Himachal Pradesh High Court
Roshan Lal vs Of on 29 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.652 of 2023 .
Reserved on: 30.11.2023 Date of Decision: 29.12.2023.
Roshan Lal ...Petitioner
Versus
of
Kishori Lal ...Respondent
Coram
rt
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. K.B. Khajuria, Advocate.
For the Respondent : Mr. Romesh Verma, Sr. Advocate, with Mr. Sumit Sharma, Advocate.
Rakesh Kainthla, Judge The present petition has been filed under Section 482 of Cr.P.C. for quashing the order dated 23.01.2023 passed by learned ACJM Court No. 1, Rohru, vide which the evidence of the petitioner (accused before learned Trial Court) was closed. (The parties shall hereinafter be referred to in the same manner as 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/12/2023 20:32:58 :::CIS 2they were arrayed before the learned Trial Court for convenience).
.
2. Briefly stated, the respondent-complainant had filed a complaint against the petitioner-accused for the commission of an offence punishable under Section 138 of the NI Act. The matter was listed for the recording of the defence evidence on of 23.01.2023. The accused examined himself, Prithvi Raj and rt Roshan Lal. No other witness was present. The accused filed an application for granting one opportunity for the examination of the witnesses however, the application was rejected by the learned Trial Court and the evidence was closed by the order of the Court.
3. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed asserting that the learned Trial Court erred in denying the opportunity to lead the defence evidence. Adducing evidence in support of the defence is a valuable right. The denial of the right means denial of the fair trial. The personal liberty of the accused is involved, which should not be sacrificed at the altar of speedy justice. Therefore, ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 3 it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
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4. I have heard Mr. Kulbhushan Khajuria, learned counsel for the petitioner and Mr Romesh Verma, learned Senior Counsel assisted by Mr. Sumit Sharma, learned counsel for the respondent.
of
5. Mr. Kulbhushan Khajuria, learned counsel for the rt petitioner/accused submitted that the learned Trial Court erred in not providing adequate opportunity to the accused and gravely erred in closing the evidence by the order of the Court.
Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
6. Mr. Romesh Verma, learned Senior Counsel for the respondent supported the order and submitted that no reason was assigned for not leading the evidence on the date fixed.
Learned Trial Court was not bound to grant an adjournment merely on the asking and sufficient reason should have been provided by the accused for seeking the adjournment. Therefore, he prayed that the present petition be dismissed.
::: Downloaded on - 29/12/2023 20:32:58 :::CIS 47. I have given considerable thought to the submissions at the bar and have gone through the record carefully.
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8. A perusal of the order sheet maintained by the learned Trial Court shows that the statement of the accused was recorded on 25.06.2022 and the matter was listed for 21.09.2022 on taking steps. The matter was taken on 31.09.2022 and it was of found that steps were not taken. The learned Trial Court rt adjourned the matter for 23.01.2023 for the defence witnesses on taking steps. Learned Trial Court also made it clear that it was the last opportunity granted to the accused. When the matter was taken up on 23.01.2023, statements of three witnesses were recorded. An application was filed by the accused for granting one opportunity to lead the evidence. It was mentioned that the accused intended to examine the five witnesses mentioned in the application. It was prayed that the accused be granted one more opportunity to examine the witnesses by summoning the witnesses. Significantly, the application did not mention any reason for the adjournment.
9. Section 309 of Cr.P.C. confers the power upon the Court to postpone or adjourn the proceedings and provides that ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 5 the Court may adjourn inquiry or trial from time to time for reason to be recorded on such term as it thinks fit for such time .
as it considers reasonable. This provision was considered by Hon'ble Supreme Court in State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667: 2001 SCC (Cri) 798: 2001 SCC OnLine SC 601 and it was held that the Court is bound to conduct the trial as of expeditiously as possible and can adjourn the cases on a reasonable cause. It was observed:
rt
"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. 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.
(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 ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 6 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 of 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 rt sentence proposed to be imposed on him."
11. The first sub-section 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 the examination of the witnesses begins. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub-section 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 are in attendance before the court. In such a situation the court ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 7 is not given any power to adjourn the case except in the extreme contingency for which the second proviso to sub- section (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 the examination of witnesses starts, the court has to continue the trial from of 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 rt 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 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 day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 8 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 of identity as the particular accused in the case)."
10. The Bombay High Court held in Shrikant S. Alkar Vs. State of Goa 1994 (3) Crimes (HC) 965 that the Court has to rt examine the witnesses on a day-to-day basis in view of Section 309 of Cr.P.C. It was observed:-
[8] Section 309 of the Code of Criminal Procedure, 1973 contains a mandatory provision that in every injury 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 case beyond the following day to be necessary for reasons to be recorded. The emphasis of this Section cannot be overlooked and must not be overlooked by any Judicial Officer who tries a criminal case, much less by the higher Officers, like the Sessions Judges presiding over the Sessions Court, where serious offences are being tried day in and day out which, in the event of conviction, result sometimes in sentences which uproot the convicted person totally and grossly form the set up of his life.
[9] The mandatory provisions of Section 309 of the Code of Criminal Procedure assume much more importance ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 9 now in light of the recognition of the right of the accused for speedy trial as a part of a fundamental right to life and liberty guaranteed under Article 21 of the Constitution of .
India. In Hussainara Khatton & Ors. v. Home Secretaries, A.I.R. 1979 S.C. 1360, the Supreme Court observed that speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. "It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights." Again, in the same ruling, the of Supreme Court proceeded to observe if a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21 and he rt would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21."
True it is that the Supreme Court made the aforesaid observations in the light of the fact that the persons with whom they were dealing in the case in question were detained in jail for long. However, the observations have wider implications as well when trials of the accused persons tend to be prolonged trials on account of repeated adjournments and, that too, at intervals of larger period, so as to afford an opportunity to the prosecution to fill up lacunae left by witnesses examined earlier.
[10] The need to try sessions cases on day -today basis has been emphasized by this very Bench in several ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 10 rulings. In Criminal Appeal No. 11/B/1982 decided as far back as 1st March 1984, in which the accused were tried for offences punishable under Sections 452, 323, 426 and .
379 I.P.C. all read with Section 34 I.P.C. the Division Bemch of this Court depreciated in unequivocal terms the piecemeal trial. It was observed "It appears that there is a very unhealthy practice prevailing in lower Courts to grant adjournments just for asking ignoring the imperative need to conduct the trials from day-to-day.
The Courts in particular see nothing wrong in granting of such adjournments. This is an inexcusable lapse on their part. It is hoped that such lapses will not recur in future and the Courts will conduct trials from day-to-day." Again, in Shri Raghunath Gaonkar v. State, Cri. Misc.
rt Application Nos. 190/1992 & 191/1992; Both Decided on 25.9.1992, a Single Judge of this Bench had pointed out, "The procedure of trial by Sessions has been introduced in the Criminal Procedure Code with a particular purpose. When serious offences are tried by the Sessions Judge, he must hold the Sessions from day to day and if the case is to be adjourned beyond the next following day, Section 309 of Cr. P.C. 1973 gives power to the learned Sessions Judge to adjourn the case for reasons to be recorded by him in writing. The legislature has thus expressed its desire that the session case should go on day by day and should not be adjourned as far as possible...When a Sessions case is opened, it is always necessary that it is finished, before the learned Sessions Judge takes another matter, unless the circumstances are so compelling and exceptional in nature and he cannot finish up the case and he has to turn to another matter." In this case, adjournment of a session case to one and a half months was strongly depreciated by this Bench. [11] Looking to the facts of the present case noted above, we feel that the problem of day-to-day trial has got to be approached from yet another point of view. The law enjoins upon every witness a duty to obey witness summons and to appear before the Court as required, ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 11 maybe for giving oral evidence or maybe for the production of documents. Both the Code of Civil Procedure and the Code of Criminal Procedure .
incorporate therein this legal duty of the witness. It is needless to point out that though this is a legal duty according to the aforesaid Codes of Procedure, the foundation of that duty lies in the social obligation of a gentleman to disclose before the Court the facts pertaining to a case which are within his knowledge or to produce a document or a thing which is in his custody.
of The procedures prescribed by law provide for ways and means for securing obedience to the witness summonses issued by them. Compulsive proceedings such as issuance of warrants, etc. also could be resorted to under the law rt for securing the compliance of a summons to a witness. Apart from the witnesses cited by the rival parties in a proceeding, Section 311 of the Code of Criminal Procedure, 1973 empowers a Court to summon material witnesses or to examine persons present in the Court at any stage of an enquiry, trial or other proceedings.
Refusal to take the summons or refusal to answer relevant questions put to a witness is also made penal. When the Court are so manned with the powers to enforce the legal duty thrust on the witnesses to attend the Court, it is necessary on the part of the Courts themselves to ensure that by requiring a witness to attend the Court again and again in pursuance of a summons or summonses, no harassment is caused to the witnesses.
The extent of the social obligation, which since stands converted into a legal obligation, has certain implicit limitations on it and the Courts have to consider, one day or the other, whether or not, the action of the Court in requiring the witness to attend the Court again and again for one case and, that too, at intervals which ranged over a period of two to three years, as in the present case, is really well warranted. Human memory is very short and as time passes one is prone to forget the facts which were observed at one point of time and more so; the niceties of the events. Memorising the facts, with all the details that ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 12 are expected of the witnesses in a trial at the Court of law, after a long duration is, by itself a problem almost for each and every witness. The gravity of that problem .
aggravates when he is required to give evidence in the Court not only after a long duration but on several dates in a trial which is conducted in a piecemeal manner. True it is that the Code of Criminal Procedure does not lay down how many times a witness should be asked to attend the Court for giving evidence in one particular case and how long should be the duration for which the of obligation of the witness to give evidence in that case would continue to subsist. The point is very well left by the Code to the discretion of the Courts and it is needless to emphasize that such a discretion must be exercised by rt the Courts for purposes of avoiding the harassment to the witnesses. It is needless to point out that repeated attendance in Courts imposed on a witness as a part of legal duty does result in a waste of time and loss of his own earnings. Indeed, it is a waste of working hours and consequently of national wealth, Ramgopal Ganpatrai Ruia &. Anr. v. State of Bombay, A.I.R. 1958 S.C. 97, the Supreme Court described the period of five years of pendency of a case in a Court as "a very telling illustration of waste of public time and private funds". What is said by the Supreme Court in the context of parties to litigation can be said with much more force about the time spent by the witnesses, again and again, under compulsion, in attending repeatedly the Court to give evidence in a proceeding. It must also be borne in mind that parties to litigation may have some pecuniary or other type of interest in a case, but the witness attends the Court only to discharge the social obligation of gentlemen. [12] We were told that there were various reasons due to which the Sessions Courts, as also the subordinate Courts, in the territory of Goa State, were not able to take up the matters for day-to-day trials. Formerly, there was "a monthly board system" for posting the cases. Later on, it was modified by a "weekly board system" and ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 13 particular days of the week were allotted for a particular category of work. We were told that there were only two Sessions Judges in the State of Goa till recently when .
some Additional Judges were posted to assist them. The Sessions Judges had, we are told, multifarious jurisdiction such as the Motor Accident Tribunal cases, TADA cases, corruption cases, regular civil work, regular criminal work, NDPS cases, the work of appellate Motor Vehicle Tribunal under Motor Vehicles Act, land acquisition matters, besides the pressure of the administrative work of with which the Sessions Judge is loaded. We were told that it was, therefore, impossible for the Sessions Judges to take up matters on a day-to-day basis. If there is any such defect in the system, that system must be rectified rt because as pointed out by the Supreme Court in Hussainara Khatton & Ors. v. Home Secretaries, A.I.R. 1979 S.C. 1360 Hussainara Khatton's case (supra), a system which cannot ensure a speedy trial can hardly be said to be 'reasonable, fair and just' procedure. Practically there is no Court in the State of Maharashtra as well, where the pressure of work is not far beyond the control of the Presiding Judge but that does not enable a Judge to give a go-by to the mandatory direction given in Section 309 of the Criminal Procedure Code or other similar provision contained in the Code of Civil Procedure to have tried a case once opened on a day-today basis. The Courts are meant necessarily for the administration of justice and if that object is likely to be defeated by adopting a system or a procedure, the ways and means must be mended so as to ensure that the justice is ensured to the parties.
11. Delhi High Court also held in Association of Victims of Uphaar Tragedy v. State (NCT of Delhi), 2002 SCC OnLine Del 368 that speedy trial is a fundamental right and cannot be violated by granting the adjournments. It was observed:-
::: Downloaded on - 29/12/2023 20:32:58 :::CIS 14"5. Needless to emphasise speedy trial is a fundamental right guaranteed by the Constitution and any avoidable delay caused in the trial amounts to infringement of that .
right. It is also generally experienced that such delay derails the trial in a number of cases and reflects on the ultimate outcome. Witnesses lose track and even parties become disinterested on the way as an unending trial goes on without any prospect of seeing the light at the end of the tunnel. This only breeds adverse consequences which, in turn, shakes public confidence in the criminal of justice system.
6. It is not that courts are powerless or helpless in dealing with the situation or that there is any lack of statutory support in this regard. Section 309 provides various rt options to the court to meet such like situations. Therefore, even as the courts enjoy the requisite power and also wherewithal to control and regulate the proceedings, yet the virus of delay goes on to eat the vitals of our justice delivery system. What is perhaps missing is the will and determination by all elements involved in the administration of justice to catch the bull by the horns and check the menace.
7. We are conscious that court calendars are congested and overcrowded, but that does not provide any justification for breach of statutory mandate or for delay in doing justice. No law permits the grant of adjournments at the drop of a hat, least of all the Criminal Procedure Code. Section 309 of the Code lays down stringent conditions for this requiring a criminal court to record reasons even for granting an adjournment for special reasons. Therefore, adjournments are not to be granted in a routine manner but only in very rare and extraordinary circumstances and for special reasons. It is all the more desirable that these were declined in Session's trials save otherwise in very special and extraordinary circumstances. The Sessions trials demand fast completion and quick disposal because of the high stakes involved for both the prosecution and the accused.::: Downloaded on - 29/12/2023 20:32:58 :::CIS 15
Any undue delay in disposal of these either on account of a party's inaction or stratagem or because of court over- indulgence or inertia generates an adverse fall out .
ultimately reflecting on the efficiency of the justice system. Such trials are, therefore, required to be completed as soon as practicable and it would not be a tall order to provide if these were to be completed within a reasonable period of one year.
12. Kerala High Court also took a similar view in P.G. of Thampi v. State of Kerala, 1993 SCC OnLine Ker 483: 1994 Cri LJ 654 and held that:-
rt
4. Section 309 of the Code contains rules regarding postponement or adjournment of proceedings in criminal courts. Sub-section (1) stipulates that adjournment of proceedings beyond the following day shall not be granted except for reasons to be recorded. The normal rule is that proceedings shall be continued from day to day until witnesses in attendance have been examined.
However, sub-section (2) enables the court to adjourn proceedings for reasons to be recorded "on such terms as it thinks fit". But the said power of the court is bridled with the embargo incorporated in the second proviso to the sub-section. It reads thus; "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".
5. It is the legislative concern for witnesses expressed in the above language that when a witness is present in court no adjournment shall be granted "except for special reasons". The law further enjoins that such special reasons must be recorded by the court in writing. I note that adjournment of proceedings beyond the next day is permitted only as an exception to the general rule that proceedings shall continue from day to day. But the legislature was chary in permitting courts to adjourn ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 16 proceedings when a witness is present in court. Hence the embargo is incorporated in the second proviso. To make the strict rule more pragmatic a guarded special .
exception is made by providing that if the court has to adjourn proceedings when a witness is present in court, special reasons must be recorded by the court.
6. In spite of all such legal trammels the situation in the trial courts is by and large miserable for witnesses since adjournments are generally granted very casually even when witnesses are present in court. It is a sad plight for of innocent witnesses to suffer much travail for coming to the court on being summoned - and going back without being examined and coming back again to the same court on the next posting date. It would be a useful exercise if rt presiding officers of criminal courts remind themselves that a witness is not interested in coming to the court and he comes only because he has no other alternative when summoned by the court. In most cases, witnesses have to sacrifice their own work to enable them to reach the court in time. When a witness is present in court his examination should not be adjourned to another day merely because counsel for the party is engaged in another case. The fact that counsel is engaged in another case is not a special reason for adjourning the trial without examining the witness present. It is the responsibility of the counsel to make other arrangements for the examination of the witnesses even if he has to appear in another case.
7. In the present case, learned Sessions Judge could have asked the counsel for the accused concerned who was present in court to cross-examine the witness and if he was not willing to do so, learned Sessions Judge could have asked the accused to cross-examine the witness. If the opportunity so afforded by the court is not availed of without adequate reasons, it is open to the court to record "no cross" and proceed to the next stage.
::: Downloaded on - 29/12/2023 20:32:58 :::CIS 1713. Gujrat High Court also reiterated this position in Amratbhai Lilabhai Desai v. State of Gujarat, 2002 Cri LJ 2765, .
wherein it was held:-
3. At the same time the learned advocate for the petitioner was not in a position to say as to why the learned advocate for the petitioner was absent at the time when the above matter was heard ex parte by the Sessions of Court. When an advocate has been engaged, by a party, then it is the duty of the advocate to see that he remains present before the Court concerned when the matter is posted for hearing. In case he is unable to attend the said rt Court he has to make some alternative arrangement to see that the matter is either heard or adjourned. The absence of an advocate without any intimation to the Court causes a great deal of difficulty to the Court and hardship to the party. The difficulty to the Court is that the Court never know as to whether the advocate is absent on account of some good cause or his absence is without any cause. The Court also does not get the assistance of such an advocate at the trial or the stage of hearing the argument. A party whose advocate is absent is also likely to suffer adversely. His case may not be pleaded properly at the angle from which he would like to plead his case before the Court. Therefore, he is likely to suffer injustice and the case is likely to result in a miscarriage of justice.
4. In the recent case we find that Mr. M.I. Laliwala, an advocate practising in the City Sessions Court, was engaged by the present petitioner to argue out the said appeal before the Court of Appeal. Therefore, the petitioner would normally be under the impression that his advocate would remain present as and when the matter may be called out for hearing. He would also be under the impression that the advocate would inform him as and when the matter may be heard and disposed of. In the present case, it has been submitted that the learned ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 18 advocate for the petitioner, before the Sessions Court, was not present and even after the disposal of the appeal the petitioner was not informed about the dismissal of his .
appeal. Therefore, the case of the appellant has not been properly placed and argued before the Sessions Court and the errors which may have been committed by the learned trial Magistrate while convicting the present petitioner were not properly pleaded in proper perspective before the Sessions Court when the above appeal was heard and disposed of ex parte. It is, therefore, submitted that in the of interest of justice the judgment and conviction order recorded by the Sessions Court may be set aside and the matter may be remanded to the said Court for a fresh decision on merits.
rt
5. In support of the said argument, the learned advocate for the petitioner has shown a decision of Hon'ble Supreme Court in the case of Dr. Jainendrakumar Vijaykumar Badjate v. State of Maharashtra, reported in 1990 Supp SCC 777: AIR 1990 SC 1224 : (1990 Cri LJ 1326), there also the advocate for the appellant-accused was absent and the matter was heard and disposed of in absence of the appellant-accused and his advocate. There the advocate was appointed by the Court and he was absent. The Hon'ble Supreme Court has observed that their Lordship did not wish to enter into the question as to why the counsel was not present. However. it was further observed that it was a matter which could be considered by the proper authorities if they thought it fit. At the same time, it was further observed that: in the circumstances, however, the judgment of the High Court was set aside and direction was issued that the said Criminal Appeal be heard fresh by the High Court."
14. In the present case, the matter was listed before the learned Trial Court on 21.09.2002, however, no steps were taken, and no reason was assigned. The learned Trial Court still ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 19 granted an adjournment to the accused and made it clear that it was the last opportunity which was being granted. The .
opportunity was also granted to take steps to summon the witnesses. However, steps were not taken on 23.01.2023. The accused failed to mention any reason for not taking the steps. He merely filed the application seeking one adjournment without of specifying the reason. Since the adjournment can be granted on sufficient cause, therefore, the learned Trial Court was justified rt in refusing to grant adjournment and closing the evidence in the absence of sufficient cause.
15. It was submitted that the right of fair trial involves the opportunity for the accused to establish his defence.
Reliance was placed upon the judgments of the Hon'ble Supreme Court in Mrs. Kalyani Baskar versus Mrs. M.S. Sampoornam, 2007(2)/ SCC 258 and G. Someshwasr Rao versus Samineni Nageshwar, 2009 (14) SCC 677. There can be no dispute with the proposition that the opportunity to lead defence evidence is an important part of the right to a fair trial. In the present case, the learned Trial Court had granted not one but two adjournments, therefore, it cannot be said that no opportunity was granted to lead the evidence. The right to a fair trial cannot be extended to ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 20 mean that it will defeat the right to a speedy trial. The legislature has provided in Section 143(2) of the NI Act that the .
trial of the case shall be continued from day to day, until its conclusion, unless the Court finds the adjournment necessary for the reasons to be recorded in writing. Section 143(3) provides that every trial shall be conducted as expeditiously as possible of and an endeavour shall be made to complete the trial within six months from the date of filing of the complaint. Therefore, the rt legislature has shown its anxiety to conduct the trial as expeditiously as possible. This legislative mandate cannot be thwarted by unnecessary adjournments and that too, without any plausible reason. The accused was aware of the fact that the trial has to be concluded within six months and the adjournments are not possible without the reasons in writing, still, he failed to provide any reason or to conclude his evidence despite adjournments being granted by the learned Trial Court.
16. Therefore, in these circumstances, the plea that the right to a fair trial has been compromised is not acceptable.
17. Consequently, the present petition fails and the same is dismissed.
::: Downloaded on - 29/12/2023 20:32:58 :::CIS 2118. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, .
whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 29th ,December, 2023 of (Saurav Pathania) rt ::: Downloaded on - 29/12/2023 20:32:58 :::CIS