Madhya Pradesh High Court
Divya Mishra vs The State Of Madhya Pradesh on 25 April, 2023
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 25th OF APRIL, 2023
MISC.CRIMINAL CASE No.59090 of 2021
Between:-
DIVYA MISHRA, AGED ABOUT 28 YEARS D/O
SHRI AKHILESH KUMAR MISHRA,
OCCUPATION-NIL, R/O VILLAGE BADHAURA
P.S. CHURHAT, DISTRICT SIDHI (M.P).
.....APPLICANT
(BY SHRI RAJKAMAL CHATURVEDI AND RAKESH DWIVEDI-
ADVOCATES)
AND
1. THE STATE OF M.P. THROUGH P.S.
CHURHAT DISTRICT SHIDHI (M.P.).
2. VIJAY KUMAR MISHRA S/O HRIDAYLAL
MISHRA, AGED 51 YEARS;
3. SULABH MISHRA S/O VIJAY KUMAR
MISHRA AGED ABOUT 33 YEARS;
4. KAMAL MISHRA S/O VIJAY KUMAR
MISHRA AGED ABOUT 32 YEARS;
5. VIMAL MISHRA S/O VIJAY KUMAR
MISHRA, AGED ABOUT 32 YEARS.
RESPONDENTS NO.2 TO 5 ARE
RESIDENTS OF VILLAGE BADHAURA P.S.
CHURHAT, DISTRICT SIDHI (M.P.)
......RESPONDENTS
(BY SHRI PRADEEP GUPTA - GOVT. ADVOCATE FOR
RESPONDENT NO.1 AND SHRI PRADEEP DWIVEDI -
ADVOCATE FOR RESPONDENT NO.2 TO 4)
2
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RESERVED ON : 19.04.2023
PRONOUNCED ON : 25.04.2023
__________________________________________________________
This misc.criminal case coming on for admission this day, Hon'ble
Shri Justice Dinesh Kumar Paliwal, passed the following:
ORDER
This petition under Section 482 of Cr.P.C. has been filed assailing the order dated 18.11.2021 passed by Special Judge SC/ST (Prevention of Atrocities Act) Sidhi in Criminal Revision No. 46/2021, whereby, the order dated 31.08.2021 passed by Judicial Magistrate First Class, Churhat District Sidhi in Criminal Case No. 749/2014 has been affirmed.
2. Applicant's case in short is that a charge sheet was filed against respondents No.2 to 5 for commission of offence under Section 354,294,323,506/34 of IPC by police station Churhat District Sidhi. Charges were framed long back on 10.11.2014. In a period of 07 years, the prosecution could examine only six witnesses. Last witness was examined on 26.02.2019. Thereafter, the matter was continuously fixed for recording of evidence of two witnesses Manju Sharma, scribe of the F.I.R and investigation Officer D.N.Raj. As prosecution could not examine these two witnesses in 07 years period, the learned JMFC closed the prosecution evidence and fixed the case for examination of the accused under section 313 of Cr.P.C vide order dated 31.08.2021.
3. The aforesaid order was challenged by filing a revision before the Court of Sessions. The learned Addl. Sessions Judge vide order dated 18.11.2021 dismissed the revision application mentioning that the evidence of investigation officer D.N.Raj will make no ill effect on the 3 prosecution case as he has recorded only the statement of witnesses under section 161 of the Cr.P.C. As the matter is pending for more than seven years and his presence could not be secured despite all efforts, the learned trial court has not committed any error in closing the prosecution evidence.
4. It has been contended by the learned counsel for the applicant that the evidence of D.N.Raj and scribe of the F.I.R is essential in the case as they are the witnesses of recording the case diary statement of the prosecution witnesses and scribe of the F.I.R. It is further been stated that although case is pending for last 09 years but it cannot be closed in hasty manner without examining all the prosecution witnesses. Thus, he has prayed to set aside the order passed by the courts below.
5. I have heard the arguments of learned counsel for the applicant and respondent No.1.
6. A bare reading of the impugned order of the courts below shows that various steps were taken by the learned JMFC to secure attendance of the scribe of the F.I.R and the investigation officer who recorded 161 Cr.P.C statement of the witnesses. On perusal of the documents filed with the petition, it is apparent that respondent No.2 to 5 are facing rigour of the trial for last almost 09 years. All material prosecution witnesses have already been examined. The applicant is the informer in the matter and F.I.R was recorded on the basis of a written report filed by the applicant. The written report and F.I.R have already been proved by the applicant, therefore, mere non-examination of scribe of the F.I.R makes no difference on the reliability of the prosecution case. Likewise recording of evidence of the police officer who recorded mere statements under section 161 of Cr.P.C will not cause any dent in the prosecution case. As 4 such, the statements recorded under section 161 Cr.P.C can be used either for omission or contradiction of the cooked prosecution witnesses.
7. The matter is pending before the learned JMFC for last 09 years. Learned trial court repeatedly issued summons and coercive processes for securing their presence for so many years and for the last more than 2 ½ years i.e from 26.02.2019 to 31.08.2021, the matter was fixed only for recording of the evidence of these two witnesses.
8. It is settled position of law that speedy trial is a constitutional guarantee enshrined under Article 21 of the Constitution of India. Speedy trial is an important safeguard to prevent undue oppressive incarceration in trial period because long delay in trial not only hampers the fundamental rights of the accused but it also compels to face the mental agony for years together for no fault of accused. In the case of Hussainara Khatoon Vs. Home Secretary, State of Bihar- AIR 1979 Bihar 1369, the Hon'ble Supreme Court has held that speedy trial is a fundamental right. It is to be noted that administration of justice is not limited to the conviction of the guilty person and acquittal of the innocent one but it also ensures speedy trial. Speedy trial is one of the basic human right as without speedy trial justice cannot be said to be done. Article 21 of the Constitution of India provides that "no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law". It cannot be overlooked that sometimes criminal cases go on for years even for decades and this condition is horrible. Speedy trial is important for effective administration of justice and by providing just and fair trial to the citizens. The main purpose of speedy trial in criminal case is to ensure justice to the victim and prevent the accused from unnecessary harassment before his conviction.
59. Adverting to the facts of the case it cannot be ignored that delay is not on the part of the accused persons. All material six witnesses have already been examined before 2019. The case remained pending for further three years only for recording of evidence of two police witnesses who are not very material and in this period prosecution has not been successful to produce aforesaid witnesses. A criminal trial cannot be kept pending for indefinite period due to non-examination of some prosecution witnesses. In the case of Sheela Barse Vs. Union of India and ors.- (1988) 4 SCC 226, the Hon'ble Supreme Court has held that "if an accused is not tried speedily and his case remains pending before the magistrate or the Sessions court for an unreasonable length of time, it is clear that his fundamental right to speedy trial would be violated unless there is some deliberate delay on the part of the accused and consequence of such delay would be the prosecution case would be liable to be quashed".
10. In the case of Rajeev Gupta Vs. State of Himachal Pradesh- (2000) 10 SCC 68, the Hon'ble Supreme Court has held that "if the trial of the case for an offence which is punishable with imprisonment upto three years has been pending for more than three years and if the trial is not commenced then the criminal court is required to discharge and acquit the accused".
11. In this case, trial is pending for last nine years and only two witnesses whose evidence is not more material have to be examined and case remained pending for recording their evidence only for more than three years. In such circumstances, the order of learned trial court closing the prosecution evidence and affirming the same by the learned Sessions Judge cannot be said to be undue or unjust. Thus, keeping in view the 6 provisions of the law and the fact that speedy trial is a fundamental right while the case on hand is pending on the file of JMFC for around 09 years. In such circumstances, no apparent fault is visible in the impugned order passed by the courts below.
12. In view of aforesaid discussion, this petition being devoid of any merit, is hereby dismissed.
(DINESH KUMAR PALIWAL) JUDGE MKL MANOJ KUMAR LALWANI 2023.04.26 12:04:37 +05'30'