Nain Singh vs Nain Singh and Others

B.A. Khan, J.—This revision is directed against the order of the learned Additional District and Sessions Judge, Jammu dated June 2, 1990

in terms of which the evidence of the prosecution has been closed.

The short point agitated before me is whether it was the bounden duty of the trial Court to summon the prosecution witnesses by coercive

process in the absence of any request or application having been made by the prosecution in this regard.

Before adverting to the legal aspect of the matter, it will be beneficial to briefly state the facts leading to the controversy. Upon a complaint

lodged by the petitioner a case came to be registered against the respondents u/s 307, R.P.C. eventually leading to the presentation of the challan

on January 24, 1985. From the record it appears that the accused were charge-sheeted on January 14, 1986 and since one of the accused had

absconded, the prosecution was directed to produce witnesses on its own responsibility against other accused by virtue of order dated August 31,

1987. Since then, the trial has been at the evidence stage to be led by the prosecution and it was on May 3, 1990 that the prosecution was granted

last and final opportunity of producing the remaining witnesses. At this stage or subsequent thereto there is nothing on the record to show that any

attempt was made by the prosecution to express any grievance against the order dated May 3, 1990 or to comply with its terms. On the next date

(June 2, 1990), the Court passed a reasoned order closing the evidence of the prosecution. The reasons given in the order aforesaid (hereinafter

called the impugned order), indicate that since 1986, the prosecution has not been able to complete the evidence and as regards the remaining

three witnesses, it is pointed out that even though prosecution had summoned these witnesses on 4th and 16th May, 1990 still they were not

present in spite of the preemptory order dated May 3, 1990. There is nothing on the record to show that even at this stage, the prosecution made

any attempt to seek assistance of the trial court for procuring the attendance of these remaining witnesses. No request or application is borne by

the record in this respect.

Be that as it may, the complainant/ petitioner (and Not Prosecution/State) has challenged the order impugned on the ground that since the

remaining witnesses were official witnesses, the trial court of its own should have taken upon itself to procure their presence and that since these

witnesses were crucial witness in the matter, the presence should have been procured by the trial court in the interests of justice and fair play. By

not doing so, the trial court had committed an impropriety vitiating the order impugned.

The learned counsel for the petitioner in support of his contentions has placed great reliance on 1987 KLJ 634 and contended that it was the

bounden duty of the trial court to summon the remaining witnesses, even if it be assumed that the efforts of the prosecution in this direction had

failed. The learned counsel for the petitioner urged that even going by the Rules and orders for the guidance of courts subordinate to High Court, it

was obligatory on the part of the trial court to procure the attendance of these witnesses even by a coercive process irrespective of any request

having been made by the prosecution.

The learned counsel for the respondents argued that there was no Rule or law, which could be said to be casting any such obligation of the trial

Court. On the contrary, the provisions of Section 271, Cr.P.C. required an application to be made by the prosecution in the event the assistance of

the Court was required for summoning of the witnesses. He also submitted that no grievance was expressed by the prosecution or for that matter

complainant/petitioner when last opportunity for adducing witnesses was granted by the trial Court on May 3, 1990 and no application or request

was made to the Court seeking it assistance for procuring the attendance of the witnesses even on June 2, 1990 when the impugned order came to

be passed. The learned counsel pointed out that if the plea of the petitioner was entertained, it would set a dangerous precedent putting a premium

of the laxity of the prosecution leading to frivolous criminal matters being dragged on for years causing grave prejudice to the accused who are

presumed to be innocent till proved guilty. He also challenged the locus of the petitioner to agitate the matter when the case had proceeded on

police report and the State had stepped into the shoes of the complainant. In this regard he placed reliance on Thakur Ram Vs. The State of Bihar,

.

I have heard the learned counsel for the parties and have also considered the record before me.

I find no force in the contentions raised by the learned counsel for the petitioner for a variety of reasons. Suffice it to say that there is nothing in

any Rule or Law which caste any obligation on the trial Court to procure the attendance of the witnesses in the absence of the party concerned

seeking assistance of the Court in this regard. The provisions of Section 271 of the Code of Criminal Procedure are manifestly clear on the point.

The relevant section reads as under :--

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 other thing.

By any norms of interpretation, the provisions extracted hereinabove, do require an application to be made by the prosecution in the event of

compelling the attendance of any witness. As already pointed out hereinabove, there is nothing on record to show that any such application was

made by the prosecution, least of all by the complainant/petitioner. As regards the Rules for Guidance of Subordinate Court, I do not find any Rule

laying down the proposition that it is obligatory on the part of the trial Court to compel the attendance of the witnesses in all events and

circumstances. Even if there were any such provision in these Rules, the same could not have any overriding effect on the provisions of Section 271

of the Code of Criminal Procedure. Therefore, this contention appears to be fallacious on the face of it.

I have also considered the judgment (of brother Sethi, J.), reported in 1987 KLJ 634 and it appears that the peculiar facts and circumstances of

that case are not similar to the facts and circumstances revealed by the record in the present case. It also appears that the provisions of Section

271, Cr.P.C. were not brought to the notice of his Lordship as it does not find any mention in the judgment aforesaid.

On the aspect of the locus, I have no hesitation in holding that this Court should be sparing in invoking the criminal revisional jurisdiction by a

private party in a case which proceeds on police report. After all, the criminal law and procedure cannot be allowed to be used as an instrument of

wreacking vengeance by an aggrieved party against a person who, according to that party had caused injury to it, more so when the case proceeds

on a police report and the State substitutes the private complainant derived support for this from Thakur Ram Vs. The State of Bihar, wherein it

has been held :--

In a case which has proceeded on a police report, a private party has no locus standi.... Barring a few exceptions....

I do not feel that the case in hand can fall in these exceptions, more particularly when the accused/respondent have been undergoing trial since

1986 and since then, the prosecution has not been able to adduce the evidence. Whatever the status of the witnesses, official or unofficial, it is for

the prosecution to ensure that then attendance is procured either on its own or by invoking the assistance of the Court. Any contrary view would

be casting an undue obligation on the trial Courts, unsupported by any law or Rules, even in cases where the assistance of the Court is not sought

or required by the interested party.

For the reasons stated hereinabove, 1 find no illegality or impropriety in the order impugned and hold that the trial Courts cannot be burdened

with an obligation to procure the attendance of the witnesses in all events and circumstances, irrespective of whether the assistance in this regard is

sought or not, it is for the interested party to pursue and substantiate the case: The Court, indeed, can be used as medium of assistance, barring for,

rear exceptions where it takes the burden upon itself. This revision petition accordingly fails and the same is dismissed.

The record of the trial Court shall be sent back to the Court of Addl. District and Sessions Judge, Jammu immediately and the parties shall cause

their appearance before the trial Court on 29th January, 1991.