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2002 DIGILAW 194 (HP)

BHIM SAIN v. STATE OF H. P.

2002-07-11

A.K.GOEL, W.A.SHISHAK

body2002
JUDGMENT Arun Kumar Goel, J.—Petitioner has filed this petition under Articles 226/227 of the Constitution of India against the order dated 6.12.2001 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala in Criminal Revision No. 23-B/1999 while allowing the revision filed by respondent State, the order dated 16.11.1999 passed by Judicial Magistrate 1st Class, Baijnath, has been set aside on an application under Section 309(i) and Section 468 of the Criminal Procedure Code as also another application under Section 311 Cr.P.C. for recall of Shashi Kant Awasthi witness who was given up on 11.8.1999 during the course of trial. 2. With a view to properly understand and appreciate the respective submissions as projected at the time of hearing of this petition, it is necessary to refer to few facts. Petitioner is being prosecuted on the basis of FIR No. 94/92, registered at Police Station, Baijnath, under Sections 409 and 420 of the Indian Penal Code. 3. In this case, trial Court on being satisfied framed charges on 7.3.1996 to which petitioner pleaded not guilty. Record shows that neither charge sheet nor the statement of the petitioner was signed by the then Judicial Magistrate 1st Class (II), Palampur, District Kangra. This fact was noted by the trial Court before commencement of the prosecution evidence, as such fresh charge sheet was framed on 9.1.1997. 4. Record of the trial Court further shows that there are in all 29 witnesses cited in the list of witnesses attached with the challan. In all nine witnesses have been recorded as noted in the order sheets of 15.6.1998, 29.10.1998, 17.5.1999, 11.6.1999, 11.8.1999 and 12.8.1999. In this behalf it may also be appropriate to note that Des Raj witness who was present on 15.6.1998 was given up. Similarly, Shashi Kant Awasthi prosecution witness present on 11.8.1999 was also given up. Some of the named witnesses have also died as is clear from the file of the trial Court. 5. When this case was taken up for hearing, Ms. Dutta, learned Counsel appearing for the petitioner submitted that for no fault of her client the case is lingering on right from the date of framing of the charge; on 9.1.1997 only nine witnesses have been examined, two given up, some have died. 5. When this case was taken up for hearing, Ms. Dutta, learned Counsel appearing for the petitioner submitted that for no fault of her client the case is lingering on right from the date of framing of the charge; on 9.1.1997 only nine witnesses have been examined, two given up, some have died. According to her, if prosecution had cared to examine one witness on every date of hearing till filing of application under Sections 309 and 468 Cr.P.C. by her client, the entire evidence would have concluded. 6. She further stated that by passing impugned order, learned Additional Sessions Judge below has committed grave illegality and irregularity, as such, this petition deserves to be allowed and consequently impugned order Annexure PO dated 6.12.2001 supra deserves to be quashed and set aside, thereby the order of the trial Court dated 15.11.1999 deserves to be upheld. Reference was made by her to a decision, of Supreme Court in case Raj Deo Sharma v. State of Bihar, AIR 1998 SC 3281. According to her in view of this three Judge Bench decision of the Supreme Court, revisional Court below was not justified in interferring with the order of the trial Court supra. 7. Prima facie this argument seems to be quite appealing and attractive. However, for the reasons to be recorded hereinafter, it has been raised simply to be rejected. In this behalf suffice it to say that prosecution alone cannot be blamed for delay in the completion of its evidence. Day to day order passed by the trial Court suggest that after framing of charge on 9.1.1997, at times witness was not present and at times learned defence counsel was not available; on a few occasions court time was over. 8. Thus the blame cannot be solely put on prosecution. We may hasten to add here interest of justice demands that prosecution must examine its evidence with utmost expedition. Reason being that it brings to an end the trial and at the same time witnesses do not forget the facts by lapse of time. 9. 8. Thus the blame cannot be solely put on prosecution. We may hasten to add here interest of justice demands that prosecution must examine its evidence with utmost expedition. Reason being that it brings to an end the trial and at the same time witnesses do not forget the facts by lapse of time. 9. So far decision relied upon by the trial Court while allowing the application under Sections 309 and 468 Cr.P.C. in the case of Raj Deo Sharma v. State of Bihar (supra), is concerned, it has been over ruled by Supreme Court by a Seven Judge Bench in case of P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578. That being the position, plea based on the decision of Raj Deo Sharma cannot be now accepted and is hereby rejected. 10. Now coming to the plea objecting to the recall of Shashi Kant Awasthi, (who was earlier given up on 11.8.1999 before the trial Court), suffice it to say that there is no illegality committed by the learned Additional Sessions Judge. It is admitted fact that he was given up. It is unfortunate that the Government Advocate gave him up without having looked into the whole case. We are of the view that because of either inaction, mistake or laches on the part of Government Advocate, cause of justice should not be allowed to suffer. We have further no hesitation in observing that because of inapt, improper as well as irresponsible handling of a criminal case at the hands of an inefficient counsel administration of criminal justice cannot be left to his mercy. 11. Primarily, the case of the prosecution appears to be based on record as is evident from the case file. Shashi Kant Awasthi aforesaid witness is an official of Bank. Thus, irresponsible act on the part of the Government Advocate, who gave him up on 11.8.1999 when the witness was in attendance, cannot be allowed to be made a ground so as to curtail the powers of the Court under Section 311 Cr.P.C. or to defeat the cause of justice. 12. In an appropriate case Court can summon the witness under this provision of law, if justice based on fact of the case so demands. We feel that learned Additional Sessions Judge has rightly allowed the prayer of the prosecution to recall and examine already given up PW Shashi Kant Awasthi. 12. In an appropriate case Court can summon the witness under this provision of law, if justice based on fact of the case so demands. We feel that learned Additional Sessions Judge has rightly allowed the prayer of the prosecution to recall and examine already given up PW Shashi Kant Awasthi. He has neither committed any illegality nor impropriety which may call for interference in this case. Reference in this behalf can be made to the decision of Supreme Court in Rajendra Prasad v. Narcotic Cell through its Officer-in-charge, Delhi, 1999 Cri.L.J. 3529. Thus no exception can be taken to the order of the revisional Court below in this behalf also. 13. No other point is urged. 14. While dismissing this writ petition after it was finally heard and formally admitted, thereby upholding the order Annexure PO passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, it is ordered that the prosecution shall ensure the service of the witnesses other than those examined or who are given up (except Shashi Kant Awasthi) on the dates to which the case is adjourned by the trial Court. In case any witness is either absent or is not present despite service, the Trial Magistrate shall issue coercive process for procuring the presence of such a witness. At the same time if trial Court is satisfied that it is the petitioner who is delaying the expeditious disposal of this case, it will not hesitate in proceeding against him so that the matter is not further delayed on this count. Ordered accordingly Parties are directed to appear before the trial Court on 3.8.2002. Trial Court will not issue any notice to the parties as date is fixed by this Court. Registry will ensure that record reaches the trial Court, before the date fixed.