Jammu & Kashmir High Court
Avtar Singh, S/O Balwant Singh vs Daljit Singh, S/O Trilochan Singh on 22 February, 2002
Equivalent citations: 2002CRILJ3057, 2003(1)JKJ605
JUDGMENT S.K. Gupta, J.
1. Through the currency of this Revision, Avtar Singh, petitioner, seeks the reversal of order dated 24-11-2001 propounded by Additional Sessions Judge, Jammu in a case entitled State Versus Daljit Singh, which is. proceeded on a police report. By the aforesaid order, the evidence of the prosecution' has been closed, which reads as under:
"APP present. Accused present. No. PW is present. The plea of the accused subsequent to framing of charge was recorded on 30-12-1997 and so the prosecution evidence is closed herewith as per the directions contained in AIR 1998 SC 3281. The file shall now come up for recording the statement of the accused Under Section 342. Cr.PC on 6.12.2001.
2. Facts relevant for the disposal of this Revision put tersely are that, on a complaint initiated by Avtar Singh, petitioner, before Chief Judicial Magistrate, Jammu, which stood endorsed to Police Station, Pacca Danga, Jammu for necessary action under Section 156(3) Cr.CP. A case un- der Section 420/406/467/471 RPC stood registered and investigation ensued. On the conclusion of the in vestigation, challan against S.Daljit Singh, accused, came to be presented in the Court and subse quently, transferred to the file of the Additional Sessions Judge for trial in accordance with the law. After framing charge against the accused vide order dated 30-12-1997 and recording the plea, of the accused on charge framed, stated the case for recording the prosecution witnesses.Till the closure of the evi dence by the impugned order dated 24-11 -2001, the prosecution exam ined only one witness, S. Avtar Singh, complainant, during a space of about four years. During the aforesaid p e -riod, as many as 35 sessions were fixed for recording evidence, but the prosecution did not make endeavour to produce and examine the witnesses and exhausted the list often witnesses, who happened to be from Jammu, as is elicited from the memo of challan.
3. According to Mr. Surinder Singh, learned counsel appearing for the petitioner, the prosecution witnesses appeared a number of times, but the statements could not be recorded due to absence of the accused and non-availability of his counsel. The delay in the examination of the witnesses is attributed to the absence of the accused, who happens to be a resident of Amritsar and not to the prosecution. His further contention is that, an application was also preferred under Section 540 Cr.PC by the petitioner to summon and examine one Gurdeep Kour, whose statement was recorded under Section 161 Cr.PC, but her name did not figure in the challan due to inadvertance or the Investigating Agency. The said application is yet to be decided. The objection has since been filed by the accused. That the order of the closure of evidence has been passed by the Trial Court without adverting to the record of the file and has, thus, occasioned a, serious prejudice to the petitioner and resulted in grave failure of justice.
4. In controverting the contention of the petitioner, the maintainability of the Revision has been assailed by Mr. R.P. Bakshi, advocate appearing for the respondent, in submitting that a private-party has no locus-standi and the case has been institute on a police report. His further contention is that, inability to complete the prosecution evidence within a period of about four years is attributable to the conduct of the prosecution in protracting the trial and not to the accused in referring to the minutes of the file of the Trial Court. Lastly, Mr. Bakshi submitted that even, according to the mandate of the Apex Court, the evidence in such a case was required to be completed within a period of three years and ill incase otherwise, the Court can proceed to the next stage provided by the law for further trial of the case notwithstanding that the prosecution has examined till all the witnesses or not.
5. Heard, considered rival contentions and perused the record of the file. As regards the first contention canvassed by Mr. Bakshi with regard to the maintainability of the Revision having been preferred by a private party in a case proceeded on a police report, it may be pointed out that usually the High Court will not act in Revision except on invitation of the one, who is directly affected by the alleged irregularity or illegality, and the Revision can be dismissed for non-prosecution of the same by a properly authorised person. But the Court, may entertain a criminal revision at the instance of a private party in exceptional and appropriate cases, where the interest of public justice requires interference. In other words the private informant has a right to invoke revisional jurisdiction of the High Court in appropriate cases where order of a Court occasioned greater failure of the Justice at different stages of Trial, if grounds for interference in revision are otherwise satisfied. In dealing with the revisional powers of the High Court vis-a-vis the right of a private party to move any revision against an order passed in a case instituted upon a police report, the Apex Court observed in Chinnaswami Reddy 's case (K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr., AIR 1962 SC 1788).
"It is true that it, is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should be exercised by the High Court Only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice."
6. It was next contended by Mr. Bakshi that order formulated by the Trial court in closing the prosecution evidence does not suffer from any procedural defect or legal error warranting interfernce of the Revisional Court. According to Mr. Bakshi, innumerable opportunities were given to the prosecution to produce the evidence for a space of about four years and it was on account of its inability, which persuaded the Trial Court to close the evidence in view of a clear mandate of the Apex Court in case of Raj Deo Sharma v. State of Bihar, AIR 1998 SC 3281.
7. In the aforesaid case, dealing with the proposition of unprecedented delay in the trial and reiterating the entitlement of the accused to speedy trial, the Apex Court proceeded to supplement the proposition laid down in Antulay's case (Abdul Rehman Antualy v. Nayak, (1992) 1 SCC 225) with the following directions :
"(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completition of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has been examined all the witnesses or not. within the said period and the Court can proceed to the next step provided by law for the trial of the case.
(ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial Court shall release the accused on bail forthwith on such conditions as it deems fit.
(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the Court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the Court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the Court considers it necessary to grant further time to prosecution to adduce evidence beyond the aforesaid time limit.
(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the. accused in protrading the trial, no Court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by Clauses (i) and (iii).
(v) Where the trial has been stayed by orders of Court or by operation of law such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in "Common Cause" v. 'Union of India, (1996) 4 SCC 33: (1996 AIR SCW 2279) as modified by the same Bench through the order reported in "Common Cause" a Reg-
istered Society V. Union of India, (1996) 6 SCC 775 : (1997 AIR SCW 290)."
8. Another limb of argument advanced by Mr. Surinder Singh, petitioner's advocate is that, his application under Section 540 Cr.PC still has not been decided and was still pending at the time the impugned order came to be passed by the Trial Court. It is apt to point out that the provisions of Section 540 can be invoked at any stage of the trial by either party notwithstanding the closure of evidence. It is for a Court to exercise its powers depending upon the facts of each case until an inquiry or trial comes to an end.
9. In the aforesaid premises and the above quoted observations of the Apex Court, the order prepared by the Trial Court, in my view, is neither legally lacunic nor suffers from procedural defect necessitating the interference of this Court in revision. The inability completing the prosecution evidence within a period of about four years is clearly attributable to the conduct of the prosecution in protracting the trial, that obliged the trial Court to close the prosecution evidence.
10. In the result, the Revision possessing no merit is hereby dismissed. Record shall be remitted back to the Trial Court forthwith.