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2007 DIGILAW 268 (JK)

State v. Surinder Mohan

2007-12-04

VIRENDER SINGH

body2007
1. Vide this order, I intend to dispose of aforesaid Criminal Revision and Bail Application. Cr. Rev. No. 20/2006 2. The instant revision petition has been filed by the State against the order of learned 1st Additional Sessions Judge, Jammu, dated 19.11.2005 vide which the prosecution evidence was closed by the order of the Court. 3. Mr. Salathia at the very outset submits that no doubt in the present petition, the State has impugned primarily the aforesaid order dated 19.11.2005, but the substantive relief sought herein is of seeking an opportunity for producing Investigating Officer of this Case. He submits that after the evidence of the prosecution was closed vide order dated 19.11.2005 (Annexure-A), the State had moved an application under Section 540 Cr.P.C., on 07.01.2006 seeking permission to produce the Investigating Officer and the said application also stands dismissed by the Trial Court vide order dated 11.02.2006 (Annexure-B). Therefore, for all intents and purposes, the State is virtually impugning order dated 11.02.2006 also. 4. There is no need of entering into the facts of the case, but what needs to be mentioned here is that the accused-respondents were charge-sheeted on 03.10.2001 for the offences punishable under Sections 302/34 RPC and 4/25 Arms Act. During the pendency of the trial, they moved an application before this Court asking for the concession of regular bail. That application came to be dismissed on 21.07.2005 but with a direction to the trial Court to conclude the evidence within the period of four months. Pursuant to the said direction, the learned trial Court had given certain opportunities and during this period, statements of some of the witnesses were also recorded as is clear from order dated 11.02.2006. Thereafter also, after affording last and final opportunity, finally on 19.11.2005 the evidence of the prosecution was closed by the order of the Court. It goes without saying that all this effort was done by the trial Court pursuant to the aforesaid direction of this Court. After the closure of the evidence of the prosecution, case was put up for recording of the statements of the accused under Section 342 Cr.P.C. In the meantime, the State moved an application under Section 540 Cr.P.C., praying therein that an opportunity may be afforded to it to examine the Investigating Officer on the plea that despite best efforts, his appearance could not be procured. It was also averred in the said application that a request was made to the Court for summoning him through coercive process, but the evidence was closed by the order of the Court. The other plea taken was that he being very material witness, his evidence was essential for the just decision of the case. The prayer was opposed by the accused and ultimately the trial Court dismissed the said application vide order dated 11.02.2006. I feel it most appropriate to reproduce the operative part of the said order, which reads thus:- "3. In view of the petition u/s 540 Cr.P.C, as detailed herein above, the powers u/s 540 Cr.P.C. in such circumstances of the case cant be invoked by this Court, as it would amount of pass a contrary direction to that of directions of Honble High Court. No doubt, the court has powers u/s 540 Cr.P.C, to summon any person as a witness or examine any person in attendance though not summoned as a witness or recalled and re-examine any person, already examined and the court shall summon and examine or recall and re-examine any person if his evidence appears to be essential to the just decision of the case. But this cant be done to fill the lacunae in the prosecution case. Further, in view of the directions of Honble High Court evidence was to be collected within four months and several opportunities have been provided to the Prosecuting Agency in view of the directions of Honble High Court and prosecution evidence has been closed in compliance to the order of Honble High Court." Therefore, the present revision petition by the State Bail Application No.69/2006 5. During the pendency of the revision petition, two of the accused namely Ajay Kumar and Ramesh Kumar have also moved present bail application (B.A. No.69/2006) asking for regular bail on the ground that State is delaying the matter on one pretext or the other. This was ordered to be listed along with the present revision petition. 6. Record reveals that the notice was issued by this Court in bail application on 20.11.2006 and the State was afforded an opportunity to file objections to it. Since the State had not responded to it by filing objections for a considerable period despite many opportunities being granted, this Court had asked for the comments of the trial Court vide order dated 30.03.2007. Since the State had not responded to it by filing objections for a considerable period despite many opportunities being granted, this Court had asked for the comments of the trial Court vide order dated 30.03.2007. Ultimately, when the trial Court had not sent its comments in time and the objections were also not filed by the State, this Court wide order dated 21.04.2007 had called for the records. At the same time, gave another opportunity to the State to file objections. This is how the trial Court records are before me. 7. Heard learned counsel for both the sides and perused the record. Mr. Salathia submits that the present case is hinging upon circumstantial evidence and the allegations against the respondents-accused are very serious in nature. Deceased in this case was hailing from Haryana. One of the accused is also from Haryana, whereas the other two accused are from Delhi. The accused and the deceased were running business jointly. As per the allegations, in lust for money of about four lacs, which the deceased was carrying with him on the fateful day, the accused had allegedly killed him and threw his dead body in the river Tawi near Bahu Fort, Jammu. They ultimately fled away from the place of occurrence along with money. 8. Mr. Salathia then submits that no doubt out of the total list of thirty five (35) witnesses, the prosecution has been able to produce almost all the material witnesses in support of the charges against the accused, but despite its best and sincere efforts, could not produce the Investigating Officer, who at the time of incident was posted at Jammu and thereafter transferred. According to him, after this Court had given the direction for concluding the evidence within stipulated period (four months), all possible efforts were made by the State agency to produce the Investigating Officer in so much so, a request was also made to the Court to resort to some coercive process for his production, but the trial Court virtually under the command of the order of the High Court had closed the prosecution evidence vide impugned order dated 19.11.2005. This primarily was the reason that the State had moved application under Section 540 Cr.P.C., for summoning of Investigating Officer with a request to give atleast one opportunity to it to produce him. According to Mr. This primarily was the reason that the State had moved application under Section 540 Cr.P.C., for summoning of Investigating Officer with a request to give atleast one opportunity to it to produce him. According to Mr. Salathia, order dated 11.02.2006 reflects that the application moved by the State is dismissed primarily on the ground that the Court had earlier closed the evidence of the prosecution pursuant to the order of this Court and calling the witness under Section 540 Cr.P.C., would amount to passing a contrary order against the direction of High Court. This approach, according to Mr. Salathia, adopted by the Court, in fact, is contrary to the spirit of Section 540 Cr.P.C., as the said application calls for its decision independently. 9. Mr. Salathia then submits that without entering into technical aspect of the matter, the present case, in the present set of circumstances, otherwise, calls for interference of this Court and it would be in the interest of justice to summon the Investigating Officer. He submits that a shortest possible date may be granted to the State for the same, may be on its own responsibility and he assures that on the date fixed the Investigating Officer would cause his appearance positively. 10. Opposing the bail application, Mr. Salathia submits that on merits, accused- Ajay Kumar and his co-accused Ramesh Kumar have no case for bail as they are involved in a very serious offence and as such their application merits dismissal. 11. Repudiating the submissions advanced by Mr. Salathia, Mr. Sunil Sethi, submits that what is to be appreciated herein is as to whether the order passed by the learned trial Court dated 19.11.2005 suffers from any illegality or not. He then submits that even otherwise the State has not impugned order dated 11.02.2006 vide which the application under Section 540 Cr.P.C., stands declined and, therefore, Mr. Salathia cannot develop his arguments on that aspect. 12. Mr. Sethi then submits that the learned trial Court has rightly rejected the application moved under Section 540 Cr.P.C., for the reason that allowing the application of the State would have amounted to review of the earlier order, which is not permissible in criminal law. Otherwise also, allowing of the application of the State, would have been against the command of the High Court orders. Therefore, the rejection of the said application is absolutely justified. 13. Otherwise also, allowing of the application of the State, would have been against the command of the High Court orders. Therefore, the rejection of the said application is absolutely justified. 13. Meeting the arguments on merits, Mr. Sethi submits that the instant revision petition does not call for discussion on merits of this case. Seriousness of the allegations as highlighted by Mr. Salathia is not to be taken into account at this stage. According to him, a valuable right has been accrued to the accused and it should not be snatched just on asking of the State. According to him, allowing the prayer of the State would be rather against the interest of justice and great prejudice would be caused to the accused. 14. On the basis of the aforesaid submissions, Mr. Sethi prays for dismissal of the revision petition. 15. Arguing the bail application on behalf of two accused, Mr. Sethi submits that earlier also when the accused had knocked the door of this Court praying for the bail, the ground of delay by the State was one of the main stand of the petitioners and this was the reason that the Court had given a specific direction to conclude the evidence within aforesaid period. When the State was delaying the trial intentionally for one reason or the other and the trial Court was not proceeding with the trial despite there was no direction in the revision petition with regard to the stay, the accused were constrained to file the bail application. Even after filing of the bail application, objections were not filed by the State for a considerable time and this was the reason that the comments of the trial Court were called for and ultimately the records of the trial Court were also summoned. He then submits that the accused are languishing in the jail without there being any fault from their side and the delay in the disposal of the case is mainly on account of the lapse of the State and may be on the part of trial Court, who did not proceed with the case despite there being no stay, a valuable right for concession of bail has arisen as their liberty is being curtailed unnecessarily by keeping them in custody. 16. 16. What I find from the perusal of zimini orders (short orders) from judicial file that after dismissal of the application moved by the State under Section 540 Cr.P.C., learned trial Court has shown some liverage to the State in seeking adjournments for a considerable period on the pretext of producing the orders from the High Court in the revision petition. It went on up to March, 2007. This is the reason that in the bail application No.69/2006, this Court ultimately vide order dated 30.03.2007 asked for the comments of the trial Court. What appears to me is that the trial Judge might have thought in his wisdom that in case he proceeded with the trial and ultimately his order was reversed by the High Court with a direction to call the Investigating Officer, the entire exercise would turn out to be futile. However, the latitude shown by the trial Court to this extent towards the State is not appreciable. The fact remains that the stage now before the trial Court, as is evident from the last short order dated 21.04.2007, is that statements of the accused in terms of Section 342 Cr.P.C., have already been recorded, may be after his comments were called for and he thought of taking some effective steps, the case is now ripe for arguments under Section 273 Cr.P.C. The trial Court has not proceeded thereafter as the trial Court records were summoned by this Court vide order passed in bail application No.69/2006. 17. Learned counsel for both the sides state at the bar that next date fixed before the trial Court is 08.12.2007 for awaiting of the orders of this Court and the trial Court has prepared an index-sheet for it. The accused are appearing from judicial custody on each and every date. Adverting to the merits of the case. 18. In my view, the preliminary objection taken by Mr. Sethi by joining issue with Mr. Salathia with regard to order dated 11.02.2006 (annexure-B) is not sustainable for a very simple reason that this hyper-technical objection would not come in the way of the petitioner-State at all. Adverting to the merits of the case. 18. In my view, the preliminary objection taken by Mr. Sethi by joining issue with Mr. Salathia with regard to order dated 11.02.2006 (annexure-B) is not sustainable for a very simple reason that this hyper-technical objection would not come in the way of the petitioner-State at all. No doubt, if one goes by cause title of the revision petition in hand, State has only impugned order dated 19.11.2005, vide which the prosecution evidence was closed by order of the Court, but if one reads the prayer clause, it is seeking an opportunity for production of Investigation Officer. In the averments made in the revision petition in para (v), there is a reference to application under Section 540 Cr.P.C. also and dismissal thereof vide order dated 11.02.2006. Even otherwise, the Court can suo moto invoke its inherent jurisdiction under Section 561-A Cr.P.C., if it feels that the said order needs to be disturbed or modified in the interest of justice. Therefore, in my view, even if the State has not challenged or impugned order dated 11.02.2006 in so many words in the instant revision petition, it cannot be debarred from commenting upon it. Otherwise also, order dated 11.02.2006 is dependent upon order dated 19.11.2005. For the purposes of deciding the instant petition, in my view, this Court cannot just ignore order dated 11.02.2006. I, therefore, repel the argument advanced by Mr. Sethi on this aspect. 19. The short controversy, which can now be narrowed down, is as to whether production of Investigating Officer, in the present set of circumstances, would be in the interest of justice or not. Their Lordships while dealing with the scope of Section 540 of the Code of Criminal Procedure, 1989 (corresponding to Section 311 of the Code of Criminal Procedure, 1973) in case `Mohan Lal Shamji Soni v. Union of India and another 1991 Supp (1) SCC 271, observed in para 9 of the judgment as under:- "9. The very usage of the words such as `any court, `at any stage, or `of any enquiry, trial or other proceedings, `any person and `any such person clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way. The very usage of the words such as `any court, `at any stage, or `of any enquiry, trial or other proceedings, `any person and `any such person clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case." 20. While dealing with the second part of Section 540 Cr.P.C., in more detail, their Lordships in para 16 of the judgment observed as under:- "16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any part to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision- either discretionary or mandatory- depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., 19 Ga 118 (Am), which reads thus: "... it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly... Counsel seek only for their clients success; but the judge must watch that justice triumphs." 21. In the aforesaid judgment, the Honble Supreme Court had reiterated the earlier view rendered in its basic judgment in case `Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178. 22. Counsel seek only for their clients success; but the judge must watch that justice triumphs." 21. In the aforesaid judgment, the Honble Supreme Court had reiterated the earlier view rendered in its basic judgment in case `Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178. 22. Following the ratio of the aforesaid judgment, the only test is that the jurisdiction of the Court must obviously be dictated by the exigency of the situation and fair play. The requirement of justice should command the examination of a person is the test and this all depends upon facts and circumstances of each case. In other words, Court should test individual case on the touchstone satisfying itself as to whether it is absolutely necessary in the interest of justice that a particular evidence should come on record. Interest of justice, no doubt, means justice to both the sides. Legally, there is no limitation on the power of the Court arising from the stage to which the trial may have reached for examination of a particular witness under this Section, if the Court is bona fide of the opinion that for a just decision of the case the power should be invoked, but at the same time it is well settled and accepted principle that a Court must discharge its statutory functions whether discretionary or obligatory, according to law, in dispensing justice because the duty of a Court is not only to do justice but also to ensure that the justice is being done. In order to enable the Court to find out the truth and render a just decision, its salutary provisions are enacted. 23. I am deciding the case on hand on the basis of the aforesaid settled yardstick. 24. There is a peculiar situation in this case. The learned trial Court while responding to the command of the order of this Court passed in the earlier bail application No.02/2005 closed the evidence of the prosecution vide order dated 19.11.2005 (impugned herein) and subsequently, dismissed the application of the State filed under Section 540 Cr.P.C., primarily on the ground that allowing of State application would be contrary to the directions of this Court. Although, as a passing reference, the learned trial Judge has also observed that this Court cannot fill up the lacunae in the prosecution case, but interestingly, did not comment upon it any further. Although, as a passing reference, the learned trial Judge has also observed that this Court cannot fill up the lacunae in the prosecution case, but interestingly, did not comment upon it any further. May be, the learned trial Judge was justified in his own way, as the earlier direction passed in the aforesaid bail application was at the back of its mind. Be that as it may, what is now to be appreciated by this Court is as to whether in the present set of circumstance, examination of the Investigating Officer is essential for the just decision of the case or not. 25. I see the instant petition yet from another angle. The State agency has shown some casualness or laxity in not making request to this Court for the extension of time before 19.11.2005, projecting their bona fides with regard to non-production of Investigating Officer within the stipulated period. Had the State asked for some liverage, this Court would have certainly considered this case and in that eventuality the trial would have been concluded by now resulting into conviction or acquittal of the accused. This casual approach, no doubt, has fallen very heavily on the valuable right of liberty of the accused, who are in jail for the last many years. In the face of it, the delay of last twenty months are attributable to the State agency only. But at the same time, the next point props up is as to whether this delay, which has accrued in this case, should stand in the way of justice, which is the paramount consideration. The answer certainly would be `No. 26. At the same time, this Court would also appreciate another material aspect as to whether allowing of the application as prayed for, would amount to filling up of lacunae which would cause prejudice to the other side or not. 27. Admittedly, the present case is hinging upon circumstantial evidence. The prosecution has produced many material witnesses as is clear from the trial Court records. Commenting upon the evidence already produced is not called for at this stage, as this exercise is to be left to the trial court only. In my view, in a case of circumstantial evidence, Investigating Officer is a very important witness. Whole of the prosecution case depends upon the investigation conducted by him. Commenting upon the evidence already produced is not called for at this stage, as this exercise is to be left to the trial court only. In my view, in a case of circumstantial evidence, Investigating Officer is a very important witness. Whole of the prosecution case depends upon the investigation conducted by him. Not only he has to prove many documents collected by him during the investigation while completing the chain of circumstantial evidence, an effective cross-examination on him from the defence side can equally be helpful to find the truth. He can also be put to cross-examination with regard to the confrontation crept in during the cross-examination of certain material witnesses. This would help the accused side as well. Till he steps into the witness box, the discrepancies or confrontations already projected from the statements of the witnesses recorded under Section 161 Cr.P.C., cannot be got proved technically and in turn, would be of no help to either side. On the other hand in a case of `eye version account, the Investigating Officer might not be having that important role to play. Therefore, in my considered view, in the present case, examination of Investigating Officer is essential in the interest of justice and for just decision of the case. 28. Let us now advert to the other aspect of the matter as to whether examination of the Investigating Officer of this case would amount to filling up of lacunae or not. Admittedly, he is not a stranger to the case, who is to be examined by the State for the first time after the statements of the accused are recorded and there is a new development in the case. He is one, who was the master of the ship right from the beginning and investigated the case up to the stage of filing of the challan. On the basis of evidence collected by him, the charges were also framed against the accused and at present they are facing trial for the same. Therefore, it cannot be said that examination of the Investigating Officer would amount to filling up of lacunae. He cannot just travel beyond the evidence collected by him. On the basis of evidence collected by him, the charges were also framed against the accused and at present they are facing trial for the same. Therefore, it cannot be said that examination of the Investigating Officer would amount to filling up of lacunae. He cannot just travel beyond the evidence collected by him. At the cost of repetition, it may be observed that the learned trial Court was very well aware of this position while dismissing the application of the State filed under Section 540 Cr.P.C., as is evident from para (3) of order dated 11.02.2006, but did not comment upon it keeping in view the direction of this Court passed in Bail Application No.02/2005. So is not the position here now. 29. I am conscious of the fact that lot of delay has already crept in this case, but keeping in view the totality of facts and circumstances, one more opportunity should be given to the State to produce the Investigating Officer, may be on its own responsibility, on a very shortest possible date. Ordered accordingly. 30. In view of what is observed hereinabove, the net result now surfaces is that the instant revision petition is allowed and the learned trial Court is directed to grant one more opportunity atleast of two weeks to the State to produce the Investigating Officer of this case. The learned trial Court may also adopt the coercive method to procure the presence of the witness in case the prosecution projects its bona fides in not getting the service effected upon the said witness. It is, however, made clear that learned trial Court would fix the next effective date for the same on 08.12.2007, the date already fixed before it for awaiting of the orders of this Court (as stated at the Bar by learned counsel for both the sides). 31. Since the present case has already gone very old, the trial Court is requested to make all sincere efforts to conclude the trial as early as possible, but certainly not at the cost of curtailing the liberty of defence to produce its evidence, if it so desires. 32. 31. Since the present case has already gone very old, the trial Court is requested to make all sincere efforts to conclude the trial as early as possible, but certainly not at the cost of curtailing the liberty of defence to produce its evidence, if it so desires. 32. Since I have granted the shortest possible time to the State for producing the Investigating Officer and thereafter requesting the learned trial Judge to conclude the trial on early basis, the bail application bearing No. 69/2006 filed by the petitioners (Ajay Kumar and Ramesh Kumar) primarily on the ground of delay in the trial deserves to be dismissed. Ordered accordingly. 33. Since the trial Court records were summoned in Bail Application No. 69/2006, the same be sent back forthwith by a Special Messenger to the trial Court, much before 08.12.2007 enabling the Court to pass an effective order on the date already fixed. 34. Let a copy of this order be also sent to the trial Court for its compliance. Registrar Judicial of this Court to take note of it. Both the aforesaid petitions stand disposed of accordingly.