HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 23 A. F. R. Case :- U/S 482/378/407 No. - 5430 of 2011 Petitioner :- Dildar And Ors. Respondent :- The State Of U.P Petitioner Counsel :- B.Q Siddiqui Respondent Counsel :- Govt. Advocate **************************** Hon'ble Sudhir Kumar Saxena,J.
Heard learned counsel for the petitioners and learned AGA.
1.The petitioners through this petition have challenged the order dated 30-11-2011 whereby application for recalling prosecution witnesses Balak Ram and Surendra Pal has been rejected.
2.It appears that the petitioners are accused under Section 302 and 201 IPC. On 11.11.2010, prosecution examined Balak Ram and Surendra Pal who had identified the skeleton as well as the clothes belonging to the deceased. It is mentioned in the order sheet that opportunity for cross-examination has been given but none came to cross-examine, consequently, cross-examination was closed. On 30.11.2011, petitioners/accused moved application for recalling the above witness as for some reason they could not be cross-examined. This application has been rejected by the trial court vide order dated 30.11.2011. This very order has been impugned herein.
3.Learned counsel for the petitioners submits that he was prepared to cross-examine now and one opportunity may be given. In the petition ground taken is that previous counsel did not cross-examine as such, new counsel has been engaged.
4.It is necessary to have a look at Sections 309 & 311 Cr.P.C.. Relevant provisions are quoted below:-
"309. Power to postpone or adjourn proceedings- In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:
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."
Fourth proviso to Section 309(2) which has been inserted by Code of Criminal Procedure(Amendment) Act, 2008(5 of 2009) has taken care of such situation. The said proviso is reproduced below:
"(a) no adjournment shall be granted at he 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."
5.It is apparent that once witness is in attendance, adjournment has to be refused and has to be granted very rarely and in exceptional circumstances for which special reasons have to be recorded. Even if case is to be adjourned for some reasons then adjournment would be granted only till next day. It is also evident that engagement of lawyer in other court is not a ground for adjournment and court is not supposed to wait for counsel, if witness is present in the court. The court is left with no option but to record the statement of witness and pass further orders dispensing with the cross-examination.
6.In the case at hand, trial court has done the same. It recorded the statement of witnesses and as none came to cross-examine them, opportunity for cross-examination was closed. The order was strictly in accordance with amended provisions of Section 309 Cr.P.C.
7.Section 311 Cr.P.C. gives a discretion to the court to recall or re-examine any person, if the evidence appears to be essential for just decision of the case. This provision has to be read with Section 309 Cr.P.C. as both the provisions provide a light into the scheme envisaged by Code.
8.It has become a common practice that once a witness of the prosecution appears, defence would make all efforts to get the case adjourned. One of the common grounds is engagement of the new counsel or illness of the counsel. Lawyers strike is also taken as a ground for adjournment.
9.So far as strike is concerned, Apex Court in unambiguous terms has held that lawyers have no right to go on strike as such, the Trial Court cannot adjourn the examination of the witnesses if they are present in court, on the ground of the resolution of the Bar Association or Abstention of lawyers from attending judicial work. Moreover, in a Sessions Trial, lawyer is supposed to appear after making preparations and they are not supposed to accept brief on the day, the case is posted for evidence. If client has taken a chance to engage a new lawyer on the day the trial is fixed for evidence changing his previous counsel, Trial Court is not bound by this arrangement and will be fully justified in refusing adjournment on this ground. Similarly, engagement of counsel in other courts is not the ground for adjournment as has been clarified by the amendment of 2009. Speedy trial being the fundamental right of the accused, delay in trial causes immense harm to the society as a whole.
10. If in this background, Section 309 and 311 of Cr.P.C. are interpreted, it is manifest that engagement of new counsel cannot be a ground for recalling the witnesses. Similarly, inadvertence, ignorance, absence or even incompetence of a counsel cannot be the sole ground for exercising powers under Section 311 Cr.P.C.
11.Observations of the Hon'ble Apex Court given in the case of State of U.P. Vs. Shambhu Nath Singh and Ors. made in Appeal (Criminal) No. 392 of 2001 are being quoted below:
"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......
"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 presiding officers of the trial courts and it can be reformed by every one provided the presiding officer concerned has a commitment to duty.......... "Even when witnesses are present cases are adjourned on far less serious reasons 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 legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a special reason for bypassing the mandate of Section 309 of the Code.(emphasis mine) "In Rajdeo Sharma (II) Vs. State of Bihar {1999(7) SCC 604} this Court pointed out that the trial court cannot be permitted to flout the mandate of parliament unless the court has very cogent and strong reasons and no court has permission to adjourn examination of witnesses who are in attendance beyond the next working day."
12.Once witness is in attendance they should not be returned unexamined, keeping in view the provisions of Section 309 Cr.P.C. as amended. Section 309 Cr.P.C. permits adjournments for special reasons. Section 309(2) Cr.P.C., excludes certain reasons like engagement of counsel in other Courts etc. A joint reading of Section 309(1) and Section 309(2) Cr.P.C would show that the intention of legislature is unambiguous i.e. once witness comes to court he should be examined. If adjournment is necessary, then case can be adjourned to next day but that too for special reasons like sudden violence, incapability of witness on account of illness etc.
13.Thus, court would be fully justified in rejecting the adjournment on the ground that a new counsel has been engaged or that counsel is engaged in another court if witness is in attendance, Trial Courts have been very lenient in giving adjournments that is why legislature intervened and amended Section 309 Cr.P.C. Provisions of Section 309 Cr.P.C. as amended are mandatory in nature and Trial Court would be failing in duty, if they do not implement this mandate in letter and spirit. Trial Courts are supposed to work with the sense of urgency keeping in mind the intention of legislature while amending Section 309 Cr.P.C.
14.Strike of lawyers, engagement of counsel in other cases or engagement of fresh counsel are definitely the reasons not contemplated under Section 309 Cr.P.C. and Trial court would see that no case be adjourned on this ground. If witnesses are present in the court, Sessions Judge would ensure that the courts working under them do not return the witnesses unexamined.
15.From the above, it is apparent that the Trial Court had rightly closed the opportunity of cross-examination and has committed no irregularity/illegality in not recalling those witnesses.
16.Court can take notice of the fact that witnesses in criminal cases are unwilling to testify. While insecurity of witnesses could be one reason, equally important reasons are frequent adjournments, ordeal of criminal cases and lack of proper facilities in court campus for witnesses, which further dampens their spirit.
17.Witnesses are guest of the court as they are assisting the court in reaching at the correct conclusion, therefore, they are entitled to be treated with respect as they are eyes and ears of the justice. Their stature is above the other stake holders and reluctance of the witness to depose in the court amounts to failure in dispensation of justice. This has to be checked and it is high time High Court looked into this malady and identified the problems faced by them and made their job hassle-free.
18.So far as threat or coercion to witnesses is concerned, this is already engaging the attention of law makers and soon they may evolve a witness protection programme so that safety of witnesses is ensured before, during and after trial. One thing significant to note here is that even inside the court premises, witnesses are not safe and incident of beating/misbehaviour with the witnesses in the court premises or inside the court rooms are on the rise. Needless to point out that District Judge being in-charge of the campus is duty-bound to ensure that no violence occurs in the court's campus. If violence takes place, it should be immediately taken care of and police be immediately moved to arrest the culprits and bring them to justice irrespective of their position whether they are pairokar of the litigants or lawyer or police personnel. Violence in the court campus cannot be tolerated and if the District Judge is unable to check this, it will be treated as failure on his part and the High Court may take suitable action against such District Judge, who failed to prevent violence in the court campus or take proper action in time. The presiding officer in whose court witnesses are not allowed to depose freely without fear will immediately report the matter to the District Judge and ensure proper security as well as conducive ambience for a witness to depose independently and fearlessly.
19.It is also the duty of the District Judge to ensure proper sitting place with minimum infrastructure i.e. toilets, drinking water etc.
20.It is seen that inadequate amount is paid as diet-money to the witnesses under General Rule(Criminal). Witness comes to court from his house missing his one day wages. Even in the National Rural Employment Guarantee Scheme, one gets more the Rs. 100. Rs. 10/- to 15/- is pittance and not sufficient even for snacks what to say for meal.
21.Registrar General and Principal Secretary(Judicial), State of U.P. are directed to take steps and ensure that the amount of diet money which is ridiculously low i.e. Rs. 10/- and 15/-(figures supplied by Registry) is raised now looking to the inflation, minimum wages and the assistance that is provided by witness to the Court.
22.With the aforesaid observation petition is dismissed.
23.Copy of the judgment be sent to Registrar General for placing it before Hon'ble the Chief Justice so that efforts can be made for amending the General Rule(Criminal).
24.Copy of the judgment be sent to Registrar General, High Court and Principle Secretary, Judicial Government of U.P. for necessary action.
Order Date :- 8.12.2011 rk/-