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2024 DIGILAW 371 (ALL)

Shahzan v. State of U. P.

2024-02-05

AJAY BHANOT

body2024
JUDGMENT : AJAY BHANOT, J. 1. Heard Ms. Shivangi Singh, learned counsel for the applicant and Shri Paritosh Kumar Malviya, learned AGA-I for the State. 2. By means of this bail application the applicant has prayed to be enlarged on bail in Case Crime No. 34 of 2021 at Police Station Haldaur District Bijnor under Sections 147, 148, 149, 302, 506 IPC and Section 7 of Criminal Law Amendment Act. The applicant is in jail since 06.02.2021. 3. The bail application of the applicant was rejected by learned trial court on 29.06.2022. 4. The applicant has been identified as one of the principal offenders who discharged his firearm and shot dead the deceased. The deceased sustained multiple bullet injuries. Eye witnesses to the incident and the postmortem report corroborate the prosecution case. The trial is on foot. Enlarging the applicant on bail at this stage would not be conducive to a fair trial. The offence is grave. There is likelihood that the applicant committed the offence. At this stage, no case for bail is made out. 5. Without going into the merits of the case, at this stage the bail application is dismissed. 6. Before parting, some essential observations arising in the facts of this case are being made as regards the conduct of the trial. 7. This Court would like to express its dissatisfaction at the pace of the trial. The status report sent by the learned trial court records that as per the charge-sheet the prosecution proposes to examine 67 witnesses to bring home the charges. Till date only 7 prosecution witnesses have been examined. 8. Earlier this Court had directed the trial court to provide all relevant details regarding the status of the trial including the number of prosecution witnesses mentioned in the charge-sheet, and the prosecution witnesses depicted in the calendar. 9. The trial court in its status report only depicts the witnesses mentioned in the charge-sheet. The proposed prosecution witnesses depicted in the calendar given by the public prosecutor at the commencement of the trial has not been disclosed in the said status report. The State too has failed to furnish the calendar before this Court. Evidently the calendar has not been produced before the trial court by the prosecution. 10. The proposed prosecution witnesses depicted in the calendar given by the public prosecutor at the commencement of the trial has not been disclosed in the said status report. The State too has failed to furnish the calendar before this Court. Evidently the calendar has not been produced before the trial court by the prosecution. 10. The prosecution at the commencement of the trial is required to submit a calendar under Rule 35 of the General Rules (Criminal) read with Section 226 of the Criminal Procedure Code. 11. Section 226 Cr.P.C. being relevant to the discussion is extracted herein-under: “226. Opening case for prosecution - When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.” (Emphasis supplied) 12. The provision contains the conditions precedent required to be fulfilled by the prosecution prior to opening its case before the trial court. The public prosecutor is liable to describe the charge brought against the accused, and also the details by what evidence it proposes to prove the charges against the accused. 13. The word ‘shall’ has been employed by the legislature giving the provision a mandatory cast. 14. Rule 35 of the General Rules (Criminal) has a similar purpose and is extracted hereunder: “35. Procedure on commitment - When an order of commitment for trial has been made, the Magistrate shall at once report the fact to the court to which the commitment is made by a letter in the prescribed form (Part IX, No. 2); shall notify the Public Prosecutor of the commitment of the case to the Court of Session and shall within eight days from making the said order, submit the entire record of the case and the documents and articles, if any, which are to be produced in evidence to the Court of Session or, when the commitment is made to the High Court, to the Clerk of the State together with a calendar in the prescribed form (Part IX, No. 3). The entries under head of the calendar shall be full and accurate, so as to give the court receiving it a clear idea of the matters to which each witness will depose. The entries under head of the calendar shall be full and accurate, so as to give the court receiving it a clear idea of the matters to which each witness will depose. The Public Prosecutor shall submit a list of witnesses whom he would not examine out of the, witnesses mentioned in the calendar.” (Emphasis supplied) 15. The provision mandates the public prosecutor to submit a calendar in the prescribed form before the trial court prior to commencement of the trial. The entries in the calendar depict the number of witnesses, and the matters to which each witness will depose. The witnesses who are mentioned in the charge-sheet but not proposed to be examined too have to be referenced in a separate list. In Rule 35 of the General Rules (Criminal), the word “shall” precedes the said tasks which have to be performed by the prosecution. 16. The provision shall be interpreted in light of the settled canons of statutory interpretation. The word ‘shall’ has been employed in the statute which depicts the legislative intent of giving the provision a mandatory character [See: State of Haryana vs. Raghubir Dayal, (1995) 1 SCC 133 and Ram Dhani and Another vs. State of U.P. Writ (C) No. 12016 of 2020]. 17. Clearly Rule 35 of the General Rules (Criminal) read with Section 226 of the Criminal Procedure Code are mandatory in nature. Imperative statutory duty is cast on the public prosecutor to submit a calendar and other details under Rule 35 of the General Rules (Criminal) read with Section 226 of the Criminal Procedure Code before the trial court prior to commencement of the trial. The provisions have been engrafted to give advance notice to the accused of the prosecution evidence proposed to be tendered at the trial. The provisions are also consistent with the fundamental norms of fairness in criminal processual jurisprudence. Prior notice of proposed prosecution evidence alerts the accused in advance to the case he/she has to meet. The provisions enable the accused to prepare his/her defence thoroughly and refute the prosecution case, and also precludes the prosecution from springing a surprise on the accused. The rights so vested in an accused cannot be disregarded or negated by non compliance of the provision. 18. However, it needs to be clarified that failure of the public prosecutor to submit the calendar does not ipso facto vitiate the trial. 19. The rights so vested in an accused cannot be disregarded or negated by non compliance of the provision. 18. However, it needs to be clarified that failure of the public prosecutor to submit the calendar does not ipso facto vitiate the trial. 19. The scheme of the provisions have to be looked at from another perspective. At the stage of the investigations many lines of enquiries are followed which appear to connect the accused with the offence. A great number official witnesses are also associated with the investigations at different stages. In the process a large number of witnesses are nominated in the charge-sheet. 20. The pre trial process under Rule 35 of General Rules (Criminal) by the prosecutor crystallizes the implicatory evidence against the accused. The proceedings under Rule 35 of the General Rules (Criminal) read with Section 226 of the Criminal Procedure Code enable the prosecution to identify the relevant witnesses and critical pieces of evidence which should be adduced in the trial, and exclude irrelevant materials and witnesses named during the course of investigations. 21. The said provision ensures that there is due application of mind by the prosecutor on various aspects of the prosecution evidence prior to commencement of the trial. Pre trial strategizing of this nature enables the prosecution to package and present its evidence in a coherent sequence and professional manner. The provisions contemplate a statutory interface between the prosecutor and the investigating agency which has submitted the charge-sheet. In case deficiencies in the investigations are highlighted in the process of creation of the calendar, the investigation agency may take appropriate steps as per law. 22. Calling excessive number of witnesses for the same purpose is a repetitive and a time consuming exercise which does not enure to the benefit of the prosecution. It is the prerogative of the prosecution to decide the number of witnesses to establish its case before the trial court. However, adherence to Section 226 of the Criminal Procedure Code read with Rule 35 of the General Rules (Criminal) will curtail unnecessary delays, prevent duplication of witnesses, preserve scarce resources and ensure speedy conclusion of the trial. 23. Trial courts are also under an obligation to oversee compliance of Section 226 of the Criminal Procedure Code read with Rule 35 of the General Rules (Criminal). 24. 23. Trial courts are also under an obligation to oversee compliance of Section 226 of the Criminal Procedure Code read with Rule 35 of the General Rules (Criminal). 24. Director General (Prosecution), State of U.P. Lucknow shall ensure that the mandatory provisions of Rule 35 of the General Rules (Criminal) read with Section 226 Cr.P.C. are duly complied with by the prosecution at the time of commencement of a trial. Appropriate action in this regard shall be taken by the Director General (Prosecution) and all other concerned State authorities in all criminal trials. The Director General (Prosecution) shall consider if it so feasible to submit the calendar at this belated stage to avoid further unnecessary delays in this trial as well. 25. Considering the gravity of the offence, interest of justice will be served by directing the learned trial court to expedite the trial within a stipulated period of time. 26. Though no specific time frame to conclude the trial has been set out in the Cr.P.C. yet the legislative intent of Section 309 Cr.P.C. is explicit. The scheme of the provision clearly shows that the legislative intent is to conclude the trial in an expeditious time frame. In the facts of this case, the learned trial court shall make all endeavours to conclude the trial preferably within a period of one year from the date of receipt of a certified copy of this order. 27. The trial court has also to be conscious of the rights of the accused persons and is under obligation of law to ensure that all expeditious, necessary and coercive measures as per law are adopted to ensure the presence of witnesses. Counsels or parties who delay or impede the proceedings should not only be discouraged from doing so but in appropriate cases exemplary costs should also be imposed on such parties/counsel. All witnesses and counsels are directed to cooperate with the trial proceedings. 28. The learned trial court shall issue summons by regular process as per Section 62 Cr.P.C. and also by registered post as provided under Section 69 Cr.P.C. to expedite the trial. 29. The learned trial court shall promptly take out all strict coercive measures against all the witnesses in accordance with law who fail to appear in the trial proceeding. 28. The learned trial court shall issue summons by regular process as per Section 62 Cr.P.C. and also by registered post as provided under Section 69 Cr.P.C. to expedite the trial. 29. The learned trial court shall promptly take out all strict coercive measures against all the witnesses in accordance with law who fail to appear in the trial proceeding. Counsels or parties who delay or impede the proceedings should not only be discouraged from doing so but in appropriate cases exemplary costs should also be imposed on such parties/counsel. 30. The police authorities shall ensure that warrants or any coercive measures as per law taken out by the learned trial court to ensure that the attendance of the witnesses are promptly executed. 31. The Superintendent of Police, Bijnor shall file an affidavit before the trial court on the date fixed regarding status of execution of the warrants/service of summons taken out by the learned trial court. 32. In case there is a failure on part of the police authorities to execute the warrants or other coercive measures, the Superintendent of Police, Bijnor shall state the reasons for the same in the said affidavit and also show the steps taken to execute the warrants. The Superintendent of Police, Bijnor shall simultaneously inform the Additional Director General of Police (ADG) Bareilly Zone, about the aforesaid failure of the police authorities in the first instance to execute the warrants and coercive measures issued by the learned trial court. If required, the Additional Director General of Police (ADG) Bareilly Zone, may issue an appropriate directions to ensure that the warrants issued are promptly executed by the learned trial court. 33. The delay in execution of warrants and consequent absence of witnesses is one of the principal causes of delays in criminal trials and has to be addressed effectively by all stakeholders. 34. The counsels as well as the learned trial court are directed to comply with the directions issued by this Court in Noor Alam vs. State of U.P. rendered in Criminal Misc. Bail Application No. 53159 of 2021. In case any strike happens during the course of the trial, the learned trial court is directed to ensure full compliance of the directions issued in Noor Alam (supra) so that the pace of the trial does not suffer. 35. Bail Application No. 53159 of 2021. In case any strike happens during the course of the trial, the learned trial court is directed to ensure full compliance of the directions issued in Noor Alam (supra) so that the pace of the trial does not suffer. 35. It is further directed that in case any accused person who has been enlarged on bail does not cooperate in the trial or adopts dilatory tactics, the learned trial court shall record a finding to this effect and cancel the bail without recourse to this Court. 36. The delay in the trials caused by the failure of the police authorities to serve summons or execute coercive measures to compel the appearance of witnesses at the trial despite a statutory mandate, is an issue of grave concern. The said issue had arisen for consideration before this Court in Bhanwar Singh @ Karamvir vs. State of U.P. (Criminal Misc. Bail Application No. 16871 of 2023) and Jitendra vs. State of U.P. (Criminal Misc. Bail Application No. 9126 of 2023) and was decided by the judgments dated 24.08.2023 and 20.12.2023 respectively. This Court in Bhanwar Singh @ Karamvir (supra) and Jitendra (supra) had issued certain directions to the police authorities regarding their statutory duty to promptly serve summons and execute coercive processes to compel the appearance of witnesses. 37. The Director General of Police, Government of U.P. as well as Principal Secretary (Home), Government of U.P. had taken out relevant orders in compliance of judgments in Bhanwar Singh @ Karamvir (supra) and Jitendra (supra) and nominated the Senior Superintendent of Police of the concerned districts as the responsible officials for implementing the said judgments. 38. In case the police authorities are failing to comply with the directions issued by this Court in Bhanwar Singh @ Karamvir (supra) and Jitendra (supra) and do not implement the said directions of the Director General of Police, Government of U.P. and the Home Secretary, Government of U.P. in regard to service of summons and execution of coercive measures to compel the appearance of witnesses, the learned trial court shall direct the concerned Senior Superintendent of Police to file an affidavit in this regard. 39. 39. The learned trial court shall be under an obligation to examine whether the judgments of this Court in Bhanwar Singh @ Karamvir (supra) and Jitendra (supra) as well as directions of Director General of Police, Government of U.P. and the Home Secretary, Government of U.P. issued in compliance thereof have been implemented or not and to take appropriate action as per law. 40. The learned trial court shall also take appropriate measures in law after receipt of such affidavit which may include summoning the concerned officials in person. 41. The trial judge shall submit a fortnightly report on the progress of trial and the steps taken to comply with this order to the learned District Judge. 42. A copy of this order be communicated to the learned trial judge through the learned District Judge, Bijnor as well as Superintendent of Police, Bijnor by the Registrar (Compliance) by Email. 43. Government Advocate shall also communicate a copy of this order to Director General (Prosecution), State of U.P. Lucknow for taking appropriate action to ensure compliance of the directions in regard to Section 226 of the Criminal Procedure Code read with Rule 35 of the General Rules (Criminal) by the public prosecutor in all criminal trials.