Avtar Singh vs Daljit Singh

S.K. Gupta, J.—Through the currency of this Revision, Avtar Singh, petitioner, seeks the reversal of order dated 24-11-2001 propounded

by Additional Sessions Judge, Jammu in a case entitled State Versus Daljit Singh, which is. proceeded on a police report. By the aforesaid order,

the evidence of the prosecution' has been closed, which reads as under:

APP present. Accused present. No. PW is present. The plea of the accused subsequent to framing of charge was recorded on 30-12-1997 and

so the prosecution evidence is closed herewith as per the directions contained in Raj Deo Sharma Vs. The State of Bihar, . The file shall now come

up for recording the statement of the accused u/s 342. Cr.PC on 6.12.2001.

Facts relevant for the disposal of this Revision put tersely are that, on a complaint initiated by Avtar Singh, petitioner, before Chief Judicial

Magistrate, Jammu, which stood endorsed to Police Station, Pacca Danga, Jammu for necessary action u/s 156(3) Cr.CP. A case un- der Section

420/406/467/471 RPC stood registered and investigation ensued. On the conclusion of the in vestigation, challan against S.Daljit Singh, accused,

came to be presented in the Court and subse quently, transferred to the file of the Additional Sessions Judge for trial in accordance with the law.

After framing charge against the accused vide order dated 30-12-1997 and recording the plea, of the accused on charge framed, stated the case

for recording the prosecution witnesses.Till the closure of the evi dence by the impugned order dated 24-11 -2001, the prosecution exam ined

only one witness, S. Avtar Singh, complainant, during a space of about four years. During the aforesaid p e -riod, as many as 35 sessions were

fixed for recording evidence, but the prosecution did not make endeavour to produce and examine the witnesses and exhausted the list often

witnesses, who happened to be from Jammu, as is elicited from the memo of challan.

According to Mr. Surinder Singh, learned counsel appearing for the petitioner, the prosecution witnesses appeared a number of times, but the

statements could not be recorded due to absence of the accused and non-availability of his counsel. The delay in the examination of the witnesses

is attributed to the absence of the accused, who happens to be a resident of Amritsar and not to the prosecution. His further contention is that, an

application was also preferred u/s 540 Cr.PC by the petitioner to summon and examine one Gurdeep Kour, whose statement was recorded u/s

161 Cr.PC, but her name did not figure in the challan due to inadvertance or the Investigating Agency. The said application is yet to be decided.

The objection has since been filed by the accused. That the order of the closure of evidence has been passed by the Trial Court without adverting

to the record of the file and has, thus, occasioned a, serious prejudice to the petitioner and resulted in grave failure of justice.

In controverting the contention of the petitioner, the maintainability of the Revision has been assailed by Mr. R.P. Bakshi, advocate appearing

for the respondent, in submitting that a private-party has no locus-standi and the case has been institute on a police report. His further contention is

that, inability to complete the prosecution evidence within a period of about four years is attributable to the conduct of the prosecution in

protracting the trial and not to the accused in referring to the minutes of the file of the Trial Court. Lastly, Mr. Bakshi submitted that even,

according to the mandate of the Apex Court, the evidence in such a case was required to be completed within a period of three years and ill incase

otherwise, the Court can proceed to the next stage provided by the law for further trial of the case notwithstanding that the prosecution has

examined till all the witnesses or not.

Heard, considered rival contentions and perused the record of the file. As regards the first contention canvassed by Mr. Bakshi with regard to

the maintainability of the Revision having been preferred by a private party in a case proceeded on a police report, it may be pointed out that

usually the High Court will not act in Revision except on invitation of the one, who is directly affected by the alleged irregularity or illegality, and the

Revision can be dismissed for non-prosecution of the same by a properly authorised person. But the Court, may entertain a criminal revision at the

instance of a private party in exceptional and appropriate cases, where the interest of public justice requires interference. In other words the private

informant has a right to invoke revisional jurisdiction of the High Court in appropriate cases where order of a Court occasioned greater failure of

the Justice at different stages of Trial, if grounds for interference in revision are otherwise satisfied. In dealing with the revisional powers of the High

Court vis-a-vis the right of a private party to move any revision against an order passed in a case instituted upon a police report, the Apex Court

observed in Chinnaswami Reddy 's case K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, .

It is true that it, is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may

not have thought fit to appeal; but this jurisdiction should be exercised by the High Court Only in exceptional cases, when there is some glaring

defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.

It was next contended by Mr. Bakshi that order formulated by the Trial court in closing the prosecution evidence does not suffer from any

procedural defect or legal error warranting interfernce of the Revisional Court. According to Mr. Bakshi, innumerable opportunities were given to

the prosecution to produce the evidence for a space of about four years and it was on account of its inability, which persuaded the Trial Court to

close the evidence in view of a clear mandate of the Apex Court in case of Raj Deo Sharma Vs. The State of Bihar, .

In the aforesaid case, dealing with the proposition of unprecedented delay in the trial and reiterating the entitlement of the accused to speedy

trial, the Apex Court proceeded to supplement the proposition laid down in Antulay's case Abdul Rehman Antulay Vs. R.S. Nayak and another

etc. etc., with the following directions :

(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or

not, the court shall close the prosecution evidence on completition of a period of two years from the date of recording the plea of the accused on

the charges framed whether the prosecution has been examined all the witnesses or not. within the said period and the Court can proceed to the

next step provided by law for the trial of the case.

(ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment

prescribed for the offence, the trial Court shall release the accused on bail forthwith on such conditions as it deems fit.

(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the Court shall

close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the

prosecution has examined all the witnesses or not within the said period and the Court can proceed to the next step provided by law for the trial of

the case, unless for very exceptional reasons to be recorded and in the interest of justice the Court considers it necessary to grant further time to

prosecution to adduce evidence beyond the aforesaid time limit.

(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the. accused in protrading the trial,

no Court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by Clauses (i) and (iii).

(v) Where the trial has been stayed by orders of Court or by operation of law such time during which the stay was in force shall be excluded from

the aforesaid period for closing prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by

this Court in Common Cause A Registered Society through its Director Vs. Union of India (UOI) and Others, as modified by the same Bench

through the order reported in Common Cause, A Registered Society Vs. Union of India (UOI) and Others, .

Another limb of argument advanced by Mr. Surinder Singh, petitioner's advocate is that, his application u/s 540 Cr.PC still has not been

decided and was still pending at the time the impugned order came to be passed by the Trial Court. It is apt to point out that the provisions of

Section 540 can be invoked at any stage of the trial by either party notwithstanding the closure of evidence. It is for a Court to exercise its powers

depending upon the facts of each case until an inquiry or trial comes to an end.

In the aforesaid premises and the above quoted observations of the Apex Court, the order prepared by the Trial Court, in my view, is neither

legally lacunic nor suffers from procedural defect necessitating the interference of this Court in revision. The inability completing the prosecution

evidence within a period of about four years is clearly attributable to the conduct of the prosecution in protracting the trial, that obliged the trial

Court to close the prosecution evidence.

In the result, the Revision possessing no merit is hereby dismissed. Record shall be remitted back to the Trial Court forthwith.