Himachal Pradesh High Court
Lakhbir Singh vs State Of Himachal Pradesh on 6 August, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 285 of 2019
Decided on: 6.8.2019
.
Lakhbir Singh ....Petitioner.
Versus
State of Himachal Pradesh ... Respondent.
................................................................................................
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur.
Whether approved for reporting?1 Yes.
For the petitioner.
r : Mr. Kul Bhushan Khajuria, Advocate.
For the respondent. : Mr. R.P. Singh, Deputy Advocate
General.
Vivek Singh Thakur, J.(Oral)
Present petition has been preferred under Section 482 Cr.P.C. against the two orders dated 17.5.2019, passed by learned Special Judge, Chamba rejecting Cr. M.A. Nos. 465 and 466 of 2019, which were filed by petitioner respectively under Sections 91 and 311 of the Code of Criminal Procedure (in short 'Cr.P.C.') during pendency of trial.
2. I have heard Mr. Kul Bhushan Khajuria, learned counsel for the petitioner and Mr. R.P. Singh learned Deputy Advocate General for the respondent and have also gone through the record of 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 2the Trial Court which was summoned during the pendency of the present case.
.
3. It is undisputed that after closing defence evidence on 7.5.2019, petitioner had preferred an application Cr.MA No. 465 of 2019 under Section 311 Cr.P.C. on 15.5.2019 for re-examining DW Regional Manager and production of CCTV footage and earlier, in April 2018, when petitioner was in judicial custody as under trial prisoner, he had preferred an application, later on numbered as CrMA No. 466 of 2019, through Jail Superintendent for production of CCTV footage and both these applications were taken up together by Special Judge on 15.5.2019 and were listed for replies on 16.5.2019 on which date after filing reply, these applications were listed for arguments on the same day at 2:30 p.m. and after hearing arguments, these applications were listed for orders on 17.5.2019 and on that day after passing of the impugned orders, the main case was also taken up for hearing and thereafter it was listed on 20.5.2019 for passing final orders. On that day i.e. 20.5.2019, an application Cr.MA No. 487 of 2019 was filed on behalf of petitioner-accused for seeking time to file revision against orders dated 17.5.2019 whereby applications preferred by petitioner were dismissed. The said application Cr.MA No. 487 of 2019 was dismissed by learned Special Judge on the same ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 3 day on 20.5.2019 and thereafter vide even dated separate judgment passed by learned Special Judge, petitioner has been convicted under .
Sections 20 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and thereafter case was adjourned for 1.6.2019 for hearing the petitioner-accused on quantum of sentence.
4. After passing of the orders dated 17.5.2019 in the applications, petitioner had applied for certified copy of the impugned orders by submitting CDI Form which was allowed by learned Special Judge on the same day i.e. 17.5.2019 but it was diarized by the Copying Agency on 20.5.2019 as 18th and 19th May, 2019 were holidays. Copy was completed, attested and supplied on the same day i.e. 20.5.2019. On the very same day conviction of petitioner was also pronounced by Learned Special Judge. Present petition, on behalf of the petitioner, was filed on 25.5.2019 after passing of the order of conviction against the petitioner but before hearing him on the quantum of sentence, wherein vide order dated 27.5.2019, on prayer of petitioner, further proceedings fixed on 1.6.2019 for awarding sentence were stayed.
5. It is grievance of the petitioner that application Cr.MA No. 466 of 2019, under Section 91 of the Cr.P.C., was preferred by him in April, 2018 but the same was never taken up for hearing ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 4 before May, 2019 and even it was entered in the computer and numbered in the year 2019 only, whereas this application, as it was .
preferred by under-trial prisoner from the Jail, should have been taken up on priority basis by the Court and further that after passing the impugned order dated 17.5.2019 whereby the applications have been rejected, learned Special Judge should have adjourned the case for reasonable period so as to enable the petitioner to exercise his right to file the revision against the said orders, as according to him, impugned orders passed by learned Special Judge are revisable. It is contended that learned Special Judge had not granted the time despite filing a separate application Cr.MA No. 487 of 2019 on 20.5.2019 with specific prayer for seeking time to file the revision petition before the High Court against the orders dated 17.5.2019 passed in the applications preferred by him, but after rejecting the said applications, had announced conviction orders in case on the very same day.
6. It is canvassed by learned counsel for the petitioner that everyone has a right of a fair trial and therefore after passing of the order rejecting the prayer of an accused, the Trial Court should give reasonable time to him to avail remedy to assail the rejection order and particularly, in present case, when an application was preferred ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 5 in April, 2018 and was not taken up for hearing for about one year and not only this the said application was not even registered by the .
officials of the Court, was never listed in the Court, learned Special Judge should have given reasonable time to the petitioner and further that observations of the learned Special Judge that applications have been filed only for delaying the trial is also factually incorrect as the application i.e. Cr.MA No.466 of 2019 was preferred in April, 2018 and at that time the accused was behind the bar and was not going to be benefited in any manner by delaying the trial. It is also canvassed that another application bearing Cr.MA No. 465 of 2019, filed under Section 311 of Cr.P.C., was also preferred by exercising the right available to the accused to file the same at any time and the petitioner/accused was having every right to take any such step for protecting his personal liberty and therefore, in this application also, observations of the Trial Court are not sustainable.
7. It is also argued that on 17.5.2018 no arguments had taken place but learned Special Judge had wrongly observed that arguments in main case were heard. According to him, deliberate delay was caused in supplying the copy of the impugned orders dated 17.5.2019 so as to depriving the petitioner from approaching the High Court against the said orders. Learned Counsel for the ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 6 petitioner has also raised the issue with respect to non-supply of copy of the judgment/order of conviction to the petitioner on 20.5.2019 .
and further that the same was not uploaded on the official website of the Court even till 27.5.2019 which has caused grave prejudice to the petitioner and further that such act on the part of learned Special judge was contrary to the settled principle of law, as he was duty bound to provide the copy of conviction judgment/order, immediately after pronouncement thereof, to the accused, free of cost, and was also under obligation to upload it on the official website of the Court.
8. Finally it is contended that impugned orders are illegal and unreasonable and that by rejecting the applications, learned Special judge has curtailed valuable right of petitioner/accused which has affected the valuable right of personal liberty adversely.
9. On the contrary, learned Deputy Advocate General has submitted that it is a matter of fact that final order of conviction has been pronounced by the Trial Court on 20.5.2019 and thereafter adjudication of present petition assailing the impugned orders dated 17.5.2019 passed in applications would be a futile exercise, as now trial stands concluded except hearing the petitioner/accused on quantum of sentence to be imposed upon him. Further that right to ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 7 fair trial to the accused is an undisputed and settled principle in criminal jurisprudence but the same does not mean that after passing .
of any order in every application, preferred during the trial, the Trial Court is obliged to adjourn the case so as to grant time to the aggrieved party to assail the said order in the Higher Court, particularly when the case is at final stage i.e. stage of addressing the arguments/pronouncement of final order. It is also submitted that though there is an allegation that arguments were never heard by learned Special Judge and delay in supplying the copy of impugned orders was caused to debar the petitioner from exercising his right to assail the order, however, there is no allegations of personal mala fide in the petition against the learned Special Judge or any other person nor the said Judge or any such other person has been made party in present petition and therefore issue with regard to such allegations, which are personal in nature, cannot be permitted to be raised in this petition. It is also submitted by learned Deputy Advocate General that in the order dated 17.5.2019 it is recorded that arguments were heard and presumption of truth is attached to the record unless rebutted by placing reliable and trustworthy material on record and no such material has been placed on record nor has been demonstrated from the record of the Trial Court. It is further ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 8 contended that though, application Cr.MA No. 466 of 2019 under Section 91 Cr.P.C. was preferred in April, 2018 when .
petitioner/accused was in Jail but it is also a matter of fact that in February, 2019 petitioner was released on bail and neither after April, 2018 nor even after February, 2019, petitioner or his counsel had ever pointed out during the hearings of the case about non-listing or non-consideration of the said application. Further that now after pronouncing of the judgment of conviction, petitioner has only remedy to assail the said judgment, after determination of quantum of sentence, by filing an appeal and to raise all issues and contentions in the said appeal including grievance against rejection of applications filed under Sections 91 and 311 of Cr.P.C.
10. On the first date of hearing, considering the plea of the petitioner with respect to non-supply of copy of judgment and delay in uploading the judgment on the official website of the Court, Coordinate Bench of this Court had called explanation from the learned Special judge to explain reasons for not uploading the judgment on the official website of the Court, especially when the petitioner was sent in custody on the basis of the said judgment. In response thereto, learned Special Judge has submitted a detailed explanation, relevant portion whereof reads as under:-
::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 9"xx xx xx xx 2. In this regard, I have the honour to submit that on 20.5.2019, accused Lakbir Singh has been convicted by this Court for offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and he had been sent to custody on the .
basis of judgment of conviction, being found in possession of commercial quantity of contraband. After announcing the judgment, the case was adjourned for 1.6.2019 for hearing the convict on quantum of sentence and the judgment without passing the quantum order was not complete and it was ordered to be continued. After hearing the convict on quantum of sentence, he was to be supplied a copy of the judgment and order free of costs. Therefore, the incomplete judgment was not uploaded on the official website of the Court on the date of pronouncement of the judgment. As a past practice, in case of a conviction, the judgment is uploaded only after hearing the convict on the quantum of sentence, being complete in all respect. However, it has now been uploaded on the website of the Court as per directions of the Hon'ble High Court. Therefore, the inconvenience caused is highly regretted and in future the orders of the Hon'ble high Court will be complied with in letter and spirit."
11. The issue with respect to the time for supplying the copy is no longer res integra, but has been finally determined by the Apex Court. The Apex Court in Rama Narang Vs. Ramesh Narang and others, (1995) 2 Supreme Court Cases 513, after considering various provisions of Chapter XVIII, XXXVII and XXIX of Cr.PC more particularly Section 235(2), 353, 354, 357, 359 and 360 Cr.P.C., has held that the trial comes to an end only after the sentence is awarded to the convict person and judgment in criminal case is not complete unless punishment which the accused person is sentenced is set out therein as under the provisions of the Cr.PC., ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 10 there are two stages in a criminal trial before a Sessions Court i.e. the stage upto the recording of a conviction and the stage post conviction .
upto the imposition of sentence and a judgment becomes complete after both these stages are covered. (See Para 12,13 and 15)
12. The Apex Court in Yakub Abdul Razak Memon v.
State of Maharashtra, (2013) 13 SCC 1, after considering its own pronouncement in Rama Narang's case and judgment of the Andhra Pradesh High Court in Lakdey Ashok Vs. Government of A.P., (2009) 6 AnLT 67 has concluded that conviction order is not a judgment as contemplated under Section 353 CrPC and that a judgment is pronounced only after the award of sentence. (See Para 104 to 106).
13. As a judgment in criminal trial is complete only after determination of the sentence to be imposed upon the accused and the accused is entitled for copy of judgment only after determination of quantum of sentence after hearing him and not at the time of announcing conviction order. Keeping in view the settled law of the land, I find that no further order or direction is required to be passed on this issue.
14. On perusal of record it is evident that application, preferred by the petitioner from Jail in April,2018 was received in the ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 11 Court on 9.4.2018 and it was placed before the then Presiding Officer/Special Judge-II i.e. Additional Sessions Judge, Chamba on .
the very same day, who had ordered to put up it on 10.4.2018 and on 10.4.2018 he passed an order by exercising the Powers of Special Judge-II to put up the said application with main case file on date already fixed i.e. 4.6.2018. On 4.6.2018, the case was fixed for recording the evidence of prosecution. On that day, accused was produced in the Court in custody and was being represented by the counsel. On that date, statements of three PWs were recorded and the case was adjourned for 6.7.2018 for recording of statements of some more witnesses. On that day, neither counsel for the petitioner/accused nor accused himself had ever pointed out about the application preferred by the petitioner. Not only this, thereafter case was listed on 6.7.2018, 7.9.2018, 27.9.2018, 30.10.2018 for recording the evidence of the prosecution and on 30.10.2018 prosecution evidence was closed and case was adjourned for 24.11.2018 for recording of statement of the accused under Section 313 of Cr.P.C., where-after statement of the accused under Section 313 Cr.P.C. was recorded on 28.11.2018 and the case was ordered to be listed on 10.12.2018 for recording of evidence in defence.
Thereafter case was listed for recording the defence evidence on ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 12 3.1.2019, but on that day case was adjourned for 25.2.2019 as learned Presiding Officer i.e. Special Judge-II had been transferred. On .
25.2.2019, case was transferred to the Court of Special Judge-I, i.e. present Presiding Officer. Thereafter on 29.4.2019 summon was ordered to be issued to defence witness for 7.5.2019. On 7.5.2019 after recording statement of one DW, evidence in defence was also closed and case was listed for final arguments on 10.5.2019, on which date, on request of counsel for accused(petitioner), it was again adjourned for 15.5.2019 for arguments. On 15.5.2019 an application i.e. Cr.MA No. 465 of 2019 was presented on behalf of petitioner/accused for leading additional evidence. At that time, learned Presiding Officer/Special Judge, on perusal of record, had noticed that there was another application, sent from the Jail by the accused for producing the CCTV Footage was also pending and accordingly he took the said application on record and listed the case on 16.5.2019 for filing replies to the applications.
15. As noticed herein-above, after filing of the application in April, 2018 till 15.5.2019 before learned Special Judge-II, neither petitioner/accused nor his counsel had ever pointed out about the pendency of the application preferred by the petitioner for production of CCTV Footage and it was, in fact, learned Special Judge-I, who ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 13 had noticed this application on its own and had taken it for consideration. Therefore, it does not lie in the mouth of the petitioner .
that Presiding Officer has deliberately ignored the application filed by the petitioner. Undoubtedly the petitioner and his counsel were negligent in perusing the matter, however, it is also noticeable that on 10.4.2018, learned Special Judge-II had ordered to put up this application with main file on 4.6.2018. It is a matter of serious concern that said application was never listed either on 4.6.2018 or any other date fixed in case thereafter. It is a lapse on the part of official(s) concerned. Therefore, learned District and Sessions Judge, Chamba is directed to inquire into the matter and fix responsibility for such lapse for ensuring to avoid such mistake/lapse in future.
16. Plea of the petitioner that supply of the copy of impugned orders have been deliberately delayed in order to deprive him from exercising his right to further assail the said order, is also not substantiated on record, as the learned Special Judge had allowed his application for supplying the copy on 17.5.2018 itself and next two days i.e. 18.5.2018 and 19.5.2018 were holidays and thereafter it was diarized in the Copying Agency on 20.5.2019. In case plea of the petitioner, that it should have been diarized on 20.5.2019 itself, is accepted, then also it may or may not have been possible to supply ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 14 the copy of the impugned order on the same day as it is evident from the record that the impugned orders were passed by learned Special .
Judge-I on the same day i.e. 17.5.2019 during post lunch session and there is possibility that on that evening during the Court hours this order may not have been ready or signed during Court hours. Further had there been deliberate delay in supply of the copy it would not have been prepared on the same very day on which date the application was presented in the Copying Agency, rather it was completed, attested and supplied on the same day i.e. 20.5.2019.
Perusal of C.D.I Form submitted by and on behalf of petitioner-
accused for obtaining copies of impugned orders passed in Cr.MA Nos. 465 and 466 of 2019, copy whereof has been placed on record as Annexure P-9 with petition, reveals that requirement of urgent copy was not mentioned therein. Therefore this application was to be considered as an application for supply of copy of order in ordinary manner and further court fee appended on CD Form is Rs. 5/-
whereas for urgent or dasti copy requisite court fee is Rs6.50 and thus it was not an application for urgent or dasti copy nor any request for dasti copy has been claimed to have been made and despite all this, copy has been supplied promptly i.e. on next working ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 15 day like a most urgent copy. Therefore plea of causing deliberate delay is not sustainable.
.
17. For want of necessary material on record establishing any malafide on the part of Presiding Officer, I find no ground to comment about rejection of application for adjournment of trial to enable the petitioner to assail impugned orders as such adjournment cannot be claimed as a matter of right.
18. So far as challenge to the impugned orders is concerned, I find that, at this stage, it would be a futile exercise to adjudicate the same, as the pre-conviction stage of trial is over and order of conviction has been announced and proceedings of post conviction have been stayed on application of petitioner wherein quantum of sentence is to be considered and even if the present petition is allowed, the order for restoring the status quo ante that of the stage prevailing before pronouncement of the order of conviction cannot be passed without setting aside order of conviction passed on 20.5.2019 and the said order has not been assailed in this petition nor could have been. There is statutory remedy of appeal available to the petitioner to assail the said order after completion of judgment on determination of sentence by the trial Court. The petitioner has a right and opportunity to assail the findings returned in the ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP 16 applications in main appeal itself, if any, preferred against conviction and sentence imposed upon him. The present petition has been filed .
on 25.5.2019, whereas the final verdict convicting the accused had been announced by the Trial Court on 20.5.2019. Even on the day of filing of the petition it was not maintainable.
19 Before parting the case, at this stage, it would also be relevant to observe that speedy trial is a right of accused but it should not be at the cost of right to fair trial and further justice should not only be done but also seems to have been done. Therefore, Officers/officials of the Judiciary associated with duties of imparting justice should be more careful and sensitive in performing their duties as they are representatives of judiciary not only to staff and litigants, but also in society and act and conduct on their part should not only confirm legal parameters but also require to facilitate and achieve public confidence in judiciary.
20 Therefore, with the aforesaid observations petition is dismissed. Record be sent back through special messenger to the trial court forthwith along with copy of this judgment. Parties are directed to appear before trial court on 26th August, 2019.
(Vivek Singh Thakur) Judge 6th August, 2019.
(Guleria) ::: Downloaded on - 29/09/2019 01:50:20 :::HCHP