Likhama Ram Vs State of Rajasthan and anr - Citation 760272 - Court Judgment

Judgment:
ORDER

Amaresh Ku. Singh, J.

1. Heard the learned counsel for the petitioner, learned Public Prosecutor and learned counsel for non-petitioner No. 2.

2. This petition under Section 482 Cr. P.C. is directed against the order dated 27-8-1997 and the order dated 21-10-1997 passed by the learned Additional Sessions Judge, Nagaur in sessions case No. 5/97 State v. Himmata Ram. By his order dated 27-8-1997 the learned Additional Sessions Judge declined to grant adjournment under Section 309 Cr. P. C. for production of witnesses and rejected the application moved by the Additional Public Prosecutor for issuing process against two witnesses. By the order dated 21-10-1997 the learned Additional Sessions Judge rejected the application filed by the Additional Public Prosecutor under Section 311 Cr. P.C.

3. The facts of the case so far as they are relevant for the disposal of the petition may be summarised as below :

4. In session case No. 5/97 State v. Himmata Ram, Himmata Ram is facing trial on charges under Section 302 I.P.C. and 27 of the Indian Arms Act. Charges were framed on 19-2-1997. The accused-non-petitioner No. 2 pleaded not guilty to the charges and the Court fixed 4-4-1997 and 5-4-1997 for examination of prosecution witnesses No. 1-10. On 4-4-1997 only one witness Tulsa Ram was present and his statement was recorded. On 5-4-1997 Girdhari (PW-2) and Akha Ram (PW-3) were examined. The case was then adjourned to 27-5-1997 and 28-5-1997. On 27-5-1997 two witnesses were examined, other witnesses were not present. On 28-5-1997 two more witnesses were examined, other witnesses were not present, therefore, the case was adjourned to 15-7-1997 and 16-7-1997 for the examination of witnesses No. 7,8,11,12 and 13-16. On 15-7-1997 Parmeshwar Kala was examined and one witness Kumbha Ram was given up and other witnesses were not present. On 16-7-1997 witnesses No. 13-16 were given up by the Additional Public Prosecutor and the case was adjourned to 11-8-1997 for examination of remaining witnesses. On 11-8-1997 four witnesses were examined and other witnesses were not present and, therefore, the case was adjourned to 12-8-1997. On 12-8-1997 two witnesses Rameshwar Lal and Dr. Suraj Mal Mishra were examined; other witnesses were not present. Bailable warrants were directed to be issued to enforce the attendance.

5. On 27-8-1997 Chandra Ram (PW-15) was examined and other witnesses were not present. It appears that Additional Public Prosecutor moved two applications. In the first application it was stated that summons and bailable warrants of witnesses had been delivered to the Station House Officer of the Police Station with a direction that the witnesses should be produced on 27-8-1997. It was further stated that Ratan Lal Investigating Officer and Hema Ram are important witnesses and they should be summoned. In the second application it was prayed that since the report had not been received from the Forensic Science Laboratory and, therefore, the report should be called from the Forensic Science Laboratory, by the Court.

6. After hearing the arguments the learned Additional Sessions Judge rejected the first application submitted by the Additional Public Prosecutor in which it was prayed that the Investigating Officer and one other witness Hema Ram be summoned by the Court. The second application in which the prayer made by the Additional Public Prosecutor was that the report of the Forensic Science Laboratory be called was allowed and the learned Additional Sessions Judge directed that the reports be called from the Forensic Science Laboratory.

7. The case was adjourned to 22-9-1997. Since the reports of the Forensic Science Laboratory were not received the case was adjourned on 22-9-1997, 1-10-1997 and 14-10-1997.

8. On 14-10-1997 the Additional Public Prosecutor moved an application that Investigating Officer and one other witness were present in Court and that it was necessary in the interest of justice to examine them and permission for their examination be granted. The application dated 14-10-1997 was rejected on 21-10-1997, by the learned Additional Sessions Judge. As a result the witnesses who were present in the Court on 14-10-1997 could not be examined by the prosecution.

9. Feeling aggrieved by both the orders Likhma Ram has moved this Court under Section 482 Cr. P.C. and prayed that in the interest of justice the impugned orders passed by the learned Additional Sessions Judge should be set aside and the learned trial Court be directed to re-call the witnesses Ratan Lal and Hema Ram for their examination.

10. The learned counsel for the petitioner has submitted that in the instant case the non-petitioner No. 2 is facing charges under Section 302 I.P.C. and 27 of aie Indian Arms Act and having regard to the facts and circumstances of the case the evidence of Ratan Lal and Hema Ram is important and, therefore, this petition should be allowed.

11. The learned counsel for non-petitioner No. 2 has opposed this petition on following grounds. The first is that Likhma Ram has no locus standi to move this Court under Section 482 Cr. P.C. The second ground on which the petition is opposed is that the petition is a belated one and, therefore, the provisions of Section 311 Cr. P.C. cannot be invoked for recalling Investigating Officer and Hema Ram.

12. I have perused the record of the case. One important fact which deserves notice is that the order dated 27-8-1997 passed by the learned Additional Sessions Judge shows that he directed that the reports of the Forensic Science Laboratory be called and the case was adjourned on several dates for the receipt of those reports. The order dated 21-10-1997 shows that on that day Additional Public Prosecutor submitted the report of Forensic Science Laboratory. It appears that learned Additional Sessions Judge recorded the statements of the accused under Section 313 Cr. P.C. but not even a single question was put to the accused regarding the reports received from the Forensic Science Laboratory. The learned Additional Sessions Judge has not assigned any reason for not putting any question to the accused regarding the contents of the reports received from the Forensic Science Laboratory. A perusal of the report shows that on serological examination blood stains were found on exhibits 1, 3, 5, 6 and 7. The report of the ballastic examination shows that two 12-bore K.F. cartridge cases, one 12-bore D.B.B.L. gun, one damaged 12-bore K. F. cartridge case, one bandolier, four wads/wad pieces, one vial containing 33 lead pallets and pieces of bone were sent for examination and on examination it was found that 12 bore D.B.B.L. gun was serviceable firearm and that the gun had been fired the high the definite time of its last fire could not be ascertained and three 12-bore cartridge cases have been fired from 12-bore D.B.B.L. gun and four wads/wad pieces and thirty three lead pallets which were in packet 'x' were such as normally used in 12 bore ammunition and they could have been fired from 12-bore D.B.B.L. gun. Since the learned Additional Sessions Judge has not put any question to the accused under Section 313 Cr. P.C. regarding the reports received from the Forensic Science Laboratory nor exhibited them in evidence nor assigned any reason for not putting any question to the accused regarding them, it appears to be necessary that direction be issued to the learned Additional Sessions Judge that he will consider these reports received from the Forensic Science Laboratory and if they are of incriminating nature, he shall comply with the provisions of the Criminal Procedure Code so far as examination of the accused under Section 313 Cr. P.C. is concerned. If any objection is raised by any party he will hear it and decide it according to law.

13. In this case following questions arise for consideration. (1) whether the impugned order dated 27-8-1997 by which the application of the Additional Public Prosecutor for summoning Investigating Officer and Hema Ram was rejected, was an order under Section 309 Cr. P.C. declining to grant adjournment on the request of the prosecution. (2) whether an order passed by the court under Section 309 Cr. P.C, rejecting prayer for summoning one or more witnesses or granting adjournment under Section 309 Cr. P.C. prevents the Court from giving a direction for the summoning of any witness or for adjournment of the case, if the Court is satisfied, that such a course would be desirable in the interest of justice. (3) whether the powers under Section 482 Cr. P.C. can be invoked by this Court on the application of the petitioner Likhama Ram. (4) what direction would be the most appropriate one to meet the ends of justice within the meaning of the Section 482 Cr. P.C.

14. Sub-section (1) of Section 309 Cr. P.C.,M provides that:

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.

Sub-section (2) of Section 309 Cr. P.C. provides that:

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 :

First proviso given under Section 309(2) Cr. P.C. provide that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.

Second proviso provides 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.

15. A bare perusal of Section 309 Cr. P.C. shows that this Section empowers every criminal Court to postpone or adjourn from time to time the commencement of any inquiry or trial but the judicial powers conferred by this Section are required to be exercised in accordance with the provisions contained in the Section itself. The Court is neither bound to adjourn the case when a request is made by any party to adjourn, nor the Court is prevented from adjourning the case if there be sufficient cause for postponement or adjournment of the inquiry or trial. It has been pointed out by the Hon'ble Supreme Court in A. Lakshman Rao v. Judicial Magistrate, Parvatipuram AIR 1971 SC 186 : 1971 Cri LJ 253 that the judicial discretion conferred by Section 344 of the Code of 1898 (which was similar to the provisions of Section 309 of the Criminal Procedure Code 1973) was to be exercised in judicial manner and if the power was not exercised properly the superior Court may be approached. In Abdul Rehman Antulay v. R. S. Nayak 1992 SCC 225 : 1992 Cri LJ 2717 the Hon'ble Supreme Court pointed out that the constitutional guarantee of speedy trial mandated from Article 21 is reflected from Code Of Criminal Procedure and that this Section must be read with Section 482 which saves inherent power of the High Court. In short the power to postpone or adjourn the commencement or hearing of an inquiry or trial is a judicial power which must be exercised in a judicial manner keeping in view the guidelines contained in Section 309 Cr. P.C. As pointed out by Hon'ble Supreme Court in T. H. Hussain v. M. P. Mondkar(Tehsildar), Phalodi AIR 1958 SC 376 : 1958 Cri LJ 701 the interest of justice require that the interest of the prosecution as well as of the accused should be kept in view. The expression 'interest of justice' is not one sided. The interest of both the parties is to be kept in view.

16. In view of above reasons it is necessary that the criminal courts exercise sufficient control over the proceedings of the Court so that the inquiries and trials are expeditiously disposed of and unnecessary delay in the disposal of criminal cases does not occur. At the same time if the interest of justice require, they may adjourn the hearing of the case in accordance with the guidelines contained in Section 309 Cr. P.C. itself.

17. Sub-section (2) of Section 309 Cr. P.C. empowers the Court to refuse to postpone or adjourn the inquiry or trial if the Court be of the opinion that no sufficient cause for postonement or adjournment is present. If the Court refuses to adjourn the case, the necessary result would be that the Court should proceed with the hearing, whatever be the stage of the case. If the Court, in fact does not proceed with the hearing of the case on the day on which the Court declined the prayer for adjournment, the order declining adjournment of the hearing would be frustrated by not proceeding with the hearing of the case.

18. In the instant case it appears that on 27-8-1997 the learned Additional Sessions Judge rejected the prayer of the Additional Public prosecutor to summon Investigating Officer (Ratan Lai) and Hema Ram, but adjourned the hearing of the case for the production of the report of the Forensic Science Laboratory and in fact the learned Additional Sessions Judge allowed the second application of the Additional Public Prosecutor and directed that the report of the Forensic Science Laboratory be called. It is obvious that the learned Additional Sessions Judge adjourned the hearitig of the case for the production of the report of Forensic Sc ience Laboratory. In view of this adjournment it is difficult to hold that the impugned order dated 27-8-1997 was an order declining adjournment within, the meaning of Section 309(2) Cr. P.C. At best by the impugned order the learned Additional Sessions Judge declined to issue process for enforcing the attendance of the prosecution witnesses. I am, therefore, of the opinion that the impugned order dated 27-8-1997 by which the first application was rejected did not amount to an order refusing the adjournment of the case under Section 309(2) Cr. P.C. There is another reason for arriving at the above conclusion. The trial before the Court of Session is governed by the provisions contained in Chapter XVIII, after the framing of the charge under Section 228 Cr. P.C. If the accused does not plead guilty the Court has to fix a date about the examination of witness.

Section 230 provides that

the Judge shal1 fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.

Sub-section (1) of Section 231 provides that.

On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.

Sub-section (2) of Section 231 provides that-

The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

19. The opportunity which is made available to prosecution to produce its evidence is thus regulated by the provisions of Sections 230 and 231 Cr. P.C. So long this opportunity is available to the prosecution in accordance with Sections 230 and 231 Cr. P.C. the prosecution cannot be stopped from producing its evidence. An important question which arises for consideration is: 'which is that point of time when the statutory opportunity made available to the prosecution under Sections 230 and 231 Cr. P.C. comes to an end ?' Neither there is anything in Section 231 nor there is anything in Section 309(2) Cr. P.C. to show that the statutory right conferred on the prosecution to produce its evidence under Section 231(1) Cr. P.C. comes to an end when the prayer for summoning of a witness is declined. In other words merely because the application of the prosecution to summon any witness was rejected, it cannot be said that the statutory right of the prosecution to produce its evidence came to an end. Section 309(2) Cr. P.C. does not contemplate that any order for closing of the prosecution evidence will be passed by the Court. All that is permitted by Section 309(2) Cr. P.C. is that the Court may either postpone or adjourn the inquiry or trial or Court may refuse to postpone or adjourn the hearing of inquiry or trial and in the later case the Court should proceed with inquiry or trial so as to conclude the inquiry or trial in accordance with law.

20. In the instant case the learned Additional Sessions Judge by allowing the application dated 27-8-1997, for calling report of Forensic Science Laboratory, adjourned the hearing of the case within the meaning of Section 309(2) Cr. P.C. and since the hearing of the case was adjourned the statutory opportunity available to the prosecution under Section 231(1) Cr. P.C. did not come to an end, merely because the application for summoning of the prosecution witnesses was rejected, the prosecution could produce its witnesses on the next date fixed for hearing, and unless the evidence of those witnesses was found to be irrelevant it was necessary that the witnesses should have been examined on 14-10-1997 in accordance with the provisions of Section 231(1) Cr. P.C. The first question is decided accordingly.

21. The second question to be decided in this petition is whether an order passed by the Court under Section 309(2) Cr. P.C. refusing to postpone or adjourn the hearing of the case, prevents-the Court from granting adjournment if sufficient cause is shown that such an adjournment is necessary in the interest of justice, having regard to the guidelines contained in Section 309 Cr.P.C.

22. The learned Additional Sessions Judge has taken the view that since the prayer for summoning the Investigating Officer and Hema Ram was rejected by him he could not pass fresh order permitting the summoning of Investigating Officer and Hema Ram. The crucial question is whether the Court is prevented from adjourning a case if sufficient cause is shown to it, after it has rejected the prayer for adjournment. It is true that the order passed by the Court under .Section 309 Cr. P.C. is a judicial order but at the same time it cannot be ignored that it is an interim order. Such an order does not amount to judgment passed by the Court. Whether the interim order passed by the Court should be treated as judgment is a question which arises for consideration. In this case I confine my observation to the order passed under Section 309(2) Cr. P.C.

23. In K. M. Mathew v. State of Kerala AIR 1992 SC 2206 : 1992 Cri LJ 3779 the Hon'ble Supreme Court observed at page 3781 (of Cri LJ):

It is open to the accused to plead before the magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.

24. The observations of the Hon'ble Supreme Court show that an interim order passed by the Court cannot be treated as judgment and that the Court can vary or recall the same if it is satisfied that there is no justification for passing the earlier order. In view of the law laid down by the Hon'ble Supreme Court it may be said that if the Court has refused to grant adjournment under Section 309(2) Cr. P.C. but has not proceeded with the inquiry or trial, the Court may permit the party to produce its evidence if the circumstance of the case justify the adoption of such a course. The second question is answered accordingly.

25. The contention that this petition under Section 482 Cr. P.C. is not maintainable because the petitioner Likhama Ram has no locus standi is not correct. The plenary powers of the High Court under Section 482 Cr. P.C. can be invoked suo motu as well as on the petition filed by any party to the case. The fact that suo motu powers under this section can be exercised, shows that a petition of this kind can be admitted by the Court even if the petition is filed by the person who is not a party to the case, in the trial Court.

26. The last question to be decided in this petition is what direction would be appropriate to meet the ends of justice. The order dated 27-8-1997 by which prayer for issuing process against two witnesses was rejected did not amount to refusal of adjournment of the case within the meaning of Section 309 Cr. P.C. nor the order in any manner deprived the prosecution of its right under Section 231(1) Cr. P.C. to produce its evidence either on the same day or on the day to which the hearing of the case was adjourned. On 27-8-1997 Investigating Officer and Hema Ram were present. The prosecution made an application that they should be permitted to be examined and that application deserved to be allowed. The learned Additional Sessions Judge in place of granting permission to examine Investigating Officer and Hema Ram, rejected the application filed by Additional Public Prosecutor vide order dated 21-10-1997. That order does not appear to be in accordance with law. It deserves to be quashed and set aside.

27. For reasons mentioned above the order dated 21-10-1997 is hereby quashed and set aside. The prosecution may produce its witnesses on the day to be fixed by the learned Additional Sessions Judge. In view of the above mentioned reasons there is no necessity of exercising powers given by Section 311 Cr. P.C.

28. The learned Additional Sessions Judge has not put any question to the accused under Section 313 Cr. P.C. regarding the report received from Forensic Science Laboratory. It would be necessary to direct the learned Additional Sessions Judge to apply his judicial mind to those reports and do the needful in accordance with the provisions of Criminal Procedure Code so far examination of the accused under Section 313 Cr. P.C. is concerned.

29. The petition is partly allowed. The order dated 21-10-1997 is quashed and set aside and the learned Additional Sessions Judge, Nagaur is directed to fix a date for the production of remaining prosecution witnesses and if on the date fixed by him the prosecution produces any witness, opportunity to examine that witness shall be given.

30. The learned Additional Sessions Judge, Nagaur is further directed to consider the reports received from Forensic Science Laboratory. If they are levant and admissible, the accused shall be g. on an opportunity under Section 313 Cr. P.C. to explain She circumstances appearing against him.

31. A copy of this order along with the record of the case be sent to the learned Additional Sessions Judge, Nagaur without delay.

Subject	Criminal
Court	Rajasthan High Court
Decided On	Dec-16-1997
Case Number	Criminal Misc. Petition No. 847 of 1997
Judge	Amaresh Ku. Singh, J.
Reported in	1998CriLJ2635; 1998(2)WLC350; 1997(2)WLN713
Acts	Indian Arms Act - Sections 27; Code of Criminal Procedure (CrPC) , 1973 - Sections 228, 230, 231, 231(1), 231(2), 309, 309(1), 309(2), 311, 313 and 482; Indian Penal Code (IPC) - Sections 302; Code of Criminal Procedure (CrPC) , 1898 - Sections 344;
Appellant	Likhama Ram
Respondent	State of Rajasthan and anr.
Appellant Advocate	L.D. Khatri, Adv. on behalf of; Sunil Mehta, Adv.
Respondent Advocate	D.S. Rathore, Public Prosecutor and; M.L. Garg, Adv.
Cases Referred	In K. M. Mathew v. State of Kerala

Likhama Ram Vs. State of Rajasthan and anr. - Court Judgment