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2007 DIGILAW 924 (PAT)

Sidhi Singh @ Sharna v. State Of Bihar

2007-05-09

GHANSHYAM PRASAD

body2007
Judgment 1. This application has been filed for quashing the entire criminal proceedings in Sessions Trial no. 361/1996 arising out of Dhanarua P.S. Case no. 36/1975 as well as the order dated 17.4.2002 (framing of charge) pending in the Court of Fast Track Court No. II, Patna. 2. The main grounds for quashing is non-supply/availability of police papers and long pendency of the case. It is a case of the year 1975. Trial of the case is pending since1996. The accused persons have been charged under Sections 147, 148, 149, 324, 307 and 302 of the Indian Penal Code. However, till date not a single witness has been examined. The admitted fact is that the police paper was never supplied to the accused persons and the case has been committed and charge has also been framed in absence of police paper, presumably, on the basis of charge-sheet and fardbeyan. 3. The record would go to show that attempts were made by the lower court as well as the Hon ble Court to trace out the case diary but failed. The Senior Superintendent of Police as well as Director General of Police was also summoned by the High Court who filed affidavit showing their inability to trace out the case diary. The then Investigating Officer of the case in question is now being prosecuted for loss of case diary in Pirbahore P.S. Case No. 339 of 1995. 4. Submission of the learned counsel for the petitioners is that the police paper is a valuable document both for prosecution as well as for defence. The case diary provides valuable safeguard to the accused and is utilised at the trial to chalk out the effective defence and also to shake the testimony of witnesses. Therefore, non- supply of case diary naturally causes serious prejudice to the defence. In such situation there shall not be any chance of conviction. To hold trial will be mere wastage of time of the court. Further submission of the learned counsel for the petitioners is that speedy trial is the fundamental right of the accused. Pendency of the case since 1975 is clear infringement of fundamental right of the petitioners as enshrined under Article 21 of the Constitution. It is further submitted that on this score in several cases this Court has quashed the criminal prosecution. Pendency of the case since 1975 is clear infringement of fundamental right of the petitioners as enshrined under Article 21 of the Constitution. It is further submitted that on this score in several cases this Court has quashed the criminal prosecution. Learned counsel for the petitioners has relied upon the decision of the Apex Court reported in (1992) 1 SCC 225 (Abdul Rehman Antulay and Ors Vs. R.S. Nayak and Another), 2004(3) PLJR 349 (Rakesh Rai @ Kallu Rai @ Rakesh Kumar Rai Vs. The State of Bihar), 2007(2) BBCJ 33 (Kumar Sushil Vs. The State of Bihar) 5. The admitted fact is that the police papers was never supplied to the petitioners and it is also not available on the record. Attempts to trace out the case diary did not yield any result. Sec. 207 of the Code of Criminal Procedure provides for supply of the copy of the police papers. It is mandatory provision. Now the question arises as to whether breach of this provision is sufficient to quash the trial. This matter has been considered by the Apex Court in a decision reported in AIR 1964 Supreme Court 286 (Noor Khan, Appellant Vs. State of Rajasthan, Respondent) This case is based on old Criminal Procedure Code. However, by and large the related provisions in both Codes are similar. In paragraph 15 of the judgment the Apex Court has discussed the importance of supply of police papers as well as the impact of breach of trial. Paragraph 15 runs as follows: "The object of Ss, 162, 173(4) and 207A (3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigation officer to supply before the commencement of the inquiry copies of the statements of witnessses who are intended to be examined at the trial so that the accused may utilize those statements for cross-examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. The sections impose an obligation upon the investigation officer to supply before the commencement of the inquiry copies of the statements of witnessses who are intended to be examined at the trial so that the accused may utilize those statements for cross-examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. Section 161(3) does not require a police officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession of the prosecution, on which the case of the State is based, and the statements made against him. But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. The provision relating to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach, for Sec. 537 Code of Criminal Procedure provides, amongst other things that subject to the provisions contained in the Code no finding, sentence or order, passed by the Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. By the explanation to S. 537 it is provided that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding." 6. This principle has subsequently been followed in another decision reported h 1970 Cr.L.J. 558 (State Vs. Sardar Singh and others). In that very decision also reliance has been placed on the above decisions of the Apex Court. 7. From the above principle laid down by the Apex Court it is quite clear that failure to supply the police papers does not vitiate the trial. The matter of prejudice likely to be caused to the petitioners shall be considered by the trial court at the time of disposal of the case. 8. The other point raised by the learned counsel for the petitioners for quashing the criminal proceeding is infringement of right of speedy trial for which reliance has been placed on the above citied decisions. In decision reported in 2004(3) PLJR (Supra) the case in hand was under Sec. 323 of the Indian Penal Code. In other decision the case was basically of rioting and the accused in question was the member of unlawful assembly. In both decisions the criminal proceedings have been quashed on the ground of long pendency of the trial without substantial progress in the trial. The Apex Court in the above cited decision (1992)1 SCC 225 laid down certain guidelines for the purpose of quashing of criminal proceedings on the ground of infringement of right to speedy trial. In sub-para 5 of paragraph 86 it has been laid down as follows;- "While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one." 9. The present case is the case of murder. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one." 9. The present case is the case of murder. The circumstances under which the delay was caused in speedy trial of the case was beyond control of any person. The lower court record goes to show that after commitment the record was received in the file of Sessions Judge on 6.4.1996. The appearance of accused was completed in the year 2001. It appears that the court took steps for procurement of case diary from the police. Ultimately the charge was framed against the petitioners on 17.4.2002 and the record was placed for evidence. It further appears that on 28.3.2003 one witness was examined and partly cross examined. Even thereafter some witnesses were also produced by the prosecution but due to absence of case diary no examination was done. The order dated 11.3.2003 would go to show that the Presiding Officer directed the A.P.P. to produce the witnesses with observation that evidentiary value of the witnesses shall be considered at the time of judgment. Thereafter, the accused/petitioners moved before the High Court for quashing the entire proceeding. 10. Keeping in view the above facts and circumstances as well as the nature of crime as also law laid down by the Apex Court in the above decision I am of the opinion that this is not a fit case for quashing the criminal proceeding on the ground of delay in speedy trial. 11. In the result this application is rejected and the court below is directed to proceed with the trial without police papers and conclude the same within six months. The matter of prejudice or failure of justice due to non-supply of case diary shall be raised and considered at the time of final disposal of the trial.