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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.