Ram Singh vs The State of Haryana

M.M. Punchhi, J.—In this petition challenge has been made to an order passed by the Additional Chief Judicial Magistrate, Ambala, in permitting the Public Prosecutor to examine more prosecution evidence, after its closure. The order having afflicted the rights of the accused prejudicially, has given cause to him to approach this Court.

Trial against the accused u/s 9 of the Opium Act was in process. On 9.7.1979, affidavit dated 15.11.1978, Exhibit PY, of Rameshwar Dass, Moharrir Head Constable and affidavit dated 15.11.1978. Exhibit PY, of Hukam Chand Constable were tendered in evidence by the Public Prosecutor. Later on 23.1.1980, he made a statement which reads as under:-

I give up Kehar Singh P.W. as he has oined hands with the accused and shall examine the Chemical Examiner as also Moharrir Rameshwar Dass and Constable Hukam Chand.

Afterwards on 5.7.1980 the Public Prosecutor made a statement closing his evidence. The interim order of the Court of that date reads as under:-

No PW is present. The P.P. has closed the evidence of the prosecution. For statement of the accused and defence evidence, to come up on 7.7. 1979.

Inadvertently the interim order of 5.7.1980 was not signed by the Presiding Officer.

The Public Prosecutor made an application that he had closed the case of the prosecution inadvertently and he wanted to examine the same evidence which he had wanted to examine vide his statement reflective from interim order dated 23.1.1980. However, he did not deny that he had made a statement to the Court reflective from the unsigned interim order of 5.7.1980. The learned trial magistrate treated the unsigned order of the Court dated 5.7.1980 to be no order at all in the eye of law and believing the Public Prosecutor that he had inadvertently closed the case, permitted, vide the impugned order, the prosecution to examine Rameshwar Dass Moharrir head Constable and Hukam Chand Constable as also to tender in evidence, the report of the Chemical Examiner.

There is no better principle for the guidance of the Court, than the one, that no act of Court should harm a litigant, and it is the bounden duty of the Court to see that if a person is harmed by the mistake of the Court, he should be restored to the position he would have occupied but for that mistake This is amply summed up in the maxim "actus curiae neminen gravabit."

The inadvertence of the Court in not signing the otherwise unquestionable order dated 5.7.1970 cannot be permitted to be cashed upon by the Public Prosecutor. The order was explicit. It said in so many words that no PW was present. The order pre supposed that the asked for PWs were required to be present and on their absence the Public Prosecutor chose to close his evidence. Their could not be any inadvertence in the matter as far as the prosecution witnesses were concerned. And the prosecution witnesses were none other except whose evidence had already come on the record in the form of affidavits duly tendered and accepted as such, as part of the prosecution evidence. No occasion arose in the circumstances to permit the Public Prosecutor to improve the case of the prosecution by examining the aforesaid two witnesses. Inadvertence, if at all, arose for the non-examination of the Chemical Examiner. But he too, was sought to be examined as a prosecution witness despite his report being already on the record, though untendered. His being examined as a witness is not in issue, because the trial magistrate himself has only allowed tendering of his report in evidence. And but for the report, the very foundation of the prosecution case u/s 9 of the Opium Act would be knocked off. Sufficient ground did exist for the trial magistrate to permit the prosecution to tender in evidence the report of the Chemical Examiner, inadvertently left out to be tendered.

Resultantly, for the foregoing discussion, this petition is partially allowed. The prosecution is debarred from examining Moharrir Head Constable Rameshwar Dass and Constable Hukam Chand as prosecution witnesses, and has to rest content with their affidavits already tendered, but can at the same time tender in evidence the report of the Chemical Examiner. Ordered accordingly.

The parties through their counsel are directed to appear before the trial magistrate on April 2, 1980.