Som Nath Sapra vs State And Anr.
2003 Latest Caselaw 747 Del

JUDGMENT

SJ.D. Kapoor, J.

1. It appears that Shri S.N.Dhingra, Addl. Sessions Judge has scant regard for the judgments of this Court and sticks to the procedure of trial of complaint cases under Section 138 of the Negotiable Instruments Act invented by him and not the one prescribed under the Code of Criminal Procedure. Vide impugned order dated 1.5.2003, the learned ASJ has after recording the statement of the complainant put the evidence of issuance of cheque by the petitioner against the liability towards complainant and dishonouring of the same and after eliciting the statement of the petitioner that he had no liability towards complainant as the cheque was obtained forcibly from him and in this regard he has made a complaint to the SHO, straightaway called upon the accused to produce his evidence in defense taking the case of the complainant having been proved without trial.

2. The illegality, harshness and judicial tyranny is writ large on the impugned order as the learned ASJ imposed a cost of Rs.15,000/- upon the petitioner-accused for not producing the evidence in his defense on the first date of hearing by ignoring the fact that the counsel for the accused had made an application that he wanted to call Dealing Clerk of Registrar High Court Delhi and Record Keeper of Police Station, Chitranjan Park by observing that such an application should have been made well in time.

3. This Court vide judgment dated 17.1.2003 in Crl.Revision Nos.593/2002 and 594/2002, set aside the order passed by Sh.S.N.Dhingra, learned ASJ calling upon the accused to straight away produce the defense evidence on entering his plea of non guilty, by holding that this procedure was wholly illegal and against the mandatory procedure of trial with the following observations:-

"2.A novel procedure has been adopted and invented by Mr.S.N.Dhingra, learned Additional Sessions Judge while trying the petitioner in a complaint case filed under Section 138 of the Negotiable Instruments Act. The learned ASJ has given a complete go bye to the procedure of trial of summons case provided in Chapter XX of Code of Criminal Procedure, 1973. After recording the plea of non-guilty and petitioner's explanation that at the relevant time he was not the Director of the Company nor was he responsible to the conduct of day to day affairs of the company nor did the cheque bear his signature, the learned ASJ called upon the petitioner to produce his evidence as if he had taken the case of complaint duly proved at the stage of giving notice for the offence and asked the accused why he should not be punished.

3. Every criminal court including that of Magistrates and Sessions Judges is a creature of Code of Criminal Procedure and cannot rise above it nor is over it. It has to remain with the precincts of this Code and cannot be permitted to traverse beyond its arena by resorting to or evolving a procedure of trial of its own.

10. As is apparent from the aforesaid provisions relating to procedure of trial, Section 254 mandates that if the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution i.e in the instant case the complainant and take all such evidence as may be produced in support of the prosecution and also hear the accused and take all such evidence as he wishes to produce in his defense. However, the Magistrate has the option to issue the summons to any witness either on the application of prosecution or accused directing him to attend or produce any document or any other thing.

11. The procedure adopted by learned ASJ was as if he had taken the case of the complainant proved against the petitioner and therefore called upon the petitioner to produce the evidence in his defense. The procedure adopted by the learned ASJ militates against the rudimentary principle and procedure of trial in a criminal case. The first and foremost duty to prove the charge or a case is that of the complainant or prosecution. It is only after the prosecution produces sufficient evidence that may form basis for conviction that the accused is called upon to make the statement and come out with his stand as to the evidence appearing against him. The accused is also called upon by the Magistrate whether he would produce any evidence in his defense or not and in case he says yes, he is to be given an opportunity to produce such evidence.

12. Section 254 lays down the procedure which no court can divert or deviate where the accused has not admitted all the accusations made against him or where the Magistrate does not convict the accused under section 252 or section 253. Section 251 itself shows as to how Magistrate should conduct the criminal trial and deal with person accused of criminal offence.

13. Section 252 provides that even if the accused pleads guilty, the Magistrate is not bound to convict him and may call upon the prosecution to produce the evidence of the guilt of the accused. The underlying idea is that the plea of guilt should be voluntary in nature and not under coercion, pressure and should be uninfluenced by any irrelevant consideration. The Supreme Court has in case after case held that the provisions of section 252 and 254 are mandatory in nature and first duty is of the prosecution to call all the witnesses and evidence who could prove guilt of the accused.

14. The learned ASJ has taken the case of the complainant or for that purpose the prosecution having been proved without calling upon the prosecution or complainant to produce the witnesses and the evidence and has straightaway asked the accused to produce his defense. Such a course is in gross violation of mandatory provisions of section 254. Though it was not necessary on the part of learned ASJ to record the defense version of the petitioner as he was only to record the plea of guilt or non-guilt but once he had recorded the version of the petitioner which in content tantamount to plea of non-guilty it was all the more necessary and mandatory for the learned ASJ to call upon the complainant to prove its case first. "

4. In the instant case orders passed by the learned ASJ on 11.3.2003 and 1.5.2003 need to be reproduced and are as under:-

"Order dated 11.3.2003

11.3.2003

Present: Counsel for the parties.

Statement of complainant recorded.

The evidence of issuance of cheque by accused against the liability towards the complainant and dishonouring of the cheque by dishonoured memos and service of notice has been put to the accused. Accused states that he had no liability towards the complainant and cheques were obtained forcibly from the accused after giving threat and in this respect he made complaint to SHO C.R.Park on 31.1.1999.

Accused states that he shall given evidence in his defense.

Put up for defense evidence on 1.5.2003.

 

Order dated 1.5.2003
 

1.5.2003
 

Present:     Counsel for the parties.
 

Case is today fixed for DE.    No DE is present.   Counsel for the accused has made an application that he wants to call dealing clerk of Registrar High Court Delhi and record keeper of PS Chitranjan Park.   He should have made this application well in time if he wanted to summon above these witnesses.   However, in the interest of justice, the case is adjourned for DE subject to cost of Rs.15,000/- for 27.5.2003.    The application made for summoning witness is allowed.    Summons be sent to witnesses on process fee and diet money.    Diet money be given in court." 
 

5. It is not for nothing that the old adage says that justice should not only be done but should appear to have been done and there should not be an iota of apprehension in the mind of the accused that he is not being treated fairly what to talk of getting a fair trial. At the first instance procedure adopted by the learned ASJ suffers from every vice that illegality, irregularity, infirmity and non-adherance of mandatory provisions laid down in the Criminal Procedure Code.

6. Even on the premise of misconceived notion about the procedure of trial, the impugned order is anything but judicial. Sub-section (3) of Section 233 specifically provides that if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. There is no provision in Cr.P.C for passing an order of the kind we are confronted with.

7. It appears that learned ASJ was labouring under the belief that evidence in defense is just a formality and is not as important as evidence of the complainant or the prosecution. Right to produce evidence in defense by the accused is a very valuable right and cannot be curtailed or abridged with the sledge of hammer. The impugned order militates not only against judicial conscious but also criminal jurisprudence and therefore is unsustainable and has to go.

8. In the result, petition is allowed. The impugned order as well as the order dated 11.3.2003 are set aside with direction to the learned ASJ to follow the procedure of trial told to him by this court vide judgment dated 17.1.2003.

9. It is not for the first time that this court has come across several such orders passed by this learned ASJ which hit at the foundation of judicial tenets and decisions down the lines. Learned ASJ is advised to be careful in future in acting upon the dictums handed down by this court lest he lands himself for action for contempt of court.

10. Copy of this order be sent to all the Judicial Officers/M.Ms/A.SJs for guidance and compliance in order to rule out the possibility of any other Judicial Officer emulating Shri S.N.Dhingra by resorting to such a misadventure.