K. S. Alexander v. The Union Territory of Andaman and Nicobar Islands

Judgment

#1. The revisional application has been preferred praying for quashing of the proceedings in F.I.R. No. 92/2018 of PS Humfrygunj registered under Sections 282, 336, 304, 34 of Indian Penal Code and under Sections 7 and 8 of the Protection of Aboriginal Tribes (PAT) Regulation 1956 (amended in 2012).

#2. The said case was registered when deceased John Allen Chau, a US citizen was went missing. The allegation against the present petitioner is that he was a friend of the deceased belonging to the same community and he assisted the deceased person’s stay here. 2

#3. As per the case of prosecution, on 15.11.2018, the deceased made initial contact with the tribe and was wounded by an arrow. With subsequent efforts to reach the island ended tragically with his death on 17.11.2018. On 17.11.2018, 5

fishermen (hereinafter referred as 'co-accused in FIR No: 92/2018) witnessed the deceased's body being dragged and buried by the Sentinelese on the island's shore.

#4. Vide a circular dated 29.6.2018 of the Ministry of Home Affairs, Govt. of India, the Restricted Area Permit (RAP) was lifted for foreigners wanting to visit the North Sentinel Island. An office memorandum was also released dated 01.10.2018 by the Government of India, Ministry of Tourism, Travel, Trade Division subject to Restricted Area permit (RAP).

#5. It is stated by the petitioner that on 11.04.2025, a new FIR being No. 0012/2025 has allegedly been lodged by Accused no. 5 in F.I.R. No. 91/2018 under Section 302 read with Section 34 of the Indian Penal Code for the same incident. This FIR was registered eight years of the incident. The prosecution had filed final/closure report in FIR No. 91/2018 and closed the investigation against the alleged murder of the deceased.)

#6. It is the case of the prosecution that the new FIR being No. 0012 of 2025 was a number given in the computer when FIR No. 91 of 2018 was transferred to the CID and as a closure 3 report has been filed in F.I.R. No. 91 of 2018, the new F.I.R. which is connected to F.I.R. No. 91 of 2018 also stood closed.

#7. A report to that extent has been called for from the CID by this Court in a CRR/57/2025 which is not connected with the proceedings in this case being F.I.R. No. 92 of 2018 of PS Humfrygunj.

#8. In the report dated 11.12.2025 filed in CRR/57/2025, it has been stated as follows :- “The report pertains to the re-registration of FIR No. 91/2018 dated 20/11/2018 U/s 302/34 IPC of PS Humfrigunj as FIR No. 12/2025 dated 11/04/2025 U/s 302/34 IPC, upon its transfer to PS Crime and Economic Offence. That as per the CCTNS procedure/module, when the investigation of FIR No. 91/2018 dated 20/11/2018 under Section 302/34 IPC of PS Humfrigunj was transferred to PS Crime & Economic Offence, a new internal FIR number-FIR No. 12/2025 dated 11/04/2025 under Section 302/34 IPC-was automatically generated for indexing and for updating case diaries, charge sheet, or final report within CCTNS. However, this newly generated FIR is solely for internal CCTNS processing and is not submitted to the court for registration. However, the newly generated (re-registered) FIR remains visible to the general public on the Citizen Portal. That after completion of investigation of FIR.No.91/2018 dated 20/11/2018 U/s 302/34 IPC of PS Humfrigunj, a final report vide No.05/2025 dated 06/07/2025 as undetected has been submitted in court which was accepted by the Trial Court vide Order dated 22/09/2025 GR.Case No.2173 of 2018. 4 That the case diaries and final report submitted in FIR No. 91/2018 dated 20/11/2018 under Section 302/34 IPC of PS Humfrigunj have also been updated in the newly generated FIR No. 12/2025 of PS Crime & Economic Offence.”.

#9. Admittedly, the trial in the present case has progressed substantially. It is submitted on behalf of the petitioner/ accused that though charge sheet has been filed in 2021, the trial is not being concluded expeditiously.

#10. Considering the prima facie materials on record which includes the evidence and materials in the case diary, this Court finds that there is a prima facie case for the prosecution to proceed in the trial and as such a case for quashing has not been made out.

#11. The learned Counsel for the petitioner places a letter dated 04.01.2019 issued to the petitioner/accused herein, wherein it appears that he has been suspended from service as Electronic Engineer (Grade-I) since 2019 and because of this pending trial, the petitioner is unable to get any engagement/work from any forum and for which he and his family are being severely prejudiced, having no source of income. 5

#12. In The Central Bureau of Investigation – versus – Mir Usman @ ARA @ Mir Usman Ali reported in Special Leave to Appeal (Crl.) No. (s). 969/2025, the Supreme Court held that :- “12. Section 309 Criminal Procedure Code, 1973 (for short, “Cr.P.C.”) reads as under: "309. Power to postpone or adjourn proceedings.- the Court the same beyond (1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless adjournment of following day to be necessary for reasons to be recorded: Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA or section DB of the Indian Penal Code (45 of 1860), the inquiry or trial shall] be completed within a period of two months from the date of filing of the charge sheet. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may. from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: 6 Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Provided also that- (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party: (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross- examination of the witness, as the case may be. Explanation 1.-If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. terms on which an Explanation 2. The adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."

#13. In a comprehensive decision of this Court in State of U.P. v. Shambhu Nath Singh and Ors. reported in (2001) 4 SCC 667 the legal position on the aspect of delay in the examination of the witnesses and the purport of Section 309 of the 7 Cr.P.C. (now Section 346 of the BNSS, 2023) have been dealt with in extenso in paragraphs 11, 12, 13, 14 and 18 respectively. The relevant paragraphs read thus: the words

#11. The first sub-section mandates on the trial courts that the proceedings shall be "as held expeditiously but expeditiously as possible” have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub- section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of the witnesses begins. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub-section by using the words "as expeditiously as possible” has chosen to make the requirement for the next stage (when examination of the witnesses has started) to be quite stern. Once the case reaches that stage the statutory command is that such examination "shall be continued from day to day until all the witnesses in attendance have been examined". The solitary exception to the said stringent rule is, if the court finds that adjournment "beyond the following day to be necessary” the same can be granted for which a condition is imposed on the court that reasons for the same should be recorded. Even this dilution has been taken away when witnesses are in attendance before the court. In such situation the court is not given any power to adjourn the case except in the extreme contingency for which the (2) has second proviso "provided imposed another to sub-section condition, 8 that when witnesses are further attendance, postponement shall be granted, without examining them, except for special reasons to be recorded in writing". adjournment (emphasis supplied) to record reasons

#12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only "special reasons", which reasons should find a adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court. there are confer

#13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the frowned at granting legislature has adjournments on that ground. At any rate inconvenience of an advocate is not a 9 "special reason” for bypassing the mandate of Section 309 of the Code. examination

#14. If any court finds that the day-to- witnesses mandated by the legislature cannot be complied with due the non- cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his particular accused in the case). identity as

#18. It is no justification to glide on any alibi by blaming the infrastructure for skirting legislative mandates embalmed Section 309 of the Code. A judicious judicial officer who is committed to his work could manage with the existing infrastructure for complying with such legislative mandates. The precept in the old homily that a lazy workman always blames his tools, is the judicial only answer to those officers who find fault with the defects in the system and the imperfections of the indolent 10 existing infrastructure for their tardiness in coping with such directions."

#14. In the aforesaid context, we may recapitulate a passage from Gurnaib Singh v. State of Punjab reported in (2013) 7 SCC 108 as follows: extremely haphazard “1 ...... We are compelled to proceed to reiterate the law and express our anguish pertaining to the manner in which the trial was conducted as it depicts a very disturbing scenario. As is demonstrable from the record, the trial was conducted piecemeal manner. Adjournments were granted on a mere asking. The cross- examination of the witnesses was deferred without recording any special reason and dates were given after a long gap. The mandate of the law and the views expressed by this Court from time to time appears to have been totally kept at bay. The learned trial Judge, as is perceptible, seems to have ostracised from his memory that a criminal trial has its own gravity and sanctity. In this regard, we may refer with profit to the pronouncement in Talab Haji Hussain v. Madhukar Mondkar2 Purshottam wherein it has been stated that an accused person by his conduct cannot put a fair trial into jeopardy, for it is the primary and paramount duty of the criminal courts to ensure that the risk to fair trial is removed and trials are allowed to proceed smoothly without any interruption or obstruction.”

#15. Be it noted, in the said case, the following passage from Swaran Singh v. State of Punjab 11 reported in (2000) 5 SCC 668, was reproduced. “It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice.”

#16. In this regard, it is also fruitful to refer to the authority in Shambu Nath Singh (supra) wherein this Court deprecating the practice of a Sessions Court adjourning a case in spite of the presence of the witnesses willing to be examined fully, opined thus: “9. 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 (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 12 presiding commitment towards duty.” officer concerned has a

#17. This Court in Doongar Singh and ors. v. State of Rajasthan reported in (2017) INSC 1154 after referring to all the aforesaid decisions of this Court observed as under: “9. In spite of repeated directions of this Court, to have remained unremedied. the situation appears

#10. We hope that the Presiding Officers of the trial courts conducting criminal trials will be mindful of not giving such adjournments after commencement of the evidence in serious criminal cases.

#11. We are also of the view that it is necessary in the interest of justice that the eye-witnesses are examined by prosecution at the earliest. It is also necessary 12. statements of eye-witnesses are got recorded during investigation itself under Section 164 of the Cr.P.C. In view of amendment to Section 164 Cr.P.C. by the Act No. 5 of 2009, such statement of witnesses should be got recorded by audio-video electronic means.

#13. To conclude: (i) The trial courts must carry out the mandate of Section 309 of the Cr.P.C. as reiterated in judgments of this Court, inter alia, in State of U.P. versus Shambhu Nath Singh and Others (2001) 4 SCC 667 , Mohd. Khalid versus State of W.B. 13