State vs Ajit Kumar

Nirmal Singh, J.—Ajit Kumar accused is facing trial before the learned Judicial Magistrate 1st Class (Munsiff), Jammu for offence under

Sections 419, 420 and 468, RPC.

The evidence of the prosecution was closed on 25-8-1995. Thereafter, prosecution moved an application u/s 540, Cr.P.C, on 27-8-1996 and

same was dismissed on 12-1-1998. Another application u/s 540, Cr.P.C. came to be moved by the prosecution and same was also dismissed on

18-8-2003. Aggrieved by the order dated 25-8-1995 and 18-8-2003, dismissing applications filed u/s 540, Cr.P.C., State filed revision petition

before the learned Sessions Judge, Jammu, who has referred the matter to this Court by observing as under :

...Thus in these circumstances the order dated 25-8-1995 closing the evidence of the prosecution in a serious matter of forging the order of the

Apex Court in a contempt case when there is nothing to infer that the witnesses are not available is bad and improper and as such suffers from

illegality, require to be set aside. The revision as such is sent to the Registrar Judicial High Court of J. and K. at Jammu for placing the same before

the Hon'ble High Court for appropriate orders.

Before making reference to this Court, learned Sessions Judge has taken note of a Division Bench judgment of this Court in case S.K. Mahajan

and Etc. Vs. Municipality, wherein it has been held that refusing to summon witnesses u/s 540, Cr. P.C. is an interlocutory order and attracts a bar

under Sub-section (4-a) of Section 435 of Cr. P.C. The Division Bench has observed as under (para 14 of Cri LJ) :--

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 flavour of a final order. It

is an interlocutory order, pure and simple. I am not prepared to accept the proposition, which to me too narrowly stated, that unless the order

brings an end to the proceeding in which it is made, it cannot be said to be a final order. This, in fact, was the connotation placed upon the

expression ""final order"" in Kuppaswami's case 1948 Cri LJ 625 (PC) (supra). But it was not. accepted by the Supreme Court in Madhu Limaye

Vs. The State of Maharashtra, and V.C. Shukla Vs. State through C.B.I., . The apparent conflict was, however, sought to be avoided by creating

a third category of orders to be known as ""intermediate orders"" as would appear from the following observations made by His Lordships S.M. F.

Ali, J. expressing the majority view in V.C. Shukla Vs. State through C.B.I., :

To sum up, the essential attribute of an interlocutory order is that it merely decided some point or matter essential to the issues sought but not. a

final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the

entry of the Judgment, Untwalia, J., in the case of Madhu Limaye Vs. The State of Maharashtra, clearly convey that an order framing charge is not

an interlocutory order but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol. 60. We find

ourselves in complete agreement with the observations made in Corpus Juris Secundum. It is obvious that an order of framing the charge being an

intermediate order falls squarely within the ordinary and natural meaning of the term ""interlocutory order"" as used in Section 11(1) of the Act.

In view of the law laid down, note of which has been taken by the learned Sessions Judge, revision was not maintainable before the learned

Sessions Judge but despite that the learned Sessions Judge has touched the merits of the case, which is beyond his jurisdiction. In case of

interlocutory order, the High Court u/s 561-A, Cr. P.C. has inherent power to interfere with the proceedings of the subordinate Courts at any

stage, if it finds that abuse of process of law is being carried on in the trial of the case or when such interference is necessary to secure the ends of

justice. This power u/s 561-A, Cr. P.C. has to be used sparingly when party makes out an exceptional case and the Court is of the view that

interference is necessary to secure the ends of justice. This proposition has been laid down in Amar Chand Agarwalla Vs. Shanti Bose and

Another, etc., and Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh and Others, .

In the case in hand, challan against the accused was presented on 30-12-1992 and the statement of last witness was recorded on 18-5-1993.

After that no witness was examined. The witnesses were summoned but prosecution failed to produce any witness and ultimately the Court closed

the evidence vide order dated 25-8-1995. The prosecution did not challenge the order by filing petition before the High Court u/s 561-A, Cr. P.C.

Till that order is set-aside, application for summoning of witnesses is not maintainable.

The prosecution filed application on 27-8-1996 for summoning of witness and the same was dismissed on 12-1 -1998. Prosecution did not

challenge the said order also but instead of that another application u/s 540, Cr. P.C. was filed, which was also dismissed on 18-8-2003.

Thereafter, prosecution filed revision before the learned Sessions Judge after eight years. The prosecution has not given any explanation as to why

the revision was not filed within the prescribed period of limitation. The accused remained present on each and every date of hearing before the

trial Court as well as even before the revisional Court. It is also not the case of prosecution that after presentation of challan, the accused has

remained absent or due to his fault proceedings have been delayed. Under Article 21 of the Constitution, the accused has fundamental right of

speedy trial,

In Kadra Pahadlya v. State of Bihar AIR 1982 SC 1167 their Lordships has held as under (para 2) :--

A speedy trial is a fundamental right implicitly in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution. Any accused

who is denied this right of speedy trial is entitled to approach the Supreme Court for the purpose of enforcing such right and the Supreme Court In

discharge of its constitutional obligation has the power to give necessary directions to the State Governments and other appropriate authorities for

securing this right to the accused.

Speedy trial is fundamental right of the accused as enshrined under Article 21 of the Constitution of India. Right of speedy trial is not only

available to an accused who Is in custody but also to an accused who Is facing trial and the trial must be concluded within a reasonable time so that

accused may prove himself innocent or prosecution may prove that he is guilty of charge. Therefore, while holding trial, the Courts have to keep

balance between the prosecution and defence. If, due to fault of the prosecution the trial is not concluded for long time, the Court has no other

alternative except to close the evidence by order. After the presentation of the challan 13 years have passed but despite that prosecution has failed

to conclude the evidence, therefore, there was no other alternative before the learned trial Court except to close the evidence by order. Therefore

accepting reference or exercising Inherent powers u/s 561-A, Cr. P.C. will not be in securing ends of justice rather it will be injustice to the

accused.

In view of the above discussion, reference is declined.

File be sent back forthwith to learned Sessions Judge, Jammu who will direct the trial Court to conclude the trial within a reasonable time

keeping in view the observations made hereinabove.