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2013 DIGILAW 426 (ALL)

Anil Kumar Sharma v. State of U. P. and Others

2013-02-05

AMAR SARAN, DINESH GUPTA

body2013
Dinesh Gupta, J.— Counter affidavit filed today by the Investigating Officer on behalf of the State is taken on record. The investigating officer states that the investigation is still pending. The investigating officer shall again be present on the next date of listing and inform this Court about the progress made in completing the investigation. Another issue raised in this petition is for issuance of directions for taking steps for expediting the process of producing or directing the accused to appear before the Magistrate concerned at the time of submission of the report under section 173(2) Cr.P.C. The tardiness of the investigating and the trial process is not only violative of the Fundamental Rights of an accused for a speedy trial under Article 21 of the Constitution of India, but it is also prejudicial to the prosecution. If the trial is allowed to be prolonged for a long period of time, the witnesses lose interest or they are won over by the accused and justice is the casualty in either case. Specifically by the earlier two orders dated 7.1.2013 and 17.1.2013, we had directed the State for issuance of the circular at the level of the police for ensuring that the accused is present when the police submit a report under section 173(2) Cr.P.C. for complying with the mandate of sections 170(1), 173(2), 41 and 470(4)(b) Cr.P.C. in letter and spirit and also for ensuring that the accused appear before the trial court at the time when the report under section 173(2) Cr.P.C. is submitted against them so that the trial may commence against them without hindrance. In case the accused has been directed to appear before the Magistrate on the date when the report under section 173(2) Cr.P.C. is to be submitted and he fails to appear, then it is expected that the police and also the concerned Magistrate will take all coercive steps for the arrest of the accused by initiating proceedings under sections 82 and 83 Cr.P.C. and taking all the necessary and consequential coercive steps for arresting the accused. It is expected that different directions would be needed if the accused have never been arrested and no order staying their arrest is operative, if the accused have already allowed bail, or if an order staying their arrest till submission of charge sheet is operative. It is expected that different directions would be needed if the accused have never been arrested and no order staying their arrest is operative, if the accused have already allowed bail, or if an order staying their arrest till submission of charge sheet is operative. As we have been finding that a very significant part of the delay in trial takes place after the reports under section 173(2) Cr.P.C. are filed in the Magistrate's Court without producing the accused or directing the accused to appear before the court concerned on the date the charge sheet is submitted. Thereafter the police disassociate themselves from the matter and the case goes into the back burner either because of routine or systemic delays or because of the wily connivance of the accused with the officials, who prevent the report under section 173(2) Cr.P.C. being placed before the Magistrate concerned for long periods of times, which in some cases extends to one or two years. Issuance of a circular by the DGP for meeting the aforesaid contingency was, therefore, directed by the previous order. The learned Government Advocate and AGA pointed out that such a circular is under preparation by the police authorities and they have sought some further time for issuance of the same. We, therefore, want the Director General of Police to get a comprehensive circular issued by the next listing for ensuring that either the accused are arrested or they are given notice to appear before the Magistrate concerned on the date fixed for submitting the report under section 173(2) Cr.P.C as per the requirement in different situations alluded to above. The other issue raised in this case relate to the problem of supplying of copies of the police report required under section 207 Cr.P.C. simultaneously with the production or the appearance of the accused before the Magistrate concerned on the date when the report under section 173(2) Cr.P.C. is submitted. We had asked the learned AGA to enquire from the police and the home departments as to the impediments in the police getting the said papers photocopies or otherwise copied out for supplying to the accused as the courts are already overburdened for supplying the copies of different kinds of papers in a very large number of cases. We had asked the learned AGA to enquire from the police and the home departments as to the impediments in the police getting the said papers photocopies or otherwise copied out for supplying to the accused as the courts are already overburdened for supplying the copies of different kinds of papers in a very large number of cases. It is our impression that if one or two photocopies machines could be provided either at the police stations or the Circle Officers level and that adequate provisions be made by the home and finance departments for the same, then the said papers could easily be handed over to the accused by the police when he is produced or appears in response to the notice to appear on the date when a report under section 173(2) Cr.P.C. is submitted. The police at present point out to some lack of resources with the police department for preparing the copies and also that the Courts have been furnishing the copies to the accused so far and not the police. In this connection, we think that the Principal Secretary (Home), Principal Secretary (Law) and the Principal Secretary (Finance) as well as Director General of Police or other senior officers in the aforesaid departments, who are authorised to take decisions in such a matters may be present before the Court on the next listing to inform this Court about the steps that are being taken for achieving the objectives and how the difficulties that are being envisaged may be overcome. We also want that an opinion be called for from all the District Judges as to the feasibility and propriety of this Court issuing directions to all the Magistrate concerned where reports under section 173(2) Cr.P.C. are submitted restraining them from taking cognizance on the said reports or accepting the said reports unless the accused are arrested or otherwise appear before the Magistrate on the date fixed so that the delay in the conduct of the trial that are caused on account of non-appearance of the accused at this stage may be eliminated and the legislative mandate of section 170(1), 173(2), 41 and 470 (4)(b) Cr.P.C. may be complied with in letter and spirit and for ensuring that the trial commences promptly after submission of the report under section 173(2) Cr.P.C. The learned District Judges may also make other suggestions to this Court for expediting the trial. We would also like a response on the next date from the Secretary (Law) and the Secretary (Home), UP as well as the Union Law Commission of India and the Law Commission of U.P., as to the feasibility of amending or deleting section 209 Cr.P.C. and for amending the Code of Criminal Procedure either in U.P or at the Central Government level so that police may submit its report directly to the Sessions Judge in case the case is a Sessions triable matter without compelling the police officer to first submit a report of the case which appears triable exclusively by the Sessions Court, before the Magistrate, who in turn has to commit the same under section 209 Cr.P.C. to the Court of Sessions. It should be kept in mind the fact that it is open under section 228(a)(a) Cr.P.C. for the Sessions Court to transfer the case for a trial before the C.J.M. even after framing of the charges if he is of the opinion that the case is not exclusively triable by the Court of Sessions. This procedure of submitting the charge sheet of Sessions Triable cases directly to the Sessions Judge is a time saving measure and is similar to the provisions of submitting the charge sheet directly under the UP Gangsters Act to the Special Judge (Gangsters Act) in accordance with section 10(1) of the UP Gangsters Act. This procedure of submitting the charge sheet of Sessions Triable cases directly to the Sessions Judge is a time saving measure and is similar to the provisions of submitting the charge sheet directly under the UP Gangsters Act to the Special Judge (Gangsters Act) in accordance with section 10(1) of the UP Gangsters Act. We would also like to get details from the State Government as well as from the District Judges of all the districts regarding the number of cases in which the reports under section 173(2) Cr.P.C. have been submitted, but the accused persons have not appeared for periods upto three months, six months, nine months, 12 month and two years or more. Another issue raised by the previous order was that compliance of the provisions of section 309 Cr.P.C. have been observed more in the breach. Section 309 Cr.P.C. is quoted below in extenso: "309. Power to postpone or adjourn proceedings.- (1) In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded: [Provided that when the inquiry or trial relates to an offence under sections 376 to 376 D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses.] (vide amendment by Act No. 5 of 2009, effective from 31.12.2009). (2) If the court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for, special reasons to be recorded in writing: 1[Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.] (vide Act No. 45 of 1978, effective from 18.12.1978). 2[Provided also that- (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it think fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.] (vide amendment by Act No. 5 of 2009, effective from 1.11.2010). Explanation-1.If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused." In this connection the Apex Court in the cases of Akil alias Javed Vs. State of NCT of Delhi, reported in 2012 (11) SCALE 709 , in paras 27 to 36; State of UP Vs. State of NCT of Delhi, reported in 2012 (11) SCALE 709 , in paras 27 to 36; State of UP Vs. Shambhu Nath Singh and Others, reported in 2001 (4) SCC 667 ; Raj Deo Sharma Vs. State of Bihar, 1999 Cr.L.J. 4541 and Lt. Col. S.J. Chaudhari Vs. State (Delhi) Administration, (1984)1 SCC 722 , has called for strict action against the defaulting party as well as the lawyers in case the trial is not conducted as expeditiously as possible, including by cancelling the bail of the accused or by imposing heavy costs commensurate with the loss of earning of the witness who appears for giving evidence in the case, and especially when the examination of the witnesses has once begun, the same has to be carried out on a day to day basis unless all the witnesses in attendance are examined and unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded for a period it considers reasonable, and may by a warrant remand the accused if in custody for a period not exceeding fifteen days. By the Amendment Act 5 of 2009, effective from 1.11.2010, it has further been provided that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment or where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross examine the witness, the Court may record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be. When examination of witnesses has begun and the witnesses are in attendance, the trial may be adjourned without examining the witnesses only for special reasons (i.e. for exceptional and not ordinary reasons) to be recorded in writing. It is also provided that adjournment or postponement can be made, in a proper case, on payment of sufficient costs on the party seeking the adjournment. It is also provided that adjournment or postponement can be made, in a proper case, on payment of sufficient costs on the party seeking the adjournment. The Apex Court (in Rajdeo Sharma v State of Bihar (supra) as approved in Akil @ Javed, (para 34) has given a direction to the High Courts to remind trial Judges of the need to comply with section 309 of the Code in letter and spirit. The High Courts have been directed to take administrative action against the delinquent judicial officer who violates the above legislative mandate. More particularly, by virtue of Amendment Act 5 of 2009, effective from 31.12.2009, so far as the trial under sections 376 to 376D of the IPC are concerned, it should be concluded as far as possible within a period of two months from the date of commencement of the examination of the witnesses. In this connection, we had asked the Registrar General of this Court by the previous order dated 17.1.2013 to inform this Court about the circulars relating to section 309 Cr.P.C., which have been issued by the Court pursuant to the directions of the Apex Court and this Court. The circulars dated 23.11.1992, 6.12.2000 pursuant to the order passed in Criminal Misc. Application No. 6475 of 2000 have been produced. We regret to note that the said circulars are very brief and do not contain the specific points made in the order of the Apex Court as well as by this Court and lack teeth. In this connection the comprehensive circular No. 1/87 issued by the High Court of Delhi dated 12.1.1987 has been cited in extenso in paragraph 27 in Akil @ Javed (supra): The aforesaid paragraph 27 reads as under: "27. In this context it will also be worthwhile to refer to a circular issued by the High Court of Delhi in Circular No. 1/87 dated 12th January 1987. Clause 24A of the said circular reads as under: "24A disturbing trend of trial of Sessions cases being adjourned, in some cases to suit convenience of counsel and in some others because the prosecution is not fully ready, has come to the notice of the High Court. Such adjournments delay disposal of Sessions cases. Clause 24A of the said circular reads as under: "24A disturbing trend of trial of Sessions cases being adjourned, in some cases to suit convenience of counsel and in some others because the prosecution is not fully ready, has come to the notice of the High Court. Such adjournments delay disposal of Sessions cases. The High Court considers it necessary to draw the attention of all the Sessions Judges and Assistant Sessions Judges once again to the following provisions of the Code of Criminal Proceudre, 1973, Criminal Rules of Practice, Kerala 1982 and Circulars and instructions on the list system issued earlier, in order to ensure the speedy disposal of Sessions cases. 1(a). In every enquiry or trial, the proceedings shall be held as expeditiously as possible and, in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. ( Section 309 (1) Crl.P.C.). (b) After the commencement of the trial, if the court finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable. If witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded, in writing. ( Section 309(2) Cr.P.C. ). 2. Whenever more than three months have elapsed between the date of apprehension of the accused and the close of the trial in the Court of Sessions, an explanation of the cause of delay, ( in whatever court it may have occurred) shall be furnished, while transmitting the copy of the judgment. ( Rule 147 Crl. Rules of Practice ). 3. Sessions cases should be disposed of within six weeks of their institution, the date of commitment being taken as the date of institution in Sessions Cases. Cases pending for longer periods should be regarded as old cases in respect of which explanations should be furnished in the calendar statements and in the periodical returns. ( High Court Circular No. 25/61 dated 26th October 1961). 4. Cases pending for longer periods should be regarded as old cases in respect of which explanations should be furnished in the calendar statements and in the periodical returns. ( High Court Circular No. 25/61 dated 26th October 1961). 4. Sessions cases should be given precedence over all other work and no other work should be taken up on sessions days until the sessions work for the day is completed. A Sessions case once posted should not be postponed unless that is unavoidable, and once the trial has begun, it should proceed continuously from day to day till it is completed. If for any reason, a case has to be adjourned or postponed, intimation should be given forthwith to both sides and immediate steps be taken to stop the witnesses and secure their presence on the adjourned date. On receipt of the order of commitment the case should be posted for trial to as early a date as possible, sufficient time, say three weeks, being allowed for securing the witnesses. Ordinarily it should be possible to post two sessions cases a week, the first on Monday and the second on Thursday but sufficient time should be allowed for each case so that one case does not telescope into the next. Every endeavour should be made to avoid telescoping and for this, if necessary, the court should commence sitting earlier and continue sitting later than the normal hours. Judgment in the case begun on Monday should ordinarily be pronounced in the course of the week and that begun on Thursday the following Monday.( Instructions on the list system contained in the O.M dated 8th March 1984). All the Sessions Judges and the Assistant Sessions Judges are directed to adhere strictly to the above provisions and instructions while granting adjournment in Sessions Cases." We would also like some more effective circular to be issued highlighting the directions in this case and the directions of the Apex Court and the provisions of section 309 of the Code as amended from time to time, and the said circular should not simply contain vague and diffuse terms to the effect that the provisions of section 309 of the Code, or that the decisions of this Court as well as Apex Court may be complied with. We would like the presence of the Registrar General on the next listing to inform the Court that a proper circular has been issued and to produce the same before this Court, and to give feedback on our suggestion made above that papers required under section 207 Cr.P.C. be prepared by the police and how the impediments on the police preparing the said papers be overcome. We would also like to have feedback from the District Judges regarding the extent to which compliance is being made by the trial Courts with the provisions of section 309 Cr.P.C as also the directions of the Apex Court and this Court and the impediments, if any for ensuring compliance of the aforesaid legislative mandate List this case on 08.03.2013. Interim order shall continue till the next date of listing. _____________