Islamuddin (in Jail) vs State of U.P. and Another

I.M. Quddusi, J.—Heard learned Counsel for the applicant, Sri K. S. Rastogi and the Special Public Prosecutor for the Union of India, Central Bureau of Narcotics, Shri I. B. Singh.

The applicant-accused is involved in Case Crime No. 29 of 1997 u/s 8/21/29, N.D.P.S. Act. His bail application was rejected by the trial court, i.e., Judge, N.D.P.S. Act, Lucknow and thereafter he moved first bail application, which was rejected by this Court vide order delivered on 22.6.1999. Thereafter, he moved second bail application, i.e., Criminal Misc. Case No. 3362 (B) of 1999, which was disposed of vide order dated 10.9.2001 providing that the trial court may conclude the trial within three months from the date of production of a certified copy of that order subject to co-operation of the accused persons and in case trial is not concluded within the specified period in spite of the co-operation of the accused persons, the applicant shall be entitled for bail on the expiry of the aforesaid period.

The trial is still pending and the learned court below has observed that the accused-persons have not made their co-operation with the proceedings. Thereafter, the applicant moved another bail application, i.e., third bail application, on which this Court enquired from the learned Special Public Prosecutor, Sri I. B. Singh about the latest position of the case.

It appears that the applicant is in jail since last about 5 1/2 years. Till date, only two witnesses have been examined as P.W. 1 and P.W. 2 but the cross-examination of P.W. 2 has not been concluded so far.

Shri I. B. Singh has apprised this Court about some dates fixed by the trial court in Criminal Case No. 480 of 1997. The relevant order sheet is liable to be perused, details of which are given as under:

On 23.9.2002, the case was called out. The accused-applicants were present. P.W. 1, Ashok Kumar Singh was examined and cross-examination of P.W. 2 was not done and the case was fixed for 1.10.2002 for cross-examination but the Court has not assigned any reason as to why date was not fixed earlier and why the witness could not be examined on day-to-day basis. Thereafter, on 1.10.2002, his cross-examination was done but was not completed and thereafter, the Court fixed the case for 17.10.2002 for further cross-examination. This time also, the Court has not mentioned any reason as to why the cross-examination could not be done on the very next date. Thereafter, on 17.10.2002 prosecution witness was not present and as such the Court fixed the case for 31.10.2002. On that date learned defence counsel appearing for accused-applicant Islamuddin did not turn up and lost his opportunity to cross-examine and the witness was discharged. Thereafter, the case was fixed for 26.11.2002 on which date P.W. 2 S. P. Srivastava was examined in part and rest of the examination-in-chief was recorded on 27.11.2002. The Court on 27.11.2002 fixed the case for 13.12.2002 for the cross-examination of P.W. 2. This time also, the Court has not mentioned any reason as to why he did not fix the next date for further examination of P.W. 2 and why 13.12.2002, i.e., the gap about more than 15 days, was given in recording rest statement of P.W. 2. On 13.12.2002, no witness was present and the Court fixed for 23.12.2002. On 23.12.2002, the Presiding Officer of the Court was on leave and the case was fixed for 15.1.2003, on which date no defence counsel, who was on duty, was present to cross-examine P.W. 2, and the Court had fixed the case for 24.1.2003 on which date, learned members of the Bar were abstaining from work, therefore, the Court fixed the case for 12.2.2003 on which date no witness had turned up and now the case has been fixed for today, i.e., on 27.3.2003. Learned Special Public Prosecutor has informed this Court that today also the case has been adjourned due to boycott of the learned members of the Bar and also on the basis of the application moved on behalf of the accused Kosar but two witnesses remained present.

From the above mentioned details produced by the learned Special Public Prosecutor, Shri I. B. Singh, it cannot be said that the accused-persons had made their co-operation in completion of the trial. It also cannot be said that the prosecution had not requested for adjournment due to absence of the witnesses prior to the above mentioned dates. The prosecution moved application for adjournment as submitted by the learned Counsel for the applicant but the matter, at this stage, before this Court is that why the trial court has not followed the provisions of Section 309, of Cr. P.C. and also the order of the Apex Court and the circular issued by the Allahabad High Court for their compliance.

The Hon''ble Apex Court vide its judgment and order dated 22.9.1999 passed in Criminal Misc. Petition No. 2326 of 1999 in re: Criminal Appeal No. 1045 of 1998, Raj Deo Sharma v. State of Bihar, in terms of majority opinion had held as under:

Section 309(1) of the Code enjoins on every trial court to continue examination of witness from day-to-day until the witnesses in attendance have been completed. The Sub-section reads thus:

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.

We cannot permit the trial court to flout the said mandate of the Parliament unless the Court has very cogent and strong reasons. No Court has permission to adjourn examination of witnesses who are in attendance beyond the next working day.

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.

In compliance of the above quoted direction, the Registrar General of High Court, Allahabad had sent a circular letter No. 17/2001 dated May 4, 2001 to all the District Judges subordinate to the High Court of Judicature at Allahabad.

Thereafter, the Hon''ble Apex Court has again passed another judgment in Criminal Appeal No. 392 of 2001, State of U.P. v. Shambhu Nath Singh and Ors. passed on March 29, 2001, which is quoted as under:

In Raj Deo Sharma Vs. The State of Bihar, 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 days. 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 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 judgment. 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 of days.

From a perusal, of the order sheet produced by the learned Special Public Prosecutor, Shri I. B. Singh, it appears that the learned trial court has not followed the directions of Hon''ble Apex Court and the circular issued by the Allahabad, High Court for ensuring compliance. Therefore, this Court feels that the learned District and Sessions Judges should be directed to ensure the compliance of the Hon''ble Apex Court''s order as quoted above and they should ensure that the trial Judges under their Judgeship may not violate the directions of the Apex Court under Article 141 of the Constitution in which it has been provided that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Hence, it is the duty of the courts to follow the mandate given by the Hon''ble Apex Court, so more, when the Hon''ble Apex Court has specifically to do something and the deviation from the same is a serious matter.

Therefor, this application is disposed of with a direction to the learned trial Judge to conclude the trial, as expeditiously as possible, obeying the directions given by the Hon''ble Apex Court, which have been quoted above as well as by the circular of the Allahabad High Court to ensure the compliance of the Hon''ble Apex Court''s order but again, it is directed that in case the trial is not concluded within three months from the date of production of a certified copy of this order in spite of the co-operation of the accused persons, the applicant shall be released on bail immediately, after expiry of three months on moving application for bail.

A copy of this order shall be sent to all the District and Sessions Judges subordinate to Allahabad High Court, so that they may ensure the compliance of Apex Court''s order passed in the above mentioned cases and to communicate the same to the trial Judges of their respective judgeship for ensuring compliance.