Rajasthan High Court - Jaipur
Ganpat Singh vs State Of Rajasthan on 16 October, 1997
Equivalent citations: 1998CRILJ2614, 1998(1)WLC315
ORDER Amaresh Ku. Singh, J.
1. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
2. The petitioner has filed this petition under Section 482, Cr.P.C. with the object of getting expunged certain remarks made by Hon'ble Mr. Justice Milap Chandra Jain in the order dated 29th January 1993 passed in S.B. Criminal Misc. Petition No. 17/91 Parbat Singh v. State of Rajasthan. In para No. 6 of the order dated 29th January, 1993 this Court made the following observations :-
14 dates were fixed in the case for recording the statement of the Investigating Officer Karan Raj as the learned Public Prosecutor did not take necessary steps to ascertain his latest address as was expected from a Public Prosecutor. Such a lapse on his part cannot be allowed to help the accused persons in a murder case but deserves to be reported to the Government in the Law Department for necessary action against him.
3. The relevant facts which are necessary for the disposal of the case may be briefly summarised as below :-
4. A Session Case No. 63/91 State v. Jalam Singh under Sections 302,307,325 and 323, I.P.C. was pending before the learned Sessions Judge, Jalore. In that case 14 dates were fixed for recording the statements of the Investigating Officer Shri Karan Raj. The prosecution failed to produce its evidence on the dates fixed by the Court for the purpose of recording the evidence. When Karan Raj was not produced for examination, the learned Sessions Judge, Jalore closed the prosecution evidence on 26th November, 1992. After that an application was moved under Section 311, Cr.P.C. by the Public Prosecutor for issuing process against the witness. That application was rejected by the learned Sessions Judge. The State, therefore, filed S.B. Criminal Misc. Petition No. 17/93 under Section 482, Cr.P.C. against the order passed by the learned Sessions Judge, Jalore. While disposing of that application vide order dated 29th January, 1993, the learned single Judge made the observations, which have been reproduced above.
5. The learned counsel for the petitioner has submitted that the petitioner, who was working as a Public Prosecutor was not responsible for non-appearance of the Investigating Officer during the trial of the session case and as such there was no lapse on the part of the petitioner and the observations made in para No. 6 of the Judgment were therefore, not justified. It is also submitted by him that before making any observation adverse to the petitioner, it was necessary that he should have been given an opportunity to explain his conduct and since no such opportunity was given to him, the observations against the petitioner could not have been made. The learned counsel for the petitioner has placed reliance on Dr. Raghubir Saran v. State of Bihar 1964 (1) Cri LJ 1 : (AIR 1964 SC 1); State of U.P. v. Mohd. Nairn 1964 (1) Cri LJ 549 : (AIR 1964 SC 703); Dr. S. N. Vyas v. State of Rajasthan 1966 Cri LJ 798 : AIR 1966 Raj 164 and Radhey Mohan Srivastava v. State of Rajasthan 1982 Raj Cri C 383.
6. I have carefully gone through the Judgments cited by the learned counsel for the petitioner.
7. The learned Public Prosecutor has opposed this petition.
8. The first question to be decided is whether there was any lapse on the part of the prosecution in not producing the Investigating Officer Shri Karan Raj on the 14 dates of hearing to which the session case was adjourned by the learned Sessions Judge, More.
9. In Lt. Col. S. J. Choudhary v. State (Delhi Administration), (1984) 1 SCC 722 : (1984 Cri LJ 340), the Hon'ble Supreme Court has pointed out that sessions cases must be heard and disposed of in one session by conducting the trial on day to day basis and before the trial is commenced, it should be ensured that the witnesses are in attendance. Their Lordships observed as below :-
We think it is an entirely wholesome practice for the trial to go on from day-to-day. It is most expedient that the trial before the Court of Session should proceed and be dealt with continuously from its inception to its finish. Not only will it result in expedition, it will also result in the elimination of manoeuvre and mischief. It will be in the interest of both the prosecution and the defence that the trial proceeds from day-to-day. It is necessary to realise that Sessions cases must not be tried piecemeal. Before commencing a trial, a Sessions Judge must satisfy himself that all necessary evidence is available. If it is not, he may postpone the case, but only on the strongest pos-sible ground and for the shortest possible period. Once the trial commences, he should, except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded.
We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his Advocate is finding it difficult to attend the Court from day-to-day. It is the duty of every Advocate, who accepts the brief in a criminal case to attend the trial from day-to-day. We cannot overstress the duty of the Advocate to attend to the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend.
10. In view of the observations made by the Hon'ble Supreme Court, it is well established that the session cases are required to be disposed of in one session and this would be possible only if the prosecution and the defence, both take steps to ensure the attendance of their witnesses during the trial. Since the session trial is to be concluded in one session, it is necessary that all the steps which are required to be taken for enforcing the attendance of the witnesses must be taken before the hearing of the case is started.
11. The prosecution, in session cases is there-fore, under a statutory obligation to take all necessary steps for the attendance of its witnesses before the Session trial is commenced. It is necessary that the names and correct addresses of the witnesses should be given, applications for issue of summons or warrants should be made in time and the summons and warrants issued by the Session Court should be diligently served so that the witnesses may be present when the trial is commenced. In session trial, the State is the prosecutor and all the steps by the State are required to he taken through the Public Prosecutor. In view of this fact, if the State fails to produce its witnesses during trial and does not take any steps in time for the purpose of getting enforced the attendance of the witnesses, who are proposed to be examined during trial, it must be said that the State commits lapse in prosecuting the case. Issue of process by the Court is only for the purpose of assisting a party in producing its witnesses. It is not as if after the filing of the charge-sheet, the State has no responsibility in producing its witnesses or in the matter of serving the summons issued by the Court or executing of warrants issued by the Court. It may be pointed out that under Section 309, Cr.P.C. the discretion to adjourn the hearing or not to adjourn the hearing is a judicial discretion, which must be exercised according to judicial principles indicated by Section 309, Cr.P.C. and by the rules as well as the judicial precedents. If any authority is needed to support this proposition, I may respectfully refer to the Judgment of the Hon'ble Supreme Court in A. Laxman Rao v. Judicial Magistrate, Parvatipuram AIR 1971 SC 186 : (1971 Cri LJ 253). The notion that the Courts conducting inquiry and trial are bound to adjourn the cases under Section 309, Cr.P.C. and that the parties have no responsibility in the matter of conducting the cases is completely baseless. The very fact that the power to adjourn the inquiry or trial under Section 309 is judicial power, it can be said without hesitation that the adjournment is not a mechanical act and must not be performed by the Court mechanically at the mere asking of the party.
12. For the reasons mentioned above in session trials, the prosecution has a responsibility in the matter of producing its witnesses. Either the witnesses should be produced by the prosecution itself or in cases where issue of summons or warrants is necessary for enforcing the attendance of witnesses, the application for issue of summons of warrants must be moved in time giving the latest correct addresses of the witnesses and steps must be taken to ensure that the summons are duly served and warrants are duly executed and this all must be done before the Session trial is commenced. In the case cited above, the Hon'ble Apex Court has observed that if witnesses are not in attendance, the Sessions Judge may postpone the commencement of the trial and fix a short date.
13. For the above reasons, the failure on the part of the prosecution to produce the Investigating Officer during trial in spite of being given 14 dates by the learned Sessions Judge, Jalore must amount to a lapse and I, therefore, find nothing wrong in the use of the expression 'lapse' by the learned single Judge of this Court in para No. 6 of the order dated 29th January, 1993.
14. Under Article 227 of the Constitution, this Court has a right as well as the constitutional duty to exercise superintending jurisdiction on all subordinate Courts and this superintending jurisdiction is also available to this Court under several provisions of the Criminal Procedure Code. It is therefore, the bounden duty of this Court to ensure that the trials are conducted expeditiously, particularly when the right to speedy justice has been recognised as an integral part of the fundamental right enshrined in Article 21 of the Constitution. If any party or parties to the case or the witnesses, by any act or omission on their part prevent the Court from disposing of the case expeditiously, this Court has not only the right, it has the duty to raise finger against such an act or omission and take steps for ensuring that the cases are disposed of expeditiously. Where the State neglects to produce all the witnesses in the same session in which the session trial is to be concluded, there is nothing which prohibits this Court from observing that there is some lapse on the part of the prosecution, causing delay in disposal of the cases and since the officers of the State are under the control of the State there is nothing to prevent this Court from directing that the lapse should be brought to the notice of State Government for necessary action. I, therefore, find nothing wrong or objectionable in the observations made by Hon'ble Mr. Justice Milap Chandra Jain in para 6 of his order dated 29th January, 1993.
15. There is another reason for rejecting this petition. The observations made in a Judgment, even if objectionable cannot be expunged, if they cannot be separated from that part of the Judgment or order, which contains the reasons for passing the order. In other words the observations, which are integral part of the reasons given by the learned Judge for passing his order, the observa-tions cannot be expunged, because to do so would; be tantamounting to expunging the reasons given by the Judge in his order. It is impermissible, while dealing with the petition filed under Section 482, Cr.P.C. against the order of the learned Sessions Judge, it was necessary for this Court to consider whether the application moved by the Prosecutor was covered by the first part of Section 311 or latter part of Section 311, Cr.P.C. It was submitted before the Court that neglect on behalf of the prosecution cannot be remedied under Section 311, Cr.P.C. It was with a view to find out whether the application filed by the State under Section 311 was covered by the first part or by the second part of Section 311, Cr.P.C. that the observations contained in para No. 6 were made as they were necessary. In my humble opinion all that these observations convey is that the examination of the Investigating Officer Karan Raj was necessary for the just disposal of the case and therefore, the application filed by the State was covered under the latter part of Section 311, Cr.P.C. The impugned observations are therefore an integral part of the reasons assigned by the learned single Judge for passing the final order. They cannot be expunged.
16. There is another reason for rejecting this petition. The rule that observations should not be made against the party unless an opportunity is given to it to explain its conduct, is a rule of prudence and fair play. But, this rule has its own limits. This rule does not confer any absolute or unbridled right on any person to say that nothing against him will be written or spoken by anyone at any place unless he has been duly served with the notice. The rule of fair play mentioned above does not confer any absolute and unbridled right. In the instant case no aspersions have been cast on the probity nor any accusation of personal nature against integrity or bona fide has been made. The only conduct which is alleged to have been performed was a lapse of the prosecution in not producing the Investigating Officer Shri Karan Raj on as many as 14 dates and the failure to take steps for filing the latest and correct address of Shri Karan Raj. By no stretch of imagination the observations made by the learned single Judge can be said to be in contravention of the law laid down by the Hon'ble Apex Court in the case of Dr. Raghubir Saran v. State of Bihar (supra) and State of U.P. v. Mohd. Nairn (supra) or any decision of this Court. The only object of the observations appears to be to apprise the State about the causes of delay in the disposal of the session case and the manner in which it was being conducted and to take necessary steps so that the error may be corrected. There was no direction to the State to take any particular action against the petitioner or against any person and therefore, it was open to the State to inquire into the matter and thereafter fix the responsibility on the neglecting officer. The observations, which are sought to be expunged in no way contravened any legal right of the petitioner in any manner.
17. For above reasons, the petition has no force and deserves to be rejected and is therefore, rejected.