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2002 DIGILAW 18 (JK)

State Of J. &K. v. Gh. Nabi Dar

2002-02-21

MUZAFFAR JAN

body2002
1. This Criminal Revision Petition has been filed to set-aside the order dated 21.12.2000 whereby the evidence of prosecution has been closed. 2. No one is present in spite of notice through the regular cause list. Since the matter involves purely a question of law, the petition is taken up for final disposal. I have perused the material on record. 3. It seems that a criminal complaint under sections 148, 436-A, 297, 342, 427 Ranbir Penal Code, Svt. 1989 (1932 A.D.) was filed in 1987 against thirty three accused persons on the allegations of trespass in the graveyard, damage to trees of the complainant party and desecretion of graves on 31st May, 1987 at Dangerpora, Tehsil Sopore. After the completion of investigation, charge report against the accused persons was filed before the learned Sessions Judge, Baramulla. The accused persons were prima facie charged on 22nd December, 1987, and the prosecution was directed to produce witnesses. Time and opportunity extending over a period of more than 10 years was given to the prosecution till 21-07-1990. The accused are shown absent from 21 -07-1990 till 3-08-2000 during the period of disturbances. It appears that accused appeared on 3.8.2000 and prosecution was given time to produce witnesses on 05-09-2000, 05-10-2000, 06-11-2000, 07-11-2000, 07-12-2000, 08-12-2000 and on 21-12-2000. As the prosecution failed to produce the remaining witnesses, prosecution evidence was closed on 21-12-2000. The revision petition has been filed to challenge the validity of this order. 4. Perused the record and considered the submissions of learned counsel for the parties. It seems that the period of about three years from 22-12-1987, the date when accused were charged, to 21-07-1990, during which accused were present and associated with trial, and subsequent period from 05-09-2000 to 21-12-2000 in my opinion, is sufficient duration to enable the prosecution to produce all the witnesses. The impugned order closing the prosecution evidence on 21-12-2000 on the facts and circumstances seems to be fully justified and has been passed on proper exercise of jurisdiction and judicial conscience and warrants no interference. The impugned order closing the prosecution evidence on 21-12-2000 on the facts and circumstances seems to be fully justified and has been passed on proper exercise of jurisdiction and judicial conscience and warrants no interference. It appears that the procedure provided for the prosecuting agency to inform the Investigating Officer about the directions of the court to get the witnesses and the duty of the Investigating Officer, not only to remain present during the period, statement of witnesses is being recorded, but also to ensure that the witnesses are present on each and every date of hearing, is being totally ignored, which has resulted in the imbalance in the criminal justice system. The Apex Court in Shailendra Kumar V State of Bihar, JT 2001 (10) SC 111 has impressed upon the requirement of the Investigating Officer to be present before the Court on each and every date of hearing, during the recording of the statement of prosecution witnesses in order to assist the court and expedite the conclusion of the trial. The relevant portion of the judgment is quoted hereunder:- ...The presence of Investigating Officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure of part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/non-bailable warrants as the case maybe...� 5. It is the duty of the prosecuting agency of the court to keep the investigating officer informed about the directions of the court, to produce prosecution witnesses on the dates fixed for recording their statements. It seems that the Investigating Officers are not informed of the direction of the court regarding production of prosecution witnesses. It is high time that the superior officers of the prosecuting agency take notice of this vital legal requirement and ensure the presence of investigating officers during the course of proceedings in sessions cases when prosecution evidence is being recorded. In view of above, this revision petition is dismissed. 6. Registry to send a copy of this order to Director General of Police, Jammu and Kashmir, for appropriate measures and follow up of action in terms of the requirement of law and the observations made hereinabove. Copy of judgment be circulated to all criminal courts of the State.