Chhaya Devi vs State of Uttarakhand

Umesh Chandra Dhyani, J.—By means of present application u/s 482 Cr.P.C., the applicant seeks that the adjournment during the course of trial in S.T. No. 189 of 2013, pending in the court of 1st Additional Sessions Judge, Nainital, may not be allowed to the accused persons even on the grounds of the counsel being engaged in some other court, or on any other pretext, till the evidence of the prime witness viz., the applicant, aged about 80 years, is not completed. At least till that stage the proceedings must go on day-to-day basis.

The applicant lodged an FIR against four named accused, including the respondents no. 2 to 4, for the offences punishable under Sections 307, 506 IPC read with Section 34 IPC, which was later on converted into Section 302 IPC and other penal sections. After investigation of the case, a chargesheet was submitted against respondents no. 2 to 4 for the self same offences alongwith Section 27/30 Arms Act. The case was committed to the court of sessions. Presently S.T. No. 189/2013 is pending in the court of 1st Additional Sessions Judge, Nainital.

Charge against the accused persons was framed on 16.8.2014, 30.8.2014 is fixed for prosecution evidence. The applicant herein proposes to enter into witness box as PW 1. The innocuous prayer made by learned counsel for the applicant is that her evidence may be recorded on day-to-day basis, in as much as, she is 80 years old and is the prime witness of the incident.

Certain amendments were incorporated by the Legislature in Section 309 Cr.P.C., which deals with power to postpone or adjourn proceedings. It says, among other things, that:

(1) In every inquiry or trial, the proceedings 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:

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(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:

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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.

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Provided also that--

(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;

(c) where a witness is present is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders, as it thinks fit, dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.

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Explanation 2-The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.

This Court, by means of this judgment, is simply reminding the trial court of the intention of the Legislature while introducing amendments in Section 309 Cr.P.C.

Innocuous prayer made by learned counsel for the applicant is worth accepting and is, therefore, being accepted.

Application u/s 482 Cr.P.C. is accordingly disposed of by directing that the evidence of the applicant (PW 1) shall be recorded on day to day basis, unless the trial court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. In other words, the evidence of the applicant, as prosecution witness, shall be recorded de die in diem as far as practicable, keeping in view the intention of the Legislature, for which learned trial court has already been reminded, as above.