Pramod vs The State of Madhya Pradesh

P.K. Jaiswal, J.—Heard.

By this criminal revision under Section 397 of Cr.P.C., the applicant is aggrieved by order dated 25.02.2012 passed in Criminal Appeal No. 328/2011 whereby the learned Appellate Court in exercise of powers conferred under Section 386(b) and Section 397 of Cr.P.C. set aside the impugned judgement of conviction by which the applicant was convicted under Section 353 of IPC and directed the Trial Court to record the statement of Ashok Tyagi and call the record regarding the duties of Faiyaz Ali and other police personnels and after framing the questions for examination of the applicant under Section 313(1)(b) of Cr.P.C decide the matter thereafter in accordance with law.

Brief facts of the case are that on 19.11.2007, ASI Faiyaz Ali and Head Constables Ashok Tyagi and Rajjak Mohammad had brought few accused including Vahid Sairani 2 for hearing in the courts situated in the District Court, Ratlam. They were lodged in the judicial lock up. The applicant/accused Pramod Gugaliya had brought some eatable items (Nashta) and tea for breakfast to be offered to Vahid Sairani. The said policemen did not allow the accused to provide the aforesaid breakfast to him. Thereupon, the accused started abusing them and gave filthy abuses also. He also criminally intimidated. Thereupon, report was made to the police and the case was registered against the accused who was charged under Sections 294, 353 and 506 II of IPC. The accused was convicted only under Section 353 of IPC by judgement of conviction and sentence dated 29.11.2011 in Criminal Case No. 4852/2007.

The police had not registered any case under Section 353 of IPC but the Trial Court framed charge under Section 353 of IPC. The accused had by no way obstructed the police staff from discharging their duties. The prosecution had failed to prove that the complainant party was working there as public servants in discharge of their duties. No such certificate was ever produced. In the appeal also, there was no such demand by the prosecution for remand or additional proof but the learned Appellate Court remanded the case 3 allowing the prosecution to fillinlacuna which it does not deserve.

It is submitted by the learned counsel for the applicant that it adversely prejudices the rights of the accused which he has secured by such omission of the prosecution for which the accused was not responsible.

His next submission is that there is no iota of evidence which made the Trial Court to convict the accused and the Appellate Court to remand the case.

He also drew my attention to the statement of prosecution witnesses and submitted that most of the witnesses were hostile but they were not declared as such and, therefore, their evidence should have been read against the prosecution but the Trial Court failed to do so and the Appellate Court did not consider the arguments in this behalf in the appeal. Under the said circumstances, on the basis of the evidence, which was on record, benefit of doubt could have been given to the accused.

He also submitted that the Courts below failed to appreciate the defence which wholly rebutted the case of the prosecution.

He lastly submitted that if any offence under Section 4 353 or 186 of IPC could be proved, the applicant could be given benefit under Section 3 or 4 of the Probation of Offenders Act.

The Appellate Court, instead of deciding the matter on merits, erred in setting aside the judgement and remanding the matter to the Trial Court.

On the other hand, learned Dy. G.A. has submitted that the order passed by the Appellate Court is just and proper and no case for interference with the aforesaid judgement is required in this revision. He also submitted that there is no illegality or irregularity in passing the impugned judgement and prays for its dismissal.

As per order dated 03.08.2012, the prosecution witness Ashok Tyagi was present before the learned JMFC but the same has been given up.

It is well settled to recall and reexamine the prosecution witnesses only on the ground that they could not ask some material questions from those witnesses. Failure of putting any question during the cross-examination does not mean that proper opportunity to cross-examination was not given and cannot be a ground to recall the witnesses, which obviously will amount to filling up the lacuna.

The Supreme Court in the case of Mohd. Khalid has made a serious observation about adjournment of the case for cross-examination by the defence. In para 54, it has been held that:

Before parting with the case, we may point out that the Designated Court deferred the cross examination of the witnesses for a long time. That is a feature which is being noticed in many cases. 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. These aspects were highlighted by this Court in State of U.P. vs. Shambhu Nath Singh and N.G. Dastane vs. Shrikant Shivde. In Shambhu Nath Singh case, this Court deprecated the practice of Courts adjourning cases without examination of witnesses when they are in attendance with the following observations:

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 6 (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. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are stranded on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner.

In the case of Skipper Tower (P) Ltd., (2002) 10 SCC 116, it has been observed:

Practice and Procedure - Adjournment - Sought by a counsel on the ground that his is not in a position to proceed with the matter inasmuch as he has been engaged recently in the case - held, not permissible because if a counsel accepts the engagement knowing fully well that the matter is already on board, then he must be prepared to proceed with the matter - Civil Procedure Code, 1908, Section 148 and Or. 17 R. 1 Criminal Procedure Code 1973 Sections 309 and 314(3).

From the abovementioned charges of the Apex Court, 7 the learned Lower Appellate Court should have set aside the impugned judgement and remanded the matter to the Trial Court for recalling the prosecution witnesses.

As a result of the discussion as aforesaid and having regard to the legal and factual position emerging in this case, the impugned judgement is set aside and the criminal revision filed by the applicant is allowed and disposed of. The matter is remanded to the learned Appellate Court to decide the appeal expeditiously on merit, in accordance with law.