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2002 DIGILAW 863 (PAT)

Yogendra Malakar v. State Of Bihar

2002-08-08

R.S.GARG

body2002
Judgment 1. Heard learned counsel for the parties. 2. In the present case it appears that the post mortem of unknown woman was conducted in Musrigharai P.S. Case No. 62 of 1997 but later on the said unknown Woman was identified as Sunita Devi and the First Information Report came to be lodged at Samastipur Police Station. Samastipur police investigated the matter and later on filed the chargesheet against the accused persons. It appears that during the course of the trial the post mortem report was summoned, the Doctor who Conducted the autopsy was called as a Witness so also the Investigating Officer Was also summoned. 3. On 4.5.2002 the concerned Hospital informed the court that in relation to Samastipur case no postmortem was conducted by Dr. Vijay Kumar. On 7.5.2002 the Assistant Public Prosecutor informed the court that because of some confusion Such a bad report was sent to the court. On 7.5.2002 the court ordered that the post mortem register containing the post mortem of unknown lady in Musrigharai P.S. Case No. 62/1997 dated 17.6.1997 be requisitioned and summons may also be issued to Dr. Vijay Kumar. It appears from the records that either on 20.5.2002 or 29.5.2002 neither the witnesses appeared nor the records were produced in the court. A request was made by the accused to Close the evidence and proceed further in the matter. The learned trial Judge after hearing the parties closed the evidence and directed to proceed further in the matter. 4. Being aggrieved by the said order the informant has come to this Court, inter alia, submitting that the matter in which the evidence has been closed would show that for no lapses on the part of the informant or the prosecution agency, the evidence has been closed. On the other hand learned counsel for the defence/accused persons submits that in view of the report dated 4.5.2002 nothing further was required to be done in the matter and trial court was absolutely justified in closing the right to lead evidence. 5. From the orders dated 7.5.2002, 20.5.2002 and 29.5.2002 it would appear that summons were issued for production of the post mortem register so also for production of the witnesses. It is not known that the summons were served on the witnesses or not but the court below closed the right to lead evidence. 5. From the orders dated 7.5.2002, 20.5.2002 and 29.5.2002 it would appear that summons were issued for production of the post mortem register so also for production of the witnesses. It is not known that the summons were served on the witnesses or not but the court below closed the right to lead evidence. In the opinion of this Court, if despite service of the summons the witnesses do not appear in the court then the Court is not to sit as a silent spectator and leave the fate of the matter in the hands of the witnesses who are shy of appearing in the court or in the hands of some unscrupulous Police Officer, who does not want to serve the notices on the witnesses. True it is that the accused persons are in jail for long time but that does not mean that the crime should remain unpunished. If contrary to the directions contained in the summons, the witnesses do not appear despite service then bailable warrants ought to have been issued against those witnesses and despite,service of the bailable warrants, the witnesses being obsessed of their authority or the office held by them do not appear in the court then the court should issue non- bailable warrants against such persons for their production in the court as witnesses. The court should not forget that it has to do justice between the parties and has not to show any clemency in favour of those witnesses, who ignore the orders of the court and try to take the court for a ride. A court must assert its authority and show to those witnesses that if they do not appear in the court despite service of the summons, the court can compel them to appear in the court. 6. The order dated 29.5.2002 is set aside. It is hereby directed that the trial court shall issue bailable warrants against these two witnesses for a fixed date to appear as witnesses in the court. If despite service of the bailable warrants, the witnesses do not appear in the court then the court shall issue non-bailable warrants against the said witnesses for their production. In any case, the court shall ensure the attendance of the said witnesses in the case. If despite service of the bailable warrants, the witnesses do not appear in the court then the court shall issue non-bailable warrants against the said witnesses for their production. In any case, the court shall ensure the attendance of the said witnesses in the case. In case of issuance of non- bailable warrants the same shall be handed over to the Superintendent of Police for its execution and report compliance. 7. The petition is allowed with the directions/observations aforesaid.