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2006 DIGILAW 3374 (PNJ)

Ajaib Singh Birak v. State Of Punjab

2006-08-24

T.P.S.MANN

body2006
Judgment T.P.S.Mann, J. 1. The present petition has been filed by complainant-Ajaib Singh Birak, whereby he has challenged the order passed by Sub Divisional Judicial Magistrate, Phillaur on 2.3.2005, vide which the prosecution evidence was closed by order. 2. FIR was registered on 9.6.1995, against the accused-respondents on the basis of a complaint made by Harbans Singh, father of the petitioner. Said FIR was for offences under Sections 420, 467, 468, 471, 120-B IPC. After completion of the investigation, challan was presented against the accused- respondents, wherein sixteen persons were cited as witnesses. Charges were framed by the trial Court on 15.1.1998. The case was, thereafter, fixed for recording of the prosecution evidence. The prosecution examined five witnesses in support of its case, whereas three could not be examined as they had died. The remaining eight persons, who were yet to be examined as witnesses, were only official witnesses, like ASIs, Constables and Record keepers. Time and again, summons were issued to them, but they did not put in appearance before the trial Court. On 21.7.2004, no PW was present. However, Jatinder Kumar was duly served for the said date, but he did not come present. Accordingly, trial Court summoned him through bailable warrants for 14.9.2004. The remaining witnesses were also summoned for the said date. On 14.9.2004, one Bhajan Singh, Deed Writer, came present, but he could not be examined as the concerned clerk from the office of Sub Registrar had not brought the summoned record. Accordingly, the trial was adjourned to 3.11.2004 and the concerned clerk from the office of Sub Registrar along with the record was summoned. Bhajan Singh was bound down for the next date. This time also, the remaining PWs were also summoned. On 12.1.2005, Bhajan Singh was again present, but he could not be examined as the summoned the record had not been received. Bhajan Singh was again bound down for the next date and record was summoned and so also the remaining PWs. On 2.2.2005, Bhajan Singh once again came present in the trial Court, but for want of record, he could not be examined. The concerned clerk from the office of Sub Registrar was served for that date, but he had not come present. Said clerk was, thereafter, summoned through bailable warrants for 2.3.2005. Bhajan Singh was also bound down for that date. The concerned clerk from the office of Sub Registrar was served for that date, but he had not come present. Said clerk was, thereafter, summoned through bailable warrants for 2.3.2005. Bhajan Singh was also bound down for that date. Constable Harvinder Singh, who stood served for that date did not come present. He was summoned through bailable warrants. ASI Manjit Singh, Didar Singh and Inspector Labh Singh were also ordered to be summoned through SSP, Jalandhar. It was, however, made clear that it shall be the last chance. On 2.3.2005, no PW came present. Learned APP tendered some documents. In view of the fact that the case was lingering for evidence of the prosecution for more than seven years, as the charges were framed on 15.1.1998 and the prosecution, in spite of availing ample opportunities to conclude its entire evidence, failed to do the same, the trial Court found no bona fide reason to further adjourn the case for recording of the evidence of the prosecution. Accordingly, the evidence of the prosecution was closed by order. The said order is under challenge in the present revision petition. 3. When the revision came up for preliminary hearing on 17.3.2005, notice of motion was issued to the State as well as to the accused. It was further ordered that in the meantime, final order be not pronounced by the trial Court. 4. It has been submitted on behalf of the petitioner that his father Harbans Singh, who had lodged the FIR had since died and accordingly, the petitioner being the legal heir, was entitled to file the present revision. Further that the trial Court erred in closing the evidence of the prosecution for no fault of the complainant. Only official witnesses remained to be examined. If those witnesses were not appearing despite their service, the trial Court should have adopted coercive measures by issuing warrants of arrest to enforce their attendance in the Court. Counsel for the accused-respondents submitted that the trial of the case was being prolonged for no fault of the accused. The charges were framed on 15.1.1998 and over a span of more than seven years, the prosecution could not conclude the recording of its entire evidence. 5. Though it is a fact that all the private witnesses already stood examined by the prosecution, yet the official witnesses could not be examined for one reason or the other. The charges were framed on 15.1.1998 and over a span of more than seven years, the prosecution could not conclude the recording of its entire evidence. 5. Though it is a fact that all the private witnesses already stood examined by the prosecution, yet the official witnesses could not be examined for one reason or the other. On 21.7.2004, Jatinder Kumar did not come present despite his service for that date. The trial Court, accordingly, issued bailable warrants to secure his presence. On 14.9.2004, Bhajan Singh, deed writer came present, but he could not be examined for want of record from the office of Sub Registrar. Said Bhajan Singh was bound down for the next date also and the record was summoned. The position remained the same on 12.1.2005 and 2.2.2005, when Bhajan Singh, deed-writer was present in the Court, but could not be examined, for want of record from the office of Sub Registrar. For the latter date, even bailable warrants were issued so as to secure the presence of the concerned clerk from the office of the Sub Registrar. ASI Manjit Singh, Didar Singh and Inspector Labh Singh, who were three police officials had also not come present on various dates fixed for recording of the prosecution evidence and they were summoned through SSP, Jalandhar for 2.3.2005. The trial Court made it clear that it shall be the last chance for the prosecution to get evidence of the witnesses recorded. On 2.3.2005, no PW came present. In such an eventuality, the Court was left with no other option, but to close the evidence of the prosecution by order. A period of more than seven years had been taken by the prosecution to complete its evidence, but it failed to do so. Coercive measures had been taken by the trial Court in the nature of issuance of bailable warrants to secure the presence of some of the remaining witnesses and by issuing directions to SSP, Jalandhar so as to secure the presence of the police officials for recording their statements as witnesses. 6. Learned counsel for the petitioner has relied upon Bachittar Singh v. State of Punjab, 2002(1) RCR(Criminal) 381 and State of Rajasthan v. Murari Lal, 2002(3) RCR(Criminal) 428. 6. Learned counsel for the petitioner has relied upon Bachittar Singh v. State of Punjab, 2002(1) RCR(Criminal) 381 and State of Rajasthan v. Murari Lal, 2002(3) RCR(Criminal) 428. In both these judgments, it has been held that production of witnesses was the primary responsibility of the prosecution and in case the prosecution failed to produce its witnesses, the Magistrate could adopt coercive methods to secure the presence of the witnesses. In the present case, the trial Court had repeatedly issued bailable warrants to secure the presence of the witnesses as well as issued directions to the concerned SSP so as to summon the police officials also. However, all these efforts futile. 7. The trial of the case cannot be allowed to proceed indefinitely. Right of speedy trial has been enshrined in the Constitution. Such a right cannot be defeated at the instance of the prosecution by getting repeated adjournments so as to secure the attendance of the witnesses in the Court. Charges having been framed on 15.1.1998, the prosecution could conclude its evidence with a reasonable period thereafter. It is not the case of the prosecution that any of the accused adopted any delaying tactics. Moreover, after the passing of the impugned order, the statements of the accused were recorded under Section 313 Cr.P.C., whereafter case was taken up for recording of the defence witnesses. The same having been done, the arguments of the case were also heard by the trial Court and it is now at the stage of pronouncement of orders, which pronouncement stands stayed by this Court. 8. In view of the above, the impugned order does not suffer from any illegality or impropriety. The revision is, therefore, devoid of any merit and is, accordingly, dismissed.