Association Of Victims Of Uphaar ... vs Govt. Of Nct Of Delhi And Ors.
2002 Latest Caselaw 515 Del

JUDGMENT

Khan, J.

1. A cry for speedy justice. This is what this petition is all about filed by friends and relatives of Uphaar Cinema Fire Victims who have formed an association to seek justice. All they are clamouring for is the speedy trial of Sessions Case No. 1/99 pending before Ld. ASJ, Ms. Mamta Sehgal.

2. Petitioners' grievance is that even after 4 1/2 years of the fire incident, trial in the case was yet to take off and was proceeding at a snail's pace. Statements of available prosecution witnesses were either not recorded or deferred for non-availability of defense counsel or some other pretext. Adjournments were being granted to the defense lawyers on one ground or the other resulting in deferring of cross-examination of prosecution witnesses who were otherwise in attendance. Out of 191 prosecution witnesses, only 12 were examined so far.

3. Ld. senior counsel for petitioner Mr. K.T.S. Tulsi invited our attention to Supreme Court judgment in State of U.P. v. Shambhu Nath Singh to bring out how the mandate of Section 309 Cr. P.C. was being breached though examination of prosecution witnesses in attendance was to be completed on day to day basis. The trial court was also not taking recourse to various options in terms of Section 309 to regulate the proceedings and to ensure that trial was not dragged on unnecessarily.

4. CBI Special Prosecutor Mr. Y.K. Saxena was summoned who appeared along with Mr. A.K. Dutt. defense counsel M/s. R.K. Naseem, K.K. Sareen and R.S. Suri also appeared on their own though accused were not imp leaded as parties to this petition. Both sides were heard and their suggestions taken in regard to evolve a mutually acceptable methodology to redress petitioner's grievance and to ensure speedy trial of the case.

5. Needless to emphasise that speedy trial is a fundamental right guaranteed by the Constitution and any avoidable delay caused in the trial amounts to infringement of that right. It is also generally experienced that such delay derails the trial in number of cases and reflects on the ultimate outcome. Witnesses loose the track and even parties become. disinterested on the way as unending trial goes on without nay prospect of seeing the light at the end of the tunnel. This only breeds adverse consequences which, in turn, shakes public confidence in criminal justice system.

6. It is not that courts are powerless or helpless in dealing with the situation or that there is any lack of statutory support in this regard. Section 309 provides various options to the court to meet such like situations. Therefore, even as the courts enjoy requisite power and also wherewithal to control and regulate the proceedings, yet the virus of delay goes on to eat the vitals of our justice delivery system. What is perhaps missing is the will and determination by all elements involved in administration of justice to catch the bull by the horn and to check the menace.

7. We are conscious that court calendars are congested and over-crowded, but that does not provide any justification for breach of statutory mandate or for delay in doing justice. No law permits grant of adjournments on the drop of hat, least of all the Criminal Procure Code. Section 309 of the code lays down stringent conditions for this requiring a criminal court to record reasons even for granting an adjournment for special reasons. Therefore, adjournments are not to be granted in a routine manner but only in very rare and extraordinary circumstances and for special reason. It is all the more desirable that these were declined in Session's trials save otherwise in very special and extraordinary circumstances. The Sessions trials demand fast completion and quick disposal because of high stakes involved for both prosecution and the accused. Any undue delay in disposal of these either on account of a party's inaction or stratagem or because of courts over-indulgence or inertia generates adverse fall out ultimately reflecting on efficiency of justice system. Such trials are, therefore, required to be completed as soon as practicable and it would not be a tall order to provide if these were to be completed within a reasonable period of one year.

8. Supreme Court expressed its anguish on the state of affairs in Shambhu Nath's case and dealt with the issued observing thus:-

"If a witness is present in the court he must be examined on that day. Section 309 CrPC makes it clear that once examination of witnesses has started, the court had to continue the trial day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement when is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment , that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.

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 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. The legislature has frowned at granting adjournments on that ground. At nay rate inconvenience of an advocate is not a 'special reason' for bypassing the mandate of Section 309 of the Code.

It the court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to 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. 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 only 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 identity as the particular accused in the case)."

8. Given regard to all this and the suggestions made at the bar by both sides, we deem appropriate to dispose of this petition at this stage by the following consent order:-

(i) Trial court shall hold trial of Sessions Case No. 1/99 for 10 days in a month from May except June 2002. It shall adjust its calendar suit in consultation with principal District and Sessions Judge, if need be, to explore that no other matter was taken up on the fixed dates.

(ii) CBI and its concerned functionaries including its special prosecutors are directed to take steps to ensure that sufficient number of witnesses were present and available on the dated fixed for prosecution evidence and so is trial court required to complete the examination of prosecution witness in attendance on day to day basis.

(iii) No adjournment shall be granted for non-availability of a defense counsel resulting in deferring of the cross-examination of a prosecution witness and in that event it shall be open to trial court to take recourse to various options in terms of Section 309 including closure of cross-examination or cancellation of bail of accused.

(iv) Trial court shall also take expeditious steps to complete the trial as far as practicable by 15th of December 2002. In case it was not possible for it to adhere to the prescribed time frame, it could seek extension of time on sufficient cause

(v) Petition shall be at liberty to reagitate the matter in case of any further grievance by an appropriate remedy under law.