Ram Singh vs State of U.P.

Bharat Bhushan, J.—Present application under Section 482 Cr.P.C. is preferred against the judgment and order dated 16.10.2015 passed by Addl. Sessions Judge, Court No. 1 Jaunpur in Sessions Trial No. 206-A of 2006 (State v. Ram Singh) whereby the application Nos. 101 Kha and 103 Kha moved by applicant under Section 311 Cr.P.C. for summoning Santosh Singh, witness in defence was rejected.

It appears that applicant Ram Singh was facing trial along with three other accused persons under Section 302 /120-B IPC, P.S. Sureri, District Jaunpur. During pendency of the said trial, a bail application was moved by co accused Raghuraj Singh @ Raju before this Court, in which the following order was passed:--

"It is informed by learned counsel for the applicant that the trial is at the stage of final argument since last more than one year and is not being judgmented as the counsels for the other accused persons are not appearing to argue the case finally. Learned counsel for the applicant produced before me a photo copy of the order sheet. The order sheet dated 13.1.2009 indicates that the counsels for the other accused persons are lingering on the trial. It is also informed that other three accused persons Munna Singh, Ram Singh and Sani Singh are on bail and it is because of dexterity of the counsels of those accused persons in not arguing the case that the trial is not being concluded. It is also informed that presently the sessions trial, being S.T. No. 206 of 2006 (State v. Munna Singh and others) is pending before Additional Sessions Judge-I, district Jaunpur.

After hearing learned counsel for the applicant and the learned AGA, I direct Additional Sessions Judge-I, Jaunpur to cancel the bail of rest of three accused persons namely Munna Singh, Ram Singh and Sani Singh in S.T. No. 206 of 2006 (State v. Munna Singh and others) forthwith and direct the S.S.P., Jaunpur to take all the accused persons in custody within 48 hours and lodged them in jail. Trial Judge, thereafter is directed to take up the aforesaid sessions trial for final hearing on day to day basis and conclude it positively within two weeks otherwise appear before this Court personally along with his explanation for not concluding the said trial. This IIIrd Bail Application is directed to come up before me again as part heard on 10.9.2009.

It is made clear that if the trial Judge concludes the trial by the next date, he need not appear before me in person.

Office is directed to intimate this order to the trial Judge by fax positively by tomorrow. "

In the light of the aforesaid order, trial was hastened and three accused persons namely Munna Singh, Raghuraj Prasad and one Sunny Singh were finally convicted vide judgment and order dated 7.9.2009 passed by learned Addl. Sessions Judge, Court No. 1, Jaunpur. But trial of applicant Ram Singh was separated and renumbered as S.T. No. 206-A of 2006 (State v. Ram Singh). During his trial, one witness namely Santosh Singh was discharged by the prosecution and not produced before the trial court. During trial of other accused persons, an application was moved by co accused Sunny for summoning Santosh Singh, which was rejected vide order dated 9.8.2007 on the ground that the prosecution had closed the evidence and the statement of accused persons had already been recorded under Section 313 Cr.P.C. Learned Judge also opined that accused person can summon the said witness in defence and if required the court may also issue summons.

It appears that the accused applicant Ram Singh also moved an application for summoning Santosh Singh as defence witness but his application was dismissed by the Addl. Sessions Judge, Court No. 1, Jaunpur vide order dated 14.7.2009. This application was primarily dismissed on the ground of delay and on the presumption that the witness has been won over by the accused persons. It appears that another application was moved for summoning Santosh Singh again, which was dismissed vide order dated 16.10.2015. This order is under challenge before this Court.

Heard Sri Daya Shankar Mishra, learned counsel for the applicant, Mr. Viresh Mishra, learned Senior Advocate assisted by Sri Ajeet Shukla, learned counsel for the informant and learned AGA and have gone through the entire material present on record.

Learned counsel for the applicant has submitted that the order passed in the year 2007 on the application moved by Sunny would not create any impediment as far as the request of Ram Singh is concerned. He has further argued that if the application of Ram Singh had been rejected earlier even than his request to summon Santosh can be considered now. He has drawn the attention of the court towards the fact that the statement of Santosh Singh was also recorded in the year 2013 in another case under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (in short UP Gangsters Act), which has its genesis in the facts of the present session trial No. 206-A of 2006, under Section 302 IPC. He has also drawn the attention of this Court that in this case Santosh Singh has not supported the prosecution version, therefore, it is imperative to have his testimony recorded in this case for the simple reason that the statement recorded in other case cannot be taken into consideration in the present case.

To the contrary, learned AGA and Mr. Viresh Mishra, learned Senior Advocate appearing for the informant have contended that considerable period has elapsed. Entire evidence has already been recorded. When the trial was on last leg, present application under Section 311 Cr.P.C. has been moved by the applicant. He further submits that on earlier occasions applications under section 311 Cr.P.C. for same purpose had already been dismissed by the trial court. It is further contended that it was incumbent upon the applicant to explain the unusual delay in moving this application. It is also submitted that the entire order sheet as sought by this court has not been produced before this court.

It is contended by learned counsel for the applicant that the impugned order has infact not been passed on the ground that the application of Ram Singh had been rejected on 14.7.2009. He would argue that the impugned order has been passed primarily on the ground of delay. He has further contended that the principle of res-judicata would not be applicable in the criminal case especially in the light of the testimony of Santosh Singh recorded on 15.3.2013 in another trial. Application to summon Santosh Singh has been rejected on 14.7.2009. He has also drawn the attention of this court towards the application No. 101-Kha moved by applicant Ram Singh in the present Sessions Trial (copy of which annexed as Annexure No. S.A.-3Ga), on which the learned Judge had passed the following order, which is quoted herein below:--

He has also submitted that this order indicates that Santosh Singh had infact been summoned by the trial court and that the summons could not be served on this witness. He has further argued that once the court has issued summons for production of particular witness in defence than it is incumbent upon court to ensure his presence.

In support of his argument, learned counsel for the applicant has relied upon the cases of Natasha Singh v. CBI, Laws (SC) 2013-5-31 Bablu Kumar v. State of Bihar, Laws (SC) 2015-7-48 and Devendra and Others Vs. State of U.P. and Another, .

The dispute before this court is confined to the rejection of application under Section 311 Cr.P.C. whereby request of applicant to summon the witness Santosh Singh has been turned down by the court below.

The argument that the application under section 311 Cr.P.C. had been dismissed way back in the year 2009 and therefore no second application could be moved being barred by the principle of res-judicata is not sustainable for the two reasons; firstly, the Apex Court in Devendra and Others Vs. State of U.P. and Another, , has held that principal of res judicata is not applicable in criminal trial. Secondly, order of trial court on the application No. 101 Kha indicates that some sort of summons had infact been issued for summoning the witness Santosh Singh earlier but the said summons could not be served because of his evasive tactics. It is evident that once the trial court has summoned the particular witness ordinarily it is the duty of that court to ensure the presence of that witness.

In this case, the impugned order indicates that the said witness was evading service of summons. Trial court should have secured his presence in the court. The record does not indicate as to why order summoning Santosh Singh was not complied with. Therefore, the order dated 14.7.2009 by itself cannot be treated as an order declining the request of accused to summon the witness Santosh Singh. It is pertinent to point out that the application 101 Kha has infact been decided by the impugned order on 16.10.2015 meaning thereby the application was pending since then, therefore, it is not discernible as to in what context the order dated 14.7.2009 was passed.

Moreover, the case of Devendra (Supra) relied upon by the learned counsel for the applicant demonstrate that the principle of res-judicata ordinarily would have no application in a criminal proceedings.

It is pertinent to mention here that the evidence of Santosh Singh was infact recorded on 15.3.2013 in Special Trial Nos. 134 of 2007, 135 of 2007, 136 of 2007, 137 of 2007 (State v. Raghuraj @ Raju) in Special Court, Court No. 6, District Jaunpur, which belies the report that witness Santosh Singh was not available because he had testified on 15.3.2013. It is further contended that this Special Trial also stems from the same episode for which the accused applicant is facing trial under Section 302 IPC. Testimony rendered by Santosh Singh in that case discloses that he had not supported the prosecution version. So far as the present trial is concerned his importance to the defence is apparent.

It is no body''s case that if witness Santosh Singh does not testify in support of the prosecution than his evidence would automatically result into acquittal of accused Ram Singh. Appraisal of hostile witness is within the domain of Trial Court. Merely because the prosecution witness has resiled from his earlier version or has turned hostile would not necessarily affect the prosecution case adversally.

In any case, duty of trial judge is to give equal opportunity to both the parties. Prosecution has already been given sufficient opportunity to establish their case. Now the accused Ram Singh should also be given reasonable opportunity to defend himself. It is true that considerable period has elapsed but on that score alone accused cannot be denied opportunity to defend himself. In any case, applicant Ram Singh has sought presence of only one witness in his defence and I am of the considered opinion that testimony of one witness would not create any impediment in conclusion of the trial.

Apex Court in Natasha Singh Vs. CBI (State), , has dealt with the issue of fair trial as under:--

"Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the ''majesty of the law'' and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution.

xx xx xx xx

Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights."

Keeping in view the concept of fair trial, the court is under the legal obligation to see that if summons are issued, they are actually served on the witness(es). Thus in view of above, it would be appropriate to give one opportunity to the applicant.

Consequently, this application under Section 482 of the Cr.P.C. is allowed. It is directed that the learned trial Court shall summon the witness Santosh Singh in defence. The applicant/accused shall bear the expenses of said witness as may be determined by the trial Court. However, if at any stage, it appears to the trial Court that the applicant is adopting dilatory tactics, the court below shall be at liberty to conclude the proceedings immediately by a speaking order in accordance with law.