Bansi Lal vs Abdul Rashid and Anr.

Bansi Lal, whose wife Santosh Kumari died in a motor vehicle accident, has approached this Court in criminal revision No.62/2005, for setting

aside judgment dated 28.02.2005 of learned City Judge, Judicial Magistrate 1st Class, Jammu, acquitting Abdul Rashid, respondent, in F.I.R. No.

220/2001 registered by Police Station Bahu Fort, Jammu, under Sec tions 279, 337/304A RPC (short, for Ranbir Penal Code).

Facts, necessary for the disposal of this petition, are these:

Police Post, Narwal, received a reliable information on 29.11.2001 that at about 7.30 p.m. a matador bearing registration number JK02N8165

had been driven rashly and negligently, while proceeding from Narwal towards Panama Chowk, when it met with an accident and turned turtle,

resulting into the death of its conductor, Manohar Singh, and one Santosh Kumari besides causing injuries to other occupants. After investigation of

the case, final police report was submitted to the learned Magistrate, who framed charge against the respondent under Sections 279, 337/304A

RPC vide his order dated 07.10.2002. Feeling aggrieved of the charge, respondent preferred 561A Cr.P.C. No.05/2003 in this Court, which

was, however, dismissed with the observation that trial Court shall proceed with the matter expeditiously and shall endeavour to decide the case

within one year from the date of appearance of the parties before it. Learned trial Magistrate directed prosecution to lead its evidence. Bansi Lal

appeared before the Court on 17.11.2004 but his statement was recorded only in part and he was allowed to depart without having been bound

down to appear again. It appears that the case was thereafter tried hurriedly by the learned trial Court, presumably under the impression that the

matter had to be decided, in all circumstances, within a period of one year. Learned Magistrate closed the prosecution evidence on 12.02.2005

and thereafter passed an order of acquittal of the respondent on 28.02.2005. The State does not appear to have questioned the acquittal of the

respondent.

Bansi Lal, in his petition, pleads that the trial Court had not made any endeavour to summon the prosecution witnesses and take coercive

process for procuring the attendance of material witnesses. He submits that the list of witnesses comprised, inter alia, of government servants

whose evidence had been closed by the learned Magistrate in a slip shod manner. He seeks setting aside of the order impugned in this petition.

This revision has, thus, arisen in the circumstances detailed hereinabove.

Sh. Raghu Mehta, learned counsel for the petitioner, made a scathing attack on the prosecution to be in league with the respondent and failing in

its duty to take requisite measures to ensure presence of the prosecution witnesses before the Court. Learned counsel submits that the trial Court

had omitted to discharge its judicial duty in issuing process to secure the presence of government employees and other witnesses to secure the

ends of justice. He submits that the petitioner had been deprived of his right to seek justice against those who were responsible for the death of his

wife. Learned counsel was at pains to say that in the present day scenario of falling moral standards, appropriate measures were required to be

taken by all concerned so that the criminal justice delivery system does not suffer further damage because of the inaction of the prosecution

agencies in not producing the available evidence before the Court. Learned counsel sub mitted that the order impugned in the revision petition was

illegal besides being unwarranted and unjustified because the learned Magistrate had erred in closing the prosecution evidence without discharging

its judicial function of summoning the prosecution witnesses on its own. Reliance has been placed by learned counsel on 'State v. Joginder Singh

and ors' reported as 1987 KLJ 634 and 'State v. Sethi Ram' reported as 2002 (1) SLJ 111.

6.Sh. J. P. Gandhi, learned counsel appearing for respondent No.1, on the other hand, submits that the order of closure of evidence and

consequent acquittal of respondent having not been questioned by the State, the present revision petition by a private party was not maintainable.

Learned counsel supports the order impugned in the revision petition.

This matter was heard on 25.05.2006, when Sh. B. S. Salathia, learned Additional Advocate General appearing for the State, was directed to

indicate on an affidavit as to what steps had been taken by the prosecution to ensure the presence of prosecution witnesses before the trial Court.

Sh. Salathia has filed an affidavit of Sh. Rajeshwar Kumar Bakshi, Chief Prosecuting Officer, District Kathua, who says that he was posted as

Senior Prosecuting Officer in the Court of City Judge, Judicial Magistrate 1st Class, Jammu, w. e. f. 07.10.2004 and was prosecuting the case on

behalf of the State. He says that one Bansi Lal had appeared as prosecution witness in the case but his statement, though recorded in part on

17.11.2004, was deferred. He submits that he had issued docket No. 13665 dated 17.11.2004 for procuring the presence of the prosecution

witnesses but the witnesses had not appeared in the Court. He thereafter is stated to have issued docket No. 14667 on 29.12.2004, which had

been served upon Shashi alias Toshi, Rano Devi and Krishna to appear in the Court as prosecution witnesses on 12.02.2005 but this docket could

not reach him in time and the case was thereafter adjourned to 28.02.2005. He had issued summons to the witnesses but the same were not

received back either served or unserved.

I have considered the submissions of learned counsel for the parties and gone through the record of the case and the affidavit of Mr. Rajeshwar

Kumar Bakshi.

Acquittal of an accused in a State case is not lightly interfered with at the instance of a private party in exercise of criminal revisional jurisdiction

except, however, in exceptional cases where the interest of public justice may require interference for the correction of a manifest illegality or for

prevention of gross miscarriage of justice, is a position well settled in law. This view was taken in 'Chinnaswamy v. State of Andhra Pradesh'

reported as AIR 1962 SC 1788; 'Mahendra Pratap v. Sarju Singh' reported as AIR 1968 SC 707; 'Khetra Basi v. State of Orissa' reported as

AIR 1970 SC 272; and 'P.N.G. Raju v. B. P. Appadu' reported as AIR 1975 SC 1854. 10.

After appreciating the law laid down in the aforesaid judgments of the Supreme Court, it was held in 'Kaptan Singh and ors. v. State of

Madhya Pradesh and another' reported as AIR 1997 SC 2485 as follows:

From a conspectus of the above decisions it follows that the revisionsal power of the High Court while sitting in judgment over an order of

acquittal should not be exercised unless there exists a manifest illegality in the judgment or order of acquittal or there is ""grave miscarriage of

justice.

It is equally true, in law, that Criminal revisional jurisdiction of the High Court may be invoked even suomoto in view of the language employed

in Sections 435 and 439 of the Code of Criminal Procedure. It would, thus, mean that if the power could be invoked suo moto, nothing prevents a

complainant or an aggrieved party to invoke the jurisdiction of the Court, for, the jurisdiction will be exercised by the High Court only if it found

that there was jurisdktional error or error apparent on. the face of the records or the interest of justice required interference by the High Court. The

petition of the complainant cannot, thus, be thrown out merely on the ground that criminal revisional jurisdiction cannot be exercised at the behest

of a private party/complainant as urged by Sh. Gandhi, unless grievance projected by the private party is examined and considered.

I am not inclined to take the view that a private party cannot, as a rule, question the acquittal of an accused even if it was erroneous or against

the interests of justice. I am supported in taking this view by a judgment of this Court in case 'State v. Joginder Singh and ors' reported as 1987

KLJ 634 where Hon'ble Mr. Justice R. P. Sethi, later a Judge of Hon'ble Supreme Court of India, held as follows:

It is true that in a criminal case instituted on a police report, the, judgement of the trial court can be disturbed only in an acquittal appeal filed in

accordance with the provisions of section 417 of Cr.P.C. The finding of the fact in a case culminating in the order of acquittal cannot ordinarily be

disturbed by this court except in an appeal filed against the order of acquittal. However, it does not mean that the provision of section 417 or

Section 439 (5) Criminal procedure code is an absolute bar for this court to interfere with the orders of acquittal in exercise of its revisional

Jurisdiction in appropriate case. If it is found that trial court has failed to follow the procedure as established by Law or has committed irregularities

or illegalities apparent on the face of record, the High Court would not be debarred from interfering with the orders of acquittal in appropriate

cases in exercise of its revisional Jurisdiction (1969Criminal Appeal reported Sc 452). In the instant case it appears from the record that the trial

court has competely (completely) ignored the provision of Law relating to procuring the attendance and recording the statements of the prosecution

witnesses. It is apparent from the record that no processes was issued by the Court for the service of the prosecution witnesses who were all

Government employees. Even the prosecuting agency did not take any effective step for the production and examination of prosecution witnesses.

It is apparent that the prosecuting and the investigation agencies were hands in gloves with the accused persons and the trial court failed in

discharging the duties cast upon it for dispensing justice in accordance with the procedure established by Law

I am not satisfied with the submission of Sh. Gandhi that the State having opted not to question the acquittal of the respondent would debar this

Court from exercising criminal revisional jurisdiction, in view of the legal position detailed hereinabove. I would, thus, like to examine this petition

on its merits rather than adopting a technical approach to refuse hearing to an aggrieved party.

14.The interim orders passed by learned Magistrate indicate that the learned Magistrate had failed to try the case with a view to dispense justice. It

appears that the learned Magistrate had been fixing dates in a routine manner to conclude the trial within a period of one year treating the

observations of this Court to be the directions of the High Court. I do not find any such direction in order dated 19.12.2003 of the High Court,

wherefrom it could be gathered that the case was required to be concluded, in all circumstances, within a period of one year. This Court had only

expected the trial Court to complete the trial of the case within a period of one year. And that would not mean that the same had to be done at the

cost of the interests of justice.

The records indicate that the learned Magistrate does not appear to have been conscious of the fact that some of the prosecution witnesses

were government employees and statement of one of the witnesses 'had been recorded in part. The Magistrate was, thus, required to issue its own

process to summon the government employees. He was further under an obligation to summon the petitioner, for concluding his partly recorded

statement. Learned Magistrate does not appear to be conscious of his duties as a Magistrate and has erred in not issuing its own process to

summon this witness to complete his partly recorded statement. Once a witness appears before a Court for his statement, the Court is under law

bound to record it. It is further under an obligation to keep the witness under his control till his statement is recorded in full.

A trial Court, at the time of fixing the case for prosecution evidence, is required to issue process for summoning the witnesses listed in report

under Section 173 of the Code of Criminal Procedure and may in its discretion, direct the prosecution to serve summons on the witnesses other

than those who are government servants. Even in case of witnesses other than government servants, it is required to have the report of the

prosecution as to the service or otherwise of these witnesses to pass such orders for securing the presence of the witnesses, as the circumstances

of the case may so warrant. It cannot, in any case, afford to depend wholly on the prosecution for the production of its evidence, for such a course

is fraught with conse quences which may defeat the ends of justice.

This Court, while dealing with the duties of a Magistrate to summon the prosecution witnesses, who were government employees, reiterated

the view taken by a Single Bench of this Court in 'State v. Joginder Singh and ors' 1987 KLJ 634, in 'State v. Sethi Ram' reported as 2002 (1)

SLJ 111. Paragraph 4 of this judgment quotes the learned Judge in the following manner:

It is the practice of the courts in our State based upon the rules for guidance of Criminal Courts and instructions issued by the High Court from

time to time to secure the attendance of Government official witnesses by issuing process itself and not remain dependant on the prosecution

agency alone. In the instant case, the procedure adopted by the trial Court was illegal and the Court below has passed the order erroneously and

illegally resulting in the miscarriage of Justice, it is a fit case in which the revisional power has to be exercised in the interest of Justice.

The present case demonstrates almost the same situation which had obtained in the cases (supra).

I have scanned the records of the learned trial Court. Learned Magistrate, does not appear to have taken any step in issuing process for

summoning the official witnesses and eye witnesses whose particulars had been mentioned by the investigating police officer in the police report

filed under Section 173 of the Code of Criminal Procedure. It further appears from the records that the learned Magistrate had made himself

dependent on the production or otherwise of the witnesses, who had been named in the police challan as the prosecution witnesses who had

witnessed the occurrence and were witnesses to various other aspects of the prosecution case.

Magistrates are not required to sit as silent spectators making them dependent on the production or otherwise of the prosecution evidence by

the prosecution. The spirit behind the Code of Criminal Procedure is the ad ministration and dispensation of criminal justice. The Code of Criminal

Procedure contains various provisions, which have been so incorporated in the Code with a view to empower the judicial Magistrates with all such

powers which are needed to ensure proper dispensation of criminal justice. Inaction or remissness on the part of prosecution or for that matter the

accused would not come in the way of the Courts in exercising its power under the Code to dispense justice.

Omission of learned Magistrate to summon the government employees and eye witnesses on its own and his complete dependence on the

prosecution for production of evidence, constrains me to exercise criminal revisional jurisdiction, and to hold that the learned Magistrate had erred

in not issuing its own process to summon the prosecution witnesses including the government employees, and in closing the prosecution evidence

without completing the statement of the petitioner, whose statement had been recorded in part. This has eventually resulted in manifest error of law

and failure of justice. I would, therefore, set aside the order of acquittal of the respondent, impugned in the revision petition, and direct his retrial

with a direction to the learned Magistrate to take requisite steps to ensure the presence of witnesses before it and to proceed with the trial in

accordance with law.

Before parting with this case, I am constrained to observe that there appears to be substance in the submission of Sh. Raghu Mehta, learned

counsel for petitioner, that the present day scenario of the trial of State cases in the State is far from being satisfactory. Neither the investigating

police officers discharge their statutory function in terms of Sections 170(2) & 171 of the Code of Criminal Procedure in binding down the

witnesses by taking bonds from them for their due presence in a Court of law where the case is required to be put up for trial nor do the

prosecutors discharge their duty in ensuring the presence of prosecution witnesses before the trial Courts. Much of the delay in the criminal trials is

attributable to the prosecutors and the prosecution branch. Sections 170(2) & 171 of the Code, for ready reference, are reproduced as under:

170(2) When the officerincharge of a police station forward an accused person to a Magistrate or takes security for his appearance before such

Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and

shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as

he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may

be) in the matter of the charge against the accused.

171

Recusant complainant or witness may be forwarded in custody. Provided that, if any complainant or witness refuses to attend or to execute a bond

as directed in section 170, the officerincharge of the police station may forward him in custody to the magistrate, who may detain him in custody

until he executes such bond, or until the hearing to the case is completed."" [ emphasis supplied ]

Much needs to be done so that the prosecution branch of the State comes right on its rails and the prosecutors and their supervisory staff is made

accountable for any lapse or remissness on their part in not prosecuting the State cases effectively so that the public and the victims/aggrieved

persons, who are entirely dependent on the prosecution branch and its prosecutors to get justice from the Court of law, are able to secure justice.

Prosecution branch of the State is one of the important limbs of the criminal justice system. This organ of the system, the experience shows, is

not yielding requisite results. This is so because there does not appear to be proper monitoring of this organ by its supervisory staff, which has

given rise to remissness and inaction on the part of the prosecutors because of which justice eludes the seekers of justice.

In order to secure justice for the public in general and victims in particular, I, in exercise of jurisdiction under Section 561A Cr.P.C., deem it

just, proper and expedient to direct the State through its Chief Secretary to constitute a Committee of professionals in the field to devise such

mechanism so that the faith of victims and public at large is maintained in the criminal justice system. The Chief Secretary shall do the needful within

a month from today. The report of such Committee and the decision taken by the government on this report shall be furnished to this Court within a

period of four months.

Registrar Judicial shall put up the papers alongwith report of the Chief Secretary, if received within this period, after a period of four months.

Trial court records be sent back forthwith.

Copies of this judgment shall be sent to all Judicial Magistrates of the State.