HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 55 Case :- APPLICATION U/S 482 No. - 2769 of 2013 Applicant :- [ENTITY] Opposite Party :- [ENTITY] And Others Counsel for Applicant :- [ENTITY],[ENTITY],[ENTITY],[ENTITY],[ENTITY] Counsel for Opposite Party :- Govt. Advocate,[ENTITY],[ENTITY],[ENTITY],[ENTITY] Hon'ble [ENTITY],J.
1. Heard Sri [ENTITY], learned Senior Advocate, assisted by Sri [ENTITY], Sri [ENTITY], [ENTITY] and [ENTITY] for applicant, Sri [ENTITY], Senior Advocate assisted by Sri [ENTITY], [ENTITY], Senior Advocate, assisted by Sri [ENTITY], Sri [ENTITY], Sri [ENTITY],[ENTITY] for respondent nos. 2 and 3 and learned AGA for the State.
2. Three persons were murdered and three other persons injured in indiscriminate firing in an alleged incident occurred about 24 years back. The informant [ENTITY] lodged an First Information Report (in short, FIR) alleging that he was carrying communist party leaders [ENTITY], [ENTITY], [ENTITY], and [ENTITY] in the jeep of [ENTITY], former Member of Legislative Assembly (in short, M.L.A.), from Mohammadabad constituency. The jeep was stopped near Kudesar Chatti. Suddenly a Maruti van stopped nearby which contained four armed persons apart from its driver. They jumped out of the vehicle and opened indiscriminate fire from rifle, gun and automatic rifle. [ENTITY] ran away from the spot but one [ENTITY] sleeping nearby was hit. The occupants of the jeep were also injured in this incident. Three persons, namely, [ENTITY], [ENTITY] and [ENTITY] died and three persons namely, [ENTITY], [ENTITY] and [ENTITY] (applicant) sustained injuries.
3. Subsequent to investigation, names of [ENTITY], [ENTITY], [ENTITY] and [ENTITY] surfaced as perpetrators of crime. The charge-sheet was filed against all of them. But, accused-assailants [ENTITY] and [ENTITY] absconded. In fact, a financial reward of Rs. five lacs was announced on [ENTITY] but he could not be apprehended. Accused [ENTITY] was also involved in another murder case, in which he was granted parole by this Court but he never came back from parole and remained absent for almost 24 years. [ENTITY] was arrested in Orissa by Special Force of Delhi Police. Subsequently [ENTITY] was also arrested.
4. Accused [ENTITY] was produced before Chief Judicial Magistrate (in short, C.J.M.) Ghazipur and his case was committed to the Court of Sessions where Sessions Trial (in short, [CASE NUMBER] (State versus [ENTITY]) was registered. Accused [ENTITY] was also produced before [ENTITY]. His case was also committed to the Court of Sessions where it was registered as S.T. No. 91 of 2010 (State versus [ENTITY]. Meanwhile, accused [ENTITY] and [ENTITY] had died. Both session trials were clubbed together and charges were framed against both [ENTITY] and [ENTITY] on 9.11.2012. Meanwhile, informant [ENTITY] was not traceable, therefore, he was deemed to have expired. For practical purposes, injured-applicant [ENTITY], an old man of 93 years of age, became victim/complainant.
5. The prosecution examined [ENTITY] (PW-1), [ENTITY] (PW-4) and [ENTITY] (PW-6) cited as eyewitnesses in the charge-sheet but none of them supported the prosecution case and were declared hostile on the request of prosecution itself. Public Prosecutor cross-examined them during course of trial. Three other formal witnesses namely, PW-2 [ENTITY], PW-3 [ENTITY] and PW-5 [ENTITY] were also produced but their testimonies are formal in nature. Thereafter, injured-applicant [ENTITY] was examined as PW-7 during trial.
6. [ENTITY], 93 years old was asked to identify the accused persons who were not physically present in the court. They were produced vide video screen, said to be of approximately one foot width. He stated that incident is about 20 years old; that he himself is old man of 93 years and it would be difficult for him to identify the accused person whose presence was shown through small video screen. Other unknown persons were also present across video screen wearing different types of caps and after pasting paper scraps on their face. It appears that in the circumstances, this old witness could identify only one person. Witness requested the trial court to order the physical presence of accused persons in the court room. But, his request was turned down and deposition was concluded after his cross-examination by counsel representing two accused on 8.2.2013.
7. On 11.3.2013, an application was moved on behalf of applicant requesting that accused persons be brought physically in the court room and that applicant must be given opportunity to identify them in the court. Another application was moved on the same day requesting that complainant's counsel be given opportunity to cross-examine those witnesses who had been declared hostile by Public Prosecutor. In the opinion of the injured old man, Public Prosecutor had not properly cross-examined those witnesses on relevant points. Third application was also moved on the same day, i.e. 11.1.2013 saying that Public Prosecutor was requested to file aforesaid two applications before the court being incharge of prosecution. But, Public Prosecutor did not submit those applications before the court, therefore, court was asked to decide said applications on the request of insured applicant himself. Learned Sessions Judge rejected all the three applications vide order dated 16.1.2013 by observing that injured's counsel is not entitled to cross-examine the witnesses as Public Prosecutor had already cross-examined them. Citing provision of [SECTION] [ACT] (in short, [ACT]) learned Judge said that injured's counsel is only meant to assist the Public Prosecutor and has no right to participate in the proceedings of the trial. The request for calling accused person physically in the court in order to provide opportunity to injured applicant (PW-7) to identify the assailant was also rejected saying that opportunity had been given through video screen and that physical presence of accused is not required for the purpose of their identification. The trial court relied upon the judgment of Apex Court in State of Maharashtra versus Dr. [ENTITY], AIR 2003 SC 2053. The order was passed by learned Judge rejecting all the three applications moved on behalf of applicant-injured [ENTITY] which is under challenge before this Court.
8. Learned counsel for the applicant has submitted that the trial judge should have visualised the difficulties of a 93 years old man. The assailants remained absent from law for more-than 20 years. When they were brought before the Magistrate through transit warrant, this case was committed to the Court of Sessions the same day. The Investigating Officer did not bother to conduct test-identification-parade (in short, T.I.P.). It is further submitted that one foot small video screen was not sufficient for an old man of 93 years of age to identify the accused after more-than 20 years. Trial judge should have summoned the accused persons physically at least once in the court room. He further submitted that no witness, except injured [ENTITY], is willing to testify against dreaded don. The physical presence of accused persons is necessary. Further submission is that judgment of the Apex Court in 'Dr. [ENTITY] case' (Supra) merely enables the court to use the video conference facility. Apex Court has not ruled that present of accused persons is not required in all eventualities. He further submitted that in view of changed circumstances, counsel for the injured must be allowed to cross-examine the hostile witnesses especially in the light of perceived apathy of the Public Prosecutor.
9. Per contra, Sri [ENTITY] and Sri [ENTITY] learned Senior Advocates appearing for respondent nos. 2 and 3 have drawn attention of this Court towards various circulars of the High Court and orders of Sessions Judge, Ghazipur disclosing that facility of video conferencing is not only available but it is imperative to use this facility in certain cases. Learned counsel also drawn attention of this Court towards the judgment of the Apex Court in 'Dr. [ENTITY] case' (Supra) wherein Apex Court held that evidence can be recorded through video conferencing and that there is no bar in [ACT] to adopt the facility of video conferencing for conducting court proceedings. The Apex Court has held that recording of evidence by video conferencing satisfies the object of [SECTION] [ACT] which says that evidence must be recorded in presence of accused. The Court held that presence of accused does not necessarily means his physical presence in the court room. He can be present through video conference.
10. Learned counsel for accused respondents have specifically asserted that in view of law laid down by the Apex Court in Dr. [ENTITY] case (Supra), procedure adopted by the trial court is perfectly valid. He further submitted that counsel for the injured can not be permitted to cross-examine the witnesses for simple reason that [SECTION] [ACT] contemplates that a private counsel can only assist a Public Prosecutor and that he can not act beyond the instructions of Public Prosecutor and if Public Prosecutor is not willing to seek the assistance of private counsel engaged by the injured [ENTITY], then such counsel can not be imposed upon the prosecution.
11. Evidently, injured [ENTITY] does not trust the Public Prosecutor or may be even the entire judicial system to say the least. He saved himself by skin of his teeth in a dreaded attack in which three persons lost their lives. Accused/respondents could not be arrested. They remained at large for more-than 20 years and it is only the special force of Delhi Police which could manage to arrest accused [ENTITY] in Orissa. The day the case was presented in the court, the very same day the case was committed to the Court of Sessions with remarkable speed. Investigating Officer did not seek permission for formal test identification parade. When trial started, 93 years old man was asked to identify accused persons through a very small video screen. It appears that even on that video screen accused persons were not produced like in court room but they were produced along with unknown and unrelated persons wearing different caps with paper scraps pasted on their faces, despite the fact that no formal test identification parade was being held. This was strange procedure. The fact that witnesses have never seen the accused persons even once during entire trial is highly surprising. It is also surprising that despite repeated requests of injured [ENTITY], accused persons were not summoned by the court concerned. It is surprising that every body forgot the old maxim that 'Justice must not only be done; but must be seen to be done'. A 93 years old man requested the court and Public Prosecutor to arrange physical presence of accused persons in a congenial atmosphere so that he can testify and identify the accused persons, if possible and yet his request was turned down merely on untenable technical grounds. It is pertinent to point-out that criminal trials are conducted under the provisions of [ACT] (in short, [ACT]). Both are ongoing statutes as laid down in the case of Dr. [ENTITY] (Supra). This trial is still pending, therefore, all the provisions existing at this time are applicable. It is pertinent to point out that [ACT] is procedural law which obviously will apply on all pending cases.
12. [SECTION] provides definition of "victim" which means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged. The expression "victim" also includes his or her guardian or legal heir. Applicant [ENTITY] is victim within the meaning of this provision. [SECTION] defines "Pleader", which means a person authorized by or under any law for the time being in force, to practice in such court, and includes any person appointed with the permission of the court to act in such proceeding. The only restraint is that a private person must have permission of the court for which request must be made by the party himself. It is of course open to the court to grant or withhold permission in its discretion. (In [PRECEDENT]).
13. The scheme of existing [ACT] has broadened the scope of participation of victim. The victim can now also file an appeal against the judgment of the court.
14. The Apex Court in [PRECEDENT] has held that trial court must play a conscientious role during criminal trial to provide effective justice. The Apex Court has held thus :-
"43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. [SECTION] of the Code and [SECTION] of the [ACT] confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence-collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
44. The power of the court under [SECTION] of the [ACT] is in a way complementary to its power under [SECTION] of the Code. The section consists of two parts i.e.: (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In [PRECEDENT] this Court has observed, while considering the scope and ambit of [SECTION], that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code.
15. In [ENTITY] Lalitha Baruwa versus State of Orissa, 2013(16)SCC 173, the Apex Court has held that crimes are against the society, therefore, courts including High Courts should not adopt casual approach. They must ensure that any ambiguity in so far as evidence part is concerned is avoided. Apex Court in [ENTITY] case (Supra) has held thus:-
"18. We are convinced that the grievances as projected by the appellant as a victim, who was a victim of an offence of such a grotesque nature, in our considered view, the trial Court as well as the High Court instead of rejecting the application of the appellant by simply making a reference to [SECTION] [ACT] in a blind folded manner, ought to have examined as to how the oral evidence of PW-18 which did not tally with Exhibit-8, the author of whom was PW-18 himself, to be appropriately set right by either calling upon the Special Public Prosecutor himself to take necessary steps or for that matter there was nothing lacking in the Court to have remedied the situation by recalling the said witness and by putting appropriate Court question. It is well settled that any crime is against the society and, therefore, if any witness and in the case on hand a statutory witness happened to make a blatantly wrong statement not born out from the records of his own, we fail to understand why at all the trial Court, as well as the High Court, should have hesitated or adopted a casual approach instead of taking appropriate measures to keep the record straight and clear any ambiguity in so far as the evidence part was concerned and also ensure that no prejudice was caused to any one. In our considered view, the Courts below should have made an attempt to reconcile [SECTION] and [SECTION] [ACT] in such peculiar situations and ensured that the trial proceeded in the right direction.
19. In criminal jurisprudence, while the offence is against the society, it is the unfortunate victim who is the actual sufferer and therefore, it is imperative for the State and the prosecution to ensure that no stone is left unturned. It is also the equal, if not more, the duty and responsibility of the Court to be alive and alert in the course of trial of a criminal case and ensure that the evidence recorded in accordance with law reflect every bit of vital information placed before it. It can also be said that in that process the Court should be conscious of its responsibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a notable piece of evidence or a conspicuous statement of any witness with a view to either support or prejudice the case of any party, should not hesitate to interject and prompt the prosecution side to clarify the position or act on its own and get the record of proceedings straight. Neither the prosecution nor the Court should remain a silent spectator in such situations. Like in the present case where there is a wrong statement made by a witness contrary to his own record and the prosecution failed to note the situation at that moment or later when it was brought to light and whereafter also the prosecution remained silent, the Court should have acted promptly and taken necessary steps to rectify the situation appropriately. The whole scheme of the [ACT] envisages foolproof system in dealing with a crime alleged against the accused and thereby ensure that the guilty does not escape and innocent is not punished. It is with the above background, we feel that the present issue involved in the case on hand should be dealt with.
20. Keeping the said perspective in mind, we refer to [SECTION] and [SECTION] of [ACT]
"301. Appearance by public prosecutors.-(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.
[SECTION]. Power to summon material witness, or examine person present.-
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
21. Having referred to the above statutory provisions, we could discern that while under [SECTION] the right of a private person to participate in the criminal proceedings has got its own limitations, in the conduct of the proceedings, the ingredients of [SECTION] empowers the trial Court in order to arrive at a just decision to resort to an appropriate measure befitting the situation in the matter of examination of witnesses. Therefore, a reading [SECTION] and [SECTION] together keeping in mind a situation like the one on hand, it will have to be stated that the trial Court should have examined whether invocation of [SECTION] was required to arrive at a just decision. In other words even if in the consideration of the trial Court invocation of [SECTION] was not permissible, the anomalous evidence deposed by PW-18 having been brought to its knowledge should have examined the scope for invoking [SECTION] and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the appellant's application without actually relying on the wide powers conferred on it under [SECTION] [ACT] for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made.
22. In the decision reported in [PRECEDENT] (supra), this Court considered the extent to which a complainant can seek for the redressal of his grievances in the on going criminal proceedings which was initiated at the behest of the complainant. Some of the passages in paragraphs 8, 9, 10 and 12 can be usefully referred to which are as under:
8 What is the advantage of the court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums.
9. The scheme envisaged in the [ACT] (for short "the Code") indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge-sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance.
10. The said provision falls within the Chapter titled "General Provisions as to Inquiries and Trials". When such a role is permitted to be played by a private person, though it is a limited role, even in the Sessions Courts, that is enough to show that the private person, if he is aggrieved, is not wiped off from the proceedings in the criminal court merely because the case was charge-sheeted by the police. It has to be stated further, that the court is given power to permit even such private person to submit his written arguments in the court including the Sessions Court. If he submits any such written arguments the court has a duty to consider such arguments before taking a decision.
12 The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them."
16. Considering the law laid down in '[ENTITY] case' (Supra) and [ENTITY] case (Supra) and peculiarities of the instant case, it is evident that applicant has been denied reasonable, satisfactory and effective opportunity to place his facts and evidence before the court concerned. The Public Prosecutor was lackadaisical in his approach. Trial judge was also casual. Without going into the details of their conduct, suffice is to say that the impugned order passed by the learned Sessions Judge can not be sustained.
17. The impugned order dated 16.1.2013 passed by Additional Sessions Judge, Court No. 3, Ghazipur in consolidated Sessions Trial No. 91 of 2010 (State versus [ENTITY] and others) is hereby set aside. The trial court is directed to permit counsel for insured [ENTITY] to participate in the trial along with public prosecutor. Trial court is further directed to record the testimony of insured [ENTITY] again immediately in physical presence of both accused. This should be done without any delay as this witness is 93 years of age. Trial Court is further directed to summon any witness, whose testimony has already been recorded, for cross-examination on behalf of injured applicant. Trial court is also directed to provide safe and congenial environment in the court. Trial court can seek assistance of Senior Superintendent of Police to provide secure atmosphere in the court room during trial. The incident occurred in the year 1991 and since then, the trial is pending, therefore, in the interest of justice, trial court is expected to conclude the proceedings in accordance with law expeditiously preferably within three months from the date a certified copy of this order is produced before it.
18. The application under [SECTION] [ACT] stands allowed.
19. Let a copy of this order be sent to court concerned through the Sessions Judge, Ghazipur within a week.
Order Date :- 19.11.2015 SU.