Dasrshan Lal vs State of J & K

This petition is directed against the order dated 30111998 passed by the Sessions Judge, Jammu rejecting the application filed u/s 540 Cr. P.C.

for reexamination of the prosecutorix Miss Shindi Devi. The facts of the case are these. A case u/s 376 RFC was registered in Police Station

Bishna against the petitioner on the written report of Mst. Dharmo Devi maternal grandmother of the prosecutorix. After investigations the police

found that the allegation of rape against the petitioner was substantiated. He was accordingly sent up for trial. The charge u/s 376 RFC was framed

against him on 30051996 to which he pleaded not guilty. Statement of Mst. Shindi Devi, the prosecutorix was recorded by the court on

12081996. An application for her reexamination was moved on behalf of the petitioner on 07051997. The learned Sessions Judge dismissed the

application by his order dated 07071997. After the statements of all the witnesses were recorded, a fresh application to recall the prosecutorix for

her reexamination was filed on 18111998 on the ground that she was suffering from Schizophrenia and was not capable of understanding the

meaning of what is stated in the court when examined as a prosecution witness. The learned trail court dismissed the application on the ground that

the statement made by the prosecutrix is not indicative that she was unable to understand the question.

The order has been assailed on the ground that the prosecutorix was before and at the time of occurance suffering from Schizophrenia and

continues to suffer from the same disease till date. So if this fact is not put to her in the crossexamination, it may result in miscarriage of justice, for

her examination by the Board of Doctors to find out her mental condition is also necessary to rule out the possibility that her statement was not the

product of external influence.

The contention of Mr. JP Singh, learned counsel for the petitioner is that since the petitioner was denied bail there was no effective

communication between him and his counsel which hampered the crossexamination of the prosecutrix. Failure to crossexamine her with regard to

the treatment she got form Psychiatric Hospital, Jammu in the peculiar circumstances of the case was neither inadvertent nor deliberate, but only

due to the absence of proper brief about the real facts. Since there is documentary support that she was getting treatment from the Psychiatric,

application for reexamination is neither an afterthought nor an attempt to delay or defeat the final outcome of the trial. The summoning of the

prosecutrix for recrossexamination occurring to Mr. Singh is necessary for the just decision of the case.

The application has been opposed on behalf of the prosecution firstly on the ground that no revision lies against the order refusing to syprfmon

the witness and secondly no case is made out for exercising inherent jurisdiction of the court u/s 561A Cr. P.C. because the order refusingto

summon the witness is neither manifestly nor amounts to an abuse of the process of the court .

Schizophrenia is a mental disorder mark of rational thinking, disturbed emotions and a break down in communication with others. People who

develop Schizophrenia often have a history of unhappinessx and emotional stress in early childhood. Frustration and disappointment at times may

also contribute to the development of Schizophrenia in a person who is predisposed to it. However, whether her statement is coherent or

incoherent is a matter of appreciation for the trial court. She has been crossexamined both with regard to allegation as well as how she was treated

by her step mother and how she felt about second marriage of her father whether her statement inspires confidence of the court is again a matter of

appreciation of evidence.

Even though this petition has been filed u/s 561A Cr. P.C. nomenclature is immaterial because essentially challenge is to the order rejecting

recalling of a witness u/s Cr. P.C. against'which no revision lies in view of the law laid down by the Division Bench of this court in S.K. Mahajan

Vs. Municipality (1982 KLJ 1). In this case three questions were referred to the Division Bench. Question No. 3 reads as follows:""(3). Whether

an order refusing to summon a witness under section 540 of the Cr. P.C. is also an interlocutory order that attracts the same bar.

While answering this question, the Bench speaking through Kotwal J (As his lordship then was) observed as under:

No party has a right to have a witness examined u/s 540. It can only draw the attention of the court by making a prayer to that effect. Whether or

not a witness is to be examined under this section, the discretion entirely lies with the court though it may be obligatory on its part to summon the

witness in case his evidence appears to it to be essential for the just decision of the case. Nevertheless, it is the requirement of the court and not

that of the party to see whether or not a witness is to be examined. Viewed thus, an order granting or refusing the prayer of the party to have a

witness examined u/s 540 cannot be said to have determined any right of the parties and consequently fails to acquire the favour of a final order. It

is an interlocutory order, pure and simple....

After this, the question was answered as follows:

My answer to the third question, therefore would be that an order refusing to summon a witness under section 540 is an interlocutory order against

which no revision would lie.

In order to overcome this, the order has been challenged u/s 561A Cr. P.C. on the g/ound that the order impugned

being manifestly unjust if not reversed is likely to result in grave miscarriage of justice and serious prejudice to the accusedpetitioner. However, this

petition though styled as a petition u/s 561A Cr. P.C. is in fact and substance a revision petition about which final word has been said in the case of

S.K. Mahajan (supra). Nomenclature does not affect the legal connotation of the relief prayed and the bar indicated in subsection (4A) of section

435 of the Code. Moreover, legal position as stated in the case of S.K. Mahajan is that no party has right to have a witness examined u/s 540 as it

is requirement of the court and not of the party. If that be so as it really is, the question of invoking inherent jurisdiction u/s 561A Cr. P.C. is ruled

out. This court can undoubtedly exercise inherent power u/s 561A Cr. PC. to secure the ends of the justice, but the learned Sessions Judge has

exercise discretion against recalling the witness and the order not being manifestly unjust or illegal, no case is made out for interference.

Before parting it is necessary to make a mention how the trial has proceeded in this case even though the petitioner was an undertrial prisoner

and the total number of prosecution witnesses did not exceed 6 out of whom one was given up and other was only a formal witness. This speaks

of the lack of effective control on the file and perhaps absence of motivation to expedite the trial at least in case of undertrial prisoners. While the

charge was framed on 30051996 and statement of three of the six witnesses stood recorded by 30091996, it took more than a year to recall and

examined PW Dharmo Devi whose statement was recorded on 24091997. It is this casual approach which has shaken the confidence of the

public in the effectiveness of the criminal justice system. Ordinarily, the trial of this case should have concluded within a period of six months,

because it is rare that the prosecution restricts the witnesses to such a small number. It is also not always that the accused remains present. Since

he is in jail, therefore, presence was also ensured. Yet the trial did not pick up the speed, it should have in the circumstances of the case. This case

is index of our insensivity to the sufferings of an under trial prisoner.

A District court is expected to provide leadership to the subordinate courts and this is possible only by exercising effective control on the files

kept on its board so that proper message goes to the subordinate courts and disposal is expedited. Speedy trial is the mandate of law and right of

every accused. This can be ensured only by effective control of the proceedings. This is not something which is impossible to achieve if frequent

adjournment are avoided. Every order of the court adjourning such cases in fact must bear imprint of the Presiding Officer indicating his concern

for expeditious disposal, as he speaks through the order passed while adjourning the sessions trial. Some how this is missing which is unfair to both

the prosecution and the accused as well.

With this the petition is dismissed as on case is made out for the exercise of inherent jurisdiction of the court u/s 561A Cr. P.C. The file be sent

back forthwith. The learned trial court is directed to fix the session and conclude the trial with reasonable dispatch keeping in view the observations

made heretofore.