Criminal Misc. No.M.11610 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M.11610 of 2010 Date of decision 17 .09.2010. Lakhwinder Singh ...... Petitioner. versus Kuldeep Singh and another ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Jaideep Verma, Advocate for the petitioner. Mr. Sudhir Nehra, Addl.A.G. for respondent No.2. Mr. R.K.Garg, Advocate for respondent No.1. K.C.PURI, J. This is a petition under Section 482 of the Code of Criminal Procedure ( in short – Cr.P.C.) to provide one opportunity to examine investigating officer Sub Inspector Santokh Singh by setting aside the order dated 10.12.2009 (Annexure P-1) order dated 23.1.2010 (Annexure P-2) passed by Additional Chief Judicial Magistrate, Rupnagar as well as order dated 20.2.2010 (Annexure P-3) passed by learned Sessions Judge, Rupnagar. Criminal Misc. No.M.11610 of 2010 2 Briefly stated that FIR No.60 dated 5.5.2003 under Sections 406 and 420 of the Indian Penal Code was lodged at Police Station Morinda District Ropar against Kuldip Singh Sarpanch. After investigation, challan was presented. The prosecution examined eight witnesses out of nine witnesses. On 10.12.2009, two witnesses namely Tarsem Singh and Joginder Singh were present and examined and the summons sent to SI Santokh Singh, investigating officer were received back with the report that he is on medical leave. The learned trial Court observed that charge, in this case, was framed on 5.3.2004 and the prosecution availed five years to conclude its evidence. Summons to SI Santokh Singh earlier issued many times through Senior Superintendent of Police, Ropar with last opportunity by notifying the learned APP for the State for as many as four dates. Therefore, now finding no bona fide ground to further adjourn the case for the evidence of the prosecution, the evidence was closed by order and the case was adjourned to 12.12.2009 for recording statement of the accused under Section 313 Cr.P.C. Thereafter, application under Section 311 Cr.P.C. was filed for allowing the prosecution to examine SI Santokh Singh but that application was dismissed vide order dated 23.1.2010 passed by the learned Additional Chief Judicial Magistrate, Rupnagar. Feeling dis-satisfied with the order dated 10.12.2009, Lakhwinder Singh present petitioner filed revision petition, which was heard by learned Sessions Judge, Rupnagar and vide order dated 20.2.2010, the revision petition was dismissed. It was observed by the learned Sessions Judge that case can proceed even in the absence of the investigating officer also. Criminal Misc. No.M.11610 of 2010 3 Feeling dis-satisfied with the above said orders dated 10.12.2009 (Annexure P-1), order dated 23.1.2010 (Annexure P-2) passed by Additional Chief Judicial Magistrate, Rupnagar as well as order dated 20.2.2010 (Annexure P-3) passed by learned Sessions Judge, Rupnagar, the present petition has been filed for allowing the petitioner to examine the investigating officer. I have heard both the sides and have gone through the records of the case. SI Santokh Singh was reported to be on medical leave and on that account he could not come present on 10.12.2009. The importance of examination of investigating officer has been discussed in authority Kripasindhu Pothal and others vs. State of Orissa 1986 Crl. L. J. 862 wherein it has been observed as under :- “....... Examination of the Investigating Officer in a criminal case is most essential not only from the point of view of establishment of the prosecution case, but also for substantiation of the defence case. It is common knowledge that many criminal cases end in acquittal of the accused persons on the basis of material contradictions and omissions, as well, as other factors brought through the evidence of the Investigating Officers. Therefore, examination of an Investigating Officer in a criminal case enures to the benefit of both the prosecution and the defence in a criminal case.” Criminal Misc. No.M.11610 of 2010 4 In authority Govind Ram vs. State of U.P. 1999(2) R.C.R. (Criminal) 733 it has been held that a duty is cast on the Court to summon all material witnesses and examine on its own. The Hon'ble Apex Court in authority Himanshu Singh Sabharwal vs. State of M.P. and Ors. 2008 (2) R.C.R. (Criminal) 267. The Hon'ble Apex Court held that Court has to take a participatory role in a trial. They are not expected to be tape recorder to record whatever is being stated by the witnesses. The Presiding Officer of the 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 ultimate objective i.e. justice fair and justice is met with. The Court is bound to take necessary step if the fresh evidence to be obtained is essential to the just decision of the case. Hon'ble Apex Court in authority Zahira Habibulla H. Seikh and another vs. State of Gujrat and others AIR 2004 Supreme Court 3113 (I), it was held by the Apex Court that Presiding Judge must not be a spectator and mere recording machine, but should play active role in evidence collecting process and should take all necessary steps for reaching at the correct conclusion and to find out the truth. In this case, the investigating officer could not come present as he was on medical leave. It is not disputed during the course of arguments that he suffered a fracture in his leg and on that account he was on medical Criminal Misc. No.M.11610 of 2010 5 leave. So, in these circumstances, the trial Court should have allowed to examine him by summoning again or by taking coercive method to seek his presence. The trial Court is the only Court where the evidence can be led. No doubt, there is a delay in the decision of the case but the prosecution cannot be penalized for the same in the circumstances of the present case. The trial Court has committed illegality by not allowing the investigating officer to be examined. However, the learned Sessions Judge, Rupnagar also dismissed the petition on the ground that the offence can be proved by the other evidence also. So, it is a fit case to exercise the inherit powers under Section 482 of the Cr.P.C. So, in view of the above discussion orders dated 10.12.2009 (Annexure P-1) and dated 23.1.2010 (Annexure P-2) passed by Additional Chief Judicial Magistrate, Rupnagar as well as order dated 20.2.2010 (Annexure P-3) passed by learned Sessions Judge, Rupnagar, mentioned above stand set aside and the prosecution is given one more opportunity to examine SI Mukhtiar Singh. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 17 , 2010 sv