Mohammad Hussain Khan vs Masrat Jabeen

1 .This revision petition calls in question the legality and validity of the order recorded on 11/03/1998 by Session Judge, Baramulla in Session file

No. 14/92 titled State Vs. Masrat Jabeen and anr. for the offence U/S 302 R.P.C It is at the admission stage that 1 propose to dispose it of as not

maintainable for the reasons as under:

The Session case arising out of F.l.R.No 317/91 P/S Baramulla has remained pending before the learned Session Judge, from the month of

March, 1992. Accused having pleaded not guilty to the charge, sought trial consequent upon which the trial court directed, vide the order dated

25/02/ 1992, the production and examination of listed prosecution witnesses. In the unambiguous order recorded on 19/02/1998, the trial Judge

indicated it to the prosecution that their conduct in producing and examining the listed witnesses was not in any way satisfactory in so far as the

investigating officer had not been produced despite number of opportunities having been afforded. The learned judge observed

In my opinion, sufficient opportunities have been granted to the prosecution in this case to produce witnesses and in case prosecution does not or

has not been able to avail the same, the consequences have to be faced by the prosecution. One of the important witnesses like the investigating

officer has been left by the prosecution from the (SIC) 1992"".

The trial judge forewarned, with these observation, the prosecuting agency that any lapse, in not keeping the remaining witness in attendance,

may lead to the closure of the evidence. The trial Court, however, afforded vide the order dated 19/02/1998, the last and final opportunity for the

production of the examination of the witness.

It appears that neither the Public prosecutor attached to the trial Court nor the investigating officer of the case bothered to read the signal that

was expressly given out that failure to examine the investigating officer on the date to which the case was adjourned could lead to the closure of the

evidence.

The matter thus came up before the learned Judge on 11/03/1998 but again the investigating officer was neither kept in attendance for examination

nor was any reason put forth for the failure to produce him on that date, which was in terms of the previous order the last and final opportunity

.The Sessions Judge closed as such the evidence and posted the matter for further proceedings.

It appears that the State took the order, under these circumstances, to be unassailable as it has not come up to challenge its validity. It is on the

other hand that one of the prosecution witnesses, may be the complainant, namely Mohammad Hussain Khan, who has come up through the

ladder of the revision to assail the correctness of the order. One cannot in the first place comprehend as to what locus has the prosecution witness

to invoke the revisional jurisdiction because the impugned order has not exfacie occasioned in any error of law or caused any miscarriage of

justice. The revision petitioner is a witness simplicitor who was expected to state the truth about those circumstances of the case which were to his

knowledge. The prosecution witness in the case, instituted by the State, has no other locus. It is sparingly and in rare cases, when grossmiscarriage

of justice has occasioned, that a prosecution witness in a case instituted by the State can be heard to complain about the validity of an order

passed at the trial. It is therefore difficult to maintain in the given premises the revision petition.

It is in the second place not discernable from the material as to what is the fault with the order. The petitioner has based the petition perhaps on

the assumption that it was the duty of the trial court to summon the prosecution witness. This conception needs to be answered by reference to

sections 271 and 272 of the Code of Criminal Procedure which provide for the mode and manner for production and examination of the witnesses

in a sessions case. Section 271 provides that if the accused refuses to plead or does not plead or claims to be tried or is not convicted u/s 270, the

judge shall fix a date for the examination of the witnesses and may on the application of the prosecution issue any process for compelling the

attendance of any witness or the production of any document or any other thing. Section 272 directs that on the date so fixed the judge shall

proceed to take all such evidence as may be produced in support of the prosecution. The bare reading of the two sections conjointly shows that it

is the obligation and the duty of the prosecution to produce and examine its witnesses. The court is under no obligation or duty to summon any

witnesses or to compel the attendance of any witnesses unless a formal application therefore is laid by the prosecution. There is no scope to read

these procedural provisions in any other way.

The petitioner has been illadvised to say that the trail court was obliged, without a formal request therefore having been made, to summon the

prosecution witnesses. It is an incorrect proposition of law that duty to secure attendance of witness is that of the court. The counsel appearing for

the petitioner has not been able to refer to any provisions, either statutory or otherwise, where under the revision petitioner's proposition of law that

the remaining witness in the case, being a Government servant, the trial court was under the obligation to summon him notwithstanding that no

application for such an assistance was filed.

It is held that the statue casts the obligation primarily on the prosecution to produce, for examination, its witnesses. The assistance of the court to

compel attendance of any witness can be procured only and only when an application disclose the reasons for invoking the court's assistance.

In ,he case at hand, the investigating officer was the employee of the Police department. One fails to understand as how can it be countenanced

that his attendance could not be procured by the State for his examination in support of the charge. It rather appears that nobody, neither the

Public prosecutor nor the complainant, did take the directions/observations of the trial court with any seriousness. The matter having remained

pending for recording the prosecution evidence for a long time, the learned judge afforded yet a chance with the direction that failure to produce

the remaining witness on 11th March, 1998 could lead to the closure of the evidence. The opportunity thus provided was simply allowed to go in

waste, with the result that the judge was justified in the circumstances of the case to record the impugned order.

For the reasons above said, the revision petition alongwith its miscellaneous petition is dismissed as misconceived.