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2014 DIGILAW 1069 (PAT)

Vijay Kumar Pandey v. State of Bihar

2014-10-16

PRABHAT KUMAR JHA, V.N.SINHA

body2014
ORAL ORDER (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Heard learned counsel for the parties. 2. Informant of Amnaur P.S. Case No. 71 of 1998 has filed this application assailing the judgment dated 24.09.2012 passed by the Sessions Judge, Saran at Chapra in Sessions Trial No. 439 of 2007, whereunder private respondent nos. 2 to 9 have been acquitted of the charges under Sections 302/149 and other allied Sections of the Penal Code including Section 27 of the Arms Act. 3. Challenge to the aforesaid judgment is raised primarily on the ground that the proceedings in sessions trial was conducted without service of notice for appearance of the prosecution witnesses and thereby informant and other important witnesses including officials could not appear to support the charges and result being that the prosecution failed as the three prosecution witnesses examined on 07.09.2007, 02.11.2007 and 04.02.2009 did not support the charges levelled against the respondents. It is submitted that the informant and other eye witnesses including official witnesses i.e. the Doctor and the Investigating Officer could not be examined as summons for their appearance was never served on them. 4. Counsel for the respondents has opposed the submission with reference to the order dated 07.09.2007, 02.11.2007, 07.01.2009, 04.02.2009, 02.07.2009, 12.12.2011 and 23.03.2012 and with reference to the aforesaid orders it is submitted that if the summons and other process as were not executed against the witnesses then it could not have been possible to examine the three witnesses. It is also submitted that as the remaining witnesses were not coming to court, the court not only issued fresh summons but also reminder and then initially bailable warrant and thereafter non-bailable warrant of arrest for their appearance but the witnesses did not choose to appear thereafter, then the court had no option but to proceed with the hearing, judgment and dispose of the trial on the basis of evidence on record. It is also submitted that once the respondents have been acquitted, right has vested in them and we should not interfere lightly. 5. It is also submitted that once the respondents have been acquitted, right has vested in them and we should not interfere lightly. 5. Having perused the orders referred to above, we are satisfied that the court below did issue summons, reminders, non-bailable warrant of arrest, warrant of arrest for appearance of the witnesses but from the order sheet and the records of the court below it does not appear that the summons and the non-bailable, bailable warrant was ever served on the informant and the other witnesses including the official witnesses. The purpose to issue summons and bailable, non-bailable warrant of arrest is for securing appearance of the witnesses. Mere issue of summons and bailable, non-bailable warrant of arrest is of no assistance in disposal of the case if its execution is not ensured by the court below. It is the primal responsibility of the court below to ensure that the summons, bailable, non-bailable warrant of arrest for appearance of the witnesses is not only issued but also executed by obtaining execution report but no such report is available on the records of the court below. As execution reports showing service of summons and bailable, non-bailable warrant of arrest on the informant and the official witnesses is not on record, we have no difficulty to conclude that the summons and other processes including bailable, warrant of arrest issued for securing the attendance of witnesses was never served on them. In the circumstances, in order to ensure complete justice between the parties, we have no option but to set aside the impugned judgment, which is, accordingly, set aside with direction to the informant to appear in the court below on 12th of November, 2014, whereafter, the court below shall fix date for examination of the remainder prosecution witnesses and conclude the examination of witnesses within three months from that date by conducting trial on day-to-day basis. It shall be the duty of the Superintendent of Police, Saran, Chapra to ensure the appearance of the Doctor who conducted autopsy on the person of the deceased and the Investigating Officer who investigated the case within the time indicated in the summons after summons for their appearance is received from the court below in the office of Superintendent of Police, Saran, Chapra after examination of the private prosecution witnesses. 6. 6. Before parting with this order we observe that we have not gone into the merit of the prosecution case which shall be the concern of the trial court and as the respondents were on bail during trial they shall be allowed to remain on the same bail bonds. 7. Let lower court records be transmitted to the court below forthwith through special messenger.