed the delay to the prosecution and closed its evidence. This order became the subject matter of revision before the learned Sessions Judge, Rajouri, who, after hearing the parties and scanning record, found fault with the order impugned in Revision and recommended for its setting aside by making a reference vide order dated 5-3-2001. 3. The sole grievance of the petitioner is that once the trial Court taken up the responsibility to summon the prosecution witnesses and procure their attendance for recording evidence, it becomes the duty of the Magistrate to scrutinize the case, to summon the witnesses and ensure that the attendance of the witnesses procured and their evidence recorded. The Magistrate should not proceed to close the evidence without adopting such exercise. 4. Mr. Kamal Chopra, learned counsel appearing for the respondent, however, submitted that under sub-section (7) of Section 251-A Cr. The Magistrate should not proceed to close the evidence without adopting such exercise. 4. Mr. Kamal Chopra, learned counsel appearing for the respondent, however, submitted that under sub-section (7) of Section 251-A Cr. P.C., the Magistrate has to record the evidence of all such witnesses as are produced in the Court by the prosecution. According to him, there is no statutory duty/obligation on the Court to secure the attendance of the witnesses for recording their evidence. His further contention is that the Trial Court has rightly closed the evidence when prosecution failed to avail the last and final opportunity to produce and examine the witnesses in the case in holding that the delay has occurred due to non-cooperation of the prosecution. 5. It is not disputed that the Trial Magistrate had issued the process for securing the presence of the witnesses and recording their evidence in the case. The spinal question that falls for determination is whether the word produced used in sub-section (7) of Section 251-A Cr. P.C. includes the bringing of the witnesses by the prosecution at its own instance or through the process of the Court, whom it desired to examine at the trial. The expression produced, in my view, cannot be given restricted meaning, so as to settle the prosecution with the entire responsibility of producing the evidence. It is the duty of the Court to enforce attendance of the witnesses. The prosecution may undertake either to produce the witnesses through its own agency or secure their attendance through the agency of the Court. Where the prosecutor has himself undertaken to produce the prosecution witnesses, the entire responsibility for their production lies on him. But when the Court has issued the process, much less coercive process by way of bailable or non-bailable warrants, in that event, it is the duty of the Magistrate to take all necessary steps for securing the attendance of the witnesses. If the witnesses do not turn up inspite of service of summons, the Court has to take necessary steps to compel their attendance and cannot close the evidence on any footing whatsoever. The order of closure of evidence in such a case is not proper. The Magistrate ought to have adjourned the case for production of evidence. 6. If the witnesses do not turn up inspite of service of summons, the Court has to take necessary steps to compel their attendance and cannot close the evidence on any footing whatsoever. The order of closure of evidence in such a case is not proper. The Magistrate ought to have adjourned the case for production of evidence. 6. In case, it is left upto the prosecution alone by giving a narrow meaning to the expression produced, which occurred in sub-section (7) of Section 251-A Cr.P.C. to produce the evidence, it would certainly be fraught with danger. The prosecution would be left with unbriddled discretion and unchecked authority to adopt the device of keeping back from the Court all the witnesses, whose evidence material in the case, with the oblique motive. The Magistrate, in my view, should take suitable measures to procure the attendance of the witness and if without taking those steps, he closes the evidence, it is illegal order and it must be set aside. The Magistrate must make every permissible endeavour to see that the case is not frustrated or miscarried merely because those who have set the criminal law in motion, later on changed their mind and seek by their absence to get away from it. 7. Having considered the aforesaid facts and circumstances, the inevitable conclusion reached is that the order in closing the evidence dated 5-3-2001 formulated by the Trial Court is legally lacunic and not sustainable. The reference is accepted and the order of the Trial Court dated 25-8-2000 is set aside. Record of the case shall be sent back to the Trial Court forthwith a direction to summon the witnesses and take suitable coercive measures for procuring attendance and recording their evidence The Magistrate will, however, ensure that every possible effort is made to secure the presence of the witnesses by using coercive measures and executed through prosecution agency with utmost promptitude. Parties through their counsel are directed to cause appearance before the Trial Court on 27th May, 2002.