Vishnu Hari Dalmia And Ors. vs District And Sessions Judge Rae ...
2011 Latest Caselaw 6377 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 3
 
Case :- MISC. BENCH No. - 8613 of 2011
 
Petitioner :- Vishnu Hari Dalmia And Ors.
 
Respondent :- District And Sessions Judge Rae Bareli And Ors.
 
Petitioner Counsel :- Mahipal Ahluwalia,Santosh Srivastava
 
Respondent Counsel :- G.A.,Bireshwar Nath
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Surendra Vikram Singh Rathore,J.

(Delivered by Hon'ble Surendra Vikram Singh Rathore,J.)

By means of this Writ Petition, under Article 226 of the Constitution of India, the petitioners have challenged the order-cum-D.O. letter dated 22nd July, 2011 by the District Judge Rae Bareli vide D.O. No. 28/X09. 2011 addressed to Sri Vishnu Prasad Agrawal, PCS (J) Special Judicial Magistrate ( Ayodhya Case)/Additional Chief Judicial Magistrate, Court No. 15, Rae Bareli. By the aforementioned D.O. Letter Sessions Judge, Rai Bareilly directed the Presiding Officer of the court to fix the dates at least 10 days in a month as desired by the Central Bureau of Investigation (hereinafter referred to as ?C.B.I.?).

In brief the facts giving rise to the present petition may be summed up as under:

The present controversy relates to the case No. 4350 of 2010 arising out of Case Crime No. 198 of 1992, Police Station Ram Janm Bhumi Ayodhya, District Faizabad under Sections 147, 148, 149, 153A, 153B and 505 IPC. This case is being prosecuted by the Central Bureau of Investigation. At present it is pending in the court of Special Judicial Magistrate, Ayodhya Case at Rai Bareli. This case is of national importance which is commonly known as Babri Maszid Demolition Case. Several cases were registered in this matter but in this particular case, these eight petitioners are facing trial.

At the stage of framing of the charges, the petitioner No. 2, Sri Lal Krishna Advani, was discharged. This order was challenged by the C.B.I. before this Court and this Court while disposing of the said revision vide order dated 6.7.2005 expressed its concern over the snail speed of the trial and directed the trial court to dispose of the case expeditiously, but the said directions of the Court paid no dividends. Thereafter, an application was moved by the C.B.I. before the trial court in which it was prayed that in order to comply with the mandate of the Hon'ble High Court and to ensure expeditious disposal of the instant trial the Hon'ble Court may be pleased to fix at least five working days in a week for hearing. This application was moved on 8.12.2010 and was disposed of on the same day. While disposing of the aforementioned application, the trial court directed the defence not to delay the disposal of the case and to ensure the cross examination of the witnesses on the day when they are present in Court and accordingly the application of the CBI was disposed of.

Thereafter the CBI wrote an application to the High Court on administrative side, addressed to the Registrar General on 24/26.5.2011 and in that application it was prayed that necessary directions be issued to the trial court to fix at least ten dates in a month. The aforesaid application was placed by the Registry of the High Court before the Administrative Judge of District-Raibareilly. The Administrative Judge directed the District Judge to send the status report of the case. The order of the Administrative Judge was communicated by the Registry. On the said letter the District Judge, Rae Bareli instead of submitting the status report of the case to the Administrative Judge, Rae Bareli wrote the impugned D.O. Letter to the Presiding Officer of the trial court, which reads as under:

?Keeping in view of the sensitive nature of this case, it has been desired by the C.B.I. to hold trial of Case Crime No. 198/92 at least 10 days in a month for speedy trial of the case.

You are, therefore, directed to try the case accordingly,?

In compliance of the aforesaid D.O. letter, the learned trial court vide order dated 23.7.2011 directed that the case be fixed for hearing on every third day and in case the third day is a holiday then same may be fixed on the next working day.

It is submitted on behalf of the petitioners that the District and Sessions Judge had no authority to pass such a direction, he was only asked to submit the status report. Even on the administrative side he could not have issued such direction to regulate the trial. It is further submitted that in this case lawyers from different districts come to conduct the case, therefore, it is extremely, difficult for them if every third day the dates are fixed as it causes great inconvenience to them in conducting the case. It is further argued that the District and Sessions Judge had no authority to pass an order, over and above the order already passed by the High Court in the year 2005. It is further submitted that the C.B.I. avoids fixing of dates on Saturdays, which is convenient to the defence.

The learned counsel for the CBI has vehemently opposed the prayer and submitted that the only purpose of the order of the Sessions Judge was to expedite the trial and any order passed with such an intention cannot be said to be illegal as an expeditious trial of the case is the mandate of the law. It is further submitted that when the copy of the their application, addressed to the Registrar General, was send to the District Judge along with the endorsement of the Administrative Judge, then it implied a prior approval of the Administrative Judge to pass an order accordingly. Therefore, from that angle also the impugned order, was in accordance with law. It is further argued that the inconvenience of the advocates can never be a ground to fix long dates or to delay the trial. A trial cannot be delayed simply to accommodate the advocates or to ensure their convenience.

Learned counsel for the C.B.I. has submitted that earlier this Court had passed an order for expeditious disposal of the trial in the year 2005 but that paid no dividend and, therefore, it moved an application before the trial court but that also proved to be of no avail. So he was compelled to move the High court on the administrative side. It is further submitted that in this case the occurrence had taken place in the year 1992 and till date only 14 witnesses could be examined while there is a list of 149 witnesses. He has submitted that even if the 50% of the witnesses are discharged even then, if the trial is permitted to run with this snail speed, it cannot be completed within the life time of the witnesses or the accused persons facing trial. It is further submitted that the delay in the trial causes enormous damage to the prosecution because the memory of the witnesses fades by efflux of time. It is further submitted that they have no objection if the dates are fixed on Saturday. It is submitted that even in past, dates were fixed on Saturdays.

It is further argued that this is a fit case where this Court must suo moto exercise its power under Article 227 of the Constitution of India or under Section 483 Cr.P.C. to issue necessary directions to expedite the trial.

The perusal of the order of the Administrative Judge communicated to the Sessions Judge vide letter dated 14.7.2011 (Annexure CA-3 to the counter affidavit) clearly shows that the Administrative Judge had ordered:

?D.J. Rae Bareilly

Let the stage of the proceeding be informed.?

Therefore, the argument of the learned counsel for the CBI is unsustainable that this communication of the Administrative Judge amounts to an implied approval to pass the impugned order. The order passed by the Administrative Judge was very clear in itself but the Sessions Judge by the impugned order dated 22nd July, 2011, keeping in view the sensitive nature of the case and as desired by the CBI directed the trial court to hold the trial of the Case Crime No. 198 of 1992 as desired by the CBI and directed the trial court to try the case accordingly. There was nothing in the order of the Administrative Judge which expected the Sessions Judge to pass such an order. Apart from it every presiding officer is the master of its own court and it is he who has to regulate the trial in accordance with law. The District/Sessions Judge on the administrative side was not expected to issue such type of directions regarding fixing of dates. At best he could have directed to expedite the proceedings of the case, therefore, so far as the impugned order is concerned it can not be sustained and deserves to be quashed.

The right of speedy, justice now considered to be a Fundamental Right and all efforts are being made by way of amendment or by taking other recourse to ensure that the cases be disposed of quickly. The delay in dispensation of justice is not good for any society because the delay encourages people to adopt unethical and illegal means to settle their disputes. Long delay has also the effect of defeating justice in quite a number of cases. As a result of such delay, the possibility of loss of important evidence cannot be ruled out because of the fading of memory or death of witnesses. The consequences thus would be that a party with a strong case may lose it not because of any fault of its own but because of the trady judicial process entailing disillusionment to all those who at one time, set high hopes in courts. The delay in the disposal of cases has affected not only the ordinary type of cases but also those which by their very nature, call for early relief.

The viability of judicial institutions depends upon their acceptability by the people. When the viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by resorting its credibility and people's faith in it.

In the present case already 149 years have passed after the occurrence and the trial is not yet half concluded. Out of 148 witnesses only 14 could be examined.

In the case of Krishnan and another Vs. Krishnaveni and another 1997 SCC (Crl) 544 the Apex Court has held that Section 483 enjoins upon every High Court to so exercise its continuous superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates. It is, therefore, clear that the power of the High Court of continuous supervisory jurisdiction is of paramount importance to examine the correctness, legality, or propriety of any finding, sentence or order, recorded or passed as also regularity of the proceedings of all inferior criminal courts.

In the case of Dharmeshbhai Vasudevbhai and others Vs. State of Gujarat and others (2009) 6 SCC 576 the Hon'ble Apex Court has held that the High Court, apart from exercising its supervisory jurisdiction under Article 227 and 235 of the Constitution of India, has a duty to exercise continuous superintendence over the Judicial Magistrates in terms of Section 483 of the Code of Criminal Procedure.

In the case of Popular Muthiah Vs. State represented by Inspector of Police (2006) 3 SCC (Crl) 245 the Hon'ble Apex Court has held that it is also significant to note that whereas inherent power of a court or a tribunal is generally recognised, such power has been recognised under the Code of Criminal Procedure only in the High Court and not in any other court. The High Court apart from exercising its revisional or inherent power indisputably may also exercise its supervisory jurisdiction in terms of Article 227 of the Constitution of India and in some matters in terms of Section 483 thereof. The High Court, therefore, has a prominent place in the Code of Criminal Procedure vis-a-vis the Court of Session which is also possessed of a revisional power.

In the same case it has further been held that while exercising its appellate power, the jurisdiction of the High Court although is limited but, in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revisional jurisdiction and/or inherent jurisdiction not only when an application therefor is filed but also suo motu. It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdiction in the matter.

Learned counsel for the petitioners has also submitted that the CBI be directed to disclose the names of those witnesses whom it intends to produce on the next date, so that the counsels may remain prepared to cross-examine the said witnesses. This proposal of the learned counsel for the petitioners was strongly opposed by the learned counsel for the CBI and it is submitted that it is a very sensitive matter and in case the names of the witnesses, to be examined on the next date, are disclosed then such witnesses may be tempered with or otherwise they may be forced not to depose against the petitioners by their followers. It is further submitted that the witnesses are not local, they have to come from far of places and disclosing of their names may entail danger to their lives also.

Keeping in view the sensitiveness of the matter and the fact that the list of all the witnesses has already been made available to the accused persons, we do not find it necessary to issue any direction to the CBI to disclose the names of the witnesses which it intend to produce on the next date.

In compliance of the order of this Court, the petitioners have filed the copy of order-sheet for the last two years. Petitioners have also filed the detail of the dates fixed in this case year wise which is as under:

Year No. of dates fixed

2007------------------------- From 5.12.2007 prosecution evidence started.

2008 ------------------------- 28

2009 ------------------------- 17

2010 ------------------------- 16

2011(upto 18.11.2011) -------- 32

The above chart shows that average number of dates fixed in each year was about 1 or 2 per month which after the impugned order increased to about 3 dates per month. Now the question is whether the trial of such a nature can conclude within a reasonable time, if permitted to proceed in this manner. The answer is obvious, i.e. No.

On the point of adjournments of the case Section 309 Cr.P.C. is very clear, relevant part of Section 309 reads as under:

Section 309 (I) Cr.P.C. provides as under:

?309. Power to postpone or adjourn proceedings- (1) 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.?

Thus the Section 309 (1) Cr.P.C. clearly mandates that when the witnesses of the prosecution are in attendance then they shall be examined and cross-examined until their examination is concluded. In the case of Lt. Col. S.J. Chaudhary Vs. State (Delhi Administration) AIR 1984 SC 618 the Hon'ble Apex Court has held that a criminal trial should proceed from day-to-day. In that case the ground of the difficulty or the absence of the advocates was also considered. Hon'ble Apex Court on this point opined as under:

? We are unable to appreciate the difficulty said to be exercised by the petitioner. It is stated that his Advocate is finding it difficult to attend the court from day-to-day. It is the duty of every Advocate, who accepts the brief in a criminal case to attend the trial from day-to-day. We cannot over-stress the duty of the Advocate to attend to the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend.?

Keeping in view the aforementioned legal position and the fact that while exercising its jurisdiction under Article 226 of the Constitution of India there is no imbargo on this Court to suo moto exercise its powers under Section 483 Cr.P.C.

Keeping in view the aforementioned factual situation and importance of the case, this Court is of the considered view that this is a fit case where this Court must exercise its inherent powers under Section 483 Cr.P.C. and to issue necessary directions to the trial court to ensure speedy disposal of the case. Therefore, this petition is being disposed of with the following directions:

i.Impugned order of the District and Sessions dated 22nd July, 2011 is hereby quashed.

ii.It is hereby directed that when any prosecution witnesses is in attendance in court then his examination-in-chief and cross-examination reexamination if any, shall be recorded by the trial court on day-to-day basis until its conclusion. The case shall not be adjourned unless the witness himself is not in a position to depose on any particular date or there is some situation, beyond the control of defence which makes the proceedings impossible. Such an adjournment shall be granted only for reasons to be recorded in writing.

iii.It is hereby directed that if any counsel representing the accused persons has any difficulty in attending the court on a particular date then he shall ensure to handover the brief to some other advocate so that the trial of this case may not be disturbed because of his absence.

iv.When the witnesses in attendance are examined and cross-examined then the next date shall be fixed for the evidence of other witnesses which shall not be later than 7 days from the date on which the evidence of the last witness was concluded.

v.The prosecution/C.B.I. shall ensure that on the date fixed for evidence some prosecution witnesses must remain present, so that, for want of witnesses date be not adjourned.

vi.While fixing dates, saturdays shall not be avoided.

With the aforesaid directions, this Writ Petition stands finally disposed of.

Registry is directed to communicate this order to the court concerned forthwith.

Order Date :- 8.12.2011

Manish/