Anil Kumar v. The State of Bihar

It has also been submitted by learned counsel for the 4 appellant that the conduct of the Additional Public Prosecutor was also not above board. In support of this, a copy the notice sent by the Additional Public Prosecutor, Md. Kalam Ansari to the informant-appellant dated 18.08.2012, directing him along with other witness to appear before the court on 30.08.2012, has been annexed as Annexure-1 with the memo of appeal. However, it is stated that, when they appeared in the Court on 30.08.2012, they were informed that the sessions trial had already been disposed of on 29.08.2012, ending in acquittal of the O.P. No.2 to 4.

7. In the aforesaid backdrop, it has been submitted on behalf of appellant that by manipulation and maneuvering, the appellant and other charge-sheet witnesses were prevented from appearing in the trial and record their evidence in support of the prosecution case. It has also been submitted that they are ready to support the prosecution version in all details and on account of their non-examination leading to acquittal of the Opposite Party No.2 to 4, a prejudice has been caused to them.

8. On the other hand, learned counsel for the respondent nos. 2 to 4 submitted that whatever lapses have been pointed out on behalf of appellant, as visible from the record, has purposely been done to cover up their own negligence. He submitted that respondents and the prosecution side are co-villagers. Hence they 5 must have come to know that case had opened and the trial was going on, specially when it continued for over 14 years. Therefore, the prosecution side should not be allowed to get benefit of their own lapses.

9. It has been further submitted that speedy trial is a Constitutional Right of the accused. A sword cannot be allowed to remain hanging on the head of the accused for indefinite period. They have already faced the curse of facing a trial for over 14 years and, therefore, now, on flimsy grounds, they should not be forced to face a fresh trial for the same charges.

10. It has also been submitted that even taking into account submissions raised on behalf appellant, it is crystal clear that whatever allegations have been made, they are all against the Court and the Additional Public Prosecutor and the involvement of the respondents is nowhere to be found in the matter. Hence the judgment of acquittal passed by the learned Trial Court is fit to be confirmed.

11. It has been submitted on behalf of learned Additional Public Prosecutor that, from the order sheet of the Trial Court, some error is apparent to have been committed in the Trial, but that should not be taken into account by this Court seriously in the light of long passage of time. 6

12. On Perusal of the records of the lower court it is apparent that, on commitment, the case was received in the office of Sessions Judge on 20.03.1998 and on that very day it was transfer to court of Assistant Sessions Judge, Danapur. On receipt of the records, on account of absence of accused, non-bailable warrant of arrest was issued, in execution whereof, one of them, Rajeshwar Ram, was apprehended and produce in Court, who was allowed bail on 02.09.1998. The remaining accused, Luv Kumar, Madan Singh surrendered on 03.09.1998 and were allowed bail. Thereafter a petition under Section 227 Cr.P.C. was filed which was ultimately rejected on 22-04-1999 and, on account of non- appearance of all the accused for a long time, their bail bonds were cancelled on 24-08-2000 where after they appeared and were released on provisional bail on 04-09-2000. Lastly charge was framed on 15-09-2000. Their provision bail was extended on two dates, vide orders dated 07.01.2000 and 02.12.2000. Thereafter there is no order recorded in the order-sheet of the Court in this regard. Moreover, the order sheet shows that summons were issued to the witnesses vide order dated 20.09.2000, but thereafter there is no order in the order sheet which could shows that any step was taken by the Court with regard to procurement of execution of summon so issued. Thereafter, vide order dated 7

11.03.2003 a direction was made to issue bailable warrant against the witnesses but again, as appears from the order dated

23.08.2003, on the prayer of learned Additional Public Prosecutor, office was again directed to issue summon and in the margin of the order sheet it has mentioned that it was issued on 04.12.2004. Again thereafter, no effort was made by the Court to find out whether summons were ever served upon the witnesses or not. However, vide order dated 06.07.2005, again the Court ordered for issuance of bailable warrant of arrest against the witnesses and in the margin of the order sheet it is mentioned that it was issued on 07.12.2006. Thereafter there is again nothing in the order-sheet in respect of execution of the said bailable warrants of arrest issued against the witnesses. However, the said order dated

05.01.2009 / 29.04.2009 mentions about appearance (Hajiri) of informant with order to put up the case on 04.06.2009. The date fixed in the case was 05.01.2009. Then how the record was put up and taken up by the Court after three month is not explained in the order-sheet. With an attempt to find out the correct position, this Court has examined the parts ‘B’ and ‘C’ of the Trial Court records, but this Court could not find any such appearance (Hajiri) of the informant on the record. Subsequent orders show that in routine manner orders were passed and on 07.02.2011 and again a 8 direction was made for issuance of bailable warrant of arrest against the witnesses, but again there was no follow up action. Thereafter the case was transferred to the court of IVth Additional Sessions Judge where it was received on 16.12.2011. Then the order sheet dated 16.12.2012 / 15.02.2012 shows that direction was issued to issue summon which, as per the note in the margin of the order sheet, was issued on 11.04.2012. By order dated

03.05.2012, direction for issue of non-bailable warrant was passed, which was issued on 18.06.2012. Thereafter, after recording some routine orders, the case was finally closed on

29.08.2012 and the judgment and order of acquittal was passed.

13. Thus, from the chronology of orders of the Trial Court, it is apparent that, without making any effort for obtaining execution reports of the warrants by directing the higher police authorities, the Court continued to pass successive orders in routine manner for years together suggesting lack of sensitiveness on the part of Court concerned in respect of the proceeding. The courts are not expected to sit in an ivory tower and be totally indifferent towards the proceedings pending before them and coming up on board on successive dates. After all, the courts are enjoined upon the duty to dispense justice which both the victim, as well as the accused are equally entitled to. There should not be 9 prejudice to any party by any order or from the conduct of the court, and, above all, the court should always be attentive and vigilant so as to prevent abuse of the process of the court by unscrupulous litigations.

14. In Shailendra Kumar v. State of Bihar [reported in (2002) 1 SCC 655], the observations of the Apex Court in para-9 are thus:- “9. In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded with by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that the accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Additional Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on the part of any witness to remain present, it is the duty of the court to take appropriate action including bailable/non-bailable warrants, as the case may be. It should be well understood the prosecution cannot be frustrated by such methods and victims of the crime cannot be left in a lurch”. issue summons issuance

15. In Zahira Habibulla H. Sheikh v. State of Gujarat [reported in (2004) 4 SCC 158],taking into account the conduct of the prosecution, the Apex Court summarized its views in the following manner:- “64. It is no doubt true that the accused 10 persons have been acquitted by the trial court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decisions of courts — coram non judis and non est. There is, therefore, every justification to call for interference in these appeals”. evidence

16. Apart from this, from Annexure-1, the notice issued by the Additional Public Prosecutor to the informant and other prosecution witnesses, mentioning the date fixed for examination of witness a day after the date fixed in the case, also happens to be a serious defect which could not be ignored while considering the justification of acquittal of respondent nos. 2 to 4.

17. In respect of failure of justice, the Apex Court, in Darbara Singh v. State of Punjab [reported in (2012) 10 SCC 476], has held thus:-

21. “Failure of justice” is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be “failure of justice”; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasised to the extent of forgetting that the victims also have rights”.

18. In Ramesh Harijan v. State of U.P. [reported in 11 (2012) 5 SCC 777] the Apex Court dealt with the issue of the liberal approach adopted by the courts to grant an unwarranted acquittal, and held that while dealing with a criminal case, it is a matter of paramount importance for any court to ensure that the miscarriage of justice is avoided in all circumstances. In the circumstances, after giving our anxious thought to the entire matter, we are of the view that the judgment under appeal is unsustainable in law. Hence the same is set aside and the appeal is allowed. The matter is remitted back to the court concerned to proceed with the trail afresh. Respondent nos.2 to 4 are directed to surrender before court below to face trial. In case of default, the trial court will take every possible step to procure their attendance. Side by side, informant, is also directed to appear before the court concerned and take steps for his examination and the examination of other witnesses at an early date. In view of long lapse of time, the court concerned shall make all endeavors to conclude the trial at the earliest. (Jayanandan Singh) I agree Patna High Court Dated, the 2nd day of August, 2013 Prakash Narayan / A.F.R. (Aditya Kumar Trivedi, J.) (Jayanandan Singh, J.)