Delhi District Court
State vs Waseem on 26 February, 2026
(RK) CA 11 /2026
IN THE COURT OF BABRU BHAN, ADDL. SESSIONS
JUDGE-04, NORTH-EAST, KARKARDOOMA COURTS,
DELHI
Criminal Appeal No. 111/2026
STATE Vs. WASEEM
FIR No-379/2020
PS-(SEELAM PUR)
U/s:-379/411 of IPC
IN THE MATTER OF:
1. STATE (through Ld. Chief Public Prosecutor, N/E, KKD
Courts, Delhi) ...Appellant
Versus
1. Waseem
S/o- Mohd. Basirul,
R/o- H.No-185, Gali No-02,
Near Ambedkar Chopal, Khureji Khas,
Krishna Nagar, Delhi. ...Respondent
Date of Institution : 15.01.2026
Date of O r d e r : 26.02.2026
ORDER ON APPEAL
BABRU
BHAN
Digitally signed by
State Vs. Waseem FIR No-379/2020 Page No. 1 of 8
BABRU BHAN
Date: 2026.02.26
13:33:08 +0530
(RK) CA 11 /2026
1. The appellant/State has challenged the judgment of acquittal dated 23.07.2025, passed by Ld. JMFC-02, N/E Distt, KKD Courts, Delhi in case titled as "State Vs. Waseem" which was registered at PS Seelam Pur vide FIR No-379/2020.
2. The case of the prosecution in brief is that on 27.07.2020, at about 04:00-04:30 PM, complainant Rahil was present in a street within the area of PS Seelam Pur. A large crowd had assembled there and taking the advantage of the crowd, someone stole two mobile phones make I-phone and MI Note-7 from the pocket of the complainant. Accordingly, the aforesaid FIR was registered U/s 379 of IPC. During course of investigation, one of the stolen mobile phone of the complainant make Redmi Note-7 was recovered from the possession of the accused Waseem (hereinafter referred as respondent). Consequently, offence U/s 411 of IPC was added.
3. On completion of investigation, police filed the chargesheet accusing the respondent/accused for offence U/s 379/411 of IPC.
4. The Ld. Trial Court framed the charges against the respondent/accused for offence U/s 411 of IPC vide order dated 03.05.2023.
5. After framing of charges, Ld. Trial Court issued summons to the only material witness Rahil but he did not appear despite service of summons through DCP. Consequently, Ld. Trial Court dropped him from the list of witnesses. Since, Digitally signed by BABRU BABRU BHAN State Vs. Waseem FIR No-379/2020 Page No. 2 of 8 BHAN Date:
2026.02.26 13:33:14 +0530 (RK) CA 11 /2026 there was no other material witness therefore Ld. Trial Court proceeded to acquit the respondent/accused via the impugned judgment.
6. During course of arguments, Ld. Addl. PP for State has submitted that Ld. Trial Court has acquitted the respondent/accused on a very questionable and invalid ground that prosecution failed to secure the presence of the material witnesses. Ld. APP has further argued that once charge is framed, the matter comes completely in the hands of the court and the Trial Judge has no alternative but to decide the case on merits one way or another, depending upon the quality of evidence produced before it. Here in this case, if the investigating agency was not producing the witness despite service of summons, the court should have taken coercive steps to ensure the presence of the witness. Criminal proceedings are not conducted at the mercy and discretion of a witness. It is duty of the court to exercise all the powers to secure the presence of a witness. Thus, it was not appropriate for the Ld. Trial Court to struck off the name of material witness because he had not appeared despite service of summons through DCP. Ld. APP has also submitted that the appeal be allowed and the matter be remanded back to the Ld. Trial Court with directions to take coercive steps against the complainant in case, he does not appear on service of summons.
7. On the other hand, Ld. Counsel for the respondent/accused has submitted that Ld. Trial Court had made all the possible efforts to secure the presence of the Digitally signed by BABRU State Vs. Waseem FIR No-379/2020 Page No. 3 of 8 BABRU BHAN BHAN Date:
2026.02.26 13:33:20 +0530 (RK) CA 11 /2026 material witness Rahil. Intervention of higher police authority was also sought. Summons were issued through DCP concerned but he did not appear. When a material witness did not appear before the court despite service of summons through DCP concerned, Ld. Trial Court had no option but to drop him from the list. Since, the remaining witnesses were formal in nature and their examination would have been a fruitless exercise, therefore, there was no occasion to continue with a trial which had already been rendered lame. Thus, the Trial Court rightly acquitted the respondent/accused.
8. Submissions have been heard. Record has been perused.
9. In case titled as "State Of Gujarat vs Rajendrasinh Ramjansinh And Ors. on 18 March, 1996", Hon'ble High Court of Gujrat had held as under:-
"1. We have been simply stunned to find quite queer and totally indiscreet attitude of the learned Additional City Sessions Judge, Ahmedabad, in acquitting four accused persons on the most questionable ground, viz., that the prosecution failed to examine the witnesses!! It is simply unfortunate and disgusting too, that on the one hand the learned trial Judge did not care to realise his own duty to do justice, as if he had none, and on the other hand, placing the entire blame on the prosecution side, as if that was just and sufficient ground to white-wash the accusation of serious offence levelled against the accused, more particularly in a serious case wherein sword has been used, and the accused has been arraigned for the offence punishable under Section 307 of the 1. P. Code!! It is indeed a settled legal position to be ignorant about by any experienced Judge that once the charge is framed, the ball is unquestionably in the court of the trial Court and the learned trial Judge has, indeed no alternative but to decide the case on merits one way or the other depending upon the quality of evidence produced before him. If the Investigating Agency was found to be careless, remiss in not assisting in keeping the witnesses present before it, the Court ought not have State Vs. Waseem FIR No-379/2020 Page No. 4 of 8 Digitally signed by BABRU BABRU BHAN BHAN Date:
2026.02.26 13:33:27 +0530 (RK) CA 11 /2026 felt that utterly helpless in exercising its powers, by seeing that the witnesses were made to be kept present by adopting coercive method. Merely because apparently the learned trial Judge was annoyed and frustrated with the prosecuting agency in not keeping the witnesses present before the Court for examination on the date so fixed for hearing, that wrath, anger and displeasure could not have been given vent to the greatest detriment and prejudice of the cause of justice!! To do so is not only indiscreet, illegal but with respect, we may further add and assert that it is gross judicial misconduct also. If the prosecuting agency did not keep witnesses present before the Court, what wrong, fault was indeed committed by the injured, aggrieved citizen who knocked the door of the Court for justice? In fact, this is a case wherein we believe that if the prosecution failed to discharge its duty in keeping the witnesses present before the Court, likewise the trial Court has also unpardonably miserably failed in discharge of its duty in not issuing bailable, failing which even non-bailable warrants to the recalcitrant witnesses and concerned Investigating Officer to secure their presence before the Court and give evidence. Here in the instant case, in fact, it appears that the learned A.P.P. had asked for some time that was not granted by the trial Court. In our view, if the summons were served and it was brought to the notice of the Investigating Officer, and still, if the witnesses did not remain present, nothing prevented the learned trial Judge from issuing non-bailable warrants against the concerned witnesses, including the Police Officer. When the prosecution for whatever reasons does not keep the witnesses present before the Court and at this juncture, if the Court also, depending upon the mercy of the process serving agency surrenders its duty and will to do justice to the recalcitrant witness and/or to the inefficient investigation agency, then, in that case, we are afraid, in good many cases, the Court will have to record the order of acquittals If Under such circumstances, what is the difference between the Courts doing justice and the recalcitrant witnesses and inefficient process serving agency, hostile to the cause of justice? To sit passive with the folded hands! Such unjust and illegal acquittals because of spineless attitude of the Judge is always nothing but a judicial suicide. We totally disapprove and condemn such negative attitude which has brought about the total failure of justice. If the criminal justice system is gradually failing, shaking the faith of people in it, it is entirely because of the unconcerned judicial attitude, with no sense of accountability to the cause of justice! This simply cannot be done and never done and yet we find that the learned trial Judge BABRU State Vs. Waseem FIR No-379/2020 Page No. 5 of 8 BHAN Digitally signed by BABRU BHAN Date: 2026.02.26 13:33:32 +0530 (RK) CA 11 /2026 has done it!! In fact, on this point of elementary duty of the Court and procedure to be followed when witnesses are not present or produced before the Court, there are plethora of judgments from this Court itself, and had indeed the learned trial Judge and for that purpose even the learned P.P. tried little even to go through the digest of cases, they could have surely found out a correct procedure and acted upon the same. To cite some such reported decisions, they are: (1) State of Gujarat v. Lalit Mohan 1989(2) GLR 952; (2) State of Gujarat v. Ramanbhai R. Pandya 1993(1) GLR 881; (3) State of Gujarat v. Dr. C.K. Patel, ; (4) State of Gujarat v. Kirti Maganbhai Patel 1993(1) GLR 674; (5) State of Gujarat v. Lohana Prakash Dayalji and Anr. 1994( 1) GLR 112; (6) State of Gujarat v. Shambhubhai Jivrambhai Patel 1995(1) GLR 803; (7) B.J. Pandya, Octroi Inspector, Godhra Municipality v. Arvindkumar Kanubhai Hadial and Ors. 1995(2) GLR 1100; and (8) State of Gujarat v. Bhupatbhai Muljibhai and Anr., 1995(1) GCD 786. In this last mentioned case, in para 6, it is held as under:
"Now having heard the learned Advocates for the respective sides quite at length, it clearly appears to this Court that the impugned order is per-se perverse and illegal."
10. In the aforesaid judgment, Hon'ble Gujarat High Court has held that once charge is framed, the ball is unquestionably in the court of the Trial Court and the Ld. Trial Judge has indeed no alternative but to decide the case on merits, one way or other depending upon the quality of evidence produced before it. If, the investigating agency is found to be careless, remiss in not assisting in getting the witness present before it, the court should not feel helpless in exercising its powers and to ensure the presence of the witness by adopting coercive methods.
11. Further, in case titled as 'Om Parkash versus State of Haryana and others, 2015(3) RCR (Criminal) 557', the Hon'ble Punjan and Haryana High Court has also held that the responsibility to secure the presence of a witness is not on State Vs. Waseem FIR No-379/2020 Page No. 6 of 8 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.02.26 13:33:38 +0530 (RK) CA 11 /2026 the shoulders of the prosecution alone. It is duty of the trial court also to take all the steps including the coercive steps to secure the presence of the witness. The relevant observations are as under:-
12. " 10. In the present case, it prima facie seems that prosecuting agency was proceeding on a casual approach but the learned trial court should not have shown its helplessness, in securing the presence of remaining unexamined prosecution witnesses. Instead of closing the prosecution evidence, learned trial court should have taken coercive steps to secure the presence of unexamined prosecution witnesses. Under these circumstances, it can be safely concluded that the impugned order passed by the learned trial court is patently illegal and the same cannot be sustained.
13. 11. Learned trial court was not at the mercy of the prosecuting agency. In case the prosecuting agency was not taking due interest in prosecuting the case, by producing its witnesses in time, the learned trial court could have secured the presence of the unexamined witnesses by taking appropriate steps, including the coercive steps, if so required.
14. Here in this case, the summons issued to PW Rahil were received back served but despite service, he did not appear. On non-appearance of the witness, Ld. Trial Court struck off his name as if it was discretionary or optional for the witness to appear in the court. Undoubtedly, when a witness is not traceable despite all the possible efforts and intervention of higher police authorities, court is justified in striking off such witness as there is no other option. However, when a witness is duly served but he chooses not to appear, the court is not remediless. It can validly take coercive steps in form of Bailable Warrants or Attachment Warrants in case of non-
BABRU BHAN State Vs. Waseem FIR No-379/2020 Page No. 7 of 8 Digitally signed by BABRU BHAN Date: 2026.02.26 13:33:50 +0530 (RK) CA 11 /2026 appearance after execution to Bailable Warrants. Here in this case, Ld. Trial Court did not carry out any such exercise.
15. To the understanding of this court, Ld. Trial Court was not right in its approach by extending unwarranted benefit to the respondent/accused merely because the witness had chosen not to appear despite service of summons. Nothing had prevented the Ld. Trial Court from taking coercive steps against the witness.
16. For the reasons above, the impugned order passed by the Ld. Trial Court is not sustainable in eyes of law. Same is accordingly set aside. Appeal is allowed.
17. Matter is remanded back to the Ld. Trial Court with direction to make all the possible efforts to ensure the presence of material witness namely Rahil. In case, he does not appear, needless to say, Ld. Trial Court shall adopt required coercive methods.
18. Matter be sent back to Ld. Trial Court through Ld. CJM, N/E for 02.03.2026.
19. TCR, if any be sent back to the concerned Court alongwith copy of this order.
20. Appeal file be consigned to Record Room.
21. Ordered accordingly. Digitally signed by BABRU Pronounced in the open court BABRU BHAN BHAN Date:
on 26-02-2026. 2026.02.26 13:33:57 +0530 (BABRU BHAN) ASJ-04/North-East District KKD/Delhi/26.02.2026 State Vs. Waseem FIR No-379/2020 Page No. 8 of 8