Himachal Pradesh High Court
Rakesh Narula And Others vs Cbi And Others Rt on 8 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No.1036 of 2023 .
Reserved on: 10.11.2023 Date of Decision: 08.12.2023.
Rakesh Narula and others ...Petitioners
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Versus
CBI and others rt ...Respondents
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Petitioners : Mr. Rajesh Kashyap, Advocate. For the Respondents : Mr. A.K. Bansal, Advocate for Respondent No.1.
None for respondents No.2 to 9.
Rakesh Kainthla, Judge The present petition is directed against the order dated 5.9.2023, passed by the learned Special Judge (CBI), in Case No. 900421 of 2014, titled CBI Vs. DSS Ravindera, vide which the learned Trial Court dismissed the application filed by the petitioners/applicants. It has been asserted that the CBI filed a charge sheet in the Court of learned Special Judge, Shimla for 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 08/12/2023 20:34:09 :::CIS 2the commission of offences punishable under Sections 120-B read with Sections 419, 420, 467, 468 and 471 of IPC and Section .
13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the present petitioner and other accused persons. Learned Trial Court framed charges and examined 63 witnesses. Sh. Rajinder Singh Rana, Additional Director and of Scientist (C), CFSL Unit Shimla was examined on 17.7.2023 and his cross-examination was deferred for 5.9.2023 as the Court rt time was over. Learned counsel representing the petitioner showed his inability to cross-examine the witness on 5.9.2023 as he was not conversant with the Forensic Science technicalities. He sought permission to cross-examine the witness through Mr. Arvind Sood, a handwriting expert. He filed an application for this purpose. However, the learned Trial Court dismissed the application without calling for a reply from the CBI. The other accused have cross-examined Rajinder Singh Rana. Learned Trial Court erred in holding that no prayer can be made to cross-examine the witness through an independent handwriting expert. The witness was deferred by the Court and not at the request of the learned counsel. Therefore, it was prayed that the present petition be allowed, the order passed by ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 3 the learned Trial Court be set aside and permission be granted to the petitioners to cross-examine the witness through .
independent handwriting expert Mr. Arvind Sood.
2. I have heard Mr. Rajesh Kashyap, learned counsel for the petitioner and Mr. A.K. Bansal, Advocate, learned counsel for respondent no.1-CBI.
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3. Mr. Rajesh Kashyap, learned counsel for the rt petitioners submitted that the learned Trial Court erred in rejecting the prayer of the petitioners. The petitioners being accused have a right to defend themselves and the learned Trial Court denied this right to the petitioners. The learned Trial Court should have called for the reply of the CBI and thereafter considered the application on merit. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
4. Mr. A.K. Bansal, learned Counsel for respondent No.1/CBI submitted that the accused can only be represented by a counsel and not by any other person without the permission of the Court. If the learned counsel for the petitioner wanted the assistance of any handwriting expert, it was the duty of the ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 4 petitioners to provide such assistance and the Court was not bound to grant adjournment for this purpose. Learned Trial .
Court had rightly held that the application was meant to delay the proceedings and rightly dismissed the same.
5. I have given considerable thought to the submissions at the bar and have gone through the record carefully.
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6. The photocopy (not the certified copy) of the rt application filed before the learned Special Judge (CBI) has been filed as Annexure P-2. It was stated in the application that Rajinder Singh Rana is Assistant Director and Forensic Expert.
He prepared a report, which was attached to the charge sheet.
The report filed by the witness is technical and the counsel is not well conversant with the Forensic Science. The petitioners wanted to cross-examine Rajinder Singh Rana (PW-63), through Arvind Sood, Forensic Consultant, Handwriting and Fingerprint Expert. Therefore, a prayer was made to seek permission to cross-examine Rajinder Singh Rana through Arvind Sood.
7. The learned Trial Court held that no provision of the law was brought to its notice that the role of cross-examination ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 5 can be assigned to the handwriting expert. The cross-
examination can be conducted by the accused or his counsel. The .
petitioners had sufficient time with them from 17.7.2023 to 5.9.2023 to seek the assistance of the handwriting expert.
8. Section 303 of the Cr.P.C. provides that any person accused of an offence before the Criminal Court or against whom of the proceedings are instituted under the Code, may of right be rt defended by a pleader of his choice. It is apparent from the plain language of this Section that the legislature has conferred a right upon the accused to defend himself through a pleader of his choice. Therefore, the accused can only insist that he should be defended by a pleader and not by any other person.
9. The term pleader has been defined by section 2 (q) of the Criminal Procedure Code as under:
"'pleader', when used with reference to any proceeding in any court, means a person authorised by or under any law for the time being in force, to practise in such court, and includes any other person appointed with the permission of the court to act in such proceeding;"
10. Thus, the term pleader means a legal practitioner and any other person appointed with the leave of the Court.
::: Downloaded on - 08/12/2023 20:34:09 :::CIS 611. It was laid down in Harishankar Rastogi v. Girdhari Sharma, (1978) 2 SCC 165 that the Advocates are entitled to .
practice in the Court as of right but a private person has to seek permission. It was observed:
"2. Advocates are entitled, as of right, to practise in this Court [Section 30(i) of the Advocates Act, 1961]. But, this of privilege cannot be claimed, as of right, by anyone else. While it is true that Article 19 of the Constitution guarantees the freedom to practise any profession, it is open to the State to make a law imposing, in the interest rt of the general public, reasonable restrictions on the exercise of the right. The Advocates Act, by Section 29, provides for such a reasonable restriction, namely, that the only class of persons entitled to practise the profession of law shall be advocates. Even so, is it not open to a party who is unable for some reason or other to present his case adequately to seek the help of another person in this behalf? To negative such a plea may be to deny justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of a sophisticated nature. That is precisely why legislative policy has taken care to provide for such contingencies. Sections 302, 303 and 304 of the Criminal Procedure Code are indicative of the policy of the legislature. I do not think that in this Court we should totally shut out representation by any person other than the party himself in situations where an advocate is not appearing for the party. A comprehensive programme of free legal services is, in a sense, a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then, parties may appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practise the profession of habitually representing parties in court. If a non- advocate specialises in practising in court, professionally ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 7 he will be violating the text of the interdict in the Advocates Act. I cannot allow him to do so. Nevertheless, it is open to a person, who is party to a proceeding, to get .
himself represented by a non-advocate in a particular instance or case. Practising a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions or in a few cases. In the present instance, permission is sought for representation through a non- advocate. It is absolutely clear that anyone who is not an of advocate, cannot, as of right, force himself into this Court and claim to plead for another. Permission may, however, be granted by this Court taking the justice of the situation and several other factors into consideration for such non-
rt professional representation. This approach accords with the policy of the Criminal Procedure Code (I am concerned with a criminal proceeding here) as spelt out in Section 2(q). A pleader, by definition, includes any person other than one authorised by law to practise in a court if he is appointed with the permission of the court, to act in a particular proceeding. This Court's power may well be exercised in regulating the audience before it is in tune with the spirit of Section 2(q) of the Code.
3. The petitioner has put in a written representation citing a number of decisions to justify his stand that private persons may be permitted by the court to appear, act and plead. He has cited a number of decisions in support of his position. Apparently, some legal hand has lent him help. I thought it fit to give notice to the Supreme Court Bar Association and Sri Jain has represented the Bar Association before me and assisted me with his brief but telling submissions. His experience as a senior member of the Bar and as a one time Judge of a High Court is an additional factor of assistance. Sri Jain persuasively stated that while a private person who is not an advocate by profession cannot, as of right, walk in and claim to argue before this Court, he may, in a particular case, be specially permitted by the court in exercise of its ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 8 wise discretion. The wisdom of the discretion, in his submission, must be guided by a plurality of considerations. If the man who seeks to represent has .
poor antecedents, irresponsible behaviour or dubious character, the court may receive counterproductive service from him. Justice may fail if a knave were to represent a party. Judges may suffer if quarrelsome, ill-
informed, blackguardly or blockheadly private representatives fling arguments at the court. Likewise, the party himself may suffer if his private representative of deceives him or destroys his case by mendacious or meaningless submissions and with no responsibility or respect for the court. Other situations, settings and disqualifications may be conceived of where the grant of rt permission for a private person to represent another may be obstructive, even destructive of justice. Indeed, the Bar is an extension of the system of justice; an advocate is an officer of the court. He is a master of expertise but more than that, accountable to the court and governed by a high ethic. The success of the judicial process often depends on the services of the legal profession."
12. It was laid down in T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram, (1999) 3 SCC 614, that the permission of the Court must be obtained before an accused can be represented by a person other than a legal practitioner. The Court has to satisfy itself whether the expected assistance would be rendered by that person or not. Grant of permission to a private person may be obstructive even destructive of justice. It was observed:-
"6. The definition envelopes two kinds of pleaders within its ambit. The first refers to legal practitioners who are ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 9 authorised to practise law and the second refers to "any other person". If it is the latter, its essential requisite is that such a person should have been appointed with the .
permission of the court to act in such proceedings. This is in tune with Section 32 of the Advocates Act, 1961 which empowers a court to permit any person, who is not enrolled as an advocate to appear before it in any particular case. But if he is to plead for another person in a criminal court, such permission should be sought by that person.
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7. It is not necessary that the "pleader" so appointed should be the power-of-attorney holder of the party in the case. What seems to be a condition precedent is that his appointment should have been preceded by a grant of rt permission of the court. It is for the court to consider whether such permission is necessary in the given case and whether the person proposed to be appointed is capable of helping the court by pleading for the party, for arriving at proper findings on the issues involved in the case.
8. The work in a court of law is a serious and responsible function. The primary duty of a criminal court is to administer criminal justice. Any lax or wayward approach, if adopted towards the issues involved in the case, can cause serious consequences for the parties concerned. It is not just somebody representing the party in the criminal court who becomes the pleader of the party. In the adversary system which is now being followed in India, both in civil and criminal litigation, it is very necessary that the court gets proper assistance from both sides.
9. Legally qualified persons who are authorised to practise in the courts by the authority prescribed under the statute concerned can appear for parties in the proceedings pending against them. No party is required to obtain prior permission of the court to appoint such persons to represent him in court. Section 30 of the Advocates Act confers a right on every advocate whose ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 10 name is entered in the Roll of Advocates maintained by a State Bar Council to practise in all the courts in India including the Supreme Court. Section 33 says that no .
person shall be entitled to practise in any court unless he is enrolled as an advocate under that Act. Every advocate so enrolled becomes a member of the Bar. The Bar is one of the main wings of the system of justice. An advocate is the officer of the court and is hence accountable to the court. Efficacious discharge of the judicial process very often depends upon the valuable services rendered by the of legal profession.
10. But if the person proposed to be appointed by the party is not such a qualified person, the court has first to satisfy itself whether the expected assistance would be rt rendered by that person. The reason for Parliament for fixing such a filter in the definition clause [Section 2(q) of the Code] that prior permission must be secured before a non-advocate is appointed by the party to plead his cause in the court, is to enable the court to verify the level of equipment of such a person for pleading on behalf of the party concerned."
13. Therefore, it is apparent that the accused has a right of representation by an Advocate who is entitled to practice as a matter of right or a private person with the permission of the Court. Such permission has to be for the whole duration of the trial and cannot be to cross-examine a particular witness.
Permitting an accused to do so would lead to chaos because different persons can be engaged by an accused to cross-
examine different witnesses and every time the Court will be called upon to decide whether the person is competent to protect ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 11 the interest of the accused or not. Such an interpretation will lead to undue prolongation of the trial and the learned Special .
Judge had rightly declined the permission to cross-examine a single witness through a private person.
14. It was submitted that the learned Special Judge erred in dismissing the application without calling upon the CBI to file of a reply. It is difficult to appreciate this argument. Only the CBI rt could have raised a grievance that it was not heard before deciding the application. It is difficult to see how the accused can have any grievance if the other party was not heard. When the application on the face of it is without any basis and the applicant fails to satisfy the Court regarding its maintainability or merit, there is no justification for seeking the reply and thereafter dismissing the application. Such a course can only prolong the trial and is not supported by any procedure or precedent. The matter would have been otherwise if the learned Special Judge had allowed the application without hearing the CBI because the CBI could have a legitimate grievance that it was condemned unheard. When the application was not allowed and the applicant was duly heard, he cannot be heard to say that the CBI should have been heard before dismissing the application.
::: Downloaded on - 08/12/2023 20:34:09 :::CIS 1215. It was submitted that the learned Trial Court should have adjourned the matter to enable the counsel to cross-
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examine the witness when the permission was not granted. This submission is not acceptable. It was laid down by Zafar Alam v.
State of Uttar Pradesh, 1987 SCC OnLine All 223 that the accused has a right to cross-examine the prosecution witness through a of counsel of his choice but he cannot insist upon seeking the adjournment in the absence of the lawyer of his choice. It was rt observed:
"3. Having heard the learned counsel for the applicant I am of the opinion that the revision is devoid of merits. As regards the case of Shambhunath Bhattacharjee v. State of Sikkim, 1980 Cri LJ 789 (Sikkim) no doubt in that case it was held that the accused has got a right to cross- examine the prosecution witnesses through a counsel of his choice. But it was not a blanket proposition that adjournment should be granted to the accused on account of the absence of a lawyer of his choice.
4. The relevant observations in that case are set out below:--
".....It cannot be laid down as a blanket proposition that adjournment should be granted to the accused whenever it is prayed for on the grounds of the absence of a lawyer of his choice. If in a given case, the Court feels that the absence of the defence lawyer is wholly unjustified and/or the accused has not taken proper and diligent steps to secure or ensure his presence, an adjournment prayed on the ground of the absence of the lawyer may be refused."::: Downloaded on - 08/12/2023 20:34:09 :::CIS 13
16. The Bombay High Court held in Shrikant S. Alkar Vs. State of Goa 1994 (3) Crimes(HC) 965 that the Court has to .
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 of 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 rt 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 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 Supreme Court proceeded to observe if a person is deprived of his liberty under a procedure which is not ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 14 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21 and he 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 of 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."
rt 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 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 such adjournments. This is an inexcusable lapse on their part. It is hoped that such lapses will not recur in future ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 15 and the Courts will conduct trials from day-to-day." Again, in Shri Raghunath Gaonkar v. State, Cri. Misc. 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 of 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 rt 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, 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. The procedures prescribed by law provide for ways and means for securing obedience to the witness summonses ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 16 issued by them. Compulsive proceedings such as issuance of warrants, etc. also could be resorted to under the law for securing the compliance of a summons to a witness.
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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.
of 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 rt 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 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 obligation of the witness to give evidence in that case would continue to subsist. The point is very well left by ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 17 the Code to the discretion of the Courts and it is needless to emphasize that such a discretion must be exercised by 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 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 rt 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 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 with which the Sessions Judge is loaded. We were told that it was, therefore, impossible for the Sessions Judges ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 18 to take up matters on a day-to-day basis. If there is any such defect in the system, that system must be rectified 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 of 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 rt 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.
17. The Hon'ble Supreme Court also held in State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 that when the witness is present in the Court, he must be examined on that day and if the case has to be adjourned, it can be only adjourned to the next day. Daily examination of the witnesses is the rule. It was observed:-
"9. We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at a heavy cost to them, after keeping aside their own avocations. Certainly, they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial courts that witnesses who are called ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 19 through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day.
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This primitive practice must be reformed by the presiding officers of the trial courts and it can be reformed by everyone provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are stranded on account of the dimension of his judicial powers, can be a persuading factor for granting such of adjournments lavishly, that too in a casual manner.
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 rt 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 reasonable, and may by a warrant remand the accused if in custody:::: Downloaded on - 08/12/2023 20:34:09 :::CIS 20
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
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Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be of imposed on him."
11. The first sub-section mandates on the trial courts that the proceedings shall be held expeditiously but the words rt "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 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, ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 21 "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 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 of the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons", rt 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 or imposing cost on the party who wants such adjournments (the cost must be commensurate with the ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 22 loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the .
court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case).
15. The time frame suggested by a three-judge Bench of of this Court in Raj Deo Sharma v. State of Bihar [(1998) 7 SCC 507: 1998 SCC (Cri) 1692] is partly in consideration of the legislative mandate contained in Section 309(1) of the Code. This is what the Bench said on that score: (SCC p.
rt 516, para 16) "16. The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. Section 309(1) CrPC supports the above view as it enjoins expeditious holding of the proceedings and continuous examination of witnesses from day to day. The section also provides for recording reasons for adjourning the case beyond the following day."
16. In Raj Deo Sharma (II) v. State of Bihar [(1999) 7 SCC 604: 1999 SCC (Cri) 1324] this Court pointed out that the trial court cannot be permitted to flout the mandate of Parliament unless the court has very cogent and strong reasons and no court has permission to adjourn the examination of witnesses who are in attendance beyond the next working day. A request has been made by this Court to all the High Courts to remind all the trial Judges of the need to comply with Section 309 of the Code. The request is in the following terms: (SCC p. 614, para 14) "14. We request every High Court to remind the trial Judges through a circular of the need to comply ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 23 with Section 309 of the Code in letter and spirit. We also request the High Court concerned to take note of the conduct of any particular trial Judge who .
violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as the law permits."
17. We believe, hopefully, that the High Courts would have issued the circular desired by the Apex Court as per the said judgment. If the insistence made by Parliament through Section 309 of the Code can be adhered to by the of trial courts there is every chance of the parties cooperating with the courts to achieve the desired objects and it would relieve the agony which witnesses summoned are now suffering on account of their non-
rt examination for days.
18. It is no justification to glide on any alibi by blaming the infrastructure for skirting the legislative mandates embalmed in Section 309 of the Code. A judicious judicial officer who is committed to his work could manage the existing infrastructure for complying with such legislative mandates. The precept in the old homily that a lazy workman always blames his tools, is the only answer to those indolent judicial officers who find fault with the defects in the system and the imperfections of the existing infrastructure for their tardiness in coping with such directions.
18. A similar view was taken in Ambika Prasad v. State (Delhi Admn.), (2000) 2 SCC 646, wherein it was held:-
"11. It is also to be pointed out that PW 4 Vikram Singh (informant) who had lodged FIR immediately was under
constant threat and was compelled not to speak the truth despite the fact that he was the brother of the deceased. Other witnesses also turned hostile including PW 6 Prem Singh, son of Pratap Singh and PW 8 Rattan Singh, which indicates, as observed by the High Court, that the accused party was stronger in terms of money power and muscle ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 24 power. At this stage, we would observe that the Sessions Judge ought to have followed the mandate of Section 309 CrPC of completing the trial by examining the witnesses .
from day to day and not giving a chance to the accused to threaten or win over the witnesses so that they may not support the prosecution. It appears from the record that the examination-in-chief of PW 4 Vikram Singh was over on 6-2-1984. The counsel representing Ambika Prasad requested the Court that because of his uncle's demise, he would not be in a position to cross-examine the witness of and, therefore, the recording of further cross- examination might be adjourned. Thereafter, the witness was cross-examined in the month of July 1985. In our view, this is highly improper. Even if the request for rt adjournment of the learned counsel for the accused was accepted, the cross-examination ought not to have been deferred beyond two or three days.
19. 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:-
"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 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 ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 25 support in this regard. Section 309 provides various 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 of 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 rt 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.
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.
19. Kerala High Court also took a similar view in P.G. Thampi v. State of Kerala, 1993 SCC OnLine Ker 483: 1994 Cri LJ 654 and held that:-::: Downloaded on - 08/12/2023 20:34:09 :::CIS 26
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 of 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, rt 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 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 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 ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 27 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 of 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.
rt
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.
20. 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 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 Court he has to make some alternative arrangement to see that the matter is either heard or adjourned. The ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 28 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 of 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 rt 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 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 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.
5. In support of the said argument, the learned advocate for the petitioner has shown a decision of Hon'ble ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 29 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 of 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 rt was set aside and direction was issued that the said Criminal Appeal be heard fresh by the High Court."
21. Therefore, the learned Trial Court was not bound to grant the adjournment for enabling the learned counsel to cross-examine the witness.
22. The legislature has also amended Section 309 of Cr.P.C. by adding a proviso (c) that when a witness is present in the Court but the party or his pleader though present in the Court is not ready to examine or cross-examine the witness, the Court may if it thinks fit record the statement of the witness and pass such order as it thinks fit dispensing with the examination and cross-examination of the witness as the case may be. This proviso shows the anxiety of the legislature to promptly examine the witnesses summoned by the Court. Therefore, no ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 30 fault can be found with the refusal of the learned Special Judge to adjourn the matter for cross-examination of the witness.
.
23. Mr. Rajesh Kashyap, learned counsel for the petitioner submitted that an opportunity should be granted to the petitioners to cross-examine the witnesses because they were labouring under the misconception that the cross-
of examination should be conducted by the handwriting expert. In rt case the petitioners are not permitted to cross-examine the handwriting expert, his testimony will go unchallenged qua the petitioners. Normally, this Court would not have granted any opportunity to the petitioners when they had declined to cross-
examine the witness. However, keeping in view the nature of the offences, one opportunity is granted to the petitioners to cross-
examine the witness through a pleader of their choice whose appointment shall enure for the whole duration of the trial subject to the payment of the cost of ₹10,000/-. This cost will be deposited before the learned Special Judge, who shall recall the witnesses for cross-examination by the pleader of the petitioners' choice and it will be the responsibility of the petitioners to ensure that the witness is cross-examined on the date so fixed. In case of failure to do so, the petitioners will not ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 31 be entitled to any adjournment for the cross-examination of the witness.
.
24. A copy of this order be sent to the learned Trial Court for information.
25. The present petition is disposed of in the above of terms, so also the pending miscellaneous applications, if any.
rt (Rakesh Kainthla)
Judge
8th December, 2023
(Chander)
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