Himachal Pradesh High Court
Shyam Kumar vs State Bank Of Patiala on 19 September, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 919 of 2024
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Date of Decision: 19th September, 2024
Shyam Kumar
....Petitioner
Versus
State Bank of Patiala
r ....Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? yes
For the Petitioner : Mr. Surinder Saklani, Advocate.
For the Respondent : -
Rakesh Kainthla, Judge (Oral)
The petitioner (accused before the learned Trial Court) is aggrieved by the order dated 7.9.2024, passed by learned Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur, H.P. (learned Trial Court) vide which his evidence was closed by the order of the Court and the matter was listed for arguments on 16.09.2024. (the parties shall hereinafter ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 2Neutral Citation No. ( 2024:HHC:9320 ) be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). The learned Trial Court found sufficient grounds to summon the accused. When the accused appeared, a notice of accusation was put to him. He pleaded not guilty and claimed to be tried. The matter was listed for defence evidence on 07.09.2024 but no evidence was produced; hence, the learned Trial Court closed the defence evidence by the order of the Court and listed the matter for arguments on 16.09.2024.
3. Being aggrieved from the order passed by the learned Trial Court, the accused has filed the present petition asserting that the complainant took many opportunities to complete the evidence. He also filed an application under Section 311 of Cr. P.C. which consumed a considerable time of the Court. The statement of the accused was recorded under Section 313 of Cr. P.C on 23.7.2024. The accused opted to lead defence evidence and the ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 3Neutral Citation No. ( 2024:HHC:9320 ) matter was listed on 8.8.2024. The accused examined himself as DW-1 and the matter was adjourned for leading defence .
evidence on 7.9.2024. The accused was directed to serve the witnesses by dasti summons. Dasti summons could not be executed for want of the correct addresses. A report to this effect was submitted to the Court, however, the Court did not consider this aspect and closed the evidence on the ground that sufficient opportunities had been granted to lead defence evidence. The order passed by the learned trial Court is perverse as the matter was listed for the evidence for the first time on 8.8.2024. The petitioner/accused examined himself and tendered the documents marked as R1, R2 and R3 in evidence. The evidence of the Recovery Manager of the respondent-Bank was necessary.
His address was not available and an opportunity should have been granted to the accused to produce the remaining defence witness. The order passed by the learned Trial Court is not sustainable. The documents with respect to the seizure and possession of the truck are to be exhibited from the original record of the Recovery Manager. These documents are necessary for the just decision of the case. The complainant had taken the truck into possession and the Recovery Manager is required to be ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 4Neutral Citation No. ( 2024:HHC:9320 ) examined to prove this fact. The order is against the basic principles of natural justice as several opportunities were .
granted to the complainant and no opportunity was granted to the petitioner to lead the defence evidence. A grave injustice has been caused to the accused; hence, the present petition.
4. I have heard Mr. Surinder Singh Saklani, learned counsel for the petitioner/accused, who submitted that the Court is bound to grant three opportunities to the party to lead evidence. The matter was listed for the defence evidence for the first time on 08.08.2024. Sufficient opportunities have not been granted to the accused to lead the defence evidence; therefore, he prayed that the present petition be allowed and proper opportunity be granted to the petitioner to lead the evidence. He relied upon the judgment of Dainik Bhaskar versus Jai Chand in CMPM (Original) No. 423 of 2022 decided on 08.09.2022 in support of his submission.
5. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
6. This Court held in Dainik Bhaskar (supra) that the Court had shown indulgence by granting more than three ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 5Neutral Citation No. ( 2024:HHC:9320 ) opportunities and this was impermissible. This judgment does not lay down that three opportunities are to be granted to a party .
as a matter of right.
7. The trial in a criminal case is regulated by the Cr.P.C.
and now by Bhartiya Nagarik Suraksha Sanhita, 2023 (in short 'BNSS, 2023'). Section 309 of the Cr.P.C. corresponding to Section 346 of BNSS 2023 deals with the power of the Court to postpone and adjourn the proceedings. It provides that the inquiry or trial has to be conducted on a day-to-day basis unless the Court finds an adjournment necessary for the reasons to be recorded. It further provides that adjournment shall not be granted at the request of the party except where the circumstances are beyond the control of the parties. A newly enacted provision of Section 346 of BNSS provides that where the circumstances are beyond the control of the party, the Court may not grant more than two adjournments after hearing the objections of the other party and for the reasons to be recorded in writing.
8. It is apparent that the legislature has specifically provided that a party can only be granted an adjournment only if ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 6Neutral Citation No. ( 2024:HHC:9320 ) the circumstances are beyond its control. This power to grant adjournment has further been circumscribed by the newly .
enacted provision that even when the circumstances are beyond the control of a party, it can be granted not more than two adjournments to lead the evidence.
9. In the present case, admittedly the case was listed for the first time on 08.08.2024 on which date, the petitioner examined himself as DW1. He had obtained dasti summons but failed to effect the service for want of the correct address as per the petition. The accused was duty-bound to ascertain the correct address and effect service on the witness. No reason was assigned in the petition for not obtaining the correct address and effecting service upon the witness. Therefore, the accused had no reasonable cause for not producing the evidence and seeking the adjournment.
10. The order shows that last opportunity was granted to the accused. Thus, the accused was aware of the fact that no further opportunity would be granted to him and he was to produce the evidence or show a reasonable cause for not ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 7Neutral Citation No. ( 2024:HHC:9320 ) producing the evidence. He failed to do so and the learned Trial Court was justified in closing his evidence.
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11. It was submitted that the learned Trial Court had wrongly recorded in its order dated 07.09.2024 that it was a last opportunity to produce the evidence. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in Central Bank of India v. Vrajlal Kapurchand Gandhi, (2003) 6 SCC 573: 2003 SCC OnLine SC 697 that the record of the Court regarding the happenings is sacrosanct and nobody can raise any objection to the same. It was observed at page 578:
12. The only course open to a party taking the stand that an order does not reflect actual position is to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak [(1982) 2 SCC 463:
1982 SCC (Cri) 478]. In recent decisions i.e. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. [(2003) 2 SCC 111:
2002 AIR SCW 4939] and Roop Kumar v. Mohan Thedani [(2003) 3 Scale 611 : (2003) 6 SCC 595] the view in the said case was reiterated. Statements of fact as to what transpired at the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by an affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to a ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 8Neutral Citation No. ( 2024:HHC:9320 ) party to contend before this Court to the contrary. This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and .
judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in court.
12. Therefore, the validity of the contents of the order regarding the facts cannot be questioned before this Court.
13.
It was submitted that several opportunities have to be granted to the accused to prove his defence. This submission is only stated to be rejected as it flies in the face of the legislative concern that the adjournment can only be granted on the sufficient cause being shown by the party. Thus, no party can claim that adjournment should be granted as a matter of right to him irrespective of the sufficient cause.
14. It was submitted that the adjournment should be granted in the interest of justice. This submission cannot be accepted. Delhi High Court held in Jasbir Sobti v. Surender Singh, 2008 SCC OnLine Del 845 that adjournments cannot be granted in the interest of justice. It was observed:
::: Downloaded on - 05/10/2024 21:18:14 :::CIS9Neutral Citation No. ( 2024:HHC:9320 )
6. The question that arises for consideration is as to whether another opportunity is to be given to the plaintiffs under the cloak of 'in the interest of justice'.
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The answer to this question would lie in replying to the related question, namely, whether the interest of justice demands that the case be decided on merits even when there are lapses galore on the part of the plaintiffs in not prosecuting the case diligently thereby delaying the process endlessly. We are afraid, in the name of justice, that no such licence can be given to the plaintiffs. No doubt, if there is a minor procedural lapse, that can be condoned and the main purpose of the Court is to see that such cases are decided on merits. However, that would not mean that the plaintiffs or the defendants are allowed to drag on the proceedings unnecessarily by taking adjournments continuously. Again that does not mean that the parties do not take steps in further progress of/the case, namely, fail to file the documents, conduct admission/denial and even fail to appear repeatedly. We have to keep in mind the interest of the opposing party as well. If the matter is dragged like this and the opposing party is made to appear on each date and asked to come on the next date only because nobody is appearing on behalf of the plaintiffs, it causes unnecessary harassment to the opposite party as well. Therefore, in all such matters, the Court is under a duty to weigh the interests of both parties and maintain balance in so far as these conflicting interests are concerned.
7. The problem of arrears in the Indian courts is well known. We have 30 million cases pending in the various District Courts and the High Courts. Many attempts are being made to clear these arrears and to ensure that the cases are decided speedily and there is no unnecessary delay in the disposal of these cases. If the proceedings in a particular case linger until the judgment is delivered and the case is decided after a number of years, the adverse effects of this are well known. No doubt, if we have the ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 10Neutral Citation No. ( 2024:HHC:9320 ) dictum 'Justice hurried is justice buried' on the one hand, we cannot gloss over another equally forceful maxim 'Justice delayed is justice denied'. In a situation like this, .
callousness, indifference and laxity on the part of the plaintiffs in pursuing the suit cannot be tolerated. It cannot be the privilege of the plaintiffs to file a suit and not prosecute it enter an appearance or keep the matter pending indefinitely."
15. Similarly, it was held in Ishwarlal Mali Rathod v.
Gopal, (2021) 12 SCC 612: (2023) 2 SCC (Civ) 625: 2021 SCC OnLine SC 921 that grant of repeated adjournments without any justification is not proper. It was observed at page 616:
8. Grant of repeated adjournments in a routine manner and how it ultimately affects the justice delivery system as such came to be considered by this Court in a catena of decisions and asking/granting of repeated adjournments have been repeatedly condemned by this Court.
8.1. In Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [Shiv Cotex v. Tirgun Auto Plast (P) Ltd., (2011) 9 SCC 678 : (2011) 4 SCC (Civ) 817], it is observed and held in paras 14 to 17 as under : (SCC pp. 682-83) "14. ... Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be a silent spectator and leave control of the case to a party to the case who has decided not to take the case forward?
15. It is sad, but true, that the litigants seek--and the courts grant--adjournments at the drop of the hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 11Neutral Citation No. ( 2024:HHC:9320 ) methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate .
and revisional courts compound the malady further.
The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in the justice delivery system and realise that adjournments do dent the efficacy of the judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit.
16. No litigant has a right to abuse the procedure provided in CPC. Adjournments have grown like cancer corroding the entire body of the justice delivery system....
17. ... A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit--
whether the plaintiff or the defendant--must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they do not, they do so at their own peril."
8.2. Commenting on the delay in the justice delivery system, although in respect of the criminal trial, Krishna Iyer, J. in Babu Singh v. State of U.P. [Babu Singh v. State of U.P., (1978) 1 SCC 579: 1978 SCC (Cri) 133] has observed in para 4 as under : (SCC p. 581) "4. ... Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to "fair trial", whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 12Neutral Citation No. ( 2024:HHC:9320 ) condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings."
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8.3. In Noor Mohammed v. Jethanand [Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754], using very harsh words and condemning the repeated adjournments sought by the lawyers and granted by the courts, this Court has observed in paras 1, 12, 13, 27 and 28 as under : (SCC pp. 206-07, 209-10 & 215-16) "1. In a democratic body polity which is governed by a written Constitution and where the Rule of Law is paramount, the judiciary is regarded as a sentinel on the qui vive not only to protect the fundamental rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied. Sacrosanctity of the Rule of Law neither recognises a master and a slave nor does it conceive of a ruler and a subject but, in quintessentiality, encapsulates and sings in the glory of the values of liberty, equality and justice in accordance with the law requiring the present generation to have the responsibility to sustain them with all fairness for the posterity ostracising all affectations. To maintain the sacredness of democracy, sacrifice in the continuum by every member of the collective is a categorical imperative. The fundamental conception of democracy can only be preserved as a colossal and priceless treasure where virtue and values of justice rule supreme and intellectual anaemia is kept at bay by constant patience, consistent perseverance, and argus-eyed vigilance. The foundation of justice, apart from other things, rests on the speedy delineation of the lis pending in courts. It would not be an exaggeration to state that it is the primary morality of justice and the ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 13Neutral Citation No. ( 2024:HHC:9320 ) ethical fulcrum of the judiciary. Its profundity lies in not allowing anything to cripple the same or to do any act which would freeze it or make it suffer from .
impotency. Delayed delineation of a controversy in a court of law creates a dent in the normative dispensation of justice and in the ultimate eventuate, the Bench and the Bar gradually lose their reverence, for the sense of divinity and nobility really flows from the institutional serviceability. Therefore, historically, emphasis has been laid on individual institutionalism and collective institutionalism of an adjudicator while administering justice. It can be stated without any fear of contradiction that collective collegiality can never be regarded as an alien concept to the speedy dispensation of justice. That is the hallmark of duty, and that is the real measure.
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12. The proceedings in the second appeal before the High Court, if we allow ourselves to say so, epitomise the corrosive effect that adjournments can have on litigation and how a lis can get entangled in the tentacles of an octopus. The philosophy of justice, the role of a lawyer and the court, the obligation of a litigant and all legislative commands, the nobility of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make way for apathy and indifference when delay of the present nature takes place, for procrastination on the part of anyone destroys the values of life and creates a catastrophic turbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralysed by adjournments and non-demonstration of due diligence to deal with the matter. One cannot be oblivious to the feeling of necessities of the time. No one can afford to sit in an ivory tower. Neither a Judge nor a lawyer can ignore "the total push and pressure of ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 14Neutral Citation No. ( 2024:HHC:9320 ) the cosmos". It is devastating to expect infinite patience. Change of attitude is the warrant and command of the day. We may recall with profit what .
Justice Cardozo had said:
"It is true, I think, today in every department of the law that the social value of a rule has become a test of growing power and importance." [Benjamin N. Cardozo, The Nature of Judicial Process (Cosimo Inc., 2009) 73]
13. It has to be kept in mind that the time of leisure has to be given a decent burial. The sooner it takes place, the better it is. It is the obligation of the present generation to march with the time and remind oneself every moment that the rule of law is the centripodal concern and delay in the delineation and disposal of cases injects an artificial virus and becomes a vitiating element. The unfortunate characteristics of endemic delays have to be avoided at any cost. One has to bear in mind that this is the day, this is the hour and this is the moment when all soldiers of law fight from the path. One has to remind oneself of the great saying, "Awake, Arise, 'O' Partha".
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27. The anguish expressed in the past and the role ascribed to the Judges, the lawyers and the litigants is a matter of perpetual concern and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact are like a disorderly state of the physical frame of a man ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 15Neutral Citation No. ( 2024:HHC:9320 ) suffering from an incurable and fast progressive malignancy. Delay either by the functionaries of the court or the members of the Bar significantly exhibits .
indolence and one can aphoristically say, borrowing a line from Southwell "creeping snails have the weakest force [ Robert Southwell, "Loss in Delay", in William B. Turnbull (Ed.), The Poetical Works of the Rev. Robert Southwell (John Russell Smith, London 1856), p. 60] ". Slightly more than five decades back, talking about the responsibility of the lawyers, Nizer Louis had put thus:
'I consider it a lawyer's task to bring calm and confidence to the distressed client. Almost everyone who comes to a law office is emotionally affected by a problem. It is only a matter of degree and of the client's inner resources to withstand the pressure [ Nizer Louis, My Life in Court (Doubleday & Co. Inc., New York 1961), p. 213] .' A few lines from the illustrious Justice Frankfurter is fruitful to recapitulate:
'I think a person who throughout his life is nothing but a practising lawyer fulfils a very great and essential function in the life of society. Think of the responsibilities on the one hand, and the satisfaction on the other, to be a lawyer in the true sense [ Felix Frankfurter, "Proceedings in Honor of Mr Justice Frankfurter and Distinguished Alumni, Occasional Pamphlet No. 3" (Harvard Law School, Cambridge, 1960), pp. 45] .'
28. In a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry's faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect- potentiality to bring in a state of cataclysm where ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 16Neutral Citation No. ( 2024:HHC:9320 ) justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of the .
time at the altar of reason. Timely delivery of justice keeps the faith ingrained and establishes sustained stability. Access to speedy justice is regarded as a human right that is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice-dispensation system cannot be allowed to remotely conceive of a casual approach."
8.4. In the aforesaid decision [Noor Mohammed v. Jethanand, (2013) 5 SCC 202: (2013) 2 SCC (Civ) 754], this Court also considered the role of the advocate in the justice delivery system and considered the earlier decisions in paras 17 to 22 which read as under : (Noor Mohammed case [Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754], SCC pp. 212-14) "17. In Ramon Services (P) Ltd. v. Subhash Kapoor [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118: 2001 SCC (Cri) 3: 2001 SCC (L&S) 152], after referring to a passage from Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. [Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37], the Court cautioned thus : (Ramon Services case [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118:
2001 SCC (Cri) 3: 2001 SCC (L&S) 152], SCC p. 126, para
15) '15. ... Nonetheless, we put the profession to notice that in future the advocate would also be ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 17Neutral Citation No. ( 2024:HHC:9320 ) answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable .
to cause the party alone to suffer for the self-
imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate's non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has the power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability.' Be it noted, though the said passage was stated in the context of a strike by the lawyers, yet it has its accent on non-appearance by a counsel in the court.
18. In this context, we may refer to the pronouncement in P.D. Khandekar v. Bar Council of Maharashtra [P.D. Khandekar v. Bar Council of Maharashtra, (1984) 2 SCC 556: 1984 SCC (Cri) 335], wherein the Court observed that : (SCC p. 563, para 9) '9. ... An advocate stands in a loco parentis towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succour in times of need.'
19. In S.J. Chaudhary v. State (Delhi Admn.) [S.J. Chaudhary v. State (Delhi Admn.), (1984) 1 SCC 722: 1984 SCC (Cri) 163], a three-Judge Bench, while dealing with ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 18Neutral Citation No. ( 2024:HHC:9320 ) the role of an advocate in a criminal trial, has observed as follows : (SCC pp. 723-24, para 3) "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 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 over-stress 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."
20. In Mahabir Prasad Singh [Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37], the Bench, laying emphasis on the obligation of a lawyer in his duty towards the Court and the duty of the Court to the Bar, has ruled as under : (SCC p. 44, paras 17-18) '17. ... "A lawyer is under obligation to do nothing that shall detract from the dignity of the court of which he is himself a sworn officer and assistant.
He should at all times pay deferential respect to the Judge, and scrupulously observe the decorum of the courtroom." (Warevelle's Legal Ethics, p. 182)
18. Of course, it is not a unilateral affair. There is a reciprocal duty for the court also to be courteous to the members of the Bar and to make every endeavour for maintaining and protecting the respect which members of the Bar are entitled to have from their clients as well as from the litigant public. Both the Bench and the Bar are the two inextricable wings of the judicial forum and therefore the aforesaid mutual respect is sine qua non for the efficient functioning of the solemn work carried on in courts of law. But that does not mean that any advocate or a group of them can boycott the courts or any particular court and ask ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 19Neutral Citation No. ( 2024:HHC:9320 ) the court to desist from discharging judicial functions. At any rate, no advocate can ask the court to avoid a case on the ground that he does not want to appear in .
that court.'
21. While recapitulating the duties of a lawyer towards the court and society, being a member of the legal profession, this Court in O.P. Sharma v. High Court of P&H [O.P. Sharma v. High Court of P&H, (2011) 6 SCC 86 : (2011) 3 SCC (Civ) 218 : (2011) 2 SCC (Cri) 821 : (2011) 2 SCC (L&S) 11] has observed that : (SCC p. 92, para 17) '17. The role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nation's administration was to be governed by the rule of law.' The Bench emphasised the role of eminent lawyers in the framing of the Constitution. The emphasis was also laid on the concept that lawyers are the officers of the court in the administration of justice.
22. In R.K. Garg v. State of H.P. [R.K. Garg v. State of H.P., (1981) 3 SCC 166: 1981 SCC (Cri) 663], Chandrachud, C.J., speaking for the Court pertaining to the relationship between the Bench and the Bar, opined thus: (SCC p. 170, para 9) '9. ... the Bar and the Bench are an integral part of the same mechanism which administers justice to the people. Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them. It ought to be a matter of equal pride to the Bar. It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy must begin with the Judge. A discourteous Judge is like an ill-tuned instrument in the setting of a ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 20Neutral Citation No. ( 2024:HHC:9320 ) courtroom. But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only .
result in the ultimate destruction of a system without which no democracy can survive.' "
9. Today the judiciary and the justice delivery system are facing the acute problem of delay which ultimately affects the right of the litigant to access to justice and the speedy trial. Arrears are mounting because of such delay and dilatory tactics and asking for repeated adjournments by the advocates and mechanically and in routine manner granted by the courts. It cannot be disputed that due to delay in access to justice and not getting timely justice, it may shaken the trust and confidence of the litigants in the justice delivery system. Many a time, the task of adjournments is used to kill justice. Repeated adjournments break the back of the litigants. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system and shakes the faith of the common man in the justice dispensation has to be discouraged. Therefore the courts shall not grant the adjournments in a routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice. The courts have to be diligent and take timely action in order to usher in an efficient justice dispensation system and maintain faith in the rule of law.
10. We are also aware that whenever the trial courts refuse to grant unnecessary adjournments many a times they are accused of being strict and they may face the displeasure of the Bar. However, the judicial officers shall not worry about that if his conscience is clear and the judicial officer has to bear in mind his duties to the litigants who are before the courts and who have come for justice and for whom the courts are meant and all efforts ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 21Neutral Citation No. ( 2024:HHC:9320 ) shall be made by the courts to provide timely justice to the litigants.
16. It was laid down by the Hon'ble Supreme Court in .
Vinod Kumar v. State of Punjab, (2015) 3 SCC 220: (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712: 2015 SCC OnLine SC 53 that adjournments in the criminal trials have become a malignancy.
It was observed at page 226:
"If one is asked a question, what afflicts the legally requisite criminal trial in its conceptual eventuality in this country the two reasons that may earn the status of phenomenal signification are, first, procrastination of trial due to non-availability of witnesses when the trial is in progress and second, unwarranted adjournments sought by the counsel conducting the trial and the unfathomable reasons for acceptation of such prayers for adjournments by the trial courts, despite a statutory command under Section 309 of the Code of Criminal Procedure, 1973 (CrPC) and series of pronouncements by this Court. What was a malady at one time, with the efflux of time, has metamorphosed into malignancy. What was a mere disturbance once has become a disorder, a diseased one, at present."
17. It was held in Bablu Kumar v. State of Bihar, (2015) 8 SCC 787: (2015) 3 SCC (Cri) 862: 2015 SCC OnLine SC 632 that the Court must see that neither the defence nor the prosecution takes unnecessary adjournments. It was observed at page 798:
"22 Keeping in view the concept of a fair trial, the obligation of the prosecution, the interest of the ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 22Neutral Citation No. ( 2024:HHC:9320 ) community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty .
of the court to see that neither the prosecution nor the accused play truant with the criminal trial nor corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. The law does not countenance a "mock trial". It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and takes the trial under their control. The court is under the legal obligation to see that the witnesses who have been cited by the prosecution are produced by it or if summons are issued, they are actually served on the witnesses. If the court is of the opinion that the material witnesses have not been examined, it should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all the material witnesses but that does not necessarily mean that the prosecution can choose not to examine any witness and convey to the court that it does not intend to cite the witnesses. The Public Prosecutor who conducts the trial has a statutory duty to perform. He cannot afford to take things in a light manner. The court also is not expected to accept the version of the prosecution as if it is sacred. It has to apply its mind on every occasion. Non- application of mind by the trial court has the potentiality to lead to the paralysis of the conception of a fair trial."
18. It was held in Asha Ranjan v. State of Bihar, (2017) 4 SCC 397: (2017) 2 SCC (Cri) 376: 2017 SCC OnLine SC 140 that the ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 23Neutral Citation No. ( 2024:HHC:9320 ) accused cannot go on seeking the adjournments in the name of a fair trial. It was observed at page 435:
.
"63. While appreciating the concept of public interest in such a situation, the Court is required to engage itself in construing the process of fair trial which ultimately subserves the cause of justice and remains closer to constitutional sensibility. An accused, in the name of a fair trial, cannot go on seeking adjournments defeating the basic purpose behind the conducting of a trial as enshrined under Section 309 CrPC. He cannot go on filing applications under various provisions of the Criminal Procedure Code, whether tenable or not, and put forth a plea on each and every occasion on the bedrock that the principle of fair trial sanctions it. In such a situation, as has been held by this Court, the prosecution which represents the cause of the collective and the victim, who fights for remedy of his individual grievance, is allowed to have a say and the court is not expected to be a silent spectator. Thus, the discord that arises when there is intra-conflict in the same fundamental right especially, in the context of a fair trial, has to be resolved regard being had to the obtaining fact situation. An accused who has been able to, by his sheer presence, erode the idea of safety of a witness in court or for that matter impairs and rusts the faith of a victim in the ultimate justice and such erosion is due to fear psychosis prevalent in the atmosphere of trial, is not to be countenanced as it is an unconscionable situation. Such a hazard is not to be silently suffered because the "Majesty of Justice" does not allow such kinds of complaints to survive."
19 Much was made out of the fact that adjournments were granted to the complainant and three applications under Section 311 of Cr. P.C. were filed. It was submitted that the ::: Downloaded on - 05/10/2024 21:18:14 :::CIS 24Neutral Citation No. ( 2024:HHC:9320 ) accused should be granted similar treatment. This submission is also not acceptable. There can be no negative equality and two .
wrongs do not make one right. If the adjournment was granted to the complainant contrary to the statute, the accused cannot claim that his case should also be treated contrary to the statute.
Further, it was open for the accused to oppose the adjournment or take appropriate proceedings to set aside the orders of unjustified adjournment. Once he had not done so, it is not permissible for him to claim equality in the matter of adjournments.
20. No other point was urged.
21. Thus, there is no infirmity in the order passed by the learned Trial Court justifying the intervention under Section 482 of Cr.PC, which is an extraordinary power and is to be exercised sparingly.
22. Consequently, the present petition fails and the same is dismissed, so are the pending applications, if any.
(Rakesh Kainthla) Judge 19th September,2024 (veena) ::: Downloaded on - 05/10/2024 21:18:14 :::CIS