[2017] 11 S.C.R. 222

DOONGAR SINGH & ORS.

THE STATE OF RAJASTHAN

(Criminal Appeal Nos. 2045-2046 of2017)

NOVEMBER 28. 2017

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.)

Code of Criminal Procedure. 1973:

ss.309 and 164 -Adjournment of criminal proceedings - In a murder case, after exami11atio11-in-chief of the star witness. mat/er adjourned for about four months - Ajier recording part evidence. m<1tler again a<fjourned - Held: In a criminal case of the nature as in the present case, trial court has to be mindful that for protection of wimesses and also in the interest of justice, mandate of s.309 has to be complied with and eddence should be recorded on co/1/inuous basis - Presiding Officers of trial courts conducting criminal trials should be minciful of not giving adjoummen/s qfter co111111e11cement of rhe evidences in serious cri111ina/ cases - lt is uecessalJ' in the interest ojjustice that e;1e-u1il11esses are got recorded during investigation itse/( ul.d 64 by audiu-1•ideo electronic means - Criminal Tri<4.

Stale of U.P. v. Shambhu Nath Singh and Others (2001) 4 SCC 667 : [2001) 2 SCR 85~: Mulul. Khalid v. State of 11'.B. (2002) 7 SCC 334 : )20021 2 Suppl. SCR 31; Vinud Kumar v. State of Punjah (2015) 3 SCC 220 [2015) l SCR 504 - relied on.

Case Law Reference

[2001] 2 SCR 854

[2002] 2 Suppl. SCR 31

[20151 l SCR 504

relied on

relied on

relied on

Para 6

Para 7

Para 8

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2045-2046of2017.

From the Judgment and Order datctl 12.05.2015 of the High Court A of Judicature for Rajasthan at Jaipur in DBCRA Nos. 872 and 1066 of 2011.

WITH

Crl.A. No. 2047 of20l7.

S. S. Shamshery, AAG. Sushi! Kuma Jain, Sr. Adv., Puncct Jain, Ms. Christi Jain, Harsh Jain, Abhinav Gupta, Ms. Pratibha Jain, Ms.

Parijat Bhardwaj, Ms. G. M. Padma Priya, T. Mahipal, A<lvs. for the appearing parties.

Cavcator-in-person.

The following Order of the Court was delivered:

ORDER

l. Delay condonctl. Leave granted.

2. For the murder of one Bhagwan Singh at Sikar, Rajasthan, on D 27'" May, 2005, 20 persons were tried. Nine have been convicted concw'fently by the trial court and the High Cowt. They are the appellants.

Others have either been acquittetl or have died.

3. We have heard learned counsel for the parties at great length and also perused the record. We do not find any infirmity in the orders of E the cou1t below calling for our interference under Article 136 of the Constitution of!ndia. The appeals arc, accordingly, dismissed.

4. Before parting with this matter, we must record a disturbing feature in the conduct of the trial of the present case. After recording examination-in-chief of the star witnes>, PW-14 Prahhu Singh, on 13'" April, 2010, the matter was adjourned on the request of defence counsel to 25'" August, 20 I 0 i.e. for about more than four months. After that, part evidence of the witnesses was recorded on 241h September, 2010 an.d the matter was again adjourned to 11 '" October, 20 I 0. Before that, four witnesses of the same family in their statements recorded on 1 o•h April, 2010 had become hostile.

5. In a criminal case of this nature, the trial court has to be mindful that for the protection of witness and also in the interest of justice the mandate of Section 309 of the Cr.P.C. has to be complied with and evidence should be recorded on continuous basis. If this is not done,

there is every chance of witnesses succumbing to the pressure or threat of the accused.

6. This aspect of the matter has received the attention of this Court on number of occasions earlier. Jn St11te of U.P. ••er.ms Shttmbhu Ntttll Si11glt 1111d Others' this Court observed it was a pity that the sessions court adjourned the matter for a long interval after commencement of evidence, contrary to the mandate of Section 309 of the Cr.P.C. Once examination of witnesses begins, the same has to be continued from day-to-day unless evidence of the available witnesses is recorded, cxept when adjournment beyond the following day has to be granted for reasons recorded. This Court observed:

"12. Tims, the legal posi1ion is that once examination of

H ,·,,:,:sse\· _11arll!cl, the court has ro continue the trial fro111 da.v to da.v until all tt•itnesses in atten(fance have heen exa111i11ed (except those whom the party has given up). The court has lo record reasons for devialing from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the co11r1 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 rhe case without

e.--ran1ination of' 1vitnesses 1rho are 11resent in court.

13. Now, we are distressed to i:ote that it is almost a common 11ractice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are 11resent, cases are adjourned on j(1r /e._\'S serious reasons or F even 011 flippa/1/ ground" A<(jottrnme/1/s are gra111ed even i11 such situalions 011 the mere asking for it. Quite often such

adjour111nents are granted to suit the conrenience of the advocate co11cerned. We make it clear that the legislature has frowned at granting adjournments on thll/ ground. At any rate inconvenience of' an advocate is not a "special reason" G for bypassing lhe mandale of Section 309 of the Code.

14. If any court ji11ds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due ta the 11011-coaperation of the accused or his wunse/ the

1 (200IJ 4 sec 667

court can adopt any of the measures indicated in the subsection i.e. re111a11ding the accused 10 custod_v or iJnposing cos/ on rhe party who wanrs such adjournmems (the cost must be com1nensurate v.'ifh the loss s1fj'ered bJ' the l'llitnesses, including the expei1ses to attend the cmtrr). Another option is, when the accused is absent and the witness is present ro be examined, the court can cancel his bail, if he is on bail (unless an applicario11 is made on his behalf seeking permission for his counsel to 1>roceeci to exc11ni11e the lvitnesses present even in his ,; bsence provided rhe accused gives an underraking i11 writing that he would not dispute his identity as the particular accused in the case).

15. The time-ji-ame suggested by a three-Judge Bench of this Court in Raj Deo Slwm111 v. State of Bihar2 is partly in consideration of the legislative mandate contained in, Section 309(1) of the Code. This is what the Bench said 011 that score: (SCC p. 516, para 16)

"16.The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. Section 309(1) CrPC supports the 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 berond the following day. "

xxx xxx xxx

17. 1fe believe. hopeful(v. that the High Courts would have F issued the cirmlar desired by the Apex Court as per the said judgment. ff the insistence made by Parliame11t through

Section 309 of the Code c:an be adhered to by the trial courts there is every chance of the parties cooperating with the courts for achieving the desired ojects and it would relieve the agony G which witnesses summoned are now suffering on account of their non-examination for days.

xxx xxx xxx

'(1998) 1 sec so1 H

19. In some Stutes a system 1s evolved j(; r framing a schedule o.l consecutive 1vurking da:vs for examination of lVitnesses in each sessions trial to be followed. Such schedule is fixed by the court 1-ve/I in advance ajier ascertaining the co11ve11ie11<.:e of the counsel on hath sides. Summons or process would then he handed over to the Puhlic Prosecutor in charge of the

case to cause 1hc111 to be !•; ervecl u/1 the 1vitnes:•; es. ()nee the scheclule is su .fixecl un£i 1vit11e,1., ses are sun1111u11ecl the trial

invariably proceeds from day to day. This is one metlwd 1f complying with the 11u11ula1es of the law. It is for the presiding ofjicer of each court to chalk 0111 any other method~. if any, found better far complying with tile legal provisions contained

in Section 309 v( the Code. Of wurse, the High Court cwt n1011ito1: su11ervise an(i give directions. on the ach11inis1ration ,-., ide, reg,1rtling 1nec1s11res to cu11for111 to the legislative insistence contained in the ahove section."

7. The above decision has been repeatedly followed. In Mohd.

Kiwi hi versus Stute of 1¥.B. '. this Court noted how adjournment can result in witncsscs being won over. It was observed:

"'54. Befort! parting ll'ith the case, we may poillf out that the Designatetl Cvurt de.f'erred the cross-exan1inatio11 uf lhl!

E H'ilnesses for a long ti111e. That is a feature tvhich is being notice<i in rnany cases. Unneces.'•ial:J' tul)o11r111ne11ts give a sco11e Jin a grievu11ce that the accuse</ 11erso11s get a tilne to get over the i, vit11esses. H'f1'1tever be Ille truth in this allegation, the fat/ remains that such adiournments lack the spirit o(

Section 309 of the Code. When a witness is cm1ilab/e and his

exan1i11ation-in-chie_f is over, 1111/ess co1n11elli11~'S reasons are there. the trial court should not adjourn !he matter 011 the mere asking. These aspects were highlighted by this Court in St11te of U.P. versus S/111111blr11 N11/ll Si11glr' and N.G D11sta11e

versus Shrikt111t S. S/Jivde-:. ......... "

8. Again in J111od K11111ar rer.rns Slate of P1111jab6 this Court noted how unwarranted adjournments during the trial jeopardise the administration of Justice. It was observed:

'(2002) 7 sec 334 • (2001 H sec 667 •t200116 sec 135 "(2015) 3 sec 220

"3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question: ls it justified for any conscie111ious trial Judge to ignore the

statutor_y connnand, not recognise ''the }'ell necessities oj'ti1ne"

ancl ren1ai11 in111ervio11s to the Cl}' of the collective asking for justice or give an indecent and uncalled for burial lo the conception of" trial, totally ostracising tire concept thal a civilised and orderly sociely thrives on the rule of law wlriclr includes 'fair trial" ./(Jr /he accused as well as the prosecution?

4. Jn the aj0rest1i(f cv111ex1. 1ve 1110.v recapitulate a passage from G11r11t1ib Singh v. State of P1111jab 1: (SCC p. 121, para 26)

"26 . ... we are compelled lo pmceed to reiterate tire law and express our anguish pertaining to the nu111ner in 1vhich the trial was conducled as it depicts a very dislurbing scenario. As is demonstrable fi'om the record, the trial was

conducted in an extremely haphazard and piecemeal

nu1nne1: Alljour11111ents ll'ere granted 011 a 111ere asking. The cross-exan1ination oj' the r'l'itnesses irere , fe/errecf lvithout recording any special reason anc/ elates l\'ere given C!f/er a long gap. The mandate of the law and the views expressed by this Court fi"om time lo time appears lo have been total(v kept at bay. The teamed trial Judge, as is perceplib/e, see1m lo have os/racised fi'om his memory that a criminal trial has ils own grm'ity and sanctity. ln this regard, we may refer with profit to the pronouncement in Ta/ab Haji Hussain v. Madhukar Purshottam Mo11dkar' wherein it has

be<'n stated that cm accused person by his conduct cannot put a fair /rial into jeopardv, for it is /he primary c111d paramount duty of the criminal co11rls lo ensure Iha/ the risk to fi1ir trial is removed and trials are allowed lo proceed smoothly without any inlerruption 01 obstmction. "

9. In spite ofrcpcated directions of this Court, the situation appears to have remained unremedied.

'(201J)7SCC 108

"AIR 1958 SC 376

10. We hope that the Presiding Officers of the trial cou11s conducting criminal trials will be mindful of not giving such adjourni, 1ents after commencement of the evidence in serious criminal cases.

11. We are also of the view that it is necessary in the interesi of justice that the eye-witnesses arc examined by the prosecution a! the B earliest.

12. It is also necessary that the statements of eye-witnesses arc got recorded during investigation itself under Section 164 of the Cr.P.C.

In view of amendment to Section 164 Cr.P.C. by the Act No. 5 of 2009, such statement of witnesses should be gut recorded by audio-video C electronic mc•ans.

13. To conclude:

li) The trial courts must carry out the mandate of Section 309 of the Cr.P.C. as reiterated in judgments of this Court, inter a!ia, in State of U.P. 1•ersus Sha111bh11 Nath Singh and D Others', Mohd. Khalitl vers11s State of 1V.B. '0 and Vi11od Kumar vers11s State of Pu11jab" .

(ii) Tim eye-witnesses must be examined by the pros1:cution as soon as possible.

(iii) Statements of eye-witnesses should invariably be recorded under Section 164 of the Cr.P.C. as per procedure prescribed thereunder.

14. The High Courts may issue appropriate directions to the trial couns for compliance of the above.

15. A copy of this order be sent by the Secretary General to the Registrars of all the High Cow1s for being forwarded to all the presiding officers in their respective jurisdiction.

Kalpana K. Tripathy

'(2001l4 sec 667 "(200211sec334 "<201s1Jsec220

Dirl'ctions isued.