Delhi District Court
Monu Nayyar vs Jogdhian Hari Bhagwan on 16 October, 2018
IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(P.C. ACT) CBI01 (CENTRAL):TIS HAZARI COURTS: DELHI
Criminal Revision No. 102/2018
CNR No. DLCT01013446/2018
Registration No. 734/2018
Monu Nayyar
S/o Sukhdev Raj
R/o D220, Ground Floor
Lajpat Nagar1, New Delhi110 024.
.........Revisionist
Versus
Jogdhian Hari Bhagwan
Rastogi Charitable Trust (Redg.)
45, Prithvi Raj Road New Delhi110 001.
.........Respondent
Date of Institution of Criminal Revision : 15.10.2018
Judgment Reserved and Pronounced on : 16.10.2018
JUDGMENT:(Oral)
1. This criminal revision impugns the orders of Ld. Metropolitan Magistrate dated 20.07.2018 passed in CC No. 532160/2016 under Section 138 of Negotiable Instruments Act, 1881 titled as "Jogdhian Hari Bhagwan Rastogi Charitable Trust vs. Monu Nayyar" thereby closing the opportunity to lead defence evidence of the revisionist and adjourned the matter for final arguments.
2. The brief facts of the case are that the respondent / complainant filed a case under Section 138 of N. I. Act against the revisionist / accused on Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 1 of 17 account of dishonour of the cheques wherein notice was issued to the revisionist / accused who put in his appearance and the trial commenced. The revisionist / accused filed application under Section 145 (2) of N. I. Act disclosing therein the plausible reasons and for seeking permission to cross examine the complainant. The complainant evidence was closed on 09.03.2018 after which the statement of accused was recorded on 25.04.2018 and the case was adjourned for defence evidence for 20.07.2018. On 20.07.2018, the revisionist / accused appeared before the Ld. Trial Court to lead defence evidence, however, since his counsel was not available on that day, he sought an adjournment which request for adjournment was declined by the Ld. Trial Court and closed the defence evidence.
3. Now being aggrieved by the impugned order dated 20.07.2018, the revisionist / accused approached this court by way of this revision petition on the ground that the Ld. Trial Court has closed the defence evidence in haste and without applying its judicious mind and that too by recording wrong / incorrect facts that no witness was present despite the fact that the revisionist being the most appropriate witness of his case was very much present before the Ld. Trial Court on that day. It is pleaded that the Ld. Trial Court has closed the defence evidence without appreciating the difficulty of non availability of the counsel for the revisionist / accused which is denial of fair opportunity to the revisionist / accused to present his case and is against the settled rule of "Audi Alteram Partem" and is thus liable to the set aside. It is also pleaded that the Ld. Trial Court failed to appreciate the fact that the complainant has also filed a civil suit which his pending before the Saket Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 2 of 17 Court and the defence stated herein by the revisionist / accused is inlimine to the same and denial of the leading the defence evidence in the present case would have a direct and adverse impact on the said case.
4. Notice was issued to the respondent / complainant and Sh. Baljeet Sinigh, Advocate has appeared on behalf of the respondent and has argued that the attempt of the revisionist / accused is only to delay the trial before the Ld. Trial Court.
5. In so far as the argument of the Ld. Counsel that the Ld. Trial Court has failed to appreciate that he (counsel) was on his legs in another court and could not appear, is devoid of merits. Reference in this regard is made to the provisions of Section 309 Cr.P.C. and also to the observations made by the Hon'ble Supreme Court in the case of Akil @ Javed vs. State of NCT of Delhi in Criminal Appeal No. 1735 of 2009, decided on 6.12.2012 (reported as 2012 (11) SCALE 709). In the said case the Hon'ble Apex Court Bench headed by Hon'ble Mr. Justice Swatanter Kumar and Hon'ble Mr. Justice Fakir Mohamed Ibrahim Kalifulla, observed and I quote as under:
"....... Under Section 309 of Cr.P.C. falling under Chapter XXIV it has been specifically stipulated as under:
309. Power to postpone or adjourn proceedings.(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 3 of 17 Provided that when the inquiry or trial relates to an offence under Sections 376 to Section 376 D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses.
(2) If the court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.
Explanation 1 If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by a remand this is a reasonable cause for a remand.
Explanation 2 The terms on which an adjournment or Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 4 of 17 postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."
27. In this context it will also be worthwhile to refer to a circular issued by the High Court of Delhi in Circular No.1/87 dated 12th January 1987. Clause 24A of the said circular reads as under:
"24A disturbing trend of trial of Sessions cases being adjourned, in some cases to suit convenience of counsel and in some others because the prosecution is not fully ready, has come to the notice of the High Court. Such adjournments delay disposal of Sessions cases.
The High Court considers it necessary to draw the attention of all the Sessions Judges and Assistant Sessions Judges once again to the following provisions of the Code of Criminal Procedure, 1973, Criminal Rules of Practice, Kerala, 1982 and Circulars and instructions on the list system issued earlier, in order to ensure the speedy disposal of Sessions cases.
1.(a) In every enquiry or trial, the proceedings shall be held as expeditiously as possible, and, in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (Section 309 (1) Crl.P.C.).
(b) After the commencement of the trial, if the court finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 5 of 17 time, for reasons to be recorded postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable. If witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded, in writing. (Section 309 (2) Cr.P.C.).
2. Whenever more than three months have elapsed between the date of apprehension of the accused and the close of the trial in the Court of Sessions, an explanation of the cause of delay, (in whatever court it may have occurred) shall be furnished, while transmitting the copy of the judgment. (Rule 147 Crl. Rules of Practice).
3. Sessions cases should be disposed of within six weeks of their institution, the date of commitment being taken as the date of institution in Sessions Cases. Cases pending for longer periods should be regarded as old cases in respect of which explanations should be furnished in the calendar statements and in the periodical returns. (High Court Circular No. 25/61 dated 26th October 1961).
4. Sessions cases should be given precedence over all other work and no other work should be taken up on sessions days until the sessions work for the day is completed. A Sessions case once posted should not be postponed unless that is unavoidable, and once the trial has begun, it should proceed continuously from day to day till it is completed. If for any reason, a case has to be adjourned or postponed, intimation should be given forthwith to both sides and immediate steps be taken to stop the witnesses and secure their presence on the adjourned date.
Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 6 of 17 On receipt of the order of commitment the case should be posted for trial to as early a date as possible, sufficient time, say three weeks, being allowed for securing the witnesses. Ordinarily it should be possible to post two sessions cases a week, the first on Monday and the second on Thursday but sufficient time should be allowed for each case so that one case does not telescope into the next. Every endeavour should be made to avoid telescoping and for this, if necessary, the court should commence sitting earlier and continue sitting later than the normal hours. Judgment in the case begun on Monday should ordinarily be pronounced in the course of the week and that begun on Thursday the following Monday. (Instructions on the list system contained in the O.M. dated 8th March 1984).
All the Sessions Judges and the Assistant Sessions Judges are directed to adhere strictly to the above provisions and instructions while granting adjournments in Sessions Cases.
28. In this context some of the decisions which have specifically dealt with such a situation which has caused serious inroad into the criminal jurisprudence can also be referred to. In one of the earliest cases reported in Badri Prasad V. Emperor (1912) 13 Crl. L.J. 861, a Division Bench of the Allahabad High Court has stated the legal position as under:
"....Moreover, we wish to point out that it is most inexpedient for a Sessions trial to be adjourned. The intention of the Code is that a trial before a Court of Session should proceed and be dealt with continuously from its inception to its finish. Occasions may arise Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 7 of 17 when it is necessary to grant adjournments, but such adjournments should be granted only on the strongest possible ground and for the shortest possible period...."
(Emphasis added)
29. In a decision reported in Chandra Sain Jain and others V. The State 1982 Crl. L.J. NOC 86 (ALL) a Single Judge has held as under while interpreting Section 309 of Cr.P.C.
"Merely because the prosecution is being done by C.B.I. or by any other prosecuting agency, it is not right to grant adjournment on their mere asking and the Court has to justify every adjournment if allowed, for, the right to speedy trial is part of fundamental rights envisaged under Art. 21 of the Constitution, 1979 Cri LJ 1036 (SC), Foll."
(Emphasis added)
30. In the decision reported in The State V. Bilal Rai and others 1985 Crl. L.J. NOC 38 (Delhi) it has been held as under:
"When witnesses of a party are present, the court should make every possible endeavour to record their evidence and they should not be called back again. The work fixation of the Court should be so arranged as not to direct the presence of witnesses whose evidence cannot be recorded. Similarly, crossexamination of the witnesses should be completed immediately after the examination in chief and if need be within a short time thereafter. No long adjournment should be allowed. Once the examination of witnesses has begun the same should be continued from day to day."
(Emphasis added) Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 8 of 17
31. In the decision reported in Lt. Col. S.J. Chaudhary V. State (Delhi Administration) (1984) 1 SCC 722, this Court in paragraphs 2 and 3 has held as under:
"2. We think it is an entirely wholesome practice for the trial to go on from daytoday. 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 daytoday. 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 possible 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.
3. 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 daytoday. 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 daytoday. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend. The criminal miscellaneous petition is, therefore, dismissed."
(Emphasis added) Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 9 of 17
32. In a recent decision of the Delhi High Court reported in State V. Ravi Kant Sharma and Ors. 120 (2005) DLT 213, a Single Judge of the High Court has held as under in paragraph 3:
"3. True the Court has discretion to defer the cross examination. But as a matter of rule, the Court cannot orders in express terms that the examinationinchief of the witnesses is recorded in a particular month and his crossexamination would follow in particular subsequent month. Even otherwise it is the demand of the criminal jurisprudence that criminal trial must proceed dayto day. The fixing of dates only for examinationin chief of the lengthy witnesses and fixing another date i.e. 3 months later for the purposes of crossexamination is certainly against the criminal administration of justice. Examinationin chief if commenced on a particular date, the Trial Judge has to ensure that his crossexamination must conclude either on the same date or the next day if crossexamination is lengthy or can continue on the consecutive dates. But postponing the cross examination to a longer period of 3 month is certainly bound to create legal complications as witnesses whose examinationin chief recorded earlier may insist on refreshing their memory and therefore such an occasion should not be allowed to arise particularly when it is the demand of the criminal law that trial once commence must take place on daytoday basis. For these reasons, the order passed by the learned Additional Sessions Judge to that extent will not hold good in the eyes of law and therefore the same is liable to be set aside. Set aside as such. Learned Additional Sessions Judge should refix the schedule of dates of examination of prosecution witnesses and shall ensure that examinationinchief once commences cross examination is completed without any interruption."
(Emphasis added) Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 10 of 17
33. In a comprehensive decision of this Court reported in State of U.P. V. Shambhu Nath Singh and others (2001) 4 SCC 667 the legal position on this aspect has been dealt with in extenso. Useful reference can be made to paragraphs 10, 11 to 14 and 18:
"10. Section 309 of the Code of Criminal Procedure (for short "the Code") is the only provision which confers power on the trial court for granting adjournments in criminal proceedings. The conditions laid down by the legislature for granting such adjournments have been clearly incorporated in the section. It reads thus:
309. xxxx xxxx xxxx
11. The first subsection mandates on the trial courts that the proceedings shall be held expeditiously but the words "as expeditiously as possible" have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of the witnesses begins. The legislature which diluted the vigour of the mandate contained in the initial limb of the subsection by using the words "as expeditiously as possible" has chosen to make the requirement for the next stage (when examination of the witnesses has started) to be quite stern. Once the case reaches that stage the statutory command is that such examination " shall be continued from day to day until all the witnesses in attendance have been examined". The solitary exception to the said stringent rule is, if the court finds that adjournment "beyond the following day to be necessary" the same can be granted for which a condition is imposed on the court that reasons for the same should be recorded.
Even this dilution has been taken away when witnesses Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 11 of 17 are in attendance before the court. In such situation the court is not given any power to adjourn the case except in the extreme contingency for which the second proviso to subsection (2) has imposed another condition, "provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing"
(emphasis supplied)
12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons"
which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.
13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 12 of 17 any rate inconvenience of an advocate is not a "special reason" for bypassing the mandate of Section 309 of the Code.
14. If any court finds that the daytoday examination of witnesses mandated by the legislature cannot be complied with due to the noncooperation of the accused or his counsel the court can adopt any of the measures indicated in the subsection i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case).
18. It is no justification to glide on any alibi by blaming the infrastructure for skirting the legislative mandates embalmed in Section 309 of the Code. A judicious judicial officer who is committed to his work could manage with the existing infrastructure for complying with such legislative mandates. The precept in the old homily that a lazy workman always blames his tools, is the only answer to those indolent judicial officers who find fault with the defects in the system and the imperfections of the existing infrastructure for their tardiness in coping with such directions."
(Emphasis added) Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 13 of 17
6. The Hon'ble Supreme Court has in this case (Akil @ Javed Vs. State) further directed/ mandated the compliance of the above instructions to all the Courts of India and have also issued directions to the High Courts to follow the above instructions issued by it so that such directions are scrupulously followed by the trial Courts without providing scope for any deviation in following the procedure prescribed in the matter of a trial of sessions cases as well as other cases as provided under Section 309 of Cr.P.C. and an advisory has been issued to all the High Courts including the Delhi High Court to use their machinery in the respective State Judicial Academy to achieve the desired result. Further, the High Courts have also been directed to take a serious note of the above directions issued in the decisions reported in Rajdeo Sharma which has been extensively quoted and reiterated in the subsequent decision of this Court reported in Shambhu Nath and comply with the directions at least in the future years which directions are reproduced as under:
".... 35. It is unfortunate that in spite of the specific directions issued by this Court and reminded once again in Shambhu Nath (supra) such recalcitrant approach was being made by the trial Court unmindful of the adverse serious consequences affecting the society at large flowing therefrom. Therefore, even while disposing of this appeal by confirming the conviction and sentence imposed on the appellant by the learned trial Judge, as confirmed by the impugned judgment of the High Court, we direct the Registry to forward a copy of this decision to all the High Courts to specifically follow the instructions issued by this Court in the Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 14 of 17 decision reported in Rajdeo Sharma (supra) and reiterated in Shambhu Nath (supra) by issuing appropriate circular, if already not issued. If such circular has already been issued, as directed, ensure that such directions are scrupulously followed by the trial Courts without providing scope for any deviation in following the procedure prescribed in the matter of a trial of sessions cases as well as other cases as provided under Section 309 of Cr.P.C. In this respect, the High Courts will also be well advised to use their machinery in the respective State Judicial Academy to achieve the desired result. We hope and trust that the respective High Courts would take serious note of the above directions issued in the decisions reported in Rajdeo Sharma (supra) which has been extensively quoted and reiterated in the subsequent decision of this Court reported in Shambhu Nath (supra) and comply with the directions at least in the future years.
36. We issue directions in the light of the provisions contained in Section 231 read along with Section 309 of Cr.P.C. for the trial Court to strictly adhere to the procedure prescribed therein in order to ensure speedy trial of cases and also rule out the possibility of any maneuvering taking place by granting undue long adjournment for mere asking....."
7. It is evident from the above that these observations as herein above are the law laid down by the Hon'ble Supreme court and are of a mandatory nature which all High Courts and the Trial Courts are obligated to strictly Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 15 of 17 observe and hence under no circumstances the procedures adopted by the Ld. Trial Court can be faulted [Special Reference to (i) High Court Circular No. 25/61 dated 26th October 1961; (ii) Instructions on the list system contained in the O.M. dated 8th March 1984 and (iii) High Court of Delhi Circular No.1/87 dated 12th January 1987].
8. It is an admitted case of the Revisionist that his counsel was not available. It is evident from the perusal of the Trial Court Record that the revisionist / accused has been regular in his appearance before the Ld. Trial Court except for one date i.e. 01.11.2017. However, today before this court, the revisionist / accused undertakes that he shall remain careful in future with regard to his appearance and shall also ensure the presence of his counsel and his witnesses before the Ld. Trial Court and shall not take adjournment in future on any grounds whatsoever and prays for one indulgence.
9. This being the background, in the interest of justice and without actually going into the merits of the grounds raised in this revision petition, the impugned order dated 20.07.2018 is set aside and the revision petition is hereby allowed and a last opportunity is granted to the revisionist / accused to produce his witnesses before the Ld. Trial Court on next date to lead defence evidence, which is subject to cost of Rs. 5,000/ (Rupees Five Thousand only) to be tendered to the respondent / complainant on next date. It is clarified that in case of any future default in appearance, no further indulgence shall be given. The revision petition is accordingly disposed off.
Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 16 of 17
10. The parties to appear before the Ld. Trial Court on the date fixed before the Ld. Trial Court i.e. 04.12.2018 (as informed by the parties). Trial Court record be sent back along with copy of the order.
11. Revision file be consigned to Record Room. Digitally signed by KAMINI KAMINI LAU LAU Date:
2018.10.16 18:23:38 +0530 Announced in the open Court (Dr. KAMINI LAU) Dated: 16.10.2018 Spl. Judge (P.C. Act) CBI01 (Central), Tis Hazari Courts, Delhi Monu Nayyar Vs. Jogdhian Hari Bhagwan (Crl. Rev. No.102/2018) Page No. 17 of 17