Imtiyaz Ahmad Dar vs Riaz Ahmad Bhat and Another

Mohammad Yaqoob Mir, Judge

Judgment dated 01.02.2011 rendered by Judicial Magistrate (Special Mobile Magistrate Passenger Tax) Srinagar in the case titled State v.

Riyaz Ahmad Bhat & anr passed is questioned by the complainant (petitioner) on the ground of having occasioned failure of justice and being

outcome of abuse of the process of law.

On behalf of respondent Mr. G.N. Shaheen Advocate caused appearance but thereafter both the respondents as well as their engaged counsel

opted to remain absent.

Registration of the case as Crime No. 123/2009 P/S Sadder for commission of offences punishable under Sections 354, 323 RPC, on

completion of investigation, culminated in presenting the charge sheet (challan) which came to be assigned to Judicial Magistrate (trial court).

Perusal of the subordinate record would reveal that the charge sheet (challan) has been presented on 17.7.2009. Charge as against the accused

(respondents) stand framed on 23.11.2009 for commission of offences punishable under Sections 352/323/34 RPC. Since the accused

(respondents) pleaded not guilty, the prosecution was directed to lead evidence, so the case was fixed for the purpose on 25.2.2010. From

25.2.2010 the interim orders as recorded would reveal that on 25.2.2010 no witness was present, same was the position on 13.5.2010, then on

10.8.2010 no one was present due to unavoidable circumstances. On 6.11.2010 it has been recorded that on three previous dates no witness was

produced, prosecution was asked to produce all the witnesses and was also given chance to file application if assistance for securing presence of

the witnesses shall be required. Then On 9.12.2010 it has been recorded that no witness is present, last opportunity shall be available, in default

evidence will be closed. Then on 24.1.2011 it has been recorded that the prosecution has failed to produce the witnesses, therefore, evidence is

closed and it being so, no requirement of examining the accused u/s 342 Cr. P.C. as a result thereof, impugned judgment has been passed.

Learned trial court has shown total haste. In a routine manner orders have been passed and equally the prosecutor has also taken the interim

orders, as recorded from time to time, casually. If such state of affairs is permitted to continue, then the criminal justice delivery system has to fail.

Trial of the case is meant for doing the justice so Court has to take care of any type of inaction or indolence as shall be exhibited by the

prosecution/prosecutor in producing the witnesses. The trial court was expected to ask the investigating officer to be present along with witnesses

and also to warn the Prosecuting Officer for his failure to produce the witnesses. The concerned Prosecutor has taken the matter leniently and has

not made any submission so as to show the reason for non-production of the witnesses on the fixed dates of hearing. Such approach of the

Prosecutor is quite alarming. The Prosecutor at least was required to apprise the Court about the steps he had taken for procuring the presence of

the witnesses or to project the cause for non-production thereof.

Learned counsel for the petitioner was right in submitting that the instant petition is open to be entertained at the instant of private party. It is true

that normally it is only in exceptional cases the High Court is required to have recourse to revisional powers even at the instance of private parties,

that is to say when there is a glaring defect or flagrant miscarriage of justice or the abuse of the process of the court, so as to advance the cause of

justice. It shall be quite relevant to quote as to what has been laid down by the Hon'ble Apex Court in the judgment rendered in the case K.

Chinnaswamy Reddy Vs. State of Andhra Pradesh, :

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 jurisdiction should 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.

Speedy trial in fact is imperative but speedy trial does not mean to make such a haste which is to result in waste of time and defeat the object of

trial. It appears that the learned trial court under the influence of the concept of speedy trial has within one year fixed the case of seven dates i.e.

25.2.2010, 13.5.2010, 10.8.2010, 6.11.2010, 9.12.2010 and 24.1.2011 for production of prosecution witnesses. Scheduling of the case on such

dates was all the more better but the element of formality is discernible which would suggest that the trial has been concluded with convenient

speed but without any object which appears to be simply a formality of satisfying the conception of speedy trial. It is to be made clear that the

speedy trial does not mean just to record interim orders in routine so as to render the entire proceedings as a formality. Least the trial court should

have done should have issued notice or warrant at least against the official witnesses, more particularly the investigating officer. Same has not been

done. If on the dates of hearing as scheduled witnesses would have been produced and examined, it could be appreciated that the concept of

speedy trial has been achieved.

The judgment impugned has definitely caused miscarriage of justice and simply is outcome of abuse of process of law so is set aside. Case is

remitted back to the trial court. The investigating officer shall be directed to remain present on all such dates as shall be fixed so as to ensure

production of witnesses within a period of six months on the dates as shall be scheduled.

Copy of the order along with subordinate record be sent to the trial court.

Revision petition shall accordingly stand disposed of.