Himachal Pradesh High Court
Baldev Singh vs Diwan Chand Rt on 13 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 598 of 2023 .
Reserved on: 28.11.2023 Date of Decision: 13.12.2023.
Baldev Singh ...Petitioner
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Versus
Diwan Chand rt ...Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Petitioner : Mr. G.R. Palsra, Advocate.
For the Respondent : Mr. Dibender Ghosh, Advocate.
Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing the order dated 15.10.2022, passed by learned Chief Judicial Magistrate, Kullu, District Kullu, H.P. vide which the right to lead evidence was closed. It has been asserted that the respondent had filed a complaint against the petitioner for the commission of an offence punishable under Section 138 of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 13/12/2023 20:33:31 :::CIS 2Negotiable Instruments Act. The petitioner was permitted to lead the defence evidence. The petitioner filed a list of defence .
witnesses and also deposited the diet money of the witnesses on 30.4.2022. Learned Trial Court did not issue the summons to the witnesses and wrongly closed the evidence by the order of the Court. Learned Trial Court erred in holding that adjournment of was not justified as several opportunities had been availed by the petitioner. The order does not mention the number of rt opportunities taken by the petitioner. The whole case of the petitioner has been materially prejudiced. Hence, it was prayed that the present petition be allowed and the order dated 15.10.2022, passed by the learned Trial Court be set aside.
2. I have heard Mr. G.R. Palsra, learned Counsel for the petitioner and Mr. Dibender Ghosh, learned Counsel for the respondent.
3. Mr. G.R. Palsra, learned counsel for the petitioner submitted that the learned Trial Court erred in closing the defence evidence. Adequate opportunity was not granted to the petitioner to lead defence evidence. Therefore, he prayed that ::: Downloaded on - 13/12/2023 20:33:31 :::CIS 3 the present petition be allowed and the order passed by the learned Trial Court be set aside.
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4. Mr. Dibender Ghosh, learned Counsel for the respondent submitted that the petitioner was granted more than adequate opportunities to lead the defence evidence but he failed to do so. Learned Trial Court had rightly closed the right to lead of defence evidence. Hence, he prayed that the present petition be dismissed.
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5. I have given considerable thought to the submissions at the bar and have gone through the record carefully.
6. A perusal of the order sheet of the learned Trial Court reads that no defence evidence was produced despite the cost of ₹5,000/- imposed upon the petitioner. The last opportunity was afforded to him to adduce the evidence subject to the payment of the cost. No further adjournment was justified. Hence, the evidence was closed by the order of the Court.
7. Section 309 of Cr.P.C. confers the power on a Criminal Court to grant adjournment. It provides that the proceedings shall be held as expeditiously as possible and the adjournment can be granted on adequate reasons. It was laid ::: Downloaded on - 13/12/2023 20:33:31 :::CIS 4 down by the Hon'ble Supreme Court in State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 that it is not permissible to grant .
adjournment except for adequate reasons. It was observed:-
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 of 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 rt 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:
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 to be recorded in writing:::: Downloaded on - 13/12/2023 20:33:31 :::CIS 5
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 .
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 of 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 rt 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, "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 ::: Downloaded on - 13/12/2023 20:33:31 :::CIS 6 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 .
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", 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.
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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 rt 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 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 ::: Downloaded on - 13/12/2023 20:33:31 :::CIS 7 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 .
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.
516, para 16) "16. The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to of close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. Section 309(1) CrPC supports the rt 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 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."
::: Downloaded on - 13/12/2023 20:33:31 :::CIS 817. 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 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- examination for days.
18. It is no justification to glide on any alibi by blaming of 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 rt 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.
8. 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 ::: Downloaded on - 13/12/2023 20:33:31 :::CIS 9 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 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 of 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.
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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. 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.::: Downloaded on - 13/12/2023 20:33:31 :::CIS 10
9. 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:-
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 of 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 rt 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 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 ::: Downloaded on - 13/12/2023 20:33:31 :::CIS 11 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 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 of 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 rt 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.
10. In the present case, no reason has been assigned for the non-production of the evidence. It was stated that a list of defence witnesses was filed and their diet money was deposited however, no list has been produced. The order sheet does not show that any list of witnesses was filed. Thus, this submission is not supported by the record.
::: Downloaded on - 13/12/2023 20:33:31 :::CIS 1211. The order passed by the learned Trial Court clearly shows that a last opportunity was granted and that too on the .
deposit of the cost of ₹5,000/-. There is no evidence that the cost of ₹5,000/- was paid. Therefore, it was not permissible to lead evidence without the deposit of the cost.
12. The order was passed on 15.10.2022. The revision was of filed on 14.6.2023 after a lapse of nearly ten months. The power rt under Section 482 of Cr.P.C. is extraordinary and is to be exercised sparingly. When the petitioner is guilty of delay and latches, the Court should not invoke this power at his instance. It was laid down in Eapen Chakoo v. State (UT of J&K), 2022 SCC OnLine J&K 525 that a party cannot approach the High Court at its whims at any time simply because there is no limitation provided for the petition under section 482 of Cr. PC. It was observed:
13. From the aforesaid enunciation of law on the subject, it is clear that a party who invokes the jurisdiction of the High Court for quashing the FIR and the consequent proceedings on the ground that ingredients of the offence for which he has been booked, are not made out, he has to meet the test of expeditious dispatch of approaching the Court. A party cannot approach the High Court under Section 482 of the Cr.P.C. at his whim and caprice merely because no period of limitation in filing the petition under the aforesaid provision is provided. A petition ::: Downloaded on - 13/12/2023 20:33:31 :::CIS 13 under Section 482 of the Cr. P. C must be filed within a reasonable time and it should not be vitiated by inordinate delay and laches on the part of the petitioner.
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14. Within what time a petitioner should approach the Court under Section 482 of the Cr. P.C. depends upon the facts and circumstances of the case. Reasonable time generally means any time which is not manifestly unreasonable and which is fairly necessary for approaching the Court. Reasonable time would mean a time required by a prudent litigant to approach the Court of in the given facts and circumstances of the case."
13. Consequently, the present petition fails and the same is dismissed.
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14. The parties through their respective counsel are directed to appear before the learned Trial Court on 28.12.2023.
(Rakesh Kainthla) Judge 13th December, 2023 (Chander) ::: Downloaded on - 13/12/2023 20:33:31 :::CIS