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2017 DIGILAW 470 (JK)

Nighat Yousuf Makhdoomi v. State of J. K.

2017-07-27

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : Petitioners and respondents no.2 and 3 (herein after referred to as accused) are facing trial before the Court of Special Judge, Anti-corruption, Kashmir, in connection with the case registered as FIR no.16/1999 (VOK). Challan has been presented on 3rd August 2004 and the accused were put to trial. Prosecution evidence has been closed on 3rd February 2016. The accused were examined in terms of Section 342 CrPC as is reflected in the order dated 3rd June 2017. In the same order it is recorded that the accused want to lead evidence in their defence. However the court observed that they shall file list of witnesses/documents within 15 days and next date was fixed on 27th June 2017. On that date, neither accused (petitioners) who had been exempted from their personal appearance nor their counsel appeared before the trial court. Then the matter was again taken up on 11th July 2017. It was observed that the accused have not filed list of defense witnesses/documents even though they were given 15 days time to do so vide order dated 3rd June 2017. In the circumstances, it is evident that they are not interested in producing any evidence in their defense, as such, defense evidence has been closed. Dissatisfied therewith, instant petition under Section 561-A Cr. P.C. has been filed. 2. Submission of learned counsel for the accused is that the prosecution took more than 10 years for producing the prosecution witnesses, they were given ample opportunities whereas defense has not been given appropriate time for filing list of witnesses as well as for filing of documents. The accused in-fact have prepared an application wherein it has been prayed that the documents referred to therein may be taken on records and at the same time original records be also called from the concerned department. In addition thereto, names and particulars of witnesses have already been reflected in the application who were to be summoned. 3. Learned Government Advocate would submit that the attempt of accused is to protract the trial. However ld counsel for accused (petitioners) states that the prosecution has taken more than a decade for producing the witnesses, now when the defence seeks time, it is alleged that the defence wants to protract the trial. 3. Learned Government Advocate would submit that the attempt of accused is to protract the trial. However ld counsel for accused (petitioners) states that the prosecution has taken more than a decade for producing the witnesses, now when the defence seeks time, it is alleged that the defence wants to protract the trial. It is true that 15 days time was granted but there was difficulty in collecting particulars of witnesses and documents as were to be produced, which prevented the accused in filing the list of witnesses/documents within time granted. 4. The object of fair trial cannot be allowed to be defeated. The accused have a right to defend and for that purpose, accused have to be given reasonable opportunity which otherwise is a mandate of law and is also envisaged by Section 257 of Code of Criminal Procedure. True if the accused, after having entered upon his defence, applies for issue of process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or any other thing, process has to be issued unless the court considers that such application is made with a design to delay the trial but for that rejection, reasons are to be recorded. In the order impugned, in terms whereof right to lead defence has been closed, nothing has been said. It is true that the accused are facing trial for long time. Its early disposal is imperative but while doing so the right of defence of accused cannot be negated by closing in haste the right to lead defence evidence. 5. The apprehension that the move of defence may be aimed at protracting the trial, can be taken care of by providing that after entertaining application of defence for leading evidence and for production of documents, the accused can be asked to assist in identifying the witnesses so that the defence witnesses are examined without delay. 6. Learned Government advocate submits that the defence in the application has prayed for summoning of some documents but those documents have already gutted in the fire. If it be so, still the defence has a right to prove the documents by other means i.e. secondary evidence, to that effect there has to be some finding recorded only then that course can be resorted to. 7. If it be so, still the defence has a right to prove the documents by other means i.e. secondary evidence, to that effect there has to be some finding recorded only then that course can be resorted to. 7. The submission of learned Government Advocate is that the petition under Section 561-A Cr. P.C. is not worth to be entertained is not of prevailing force. The power under Section 561-A Cr.P.C. has to be exercised with circumspection only for advancing the cause of justice. If such a power is not exercised in view of peculiar facts and circumstances of the instant case, there will be the miscarriage of justice. 8. For the stated reasons, this petition is allowed. Order dated 11-07-2017 recorded by the trial court is set-aside. Trial court after entertaining application of the defence shall take all necessary measures without loss of time so as to avoid protraction of the trial. It is made clear that if there will be any indolence exhibited by the defence in producing witnesses or in producing the required documents, the trial court after entertaining the application for production of defence shall take care of the same. The trial court shall fix the schedule for filing the documents and examination of witness so that the trial is concluded at an earliest. Petition accordingly allowed. Copy of the order be send to trial court for information and compliance.