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2021 DIGILAW 660 (JK)

Ghulam Mohammad Bhat v. State Of J&K

2021-12-17

SANJAY DHAR

body2021
JUDGMENT : 1) Petitioner has challenged order dated 29.01.2018 passed by Special Judge, Anticorruption, Srinagar, whereby the learned Special Judge has dismissed the application of petitioner for calling of record and for leading of evidence in defence. 2) Before coming to the impugned order, it would be necessary to give the background facts that have led to the filing of the instant petition. 3) FIR No.34/2007 for offences under Section 5(1) read 5(2) of Prevention of Corruption Act and Section 161 RPC came to be registered against the petitioner and after investigation of the case challan was laid before the Court of Special Judge, Anticorruption, Srinagar (hereinafter referred to as the trial court). After framing of charges against the petitioner on 12.06.2009, the prosecution led evidence in support of the charges whereafter statement of the petitioner under Section 342 of J&K Cr.P.C was recorded. The petitioner/accused sought time to produce evidence in defence and in the meanwhile filed an application before the learned trial court, wherein it was averred by the petitioner that he has come to know that complainant-PW(1) had sworn and filed an affidavit before the concerned authority during investigation of the case and that contents of said affidavit touch the merits of the case that would assist the Court in arriving at just decision of the case. It was further averred in the said application that the affidavit in question is in possession of General Administration Department of the Government and the same is required to be summoned along with witnesses who have identified the deponent as also the Magistrate who has attested the said affidavit. 4) The aforesaid application of the petitioner/accused came to be dismissed by the learned trial court vide the impugned order, relevant portion whereof is reproduced as under: “Perusal of the record reveals that there is no mention of any such affidavit filed by the complainant before GAD in the charge sheet or the deposition of the complainant recorded on 19.05.2014 nor he has been questioned about such affidavit by the learned defence counsel. If there was any such affidavit favouring the defence, it would have been known to him from the very beginning. In any case, he had the opportunity to question the complainant about that affidavit which latter was examined. If there was any such affidavit favouring the defence, it would have been known to him from the very beginning. In any case, he had the opportunity to question the complainant about that affidavit which latter was examined. The applicant has maintained silence as to when he came to know about the bearing of the affidavit which leads only inference that he was aware from very beginning. therefore, there is substance in the objection taken by the prosecution that instant application has been filed to gain time for protracting the trial and hence allowing such application would necessarily lead to re-opening of the trial. For the forgoing reasons, the application is dismissed. No DW is present and sufficient time has already been given to the accused for leading the defence. In the circumstances there is no justification for granting further time for the production of defence witnesses. The defence evidence is, therefore, closed. Now the file shall come up for final arguments on 19.02.2018.” 5) The petitioner/accused challenged the aforesaid order of the trial court by way of a petition under Section 561-A of Jammu and Kashmir Cr.P.C. bearing No.78/2018. The said petition was disposed of by this Court in terms of order dated 07.03.2018, which is reproduced as under: “This petition is disposed of with the direction to the court below to provide an opportunity to the petitioner for producing his evidence in defence and in case he does not produce the evidence on the appointed date before the court below, in that event, the evident in defence shall be deemed as closed.” 6) In pursuance of the aforesaid order, learned trial court in terms of interim order dated 19.03.2018 granted one opportunity to the petitioner/accused to produce evidence in defence. However, it appears that instead of producing evidence in defence, petitioner again rushed to this Court and filed the instant petition challenging the order dated 29.01.2018 and he also sought recall of order dated 07.03.2018 passed by this Court. 7) I have heard learned counsel for the parties and perused the record. 8) Learned counsel appearing for the petitioner/accused has submitted that the impugned order passed by the learned trial court is not sustainable in law, inasmuch as the defence of the petitioner/accused has been shut out without affording him an opportunity of producing any evidence. 7) I have heard learned counsel for the parties and perused the record. 8) Learned counsel appearing for the petitioner/accused has submitted that the impugned order passed by the learned trial court is not sustainable in law, inasmuch as the defence of the petitioner/accused has been shut out without affording him an opportunity of producing any evidence. It has been contended that it was not possible and practicable for the petitioner to get the relevant record from the GAD as also the witnesses to prove the execution of said affidavit without the assistance of the Court. Learned counsel has also submitted that because, in terms of order dated 07.03.2018 it was provided that in the event the petitioner fails to produce the evidence, the same shall be deemed as closed, he could not produce the evidence on the date fixed on account of the fact that without assistance of the Court, it was not practicable for him to do so. 9) So far as the impugned order dated 29.01.2018 is concerned, the same, as already noted, was challenged by the petitioner by way of earlier petition under Section 561-A of J&K Cr.P.C. The said petition came to be disposed of by this Court on 07.03.2018 by giving an opportunity to petitioner to produce his evidence in defence with a caveat that in case he fails to do so, his evidence shall be deemed as closed. This virtually meant that the order dated 29.01.2018, whereby evidence of the petitioner was closed and his application to summon the record and witnesses was dismissed, stood set aside by this Court. 10) In the aforesaid backdrop, the question arises as to what was the duty cast upon the trial court after passing of order dated 07.03.2018. Since there was an application filed by the petitioner/accused before the trial court praying for summoning of record and the witnesses, it was incumbent upon the trial court to issue the summons and, at best, ask the petitioner to get the summons served upon the witnesses so that their statements could be recorded on the next date. Section 257 of Jammu and Kashmir Cr.P.C is very clear about it and the same is reproduced as under: “257. Section 257 of Jammu and Kashmir Cr.P.C is very clear about it and the same is reproduced as under: “257. Process for compelling production of evidence at instance of accused—(1) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate, shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing : Provided that when the accused has cross-examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice. (2) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses incurred in attending for the purposes of the trial be deposited in Court.” 11) From a bare perusal of the aforesaid provision, it is clear that in case accused has entered his defence and he applies to the court to issue process for compelling attendance of any witness or production of any document, the court has to issue the process. In the instant case, the learned trial court, instead of doing so, has vide its order dated 19.03.2018, which is on the record of the trial court, simply directed the petitioner/accused to produce evidence whatever he wishes in defence. Obviously, petitioner/accused could not have produced the document in question without the assistance of the Court. Thus, grave prejudice has been caused to the petitioner by the manner in which the learned trial Judge has approached the case after passing of order dated 07.03.2018 by this Court. The learned trial court has ignored the mandate of Section 257 of J&K Cr. P. C while approaching the case at hand. Therefore, in order to secure the ends of justice, it is necessary that the petitioner/accused is given an opportunity to produce his evidence in defence. The learned trial court has ignored the mandate of Section 257 of J&K Cr. P. C while approaching the case at hand. Therefore, in order to secure the ends of justice, it is necessary that the petitioner/accused is given an opportunity to produce his evidence in defence. 12) For the foregoing reasons, the instant petition is disposed of with a direction to the learned trial court to give one opportunity to the petitioner to produce evidence in defence and while doing so, the Court shall issue summon for production of the document in question and the witnesses at the expenses of the petitioner/accused who shall take dasti summons and get the same served upon the relevant witnesses. 13) The trial court record along with a copy of this judgment be sent back.