State of Jammu & Kashmir vs Duni Chand and Others

J.P. Singh, J.—State of Jammu and Kashmir has preferred this Criminal Revision against order dated 11-06-2005 of learned Sessions

Judge, Udhampur, whereby he has discharged respondents-1 to 3 in File No. 14/Sessions, under Sections 307/325/201/34 RPC.

Shri S.C. Gupta, learned Additional Advocate General appearing for the State, submits that learned Sessions Judge, Udhampur, has ignored the

existing evidence on record while passing the order impugned in this Revision Petition, which, according to the learned Counsel, has caused leisure

of justice. Learned Counsel further urges that rather than advancing the cause of justice and correcting the error noticed in the proceeding, which

was capable of its correction, learned Court has proceeded to discharge the accused, which course, according to the learned Counsel, is

impermissible.

Shri Pawan Kumar Jandial, who has appeared on behalf of the respondents, while controverting the submissions of learned Additional

Advocate General, submits that no error of law has been committed by the learned Sessions Judge, Udhampur. He has referred to the evidence

recorded u/s 161 of the Code of Criminal Procedure to urge that there was no evidence worth the name and the learned Sessions Judge was right

in passing the order of discharge of the respondents.

I have considered the submissions of learned Counsel appearing for the parties and perused the records of file meticulously.

It appears that the case had been fixed for 11th June, 2005 when the prosecution had to produce its witnesses in the Court. It is on this date

that learned Sessions Judge, Udhampur, noticed that without framing charge against the accused, respondents herein, the prosecution had been

permitted to lead evidence in the case. This necessitated the consideration of the case for framing charge. It was during this process that the

learned Sessions Judge has recorded that no grounds were made out for framing charge against the accused. Learned Sessions Judge appears to

have been additionally influenced by the fact that framing of charge and commencing de-novo trial after seven years of occurrence, would result in

injustice to the accused, who, according to the learned Sessions Judge, were innocent on the basis of police records.

With the help of learned Counsel for the parties, statements of witnesses u/s 161 Code of Criminal Procedure were perused by me.

Finding recorded by learned Sessions Judge that conspectus of entire evidence available on the record unerringly points out that accused

persons have not committed any overt or covert act at the time alleged occurrence took place, does not appear to be well founded. That apart,

such a finding is not contemplated at the stage when the Court has to consider a case for purposes of Sections 266 and 268 of the Code of

Criminal Procedure. A Sessions Judge is required to consider as to whether or not there is ground for presuming that the accused has committed

an offence, which is exclusively triable by the Court of Session. Critical examination of evidence so as to find out any overt or covert act is not

contemplated at. this stage.

Gushi Singh, cited as a prosecution witness, states in his statement u/s 161 Cr.PC as follows:

Likewise, Shri Suram Singh, another prosecution witness, states in his statement u/s 161 Cr.PC as follows:

To the same effect is the statement stone Babu Ram, who states in his statement u/s 161 Cr.PC as follows:

In view of the aforementioned statements of the witnesses cited by the prosecution in its list of witnesses, I am of the opinion that the finding

recorded by learned Sessions Judge, Udhampur, is not justified. In view of the categoric statements of the witnesses, whose statements have been

reproduced hereinabove, it cannot be said that there is no sufficient ground for proceeding against the accused, warranting their discharge u/s 268

of the Code of Criminal Procedure. That apart, it was not the stage where the learned Sessions Judge should have probed the existence of any

overt or covert act attributable to the accused-respondents. Rather than correcting the mistake regarding omission of framing of charge, the learned

Sessions Judge, Udhampur, has proceeded to scuttle the prosecution by depriving it of its right to lead further evidence cited by it in its list of

witnesses. Additional reasons have, thus, been coined by the learned Sessions Judge to justify the discharge of the accused on the grounds of

delay.

I, however, find from the records that trial in this case, has been delayed, because of the absence of the accused on number of occasions,

which necessitated the adjournment of the case. Delay in conclusion of trial may not result in termination of prosecution as a matter of course.

Accused cannot take benefit of his own conduct contributing to delay in the disposal of a case. It is only in those cases where delay is wholly

attributed to the prosecution that concept of speedy justice may fall for consideration of the Court, in considering whether or not a prosecution be

terminated. Each case depends on its own facts and delay cannot be applied as a matter of course to truncate the prosecution. The records of this

case show that delay in this case is not attributed to the prosecution. The accused, too, have contributed a lot in protracting the trial of the case.

The prosecution, as it so appears from the records, was directed to lead its evidence in the case only on 25th January, 2004. Prosecution had

produced three witnesses in the case. This is too short a period to terminate the prosecution of the respondents. Concept of speedy justice and

deprivation of right to life, cannot be employed to proceedings where trial started only a year back. The order of learned Sessions Judge,

Udhampur, is, thus, unsustainable and is accordingly set aside.

This Criminal Revision Petition is accordingly allowed.

Learned Sessions Judge, Udhampur, shall proceed with the case from stage contemplated by Section 269 of the Code of Criminal Procedure, in

accordance with law.