State Vs. Sanjeev Pandita - Court Judgment

Excerpt:
- bashir a. kirmani, j.1. this reference has been received from learned c.j.m. jammu, recommending quashment of the interim order of 20th march, 2005 passed by concerned judicial magistrate in the above captioned case, whereunder prosecution evidence has been closed. the government counsel supports it on the ground that reference is well placed while counsel of the accused opposes for the reason that it tends to take away a right that stands otherwise vested in the accused under impugned order.2. i have heard learned counsel, gone through the records, and considered the matter. it appears that on 8th of march, 2003, the concerned police instituted a case against the accused persons namely sandeep pandita and shambu nath with the allegation that on 24th of december, 2002, they subjected complainant-1, pran nath to illegal restraint, and while beating him inflicted injuries also. on receipt of report, police registered the case being no: 27/03 under sections 323/341-rpc and conducted investigations, which ultimately culminated into institution of the case against accused. on 14th of june, 2003, proceedings under section 242, cr.p.c. were conducted, and accused pleading not guilty, prosecution was directed to adduce evidence. till 4th of august, 2004, they produced three of the six listed witnesses, remaining ones being the concerned doctor, the investigating officer and s.h.o. of the concerned police station. vide interim order dated 8/10/2004, last and final opportunity for production of remaining witnesses was given to the prosecution, but on following date, i.e. on 19th of october, 2004, while i/o and concerned doctor were present, the advocate of the accused did not appear and witnesses were returned un-examined. on 10th of november 2004 when the matter was posted next, the said witnesses were not present and learned trial magistrate directed issuance of process to i/o and posted the matter for prosecution evidence, along-with application of prosecution to summon the doctor witness also. on next date i.e. 14th of january, 2005, while accepting aforesaid application the trial magistrate directed prosecution to produce the remaining witnesses but ultimately closed their evidence on 24th of march, 2004 with the observation that despite last opportunity, the prosecution had failed to produce the witnesses. feeling aggrieved thereby the state assailed the said order before learned c.j.m., to have it set aside on the ground that it was passed without application of mind and was un-warranted under law, who while agreeing with them, made the reference in hand with aforesaid recommendation, mainly on the ground that impugned order was bad, as the learned trial magistrate has closed prosecution evidence without exhausting avenues for securing attendance of the witnesses.3. attendance and production of official witnesses in criminal cases, particularly investigating officer and doctor in cases pertaining to offences against human body, and the duty of court in that behalf, often arises for consideration; because as experience has shown in most of the cases, the official witnesses, particularly, the likes of ones as afore-said are not found to be appearing in the courts with due promptitude, generally for the reason of transfers from the station, and pre-occupation with official work etc. including their personal disinclination and lethargy to come before the courts for making depositions. any-how, it always falls upon the trial court to decide the course of action in given circumstances of a specific case, where official witnesses, as aforesaid do not attend. ordinarily, the trial magistrates/courts while considering questions of extending time for production of such witnesses/closure of evidence due to non-appearance, cumulatively, consider a host of factors including the gravity of offence, age of the case, nature of the statements of witnesses already recorded, conduct of the accused/prosecution, and period of pendency. in most of cases, however orders passed at this junctures are not challenged, which ex-facie suggests that consideration of aforementioned factors while passing orders at such stages, by and large, yields appropriate conclusions.4. now, in so far as the principles of general nature governing this question are concerned, i feel that no hard and fast rule can be framed for general applicability, nor can the varying circumstances of different cases be en-capsuled to the point of adding anything to the available guidelines in the matter. all that can be said is that while considering the question of closure of prosecution evidence, particularly, where the witnesses yet to be examined include important prosecution witnesses, the trial magistrates/courts have to perform an extremely sensitive and delicate duty by striking such a balance between right of the accused to a speedy trial and the obligation of prosecution to have the wrong doers brought to book, as would appear reasonable and sound in given circumstances of a particular case; and the record of the proceedings in a particular case should very clearly reflect the concern of magistrate and his consciousness of the aforesaid standard, and cogently show that while passing an order aforesaid factors were fully present to his mind.5. in the instant case, the closure of prosecution evidence has come after learned trial magistrate took upon himself to summon all the remaining witnesses i.e. i/o and the doctor which perhaps was not proper, for the reason that without undertaking reasonable efforts for the same, he should not have jumped to the closure of the evidence in the manner it appears to have been done. as far as gatherable from materials on record, what appears to have weighed with the trial magistrate, perhaps, is the fact that two out of three witnesses, whose statements have been recorded appear to have turned hostile to prosecution, which seems to have diluted his earlier zeal to have the statements of concerned i/o and medical witnesses on record. be that as it may, the requisite effort to secure attendance of the doctor and i.o. do not appear to have been properly undertaken.6. in over-all circumstances of the case, therefore the reference is accepted and the trial magistrate's order of closing prosecution evidence, as aforesaid is quashed, with the direction that he shall provide three more opportunities spreading over a period not more then two months to the prosecution for having aforesaid witnesses examined on appointed dates and by issuing necessary process on their attendance through the concerned s.h.o. thereafter, he may pass any order in accordance with law. the reference stands accordingly answered and parties through their counsels directed to appear before the trial court on 21st of october, 2005. registry shall transmit the records back to the trial court before the appointed date along-with the copy of this order.7. for conveying the impressions contained hereinabove, copies of this judgment be circulated among all session judges through rg for bringing it to the notice of magistrates subordinate to them.matter stands accordingly disposed of.