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CASE NO.: Appeal (crl.) 392  of  2001

PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: SHAMBHU NATH SINGH AND ORS.

DATE OF JUDGMENT:       29/03/2001

BENCH: K.T. Thomas & R.P. Sethi

JUDGMENT:

THOMAS, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   Witnesses  tremble  on getting summons from  courts,  in India,   not  because  they   fear  examination  or   cross- examination  in  courts  but because of the fear  that  they might  not  be examined at all for several days and  on  all such  days  they  would be nailed to the  precincts  of  the courts  awaiting  their  chance  of  being  examined.    The witnesses,  perforce,  keep aside their avocation and go  to the courts and wait and wait for hours to be told at the end of  the day to come again and wait and wait like that.  This is  the infelicitous scenario in many of the courts in India so  far  as witnesses are concerned.  It is high  time  that trial  courts  should  regard witnesses  as  guests  invited (through  summons)  for  helping   such  courts  with  their testimony for reaching judicial findings.  But the malady is that  the  predicament  of the witnesses is worse  than  the litigants  themselves.  This case demonstrates the agony and ordeal  suffered by witnesses who attended a Sessions  court on several days and yet they were not examined in full.  The party who succeeded in dodging examination of such witnesses finally   enjoyed  the  benefit   when  the  Sessions  Court acquitted  them for want of evidence.  The only casualty  in the aforesaid process is criminal justice.

   This  appeal  by special leave is by the State  of  U.P. against  the order of acquittal of the respondents and  also against  the order of a Division Bench of the High Court  of Allahabad   refusing  to  grant   leave  to  appeal  against acquittal.   How  the situation reached can be narrated  now after referring to the facts of the case summarily.

   Nine  persons were arraigned before a Sessions Court  to face  the  charges of murder, attempt to murder and  rioting etc.  Those nine persons are the respondents in this appeal. The  trial  judge  included Sections 302 and 307  read  with Section  149  of the IPC among other offences in the  charge framed  against  the  respondents.  The  allegations,  inter

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alia,  are  that the respondents formed themselves  into  an unlawful  assembly  at about 8 P.M.  on 22.6.1982 and  armed with  the deadly weapons including firearms, they caused the murder  of one Ram Bachan and serious injuries to some other persons.

   Prosecution  cited  Jiyawoo, Paras and Indresh Singh  as eye  witnesses  and  offered  to   examine  them  and  other witnesses  to prove the charge against the respondents.   We are  told that Jiyawoo was examined as PW-1, but his  cross- examination  was not completed on the same day.  Hence,  the trial court adjourned the case to some other day and then to some  other day and like that to so many days.  According to the  learned  counsel for the appellant State, PW-1  Jiyawoo had  appeared in court on 9th and 15th of November 1994, 8th December 1994, and then on 12th Januanry, 7th February, 24th June,  25th August and 25th September of 1995.  In spite  of the  fact that the witness turned upon on those days he  was not  cross-examined due to one reason or the other for which the  witness is not at fault.  Copy of the proceeding papers submitted before us showed that one or the other accused was absent  on  most of those days and the cross-examination  of PW-1  could  not be undertaken for that reason.  The  Public Prosecutor  in  the  trial  court filed  an  application  on 11.7.1995  for adopting punitive action against the  accused for  the dilatory tactics and the Sessions Court posted  the case to 25th August, 1995 with a warning to the accused that no  further adjournment would be given for cross-examination of  PW-1.  But the presiding officer happened to be on leave on  25th August, 1995 and hence the case was posted to  25th September,  1995.  Though PW-1 was present on that day  also he  was  not examined.  Ultimately the case stood posted  on 4.1.1996.  But on that day PW-1 happened to be absent and an application  for  adjournment was presented on  his  behalf. The  trial  judge dismissed the said application and  closed the  prosecution  evidence  and pronounced the  judgment  on 9.1.1996 acquitting the accused for want of evidence.

   It  is  pertinent  to  point out that  the  trial  judge expressed  misgivings  about  the police that they  and  the accused  in  the case would have colluded together  for  not producing  evidence  against the accused.  This is what  the Sessions Judge has said on that score:

   A  perusal  of the file in the present case shows  that the  said matter is pending before the sessions court  since 1991  and five years have passed while the prosecution  side have  been  given  45 dates for producing evidence  but  the prosecution  has still failed to lead any evidence,  whereas the  prosecution side had filed the list of 34 witnesses  in the court.  It is regretted and it appears to be a handiwork of  the  police administration and it can be safely  derived thereof  that  the  police  and the  prosecution  side  have colluded  with the defence side, and therefore they have not produced  any  witness  in the court.  The  conduct  of  the police (at police station Autraulia) has put a question mark on the performance of the police.

   After  the order of acquittal was passed the State moved the High Court seeking leave to appeal.  A Division Bench of the  High  Court  of  Allahabad refused to  grant  leave  to appeal, for which learned judges wrote only two sentences as under:

   Heard  learned  A.G.A.  Perused the impugned  judgment.

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We  do  not  find any good ground for interference  by  this court in appeal.  Leave to appeal is refused.

   If  the  Sessions Judge had succumbed to  the  collusive tactics  of  the parties in serious offences like murder  by acquitting  the accused on the ground of want of evidence in spite  of witnesses being present on a large number of dates the  public confidence in the efficacy of the administration of  criminal justice would be further drained  considerably. In  the  present case, when PW-1 was examined in  chief  the court  should  have posted the case to the next working  day for completion of cross-examination of that witness.  What a pity  when  a Sessions Court was engaged in  adjourning  and again  adjourning the case at long intervals in spite of the presence  of eye witnesses willing to be examined fully.  If the  trial  court thought it fit to close the evidence on  a day when the witness could not be present, the accused would have had the last laugh.

   We make it abundantly clear that if a witness is present in  court  he must be examined on that day.  The court  must know  that most of the witnesses could attend the court only at  heavy  cost  to  them, after  keeping  aside  their  own avocation.   Certainly  they  incur suffering  and  loss  of income.   The  meagre amount of Bhatta (allowance)  which  a witness  may be paid by the court is generally a poor solace for  the financial loss incurred by him.  It is a sad plight in  the  trial courts that witnesses who are called  through summons  or  other  processes  stand at  the  doorstep  from morning  till evening only to be told at the end of the  day that  the case is adjourned to another day.  This  primitive practice must be reformed by presiding officers of the trial courts  and  it  can be reformed by every one  provided  the presiding  officer  concerned has a commitment to duty.   No sadistic  pleasure  in seeing how other persons summoned  by him as witnesses are stranded on account of the dimension of his  judicial powers can be a persuading factor for granting such adjournments lavishly, that too in a casual manner.

   Section 309 of the Code of Criminal Procedure (for short the Code) is the only provision which confers power on the trial   court   for  granting   adjournments   in   criminal proceedings.   The  conditions laid down by the  legislature for   granting   such  adjournments    have   been   clearly incorporated in the section.  It reads thus:

   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.

   (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

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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.

   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.

   The  first sub-section mandates on the trial courts that the  proceedings  shall be held expeditiously but the  words as  expeditiously  as possible have provided some play  at the  joints  and  it is through such play that  delay  often creeps  in  the  trials.   Even so, the  next  limb  of  the sub-section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial.  That stage   is  when  examination  of  witnesses   begin.    The legislature   which  diluted  the   vigour  of  the  mandate contained  in  the initial limb of the sub-section by  using the words as expeditiously as possible, has chosen to make the  requirement  for  the next stage (when  examination  of witnesses  has  started) to be quite stern.  Once  the  case reaches  that  stage  the  statutory command  is  that  such examination  shall  be continued from day to day until  all the  witnesses  in  attendance   have  been  examined.  The solitary  exception  to the said stringent rule is,  if  the court finds that adjournment beyond the following day to be necessary  the same can be granted for which a condition is imposed  on  the court that reasons for the same  should  be recorded.   Even  this  dilution has been  taken  away  when witnesses  are  in  attendance before the  Court.   In  such situation  the  court is not given any power to adjourn  the case  except in the extreme contingency for which the second proviso  to  sub-section (2) has imposed another  condition, 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.

                                   (emphasis supplied)

   Thus,  the  legal position is that once  examination  of witnesses  started the court has to continue the trial  from day  to  day  until all witnesses in  attendance  have  been examined  (except  those whom the party has given up).   The court  has  to  record reasons for deviating from  the  said course.   Even that is forbidden when witnesses are  present in  court, as the requirement then is that the court has  to examine  them.   Only if there are special reasons,  which reasons  should  find a place in the order for  adjournment, that  alone can confer jurisdiction on the court to  adjourn the case without examination of witnesses who are present in court.

   Now,  we  are  distressed to note that it  is  almost  a common  practice  and regular occurrence that  trial  courts flout  the said command with immunity.  Even when  witnesses are  present cases are adjourned on far less serious reasons or  even on flippant grounds.  Adjournments are granted even in  such situations on the mere asking for it.  Quite  often such adjournments are granted to suit the convenience of the advocate  concerned.  We make it clear that the  legislature has frowned at granting adjournments on that ground.  At any

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rate  inconvenience of an advocate is not a special reason for bypassing the mandate of Section 309 of the Code.

   If  any  court finds that the day to day examination  of witnesses  mandated  by the legislature cannot  be  complied with  due to the non co-operation of accused or his  counsel the  court  can adopt any of the measures indicated  in  the sub-section  i.e.   remanding  the  accused  to  custody  or imposing  cost on the party who wants such adjournments (the cost  must  be  commensurate with the loss suffered  by  the witnesses,  including  the  expenses to attend  the  court). Another  option  is,  when  the accused is  absent  and  the witness  is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf  seeking  permission  for his counsel to  proceed  to examine  the witnesses present even in his absence  provided the  accused  gives an undertaking in writing that he  would not  dispute  his identity as the particular accused in  the case.)

   The  time frame suggested by a three-Judge Bench of this court  in  Rajdeo Sharma vs.  State of Bihar {1998  (7)  SCC 507}  is partly in consideration of the legislative  mandate contained  in Section 309(1) of the Code.  This is what  the Bench said on that score:

   The  Code of Criminal Procedure is comprehensive enough to  enable  the Magistrate to close the prosecution  if  the prosecution  is unable to produce its witnesses in spite  of repeated  opportunities.   Section 309(1) Cr.P.C.   supports the  above  view  as it enjoins expeditious holding  of  the proceedings and continuous examination of witnesses from day to day.  The section also provides for recording reasons for adjourning  the  case beyond the following day.  In  Rajdeo Sharma  (II)  vs.   State of Bihar {1999 (7) SCC  604}  this Court  pointed out that the trial court cannot be  permitted to flout the mandate of Parliament unless the court has very cogent  and  strong reasons and no court has  permission  to adjourn  examination  of  witnesses who  are  in  attendance beyond  the  next working day.  A request has been  made  by this  Court  to all the High Courts to remind all the  trial judges  of the need to comply with Section 309 of the  Code. The request is in the following terms:

   We  request every High Court to remind the trial judges through  a circular, of the need to comply with Section  309 of  the Code in letter and spirit.  We also request the High Court  concerned  to  take  note  of  the  conduct  of   any particular  trial  judge who violates the above  legislative mandate  and to adopt such administrative action against the delinquent judicial officer as the law permits.

   We  believe, hopefully, that the High Courts would  have issued  the  circular desired by the apex court as  per  the said  judgement.   If the insistence made by the  Parliament through  Section  309 of the Code can be adhered to  by  the trial  courts  there  is  every chance of  the  parties  co- operating  with the courts for achieving the desired objects and  it would relieve the agony which witnesses summoned are now suffering on account of their non-examination for days.

   It  is no justification to glide on any alibi by blaming the  infrastructure  for skirting the  legislative  mandates embalmed  in Section 309 of the Code.  A judicious  judicial officer  who is committed to his work could manage with  the

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existing  infrastructure for complying with such legislative mandates.  The precept in the old homily that a lazy workman always  blames  his  tools,  is the  only  answer  to  those indolent  judicial officers who find fault with the  defects in  the  system  and  the   imperfections  of  the  existing infrastructure  for  his  tardiness in coping up  with  such directions.

   In  some  states  a  system is  evolved  for  framing  a schedule  of  consecutive  working days for  examination  of witnesses  in  each  sessions trial to  be  followed.   Such schedule  is  fixed  by  the Court  well  in  advance  after ascertaining  the convenience of the counsel on both  sides. Summons  or process would then be handed over to the  Public Prosecutor  incharge of the case to cause them to be  served on  the  witnesses.   Once  the schedule  is  so  fixed  and witnesses  are  summoned the trial invariably proceeds  from day  today.   This  is  one method  of  complying  with  the mandates  of  the law.  It is for the presiding  officer  of each  court  to  chalk out any other methods, if  any  found better, for complying with the legal provisions contained in Section  309  of  the Code.  Of course, the High  Court  can monitor,   supervise   and    give    directions,   on   the administration  side,  regarding measures to conform to  the legislative insistence contained in the above section.

   We  have  no  doubt that in this case a  miscarriage  of justice has occasioned due to the failure of the trial court to  comply  with the mandatory directions contained  in  the Code.   Criminal  justice cannot be allowed to  be  defeated solely  on  account  of inaction or lapses of the  court  in adhering to the mandates of law.  When the State of UP moved the  High Court of Allahabad, in this case, seeking leave to appeal,  the above aspect should have been considered by the learned  Judges  and  set  right the  grave  miscarriage  of justice  occasioned on account of flouting the directions of law.

   We, therefore, allow this appeal and set aside the order of  the acquittal passed by the trial court.  We direct  the trial  court to proceed with the further examination of PW-1 and  examination of other witnesses to whom the court should issue  process  if so requested by the prosecution.  (It  is open  to  the prosecution to produce such witnesses  without bothering  the  Court to issue summons to them).   The  case shall  be disposed of after taking all the remaining  steps, in accordance with law.

   This appeal is disposed of in the above terms.