Irshad Ahmad Mir & Ors vs State Of J&K
2022 Latest Caselaw 545 j&K/2

                                                           Sr. No.10
                                                           Advance List
      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR


                         CRMC No.262/2018



IRSHAD AHMAD MIR & ORS.                           ...PETITIONER(S)
             Through: - Mr. N. H. Shah, Sr. Adv. with
                          Mr. Gulzar, Advocate.

Vs.

STATE OF J&K                                   ...RESPONDENT(S)
             Through: - Mr. Ilyas Laway, GA.


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

09.05.2022

1) The petitioners have challenged order dated 02.01.2015 passed

by learned 1st Additional Sessions Judge, Baramulla, in the case titled

State vs. Aijaz Ahmad Mir and others arising out of FIR No.17/1997

for offences under Section 366, 376 RPC of Police Station, Panzla.

Vide the aforesaid order, the application of the prosecution under

Section 540 of J&K Cr. P. C has been allowed.

2) It is contended in the petition that the impugned order is not

sustainable in law as the application for recording the statement of the

prosecutrix was made by the prosecution at a belated stage after the

prosecution evidence had already been closed and even the defence

evidence had been closed. It is further contended that the petitioners are

facing trial since the year 1997 and their fundamental right to speedy

trial has been infringed by delaying tactics of the prosecution. It is also

contended that by allowing the prosecution to produce the prosecutrix

as a witness at this belated stage, the learned trial court has permitted

the prosecution to fill up the lacuna.

3) I have heard learned counsel for the parties and perused the

impugned order and the grounds of challenge.

4) A perusal of the impugned order reveals that the statement of the

prosecutrix-PW(6) was partly recorded by the trial court on 20.07.1999,

whereafter it was deferred. It appears that the prosecutrix did not appear

before the court on the next date of hearing. In the meantime, some

application came to be filed by the defence seeking permission to place

on record certain documents. On 03.07.2013 the trial court closed the

prosecution evidence without recording the remaining statement of the

prosecutrix.

5) The learned trial court after noticing the aforesaid facts has, vide

the impugned order, observed that the evidence of the prosecution could

not have been closed without recording remaining portion of statement

of the prosecutrix as it was obligation of the trial court to ensure that

her statement is recorded in full.

6) It is true that an accused has a right of speedy trial, but then, while

safeguarding this right, the court is not expected to circumvent the due

procedure and close the evidence of prosecution in a serious offence

like an offence of rape for which the petitioners stand charged. The

witness, whose part statement has been recorded, happens to be the star

witness of the prosecution. A prosecutrix is the most material witness

in a trial relating to offence of rape. Therefore, it is all the more

necessary for a trial court to take all necessary steps for securing the

presence of such witnesses so that their statements in full are recorded.

In my aforesaid view I am fortified by the ratio laid down by this Court

in the case of Bansi Lal vs. Ab. Rashid & Anr, 2007 SLJ 203, wherein,

while dealing with a similar issue, this Court observed as under:-

"21. Omission of learned Magistrate to summon the government employees and eye witnesses on its own and his complete dependence on the prosecution for production of evidence, constrains me to exercise criminal revisional jurisdiction, and to hold that the learned Magistrate had erred in not issuing its own process to summon the prosecution witnesses including the government employees, and in closing the prosecution evidence without completing the statement of the petitioner, whose statement had been recorded in part. This has eventually resulted in manifest error of law and failure of justice. I would, therefore, set aside the order of acquittal of the respondent, impugned in the revision petition, and direct his retrial with a direction to the learned Magistrate to take requisite steps to ensure the presence of witnesses before it and to proceed with the trial in accordance with law."

7) In view of the aforesaid legal position, it is clear that the learned

trial court, while passing the impugned order, has followed the dictum

of law on the subject. The impugned order, therefore, is in accordance

with law and does not call for any interference from this Court.

Accordingly, the petition is dismissed being devoid of merit.

8) A copy of this order be sent to the learned trial court for

information.

(Sanjay Dhar) Judge Srinagar 09.05.2022 "Bhat Altaf, PS"

                   Whether the order is speaking:        Yes/No
                   Whether the order is reportable:      Yes/No