Punjab-Haryana High Court
Baljinder Singh And Others vs State Of Haryana And Another on 10 May, 2012
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Criminal Revision No. 1391 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Revision No. 1391 of 2012 (O&M)
Date of Decision: 10.5.2012
Baljinder Singh and others
.....Petitioners.
Versus
State of Haryana and another
.....Respondents.
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. S.S.Dinarpur, Advocate
for the petitioners.
***
RAMESHWAR SINGH MALIK J.(ORAL):
The present criminal revision petition is directed against the judgment dated 30.3.2012 (Annexure P-3) passed by the learned Sessions Judge, Ambala, whereby the order dated 23.4.2010 closing the prosecution evidence and the judgment of acquital dated 23.7.2010 passed by learned Judicial Magistrate 1st Class, Amabala Cantt., were set aside.
Facts first. The criminal law was set into motion at the hands of complainant-respondent No.2 against the present petitioners. Charge was framed against the petitioners vide order dated 12.1.2009. When the prosecution evidence was going on, learned trial court closed the evidence of the prosecution by order dated 23.4.2010 (Annexure P-1) and the operative part thereof reads as under:-
Criminal Revision No. 1391 of 2012 (O&M) 2
"Perusal of the summons report of complainant Mohindro Devi dated 23.4.2010 shows that house was locked and summons report dated 26.11.2009 and 18.2.2010 which was sent through special messenger every time comes with the report that she was not at home. Similarly, service of the other prosecution witnesses have also not been effected for the last several days. Finding no justification for further adjournment of the case, evidence of the prosecution is closed today by court order. Now the case is adjourned to 12.5.2010 for recording statement of accused under Section 313 Cr.P.C."
Dissatisfied with the above said order, the complainant- respondent filed the revision petition but since the proceedings before the trial court were not stayed, the judgment of acquittal came to be passed on 23.7.2010 (Annexure P-2). The concluding paragraph of the judgment of acquittal dated 23.7.2010, reads as under:-
"The failure of the prosecution for not examining a single witness within reasonable time, proves fatal to the prosecution case. In absence of any material evidence on record, no conviction of accused persons for the offences with which they have been charged, can sustain and as such all the accused persons are acquitted of the charges framed against them. Their bail bonds and surety bonds stood Criminal Revision No. 1391 of 2012 (O&M) 3 discharged. Case property, if any, be disposed of as per rules, after period of appeal/revision, if any. File be consigned to be record room, after due compilation."
Having been left with no other option, the complainant- respondent filed his appeal before the learned Sessions Judge, Ambala, who accepted the same vide impugned judgment dated 30.3.2012 (Annexure P-3). The relevant observations made by the learned Sessions Judge, read as under:
"Counsel for the appellant relied on the authority reported as Harchand Singh versus State of Punjab and others 2011 (2) RCR (Criminal) 693 wherein it was held by the Hon'ble Punjab and Haryana High Court that if witnesses are summoned and they did not appear, the court must take coercive action against those witnesses, compelling them to appear and closing of evidence in such an event would be totally unjustified.
In the present case, revision petition was filed against the order vide which the evidence was closed but the same was disposed of as it had become infructuous because by the time the petition was decided, the accused had been acquitted. However, it is not the fault of the appellant that the proceedings before the trial court were not stayed in the revision petition.Criminal Revision No. 1391 of 2012 (O&M) 4
Record shows that the appellant was served for 12.1.2010. Nothing is mentioned in the order passed by the trial court on that date the complainant was served and she had not appeared. No process was issued against her for compelling her to appear and make her statement. In the said order, it is mentioned that one witness was present whose cross-examination was deferred on the request of the defence counsel. The court, therefore, did not see as to whether any other witness had been served for that day. If the summons of the complainant had been seen which were brought before the Court after service, coercive process would have been issued against her and mention about that would have been made in the order.
Intention of law would always be that justice should be done. The complainant knocked the door of the Court by filing revision petition but apparently proceedings were not stayed and by the time the petition was decided, the trial had already ended. Since acquittal had been ordered, the complainant had no choice but to file this appeal.
The appellant filed an application for permission to file the present appeal. She being the victim could file the appeal under Section 372 Cr.P.C. (Proviso). Criminal Revision No. 1391 of 2012 (O&M) 5 The appeal against acquittal was thus rightly filed. The appeal also stood admitted in the court before which it was filed initially and therefore, it can be said that permission in that regard stood granted. The appeal is allowed. Case is remanded for retrial. Only two effective opportunities will be granted to the prosecution to conclude its evidence. Parties are directed to appear before the trial Court On 9.4.2012"
From the combined reading of the above said orders passed by the learned courts below, the question that falls for consideration of this Court is whether the learned Sessions Judge has exceeded the jurisdiction while passing the impugned judgment.
Learned counsel for the petitioners vehemently contended that the impugned judgment dated 30.3.2012 (Annexure P-3), passed by the learned Sessions Judge, suffered from manifest illegality and the same was liable to be set aside. He further submitted that the petitioners were facing the agony of criminal trial for the last more than 11 years and in this view of the matter, the orders and judgments contained in Annexures P-1 and P-2 were rightly passed by the learned trial court, which deserve to be upheld whereas the impugned judgment passed by the learned Sessions Judge, being contrary to the settled proposition of law of speedy trial, is liable to be set aside.
To buttress his arguments, learned counsel for the petitioners relies upon the judgment of the Hon'ble Supreme Court in Criminal Revision No. 1391 of 2012 (O&M) 6 Raj Deo Sharma versus State of Bihar, 1998 (4) RCR (criminal) 396 and Pankaj Kumar versus State of Maharashtra and others, 2008 (4) RCR (criminal) 890 I have heard the learned counsel for the petitioners and with his able assistance, have gone through the record of the case.
After giving thoughtful consideration to the contentions raised and in view of peculiar facts and circumstances of the case, this Court is of the considered opinion that the present criminal revision petition is wholly misconceived and the same is liable to be dismissed, for the reasons to be recorded hereinafter.
There is no dispute, whatsoever, that every citizen is entitled for a speedy trial. However, it is also the settled proposition of law that facts of each case are to be seen first before applying any codified or judgmade law thereto. Although there is no dispute regarding the law laid down by the Hon'ble Supreme Court in both the judgments relied upon by the learned counsel for the petitioners yet, in view of the given fact situation of the present case, the petitioners are not entitled for any kind of benefit because the judgments of the Hon'ble Supreme Court are clearly distinguishable on facts.
A bare glance at the zimini orders would show that the inordinate delay in the trial was not only due to the alleged lapse on the part of the prosecution, it is the petitioners who were also responsible because they had also been seeking time on many occasions on one pretext or the other. Once it is so, the petitioners cannot be heard to say that it is only because of the prosecution, the Criminal Revision No. 1391 of 2012 (O&M) 7 trial had delayed.
Further, the learned trial court, before closing evidence of the prosecution, has not adopted any coercive measures ensuring appearance of the prosecution witnesses, who were allegedly not appearing despite service. It is also a matter of record that the order passed by the learned trial court closing the prosecution evidence was challenged by way of revision petition but since the proceedings before learned trial court were not stayed by the learned revisional court, the revision petition came to be rendered infructuous because in the meantime, the judgment of acquittal came to be passed, vide Annexure P-2. The complainant-respondent cannot be held responsible in this regard.
It is also the settled principle of law that the court of law are under the legal obligation not only to do justice but they are to ensure that justice also appears to have been done. Further, no party should be forced to go back home with this grievance that it was not granted due opportunity.
The impugned judgment dated 30.3.2012 (Annexure P-3), passed by the learned Sessions Judge, when tested in the given fact situation of the present case, the same has not been found to be suffering from any patent legality.
The learned Sessions Judge has remanded the case for retrial but has made it clear that only two effective opportunities will be granted to the prosecution to conclude its evidence. Thus, it seems that learned Sessions Judge has rightly struck the balance while passing the impugned judgment. Since the impugned judgment Criminal Revision No. 1391 of 2012 (O&M) 8 does not suffer from any manifest illegality or perversity, no fault can be found with the same.
Under the totality of facts and circumstances of the present case, noted above, coupled with the reasons aforementioned, answer to the question posed at the outset is an 'emphatic no'. It is also pertinent to note here that the revisional jurisdiction of this court is limited one, which is meant to be exercised only when a manifest illegality or perversity is found in the impugned judgment. Perusal of the impugned judgment rendered by the learned Sessions Judge would show that it has not resulted into miscarriage of justice nor there is any patent illegality in it and the same deserves to be upheld.
Resultantly, the present criminal revision petition, being without any substance and devoid of any merit, is hereby ordered to be dismissed.
(RAMESHWAR SINGH MALIK) JUDGE 10.5.2012.
AK Sharma