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Monday, May 20, 2013

Non- framing of charge cause no prejudice = In the case at hand, the basic ingredients of the offence under Section 306 IPC have been established by the prosecution inasmuch as the death has occurred within seven years in an abnormal circumstance and the deceased was meted out with mental cruelty. Thus, we convert the conviction from one under Section 304B IPC to that under Section 306 IPC. As the accused has spent almost five years in custody, we limit the period of sentence to the period already undergone.= It is a sad plight in the trial courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day.- "We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by the presiding officers of the trial courts and it can be reformed by everyone provided the presiding officer concerned has a commitment towards duty."= "Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons are there, the trial court should not adjourn the matter on the mere asking."= Recently, in Akil @ Javed v. State of Delhi[17], the Court, after surveying the earlier pronouncements, has stressed on the compliance of the procedure and expressed its anguish that the trials are not strictly adhering to the procedure prescribed under the provisions contained in Section 231 along with Section 309 of the CrPC, and further emphasised that such adherence can ensure speedy trial of cases and also rule out the possibility of any maneuvering taking place by granting undue long adjournment for mere asking.- We have expressed our anguish, agony and concern about the manner in which the trial has been conducted. We hope and trust that the trial courts shall keep in mind the statutory provisions and the interpretation placed by this Court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties.- It needs no special emphasis to state that dispensation of criminal justice system is not only a concern of the Bench but has to be the concern of the Bar. - An advocate cannot afford to bring any kind of disrespect to fairness of trial by taking recourse to subterfuges for procrastinating the same. 35. Consequently, the appeal is partly allowed and the appellant be set at liberty if his detention is not required in connection with any other case.


IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 744 OF 2013
(Arising out of SLP (Crl. ) No. 6183 of 2012)


Gurnaib Singh ... Appellant

Versus

State of Punjab ..Respondent



J U D G M E N T


Dipak Misra, J.


Leave granted.


2. Respect of a bride in her matrimonial home glorifies the solemnity and
sanctity of marriage, reflects the sensitivity of a civilized society
and, eventually, epitomizes her aspirations dreamt of in nuptial
bliss. 

But, the manner in which sometimes the brides are treated in
many a home by the husband, in-laws and the relatives creates a
feeling of emotional numbness in the society. 

It is a matter of great
shame and grave concern that brides are burnt or otherwise their life-
sparks are extinguished by torture, both physical and mental, because
of demand of dowry and insatiable greed and sometimes, sans demand of
dowry, because of the cruelty and harassment meted out to the nascent
brides treating them with total insensitivity destroying their desire
to live and forcing them to commit suicide a brutal self-humiliation
of "Life".

3. Amarjeet Kaur, a young incipient lady, slightly more than two scores,
daughter of an agriculturist, entered into wedlock with the appellant
sometime in the early part of the year 1996. At the time of marriage,
gifts were given as per the social customs. Sometime after the
marriage, the matrimonial home, as the allegation of the prosecution
unfurls, turned out to be an abode of indifference and harassment
because of the demand of dowry of Rs.50,000/- by the husband and his
family from her parents which could not be met due to their financial
condition. Shattering the dreams that were harboured in her heart,
she was turned out of her husband's house on many an occasion and,
she was asked to return only if she could bring an amount of
Rs.50,000/- from her parents. On 18.7.1998, Gurlab Singh, brother of
the deceased, mustering courage and expecting that his sister would be
treated with affection, took her to her matrimonial home and beseeched
the husband and his mother to keep her as they were not in a position
to give more dowry. Though she was allowed to remain in the
matrimonial home, yet instead of show of affection even by
affectation, she was showered with taunts and ridicules. On
27.7.1998, about 6.00 p.m., the anxious father, Sukhdev Singh, and the
brother went to the house of the deceased to enquire about the well-
being of the deceased and found her dead body kept in the courtyard of
the house. They were convinced that she had committed suicide because
of the cruelty meted out to her by the husband and his relatives and,
accordingly, lodged an FIR at Joga Police Station. After the criminal
law was set in motion, the Investigating Officer carried out the
investigation and got the autopsy conducted on the dead body by a
board of doctors consisting of three members. The doctors who
conducted the post mortem on the dead body sent the viscera for
chemical examination and, eventually gave their opinion that the cause
of death of the deceased was due to consumption of Organo Phosphorus,
a group of insecticides, which was detected in the viscera and blood
of the deceased. The investigating agency, after examining the
witnesses and completing other formalities laid the charge-sheet
before the competent court, and in due course, the appellant along
with two other accused persons, namely, Mohinder Kaur, mother of the
husband, and Ajaib Singh, brother, were sent up for trial for the
offence punishable under Section 304B IPC.

4. The accused persons abjured their guilt and claimed to be tried. The
prosecution, in order to bring home the charges, examined Gurlab
Singh, PW-1, the brother of the deceased, Sukhdev Singh, PW-4, the
father of the deceased, and PW-5, Numberdar of the village who have
deposed about the ill treatment and demand of dowry. Dr. Rajinder
Kumar Garg, PW-2, Dr. Vijay Sidhana, PW-3, and Dr. Asha Kiran, who
had conducted the post mortem on the dead body of the deceased were
examined to support the cause of death. That apart, certain other
formal witnesses and the Investigating Officer were examined to
substantiate the prosecution case.

5. The accused persons, in their statements under Section 313 of the Code
of Criminal Procedure, denied all the incriminating circumstances and
took the stand that the deceased was suffering from mental depression
since marriage as she could not conceive and further she used to
suffer fits. On the date of the incident, she suffered fits and was
taken to the hospital but on the way, she breathed her last and,
accordingly, her body was brought back home. It was also the stand of
the accused persons that the parents of the deceased were informed and
under their pressure, the police had been compelled to register a
case. To substantiate the stance in the defence, it examined nine
witnesses including Dr. Rajinder Arora, DW-1 and Dr. J.S. Dhillon, DW-
6, who had, as stated, treated the deceased for mental illness. Other
witnesses were examined to establish the general behavioural pattern
of the deceased.

6. The learned Additional Sessions Judge, by judgment and order dated
27.11.2001, convicted all the accused persons under Section 304B of
IPC and sentenced each of them to undergo rigorous imprisonment for
seven years and to pay a fine of Rs.10,000/- each, in default of fine,
to suffer further rigorous imprisonment for one year.

7. Being dissatisfied, the convicts preferred Criminal Appeal No. 1472-SB
of 2001 and the informant preferred Criminal Revision No. 1807 of 2002
seeking enhancement of sentence. During the pendency of appeal
before the High Court, the appellant No. 3, Mohinder Kaur, the mother-
in-law, expired, as a consequence of which the appeal stood abated as
against her. The High Court discarded the defence version that the
deceased was suffering from any depression or mental illness.
Appreciating the evidence, it came to hold that the deceased had
committed suicide by consuming poison and hence, the death was
otherwise other than normal circumstances; that the deceased was
subjected to cruelty in connection with demand of dowry soon before
her death and the said aspect had been established beyond doubt by the
prosecution; and that the testimonies of Gurlab Singh, PW-1, Sukhdev
Singh, PW-4, and Santokh Singh, PW-5, had remained unimpeached despite
roving cross-examination; that Ajaib Singh, the brother of the
husband, was a young boy prosecuting his studies in Class X at the
time of the incident and, therefore, it could not be said that he
could have been involved in any kind of demand of dowry or treating
his sister-in-law with cruelty. Being of this view, the High Court
acquitted Ajaib Singh but as far as the husband was concerned, it
modified the sentence by setting aside the fine component. As a fall
out of the aforesaid opinion, the appeal was allowed in part and the
revision preferred by the informant paved the path of dismissal.

8. We have heard Mr. Abhay Kumar, learned counsel for the appellant, and
Mr. V. Madhukar, learned counsel for the respondent-State.

9. Questioning the defensibility of the conviction, it is submitted by
the learned counsel for the appellant that the prosecution has not
been able to prove that there has been any demand of dowry or any
torture in connection with such demand and, therefore, the conviction
under Section 304B IPC could not have been recorded against the
husband. It is urged by him that the principal ingredients of Section
304B IPC have not been brought home inasmuch the prosecution has
failed to establish that soon before the death of the deceased, she
had been subjected to cruelty and harassment by her husband and his
relatives and such harassment was in connection with the demand of
dowry. It is his further submission that the High Court as an
Appellate Court has not scrutinized the evidence in proper perspective
and has returned a finding that there was a demand of dowry and,
hence, the judgment of conviction warrants a reversal.

10. Mr. V. Madhukar, learned counsel for the State-respondent, resisting
the aforesaid submissions, has contended that marshalling of the
evidence by the trial Court and the reappraisal by the High Court
withstand close scrutiny and there is no justification to interfere
with the concurrent finding of guilt. Alternatively, it is put forth
by him that assuming that the offence under Section 304B IPC is not
brought home, still the material on record would justify a conviction
under Section 306 IPC which would not impel this Court to interfere
with the quantum of sentence.

11. To appreciate the rival proponements advanced at the Bar, we think it
apposite to refer to Section 304B IPC which deals with dowry death.
It reads as follows:-

"304B. Dowry Death.- (1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by
her husband or any relative of her husband for, or in connection with,
any demand for dowry, such death shall be called "dowry death", and
such husband or relative shall be deemed to have caused her death.

Explanation.- For the purpose of this sub-section, "dowry" shall
have the same meaning as in section 2 of the Dowry Prohibition Act,
1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment
for a term which shall not be less than seven years but which may
extend to imprisonment for life."

12. To get the said provision attracted, certain ingredients are to be
satisfied. Scanning the said provision, this Court in Satvir Singh
and Others v. State of Punjab and Another[1] has stated thus:-

"The essential components of Section 304B are: (i) Death of a woman
occurring otherwise than under normal circumstances, within 7 years of
marriage. (ii) Soon before her death she should have been subjected to
cruelty and harassment in connection with any demand for dowry. When
the above ingredients are fulfilled, the husband or his relative, who
subjected her to such cruelty or harassment, can be presumed to be
guilty of offence under Section 304B. To be within the province of
the first ingredient the provision stipulates that "where the death of
a woman is caused by any burns or bodily injury or occurs otherwise
than under normal circumstances". It may appear that the former limb
which is described by the words "death caused by burns or bodily
injury" is a redundancy because such death would also fall within the
wider province of "death caused otherwise than under normal
circumstances". The former limb was inserted for highlighting that by
no means death caused by burns or bodily injury should be treated as
falling outside the ambit of the offence."

13. In this context, it is apposite to refer to Section 113A of the
Evidence Act, 1872. The said provision is extracted below: -

"113A. Presumption as to abetment of suicide by a married woman. -
When the question is whether the commission of suicide by a woman had
been abetted by her husband or any relative of her husband and it is
shown that she had committed suicide within a period of seven years
from the date of her marriage and that her husband or such relative of
her husband had subjected her to cruelty, the Court may presume,
having regard to all the other circumstances of the case, that such
suicide had been abetted by her husband or by such relative of her
husband."

14. Section 113B, which provides for presumption as to dowry death, was
inserted with a view to fight against the plague of dowry death. The
said provision is as follows: -

"113B. Presumption as to dowry death. - When the question is
whether a person has committed the dowry death of a woman and it is
shown that soon before her death such woman has been subjected by such
person to cruelty or harassment for, or in connection with, any demand
for dowry, the Court shall presume that such person had caused the
dowry death.

Explanation. - For the purpose of this section, "dowry death" shall
have the same meaning as in section 304B of the Indian Penal Code."

15. Interpreting the aforesaid provisions in juxtaposition with Section
304B IPC, this Court, in Hira Lal and others v. State (Govt. of NCT),
Delhi[2], has expressed thus: -

"A conjoint reading of Section 113B of the Evidence Act and Section
304B IPC shows that there must be material to show that soon before
her death the victim was subjected to cruelty or harassment. The
prosecution has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of "death occurring
otherwise than in normal circumstances". The expression "soon before"
is very relevant where Section 113B of the Evidence Act and Section
304B IPC are pressed into service. The prosecution is obliged to show
that soon before the occurrence there was cruelty or harassment and
only in that case presumption operates. Evidence in that regard has
to be led by the prosecution."

The learned Judges, while proceeding further and interpreting the
expression "soon before", opined thus: -

"The determination of the period which can come within the term "soon
before" is left to be determined by the courts, depending upon facts
and circumstances of each case. Suffice, however, to indicate that
the expression "soon before" would normally imply that the interval
should not be much between the cruelty or harassment concerned and the
death in question. There must be existence of a proximate and live
link between the effect of cruelty based on dowry demand and the death
concerned. If the alleged incident of cruelty is remote in time and
has become stale enough not to disturb the mental equilibrium of the
woman concerned, it would be of no consequence."

16. Keeping in view the aforesaid principles, it is to be seen whether the
deceased was driven to commit suicide because of the harassment meted
out to her in connection with demand of dowry. The learned trial
Judge as well as the High Court has accepted the evidence of the
brother, PW-1, the father, PW-4, and PW-5, Numberdar of the village
that there was demand of dowry. The learned counsel for the appellant
would submit that the finding recorded on this score is not based on
the material on record but founded on surmises. To test the
acceptation of the said submission, we have thought it apt to
scrutinize the evidence of PWs-1, 4 and 5. PW-1, brother of the
deceased, has only made a bald statement that the accused persons were
not satisfied with the dowry and were asking his sister to bring a sum
of Rs.50,000/-. Similar is the testimony of PWs-4 and 5. That apart,
nothing has been stated by the witnesses. It has been deposed by the
father that the deceased had written two to three letters stating
about the demand of dowry but the said letters have not brought in
evidence. That apart, the brother, PW-1, in cross-examination, has
refuted the same. It is also noticeable that PW-4 had not told his
other daughters about the demand of dowry which is expected of a
father. Thus, on the base of such sketchy evidence, in our considered
opinion, it is difficult to concur with the finding that there was
demand of dowry by the accused-husband and the harassment pertained to
such a demand. The conclusion on this score, we are inclined to
think, is based on certain a priori notions. When such a conclusion
is arrived at which is manifestly erroneous and unsupported by the
evidence on record, needless to say, this Court, in exercise of power
under Article 136 of the Constitution, can re-evaluate and interfere.
This has been so stated in Alamelu v. State[3], Heinz India (P) Ltd.
v. State of U.P.[4] and Vishwanath Agrawal v. Sarla Vishwanath
Agrawal[5].

17. Presently we shall dwell upon the other limb of cruelty as engrafted
under Section 498A. Section 498A deals with husband or relative of
husband of a woman subjecting her to cruelty. The said provision
along with the explanation reads as follows: -

"498A. Husband or relative of husband of a woman subjecting her to
cruelty. - Whoever, being the husband or the relative of the husband
of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine.

Explanation. - For the purpose of this section, "cruelty" means -

a) any willful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand."

18. Clause (a) of the Explanation to the aforesaid provision defines
"cruelty" to mean "any willful conduct which is of such a nature as is
likely to drive the woman to commit suicide". Clause (b) of the
explanation pertains to unlawful demand. Clause (a) can take in its
ambit mental cruelty. It has come out in evidence that there was ill-
treatment by the mother-in-law and the husband. The bride was in her
early twenties. She was turned out of matrimonial home on certain
occasions. This aspect has been established beyond doubt. There can
be no dispute that in a family life, there can be differences,
quarrels, misgivings and apprehensions but it is the degree which
raises it to the level of mental cruelty. A daughter-in-law is to be
treated as a member of the family with warmth and affection and not as
a stranger with despicable and ignoble indifference.

 She should not
be treated as a housemaid. No impression should be given that she can
be thrown out of her matrimonial home at any time. 

In the case at
hand, considering the evidence of the prosecution witnesses, we are
disposed to think that it is a case where the bride was totally
insensitively treated and harassed. It is not that she has
accidentally consumed the poison. She had deliberately put an end to
her life. 

The defence had tried to prove that she was suffering from
depression and because of such depression, she extinguished the candle of her own life. 

The testimony of the doctors cited by the defence
has not been accepted by the learned trial Judge as well as by the
High Court. 

They have not been able to bring in adequate material on
record that she was suffering from such depression as would force her
to commit suicide. 

On a perusal of the evidence of the said
witnesses, we find that the finding recorded on that score is
absolutely impeccable. In view of the same, the evidence brought on
record that she was treated with cruelty and harassed deserves to be
given credence to and, accordingly, we do so.

19. There is no dispute that no charge was framed under Section 306 IPC.
Though the charge has not been framed under Section 306 yet on a
question that has been put under Section 313, it is clear as crystal
that they were aware that they are facing a charge under Section 304B
IPC which related not to administration of poison but to consumption
of poison by the deceased because of demand of dowry and harassment.
It is major evidence in comparison to Section 306 IPC which deals with
abetment to suicide by a bride in the context of clause (a) of Section
498A IPC. 
The test is 
whether there has been failure of justice or
prejudice has been caused to the accused. In Gurbachan Singh v. State
of Punjab[6], this Court examined the question of prejudice and held
as under: -

"In judging a question of prejudice, as of guilt, courts must act with
a broad vision and look to the substance and not to technicalities,
and their main concern should be to see whether the accused had a fair
trial, whether he knew what he was being tried for, whether the main
facts sought to be established against him were explained to him
fairly and clearly and whether he was given a full and fair chance to
defend himself."


20. In Shamnsaheb M. Multtani v. State of Karnataka[7], a three-Judge
Bench, while dealing with the concept of "failure of justice", has
opined thus:-
"23. We often hear about "failure of justice" and quite often the
submission in a criminal court is accentuated with the said
expression. Perhaps it is too pliable or facile an expression which
could be fitted in any situation of a case. The expression "failure of
justice" would appear, sometimes, as an etymological chameleon (the
simile is borrowed from Lord Diplock in Town Investments Ltd. v.
Deptt. of the Environment[8]). The criminal court, particularly the
superior court should make a close examination to ascertain whether
there was really a failure of justice or whether it is only a
camouflage.

24. One of the cardinal principles of natural justice is that no man
should be condemned without being heard, (audi alteram partem). But
the law reports are replete with instances of courts hesitating to
approve the contention that failure of justice had occasioned merely
because a person was not heard on a particular aspect. However, if the
aspect is of such a nature that non-explanation of it has contributed
to penalising an individual, the court should say that since he was
not given the opportunity to explain that aspect there was failure of
justice on account of non-compliance with the principle of natural
justice."



21. In Narwinder Singh v. State of Punjab[9], while accepting the finding
of the High Court that 
the prosecution has not been able to establish
the charge under Section 304B IPC and had, therefore converted the
punishment to one under Section 306 IPC, this Court observed that
cruelty or harassment sans demand of dowry which drives the wife to
commit suicide attracts the offence of abetment of suicide under
Section 306 IPC. The Court further observed that mere omission or
defect in framing charge would not disable the court from convicting
the accused for the offence which has been found to be proved on the
basis of the evidence on record. In such circumstances, the matter
would fall within the purview of Sections 221(1) and (2) CrPC.


22. In K. Prema S. Rao and another v. Yadla Srinivasa Rao and others[10],
the Court, analyzing the evidence, ruled thus: -
"The same facts found in evidence, which justify conviction of the
appellant under Section 498A for cruel treatment of his wife, make out
a case against him under Section 306 IPC of having abetted commission
of suicide by the wife. The appellant was charged for an offence of
higher degree causing "dowry death" under Section 304B which is
punishable with minimum sentence of seven years' rigorous imprisonment
and maximum for life. Presumption under Section 113A of the Evidence
Act could also be raised against him on same facts constituting
offence of cruelty under Section 498A IPC.

 No further opportunity of
defence is required to be granted to the appellant when he had ample
opportunity to meet the charge under Section 498A IPC."




23. In the case at hand, the basic ingredients of the offence under
Section 306 IPC have been established by the prosecution inasmuch as
the death has occurred within seven years in an abnormal circumstance
and the deceased was meted out with mental cruelty. Thus, we convert
the conviction from one under Section 304B IPC to that under Section
306 IPC. As the accused has spent almost five years in custody, we
limit the period of sentence to the period already undergone.


24. In spite of our modifying the conviction, we are compelled to proceed
to reiterate the law and express our anguish pertaining to the manner
in which the trial was conducted as it depicts a very disturbing
scenario. As is demonstrable from the record, the trial was
conducted in an extremely haphazard and piecemeal manner.
Adjournments were granted on a mere asking. The cross-examination of
witnesses were deferred without recording any special reason and dates
were given after a long gap. The mandate of the law and the views
expressed by this Court from time to time appears to have been totally
kept at bay. The learned trial Judge, as is perceptible, seems to
have ostracized from his memory that a criminal trial has its own
gravity and sanctity. In this regard, we may refer with profit to the
pronouncement in Talab Haji Hussain v. Madhukar Purshottam Mondkar and
another[11] wherein it has been stated that an accused person by his
conduct cannot put a fair trial into jeopardy, for it is the primary
and paramount duty of criminal courts to ensure that the risk to fair
trial is removed and trials are allowed to proceed smoothly without
any interruption or obstruction.

25. In Krishnan and another v. Krishnaveni and another[12], it has been
observed that the object behind criminal law is to maintain law,
public order, stability as also peace and progress in the society.
The object of criminal trial is to render public justice, to punish
the criminal and to see that the trial is concluded expeditiously
before the memory of the witness fades out. The Court further
proceeded to state that the recent trend is to delay the trial and
threaten the witness or to win over the witness by promise or
inducement and these malpractices need to be curbed.

26. In Swaran Singh v. State of Punjab[13], Wadhwa, J., in his concurring
opinion, expressed his anguish pertaining to the adjournments sought
in a criminal case which is built on the edifice of evidence that is
admissible in law and the plight of witnesses in a criminal trial in
the following manner: -

"It has become more or less a fashion to have a criminal case
adjourned again and again till the witness tires and he gives up. It
is the game of unscrupulous lawyers to get adjournments for one excuse
or the other till a witness is won over or is tired. Not only that a
witness is threatened; he is abducted; he is mained; he is done away
with; or even bribed. There is no protection for him. In adjourning
the matter without any valid cause a Court unwittingly becomes party
to miscarriage of justice."

27. In the present case, as the documents brought on record would reveal,
in the midst of examination of PW-1, learned counsel for the defence
stated that he was not feeling well and was unable to stand in the
court and the court adjourned the matter to 8.5.1999 for a period of
four weeks. The said witness was not examined on the adjourned date
but on 7.2.2000 and on that day, after the examination-in-chief was
over, cross-examination was deferred at the instance of the learned
counsel for the defence. Similarly, when PW-4 was examined, the case
was adjourned on a prayer being made by the learned counsel for the
defence. It is interesting to note that cross-examination of PW-2
eventually took place on 2.8.2000. On a perusal of the dates of
examination-in-chief and cross-examination and the adjournments
granted, it neither requires Solomon's wisdom nor Aurgus-eyed
scrutiny to observe that the trial was conducted in an absolute
piecemeal manner as if the entire trial was required to be held at the
mercy of the counsel. This was least expected from the learned trial
Judge. The criminal dispensation system casts a heavy burden on the
trial Judge to have control over the proceedings. The criminal
justice system has to be placed on a proper pedestal and it cannot be
left to the whims and fancies of the parties or their counsel. A
trial Judge cannot be a mute spectator to the trial being controlled
by the parties, for it is his primary duty to monitor the trial and
such a monitoring has to be in consonance with the Code of Criminal
Procedure.

28. In this context, a useful reference may be made to the decision in
Ambika Prasad and another v. State (Delhi Admn., Delhi)[14]. This
Court, while commenting on the threat meted out to the informant in
that case and adjournment sought by the counsel for the defense to
cross-examine the said witness, opined as follows:-
"At this stage, we would observe that the Sessions Judge ought to
have followed the mandate of Section 309 CrPC of completing the trial
by examining the witnesses from day to day and not giving a chance to
the accused to threaten or win over the witnesses so that they may not
support the prosecution."

[Emphasis supplied]
Thereafter, the Court took note of the fact that after examination-in-
chief of PW 4 was over on 6-2-1984, the counsel representing the accused
requested the Court that because of his uncle's demise, he would not be in
a position to cross-examine the witness and, therefore, recording of
further cross-examination might be adjourned. Thereafter, the witness was
cross-examined in the month of July, 1985. This Court observed that it was
highly improper and even if the request for adjournment of the learned
counsel for the accused was accepted, the cross-examination ought not to
have been deferred beyond two or three days.

29. In State of U.P. v. Shambhu Nath Singh and Others[15], the Court,
while not appreciating the practice of a Sessions Court adjourning the
case in spite of the presence of the witnesses willing to be examined
fully, ruled thus:-
"We make it abundantly clear that if a witness is present in court he
must be examined on that day. The court must know that most of the
witnesses could attend the court only at heavy cost to them, after
keeping aside their own avocation. Certainly they incur suffering and
loss of income. The meagre amount of bhatta (allowance) which a
witness may be paid by the court is generally a poor solace for the
financial loss incurred by him.

It is a sad plight in the trial courts
that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end 
of the day that the case is adjourned to another day. 

This primitive
practice must be reformed by the presiding officers of the trial
courts and it can be reformed by everyone provided the presiding
officer concerned has a commitment towards duty."


30. In the said case, the Court referred to the conditions laid down by
the legislature under Section 309 of the Code of Criminal Procedure
which deals with the power to postpone or adjourn proceedings and
proceeded to state that the first sub-section of Section 309 of the
Code mandates on the trial courts that the proceedings shall be held
expeditiously but the words "as expeditiously as possible" have
provided some play at the joints and it is through such play that
delay often creeps in the trials. Even so, the second limb of the sub-
section warrants for a more vigorous stance to be adopted by the court
at a further advanced stage of the trial. That stage is when the
examination of the witnesses begins. The legislature which diluted the
vigour of the mandate contained in the initial limb of the sub-section
by using the words "as expeditiously as possible" has chosen to make
the requirement for the next stage (when examination of the witnesses
has started) to be quite stern. Once the case reaches that stage, the
statutory command is that such examination "shall be continued from
day to day until all the witnesses in attendance have been examined".
The solitary exception to the said stringent rule is, if the court
finds that adjournment "beyond the following day to be necessary" the
same can be granted for which a condition is imposed on the court that
reasons for the same should be recorded. Even this dilution has been
taken away when the witnesses are in attendance before the court.
After so stating, the Court held that in such situations, the court is
not given any power to adjourn the case except in extreme contingency
for which the second proviso to sub-section (2) has imposed another
condition by providing further that when the witnesses are in
attendance, no adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded in writing.



31. It is apt to note here that this Court expressed its distress that it
has become a common practice and regular occurrence that the trial
Courts flout the legislative command with impunity.
32. In Mohd. Khalid v. State of W.B.[16], a three-Judge Bench did not
approve the deferment of the cross-examination of the witness for a
long time and, deprecating the said practice, it observed as follows:-



"Unnecessary adjournments give a scope for a grievance that the
accused persons get a time to get over the witnesses. 

Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons are there, the trial court should not adjourn the matter on the mere asking."

33. Recently, in Akil @ Javed v. State of Delhi[17], the Court, 
after
surveying the earlier pronouncements, has stressed on the compliance
of the procedure and expressed its anguish that the trials are not
strictly adhering to the procedure prescribed under the provisions
contained in Section 231 along with Section 309 of the CrPC, and
further emphasised that such adherence can ensure speedy trial of cases and also rule out the possibility of any maneuvering taking place by granting undue long adjournment for mere asking.


34. We have expressed our anguish, agony and concern about the manner in
which the trial has been conducted. 

We hope and trust that the trial
courts shall keep in mind the statutory provisions and the
interpretation placed by this Court and not be guided by their own
thinking or should not become mute spectators when a trial is being
conducted by allowing the control to the counsel for the parties.


They have their roles to perform. 
They are required to monitor. 
They cannot abandon their responsibility. 
It should be borne in mind that
the whole dispensation of criminal justice system at the ground level
rests on how a trial is conducted.

 It needs no special emphasis to
state that dispensation of criminal justice system is not only a
concern of the Bench but has to be the concern of the Bar. 

The
administration of justice reflects its purity when the Bench and the
Bar perform their duties with utmost sincerity. 

An advocate cannot
afford to bring any kind of disrespect to fairness of trial by taking
recourse to subterfuges for procrastinating the same.


35. Consequently, the appeal is partly allowed and the appellant be set at
liberty if his detention is not required in connection with any other
case.



......................J.
[K. S. Radhakrishnan]





......................J.
[Dipak Misra]
New Delhi;
May 10, 2013.
ITEM NO.1A COURT NO.9 SECTION IIB
(For Judgment)

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Crl.A. No..........................@
Petition(s) for Special Leave to Appeal (Crl) No(s).6183/2012

(From the judgement and order dated 15/11/2011 in CRLA No.1472/2001 of The
HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)


GURNAIB SINGH Petitioner(s)

VERSUS

STATE OF PUNJAB Respondent(s)


Date: 10/05/2013 This appeal was called on for
pronouncement of judgment.

For Petitioner(s) Mr. Abhay Kumar,Adv.
Mr. Rupesh Pandey,Adv.
Ms. Neetu Jain,Adv.
Mr. U.P. Singh,Adv.

For Respondent(s) Ms. Naresh Bakshi,Adv.


Hon'ble Mr. Justice Dipak Misra pronounced the judgment of
the Bench comprising Hon'ble Mr. Justice K.S. Radhakrishnan and
His Lordship.
Leave granted.
The appeal is partly allowed in terms of the signed
judgment.




|(NARENDRA PRASAD) | |(RENUKA SADANA) |
|COURT MASTER | |COURT MASTER |


(Signed "Reportable" judgment is placed on the file)

s

-----------------------
[1] (2001) 8 SCC 633
[2] (2003) 8 SCC 80
[3] (2011) 2 SCC 385
[4] (2012) 5 SCC 443
[5] (2012) 7 SCC 288
[6] AIR 1957 SC 623
[7] (2001) 2 SCC 577
[8] (1977) 1 All ER 813
[9] (2011) 2 SCC 47
[10] (2003) 1 SCC 217
[11] AIR 1958 SC 376
[12] AIR 1997 SC 987
[13] AIR 2000 SC 2017
[14] AIR 2000 SC 718
[15] (2001) 4 SCC 667
[16] (2002) 7 SCC 334
[17] 2012 (11) SCALE 709

-----------------------
26






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