Jammu & Kashmir High Court
Ramesh Kumar vs State Of J&K & Ors on 7 May, 2009
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Rev No. 58 OF 2008 Ramesh Kumar Petitioners State of J&K & Ors Respondent !Mrs. S. Kour, Adv. ^Mr. G.S.Thakur, Adv. Honb�ble Mr. Justice Muzaffar Hussain Attar, Judge. Date: 07/05/2009 :J U D G M E N T :
This revision petition is filled by the complainant calling in question order dated 15th May 2008 vide which learned magistrate has closed the prosecution evidence.
FIR no. 152/2004 came to be registered at Police Station Bakshi Nagar Jammu disclosing allegedly commission of offence u/s 341/323 RPC by the respondent no. 2. After investigation of the case, the respondent no. 2 was send-up for trial. The charges were framed against the accused by Additional Magistrate (III Additional Munsiff) Jammu for having prima facie committed offence u/s 341/323 RPC. Respondent no. 2 did not plead guilty and was accordingly put on trial. Prosecution examined the witnesses excepting the Investigating Officer and the Medical Officer. When prosecution failed to produce the above stated witnesses, the learned trial magistrate ordered for closure of prosecution evidence. An application u/s 540 RPC was filed by the prosecution before the learned trial magistrate requesting therein that Investigation Officer and Doctor who are material witnesses in the case be ordered to be summoned. Learned trial magistrate vide its order dated 1st April 2008 allowed the application and prosecution was granted two opportunities to examine the above said witness. The prosecution, however, failed to produce the above two witnesses before the court. The trial magistrate vide its order dated 1st April 2008 had afforded two opportunities to prosecution to produce and to examine the above two witnesses. The two opportunities having been exhausted and witnesses not produced before the trial court, accordingly the impugned order dated 15th May 2008 was passed by the learned magistrate closing the evidence of the prosecution.
The complainant is aggrieved of the said order which is challenged in the revision petition.
It is submitted that Doctor Sarita who had examined injured person had left the job and a request was made for summoning Dr. M. L. Baboo for proving the signatures of Dr. Sarita on the memo of injury statement.
Heard learned counsel for the parties. Considered the matter. Learned counsel for the petitioner submits that as the Doctor and the I.O are official witnesses, it was the duty of the court to examine the said witnesses. The learned counsel submits that no summons were issued to the said witnesses by the court as such the evidence could not be closed. Learned counsel for the respondents submits that court order dated 1st April 2008 provides that only two opportunities are granted to petitioner to examine the said two witnesses. Learned counsel submits that the order dated 1st April 2008 ha become final as same has not been challenged by any party. Learned counsel submits that the trial court has given effect to the said order in terms of order impugned in this revision petition so no fault can be found with same.
One of the duty to conduct fair trial by the learned magistrate is to ensure that all the material prosecution witnesses are examined by the court. The criminal cases cannot be thrown out merely because prosecution has failed to produce the witnesses before the trial court. The criminal justice system occupies the important position in the field of administration of justice. In order to accomplish the solomen purpose of having a crime free society more onerous duty is cast on the learned magistrate. Unless the perpetrators of the crime are punished in accordance with law, the very foundation of the criminal justice system will get eroded.
It is true that the accused has right to speedy trial and same cannot be denied to him. But that does not mean that the criminal case should be thrown out at the cost of the public interest. Interests of the accused viz-a-viz. society are to be balanced.
In the backdrop of above discussion, it becomes necessary to refer to order dated 1st April 2008. Learned trial magistrate in terms of order allowed the application of the prosecution and granted them two opportunities to examine the I.O. and Doctor.
The Doctor and I.O are the public functionaries and they in some circumstances require to be summoned by the court itself. In this case, the learned trial magistrate has not adverted itself to this aspect of the matter. Learned trial court has not taken steps to summon the witnesses. Considering the order dated 1st April 2008, in this back drop it can be safely said that the two opportunities granted to the prosecution to examine the above said two witnesses would co-relate to the factum of summoning of these two witnesses by the court by issuing necessary dockets. The trial magistrate has not followed same. In the facts and circumstances of this case, it can be safely said that the order of 1st April 2008 still begs compliance. The impugned order in these circumstances is held to be illegal and is set-aside.
The learned trial magistrate will summon the two witnesses within two dates of hearings and examine the said witnesses. Prosecution will render all assistance to learned Magistrate to secure presence of the witnesses before it. In case, the witnesses appear before the trial court in pursuance to the summons issued by the trial court they shall be examined. However, it is made clear that if the two witnesses do not appear within the two opportunities/dates of hearing then the learned magistrate may close the prosecution evidence.
Record of the trial court be send back immediately.
Jammu (Muzaffar Hussain Attar) 7.5.2009 Judge Altaf