Monday, 20 July 2015

Supreme court : Trial court should not acquit accused as witnesses are not present

Calling a trial that resulted in a judgment of acquittal under Section 232 Cr.P.C. after closing evidence pursuant to examination of one formal prosecution witness, as a ‘farce’, a ‘mock trial’ and comparable to an experimentation conducted by a child in a laboratory, the Supreme Court has come down heavily on the conduct of the trial judge, calling the course of conduct adopted in the trial in question as neither permissible nor allowable.
The Supreme Court emphasized the principle that “non-application of mind by the trial court has the potentiality to lead to the paralysis of the conception of fair trial”.
The facts which compelled the Supreme Court to make the above observations are as follows: The informant lodged an FIR on 29.11.2004 at Tikari Police Station about 8.00 p.m. that the accused persons came armed with various weapons, took away her husband Brahamdeo Yadav, the deceased, and threatened the family members not to come out from their house. The deceased was taken towards the house of Krishna Yadav and next morning he was found dead having several wounds. On the basis of the FIR, criminal law was set in motion and eventually, the investigating agency submitted the charge-sheet for offences punishable under Sections 147, 148, 149, 341, 342 and 302 of the Indian Penal Code (IPC). After the accused persons were sent up for trial, charges were framed on 10.8.2007.
After the charges were framed, the trial Judge, that is, Additional Session Judge, FTC-II Gaya, passed orders to issue summons to the witnesses and they were issued on 17.8.2007. Thereafter the trial Judge issued bailable as well as non-bailable warrants against the informant on 5.12.2007. The trial Judge on various occasions recorded that witnesses were not present and ultimately vide order dated 17.5.2008 directed the matter to be posted on 23.5.2008 for orders under Section 232 CrPC and on the dated fixed recorded the judgment of acquittal.
The informant aggrieved by the judgment of acquittal carried the matter in revision to the High Court which opined there had been no fair trial and accordingly remanded the matter for retrial by the trial court.
Challenging the remand order, the accused went up in appeal to the Supreme Court.
The Apex Court said that the attitude of callousness and nonchalance portrayed by the prosecution and the total indifferent disposition exhibited by the learned trial Judge in shutting out the evidence and closing the trial after examining a singular formal witness, PW 1, in a trial where the accused persons were facing accusations for the offences punishable under Sections 147, 148, 149, 341, 342 and 302 of the Indian Penal Code (IPC), which entailed an acquittal under Section 232 of the Criminal Procedure Code, 1973 (CrPC), are really disconcerting; and indubitably cause discomfort to the judicial conscience.
The Apex Court reminded the lower judiciary that the Court cannot be a silent spectator or a mute observer when it presides over a trial. The Supreme Court also said that it is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding.  “Keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the Court, it can irrefragably be stated that the Court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or highjack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. Law does not countenance a ‘mock trial’.”
The Apex Court also held that the court is duty bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. “The court is under the legal obligation to see that the witnesses who have been cited by the prosecution are produced by it or if summons are issued, they are actually served on the witnesses. If the court is of the opinion that the material witnesses have not been examined, it should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all the material witnesses but that does not necessarily mean that the prosecution can choose not to examine any witness and convey to the court that it does not intend to cite the witnesses,” said the Supreme Court.
The SC also had a word of advice for public prosecutors. It said : “The Public Prosecutor who conducts the trial, has a statutory duty to perform. He cannot afford to take things in a light manner.”
The Apex Court relying on its decision in K.Chinnaswamy Reddy v. State of Andhra Pradesh and Anr( AIR 1962 SC 1788) categorically held that the High Court would be justified to interfere with an order of acquittal if the trial court has wrongly shut out the evidence which the prosecution wishes to produce.
Accordingly, the SC dismissed the appeal as without merit. The SC dismissing the appeal said :“we unhesitatingly affirm the order passed by the High Court as we treat the view expressed by it as unexceptionable, for by its order it has annulled an order which was replete with glaring defects that had led to miscarriage of justice.”
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 914 OF 2015
[Arising out of SLP(Crl) No. 3187 of 2013]
Bablu Kumar and Ors. ... Appellants
Versus
State of Bihar and Anr. ... Respondents
Dated;July 20, 2015
Dipak Misra, J.
Citation;(2015) 8 SCC787

The pivotal issues, quite disturbing and disquieting,
that emanate in this appeal by special leave for scrutiny,
deliberation and apposite delineation, fundamentally pertain
to the role of the prosecution and the duty of the court
within the requisite paradigm of fair trial which in the
ultimate conceptual eventuality results in appropriatestability of criminal justice dispensation system. The
attitude of callousness and non-chalance portrayed by the
prosecution and the total indifferent disposition exhibited by
the learned trial Judge in shutting out the evidence and
closing the trial after examining a singular formal witness,
PW 1, in a trial where the accused persons were facing
accusations for the offences punishable under Sections 147,
148, 149, 341, 342 and 302 of the Indian Penal Code (IPC),
which entailed an acquittal under Section 232 of the
Criminal Procedure Code, 1973 (CrPC), are really
disconcerting; and indubitably cause discomfort to the
judicial conscience. It seems that everyone concerned with
the trial has treated it as a farce where the principal
protagonists compete with each other for gaining supremacy
in the race of closing the case unceremoniously, burying the
basic tenets of fair trial, and abandoning one’s duty to serve
the cause of justice devoutly. It is a case where the
prosecution has played truant and the learned trial Judge,
with apathy, has exhibited impatience. Fortunately, the
damage done by the trial court has been rectified by the
High Court in exercise of the revisional jurisdiction under
2Section 401 CrPC; but what is redemption for the
conception of the fair trial has caused dissatisfaction to the
accused persons, for they do not intend to face the retrial.
It is because at one point of time, the High Court had
directed for finalization of trial within a fixed duration and
the learned trial Judge, in all possibility, harboured the
impression that even if the prosecution witnesses had not
been served the notice to depose in court, and the
prosecution had not taken any affirmative steps to make
them available for adducing evidence in court, yet he must
conclude the trial by the target date as if it is a mechanical
and routine act. The learned trial Judge, as it appears to
us, has totally forgotten that he could have asked for
extension of time from the High Court, for the High Court,
and we are totally convinced, could never have meant to
conclude the trial either at the pleasure of the prosecution
or desire of the accused.
2. The sad scenario has to have a narration. The
informant lodged an FIR on 29.11.2004 at Tikari Police
Station about 8.00 p.m. that the accused persons came
armed with various weapons, took away her husband
3Brahamdeo Yadav, the deceased, and threatened the family
members not to come out from their house. The deceased
was taken towards the house of Krishna Yadav and next
morning he was found dead having several wounds. It was
mentioned in the FIR that the occurrence had taken place
as the family of the informant and the accused persons were
in litigating terms. On the basis of the FIR, criminal law
was set in motion and eventually, the investigating agency
submitted the charge-sheet for the offences which we have
already mentioned hereinbefore. After the accused persons
were sent up for trial, charges were framed on 10.8.2007.
Be it noted, the appellants in this case were tried as
accused in Session Trial No. 350/2006 and trial of different
accused-persons had been split up. It is apt to mention
here that applications for grant of bail were preferred by
certain accused persons before the High Court and the High
Court by order dated 17.07.2007, while declining to admit
the accused persons to bail, directed that the trial should be
concluded as early as possible and in any case within nine
months from the date of receipt/production of the copy of
the order passed by the High Court. After the charges were
4framed, the learned trial Judge, that is, Additional Session
Judge, FTC-II Gaya, passed orders to issue summons to the
witnesses and they were issued on 17.8.2007. Thereafter
the learned trial Judge issued bailable as well as
non-bailable warrants against the informant on 5.12.2007.
The learned trial Judge on various occasions recorded that
witnesses were not present and ultimately vide order dated
17.5.2008 directed the matter to be posted on 23.5.2008 for
orders under Section 232 CrPC and on the dated fixed
recorded the judgment of acquittal.
3. Being aggrieved by the aforesaid judgment, the
informant preferred criminal revision no. 919 of 2008. The
learned Single Judge upon perusal of the record found that
there was no service report/execution of warrant of arrest
against the informant and there was also no service report
on record to show that either summons were served on
other witnesses or bailable or non-bailable warrants issued
against the witnesses were executed. The High Court also
took note of the fact that after the accused persons were
examined under Section 313 CrPC, case was adjourned to
17.5.2008 for evidence of the defence and hearing and
5finally the matter was taken up for consideration under
Section 232 CrPC and judgment was passed acquitting the
accused persons. It has been clearly stated by the High
Court that the Superintendent of Police, Gaya had not taken
steps to produce the evidence and the learned trial Judge
had not taken effective steps for production of witnesses
and tried to conclude the trial without being alive to the
duties of the trial court. The learned Single Judge has
placed reliance on the decision rendered in Zahira
Habibulla H. Sheikh and Another v. State of Gujarat
and others1
 and opined there has been no fair trial and
accordingly remanded the matter for retrial by the trial
court.
4. Calling in question the propriety and justification of
the order passed by the High Court, it is submitted by Mr.
Tanmaya Mehta, learned counsel appearing for the
appellants that adequate opportunities were afforded to the
prosecution witnesses and when summons were issued, a
presumption has to be drawn that they had been served
and, therefore, there was no error on the part of the learned
1
 (2004) 4 SCC 158
6trial Judge in passing the order under Section 232 CrPC
and the High Court in exercise of revisional jurisdiction
could not have directed for retrial of the case because such
a direction can only be issued in very rare and exceptional
circumstances. It is urged by him that the accused persons
in the split up trial have been acquitted and, therefore, no
fruitful purpose would be served for holding a retrial. In
support of his submissions, he has commended us to the
authority in Abinash Chandra Bose v. Bimal Krishna
Sen2
.
5. Mr. Shishir Pinaki, learned counsel for the State and
Mr. Devendra Kumar Singh, learned counsel for the
informant-respondent no.2 have supported the order passed
by the High Court on the ground that the order in the
obtaining facts and circumstances does not warrant any
interference. They have emphasised on the concept of fair
trial and how the trial in the instant case defeats the very
essence of the said concept.
6. On a scrutiny of the orders passed by the learned trial
Judge from time to time, we find that the learned trial Judge
2
 (1963) 3 SCR 564 = AIR 1963 SC 316
7has really not taken pains to verify whether the summons
had really been served on the witnesses or not. The High
Court has rightly observed that the trial court has also not
tried to verify from the record whether the warrants had
been executed or not. As is manifest, he had directed the
prosecution to produce the witnesses and mechanically
recorded that the witnesses were not present and proceeded
to direct the prosecution to keep them present. Eventually,
as we have stated earlier, the trial Judge posted the matter
to 23.5.2008 and passed an order under Section 232 CrPC.
The question that arises for consideration is whether under
these circumstances the High Court while dealing with the
revision under Section 401 CrPC should have interfered and
directed for retrial of the case. In this regard, we may refer
with profit to the decision in K.Chinnaswamy Reddy v.
State of Andhra Pradesh3
 and Anr., wherein a three-Judge
Bench while dealing with the power of the High Court for
directing retrial has ruled thus:
“It is true that it is open to a High Court in
revision to set aside an order of acquittal even at
the instance of private parties, though the State
may not have thought fit to appeal; but this
3
 AIR 1962 SC 1788
8jurisdiction should in our opinion be exercised by
the High Court only in exceptional cases, when
there is some glaring defect in the procedure or
there is a manifest error on a point of law and
consequently there has been a flagrant
miscarriage of justice. Sub-section (4) of Section
439 forbids a High Court from converting a
finding of acquittal into one of conviction and
that makes it all the more incumbent on the High
Court to see that it does not convert the finding
of acquittal into one of conviction by the indirect
method of ordering retrial, when it cannot itself
directly convert a finding of acquittal into a
finding of conviction. This places limitations on
the power of the High Court to set aside a finding
of acquittal in revision and it is only in
exceptional cases that this power should be
exercised. It is not possible to lay down the
criteria for determining such exceptional cases
which would cover all contingencies. We may
however indicate some cases of this kind, which
would in our opinion justify the High Court in
interfering with a finding of acquittal in revision.
These cases may be: where the trial court has no
jurisdiction to try the case but has still acquitted
the accused, or where the trial court has wrongly
shut out evidence which the prosecution wished
to produce, or where the appeal court has
wrongly held evidence which was admitted by the
trial court to be inadmissible, or where material
evidence has been overlooked either by the trial
court or by the appeal court, or where the
acquittal is based on a compounding of the
offence, which is invalid under the law. These
and other cases of similar nature can properly be
held to be cases of exceptional nature, where the
High Court can justifiably interfere with an order
of acquittal; and in such a case it is obvious that
it cannot be said that the High Court was doing
indirectly what it could not do directly in view of
the provisions of Section 439(4).”
9From the aforesaid decision, it is apparent that the
High Court would be justified to interfere with an order of
acquittal if the trial court has wrongly shut out the evidence
which the prosecution wishes to produce. It is one of the
instances given by the court in the aforesaid verdict.
7. In Abinash Chandra Bose (supra), the Court though
dealing with a different fact situation observed that when
the prosecution had the full opportunity to produce the
evidence and the trial court had unreasonably not refused
any opportunity to the prosecution to adduce all the
evidence that it was ready and willing to produce, the High
Court should not have directed for retrial as that would put
the accused to botheration and expense of a second trial.
While saying so, the three-Judge Bench also observed that
same could not be done simply because the prosecution did
not adduce all the evidence that should and could have
been brought before the court of first instance.
8. In this context, it is seemly to refer to the authority in
Ayodhya Dube v. Ram Sumer Singh4
 wherein a
4 1981 Supp. SCC 83
10three-Judge Bench explaining the decision in
Chinnaswamy (supra) observed that:-
“....we only wish to say that the criminal justice
system does not admit of ‘piegon-holing’. Life
and the Law do not fall neatly into slots. When a
court starts laying down rules enumerated (1),
(2), (3), (4) or (a), (b), (c), (d), it is arranging for
itself traps and pitfalls. Categories,
classifications and compartments, which statute
does not mention, all tend to make law ‘less
flexible, less sensible and less just.’”
Be it noted, in the said case this Court had affirmed
the order of retrial directed by the High Court in a revision
petition preferred under Section 401 CrPC on the ground
that judgment of acquittal consisted of faulty reasoning and
lack of judicial approach, and accepted canons for
appreciating evidence had been thrown to the wind as a
consequence of which grave miscarriage of justice had
occurred.
9. In Sunil Kumar Pal v. Phota Sheikh5
, the Court
while commenting on the unusual procedure adopted by
trial court, opined that:-
“.......We have no doubt that under these
circumstances the trial could not be regarded as
fair and just so far as the prosecution was
concerned. The entire course of events shows
5
 (1984) 4 SCC 533
11that the conduct of the trial was heavily loaded in
favour of Respondents 1 to 9. The trial must in
the circumstances be held to be vitiated and the
acquittal of Respondents 1 to 9 as a result of
such trial must be set aside. It is imperative that
in order that people may not lose faith in the
administration of criminal justice, no one should
be allowed to subvert the legal process. No citizen
should go away with the feeling that he could not
get justice from the court because the other side
was socially, economically or politically powerful
and could manipulate the legal process. That
would be subversive of the rule of law.”
10. In Bansi Lal v. Laxman Singh6
, on the question of
limited revisional jurisdiction under Section 401 CrPC and
the duty of the court, a two-Judge Bench opined that such a
power has to be exercised only in exceptional cases when
there is a glaring defect in the procedure or there is a
manifest error on point of law and there has consequently
been flagrant miscarriage of justice. A mere circumstance
that finding of fact recorded by the trial court which may be
in the opinion of the High Court is erroneous or incorrect,
would not justify setting aside the order of acquittal and
directing a retrial of the accused.
11. In Satyajit Banerjee & Ors. v. State of W.B. &
Ors.7
, it has been opined that direction for retrial should not
6
 (1986) 3 SCC 444
7
 (2005) 1 SCC 115
12be made in all or every case where acquittal of accused is for
want of adequate or reliable evidence. It is only when an
extraordinary situation with regard to first trial is found so
as to treat it as a farce or a ‘mock trial’, direction for retrial
would be justified. The same principle has been reiterated
in Mary Pappa Jebamani v. Ganesan & Ors.8
12. In Bindeshwari Prasad Singh alias B.P. Singh and
others v. State of Bihar (now Jharkhand) and another9
,
while dealing with the power under Section 401 CrPC, the
Court while not agreeing with the High Court interfering
with the order of acquittal in exercise of its revisional
jurisdiction at the instance of the informant observed thus:-
“It may be that the High Court on appreciation of
the evidence on record may reach a conclusion
different from that of the trial court. But that by
itself is no justification for exercise of revisional
jurisdiction under Section 401 of the Code of
Criminal Procedure against a judgment of
acquittal. We cannot say that the judgment of the
trial court in the instant case was perverse. No
defect of procedure has been pointed out. There
was also no improper acceptance or rejection of
evidence nor was there any defect of procedure or
illegality in the conduct of the trial vitiating the
trial itself.”
8
 2013 (15) SCALE 154
9
 (2002) 6 SCC 650
1313. In the present context, it is also necessary to
appreciate the basic concept behind a fair trial. In Manu
Sharma v. State (NCT of Delhi)10, it has been stated that:-
 “197. In the Indian criminal jurisprudence, the
accused is placed in a somewhat advantageous
position than under different jurisprudence of
some of the countries in the world. The criminal
justice administration system in India places
human rights and dignity for human life at a much
higher pedestal. In our jurisprudence an accused
is presumed to be innocent till proved guilty, the
alleged accused is entitled to fairness and true
investigation and fair trial and the prosecution is
expected to play balanced role in the trial of a
crime. The investigation should be judicious, fair,
transparent and expeditious to ensure
compliance with the basic rule of law. These are
the fundamental canons of our criminal
jurisprudence and they are quite in conformity
with the constitutional mandate contained in
Articles 20 and 21 of the Constitution of India.”
14. In Rattiram v. State of M.P.11, a three-Judge Bench
has ruled thus:-
“Fundamentally, a fair and impartial trial has a
sacrosanct purpose. It has a demonstrable object
that the accused should not be prejudiced. A fair
trial is required to be conducted in such a
manner which would totally ostracise injustice,
prejudice, dishonesty and favouritism.”
And again:-
10
 (2010) 6 SCC 1
11
 (2012) 4 SCC 516
14“Decidedly, there has to be a fair trial and no
miscarriage of justice and under no
circumstances, prejudice should be caused to the
accused but, a pregnant one, every procedural
lapse or every interdict that has been acceded to
and not objected at the appropriate stage would
not get the trial dented or make it unfair.
Treating it to be unfair would amount to an
undesirable state of pink of perfection in
procedure. An absolute apple-pie order in
carrying out the adjective law, would only be
sound and fury signifying nothing.”
15. In this regard, it is apt to reproduce a passage from
Natasha Singh v. CBI12
, wherein it has been laid down:-
“Fair trial is the main object of criminal
procedure, and it is the duty of the court to
ensure that such fairness is not hampered or
threatened in any manner. Fair trial entails the
interests of the accused, the victim and of the
society, and therefore, fair trial includes the grant
of fair and proper opportunities to the person
concerned, and the same must be ensured as
this is a constitutional, as well as a human right.
Thus, under no circumstances can a person’s
right to fair trial be jeopardised.
16. In J. Jayalalithaa v. State of Karnataka13, the
Court dealing with the concept of fair trial has opined that:-
“Denial of a fair trial is as much injustice to the
accused as is to the victim and the society. It
necessarily requires a trial before an impartial
Judge, a fair prosecutor and an atmosphere of
judicial calm. Since the object of the trial is to
mete out justice and to convict the guilty and
12
 (2013) 5 SCC 741
13
 (2014) 2 SCC 401
15protect the innocent, the trial should be a search
for the truth and not a bout over technicalities
and must be conducted under such rules as will
protect the innocent and punish the guilty.
Justice should not only be done but should be
seem to have been done. Therefore, free and fair
trial is a sine qua non of Article 21 of the
Constitution.”
17. The same principle has also been stated in NHRC v.
State of Gujarat14, State of Karnataka v. K. Yarappa
Reddy15, Ram Bali v. State of U.P.16, Karnel Singh v.
State of M.P.17 and Dayal Singh v. State of
Uttaranchal18
.
18. Keeping in view the concept of fair trial, the obligation
of the prosecution, the interest of the community and the
duty of the Court, it can irrefragably be stated that the
Court cannot be a silent spectator or a mute observer when
it presides over a trial. It is the duty of the court to see that
neither the prosecution nor the accused play truancy with
the criminal trial or corrode the sanctity of the proceeding.
They cannot expropriate or highjack the community interest
by conducting themselves in such a manner as a
14
 (2009) 6 SCC 767
15
 (1999) 8 SCC 715
16
 (2004) 10 SCC 598
17
 (1995) 5 SCC 518
18
 (2012) 8 SCC 263
16consequence of which the trial becomes a farcical one. Law
does not countenance a ‘mock trial’. It is a serious concern
of the society. Every member of the collective has an
inherent interest in such a trial. No one can be allowed to
create a dent in the same. The court is duty bound to see
that neither the prosecution nor the defence takes
unnecessary adjournments and take the trial under their
control. The court is under the legal obligation to see that
the witnesses who have been cited by the prosecution are
produced by it or if summons are issued, they are actually
served on the witnesses. If the court is of the opinion that
the material witnesses have not been examined, it should
not allow the prosecution to close the evidence. There can
be no doubt that the prosecution may not examine all the
material witnesses but that does not necessarily mean that
the prosecution can choose not to examine any witness and
convey to the court that it does not intend to cite the
witnesses. The Public Prosecutor who conducts the trial,
has a statutory duty to perform. He cannot afford to take
things in a light manner. The Court also is not expected to
accept the version of the prosecution as if it is sacred. It
17has to apply its mind on every occasion. Non-application of
mind by the trial court has the potentiality to lead to the
paralysis of the conception of fair trial.
19. In the case at hand, it is luculent that the High Court
upon perusal of the record has come to hold that notices
were not served on the witnesses. The agonised widow of
deceased was compelled to invoke the revisional jurisdiction
of the High Court against the judgment of acquittal as the
trial was closed after examining a formal witness. The order
passed by the High Court by no stretch of imagination can
be regarded as faulty. That being the position, we have no
spec of doubt in our mind that the whole trial is nothing,
but comparable to an experimentation conducted by a child
in a laboratory. It is neither permissible nor allowable.
Therefore, we unhesitatingly affirm the order passed by the
High Court as we treat the view expressed by it as
unexceptionable, for by its order it has annulled an order
which was replete with glaring defects that had led to
miscarriage of justice.
20. Consequently, the appeal, being sans merit, stands
dismissed. The order be communicated to the Registrar
18General of the High Court to communicate to the concerned
learned trial Judge to proceed with the trial in accordance
with law.
.............................J.
[Dipak Misra]
.............................J.
[Prafulla C. Pant]
New Delhi
July 20, 2015

Print Page

No comments:

Post a Comment