Arvind Kumar vs State Of Uttarakhand And Others
2022 Latest Caselaw 2384 UK

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Revision No. 33 of 2014


Arvind Kumar                                   ...... Revisionist

                                Vs.

State of Uttarakhand and Others                ..... Respondents


Present:
             Mr. Tapan Singh, Advocate for the revisionist.
             Mr. Pankaj Joshi, Brief Holder for the State.
             Mr. Parikshit Saini, Advocate for the respondent nos. 3,
             4, 5, 6, 9, 11, & 12.



                          JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to

order dated 03.02.2014, passed in Sessions Trial No.243

of 2007, State Vs. Ayub and others, by the court of IV

Additional District & Sessions Judge, Haridwar ('the

trial'). By it, an application filed under Section 311 of

the Code of Criminal Procedure, 1973 ("the Code") by the

prosecution for summoning the witnesses has been

rejected.

2. Heard learned counsel for the parties

through video conferencing and perused the record.

3. It is most unfortunate that this revision

finds its disposal after 8 years. A small issue was kept

pending for so many years. The trial is pending under

Sections 147, 148, 149, 323, 324, 307, 504 & 506 IPC,

Police Station Ranipur, District Haridwar. The record

reveals that a number of dates were fixed for summoning

the witnesses. The doctors, Dr. Surya Prakash Jayant

and Dr. Rajendra Singh, could not be examined. On

06.01.2014, the court recorded in the order sheet of the

trial that the Inspector Incharge, Police Station-

Ranipur, shall take personal interest to produce all the

witnesses before the court or else the evidence would be

closed.

4. On 17.01.2014, an adjournment

application was further moved by the prosecution

stating that the whereabouts of Dr. Surya Prakash

Jayant are not traceable. The court passed the order on

the order sheet itself observing that in the past also,

various opportunities were given to the prosecution to

summon the doctors. The court referred to the order

dated 06.01.2014, by which, the Inspector Incharge,

Police Station Ranipur, was held responsible for

producing the witnesses before the court. The court

observed that it would not be justified to further adjourn

the trial and, accordingly, while rejecting the

adjournment application filed by the prosecution, fixed

03.02.2014 for examination of the accused under

Section 313 of the Code.

5. Thereafter, on 03.02.2014, another

application was moved by the prosecution with the

averments that the informant had given the addresses of

Dr. Surya Prakash Jayant and Dr. Rajendra Singh and,

therefore, they be summoned.

6. This application, moved by the prosecution,

has been rejected by the impugned order. The court, in

the impugned order, has observed that despite 66

opportunities, already having been given, the

prosecution failed to adduce the evidence.

7. Learned counsel for the revisionist would

submit that the ultimate sufferer is the informant. It was

the duty of the prosecution to produce all the witnesses.

The court should also have ensured that the summons

or processes issued against the witnesses are served

and they are examined. It is argued that, in fact, the

doctors are necessary witnesses; their evidence would be

necessary for the just decision of the case. Therefore, it

is argued that the order deserves to be set aside and the

prosecution should be given opportunity to summon the

witnesses Dr. Surya Prakash Jayant and Dr. Rajendra

Singh.

8. Learned State Counsel also supports the

arguments, as advanced on behalf of the revisionist.

9. Learned counsel for the private

respondents would submit that despite 66 opportunities,

having already been availed, the prosecution miserably

failed to examine the doctors; their whereabouts were

not known; the court, on its own could not have traced

the whereabouts of the doctors; it was utter failure of the

prosecution. Therefore, the impugned order is not bad in

the eyes of law and the revision deserves to be

dismissed.

10. As stated, it is a trial pending under

Sections 147, 148, 149, 323, 324, 307, 504 & 506 IPC

also; the doctors are proposed to be summoned. On

17.01.2014, the court rejected the application of the

prosecution, observing that the whereabouts of the

witnesses are not known and the court also observed on

17.01.2014, that the Senior Superintendent of Police,

Haridwar was already told to produce all the witnesses.

11. In a criminal trial, the court does not act

like a moot spectator or as a referee. There are

provisions under Section 311 of the Code as well as 165

of the Indian Evidence Act, 1872, which empower the

court to summon any witness or to ask any question to

the witness appearing before the court for the just

decision of the case.

12. Here is the case under Section 307 IPC, in

which the doctors could not be examined by the

prosecution. The reason, which is reflected in the order

dated 17.01.2014, was that the whereabouts of the

doctors were not known. But the court did not observe

in any of its order either dated 06.01.2014, 17.01.2014

or 03.02.2014 as to where are the processes, which were

issued by the court for summoning the doctors? Whom

were the processes issued? Undoubtedly, the court has

to ensure that the processes are landed at the address

given, and if they are not served and if the examination

of any witness is necessary for the just decision of the

case, definitely, the court is duty bound to summon

such witnesses. Merely error on the part of any party

should not result into the casualty of justice.

13. The prosecution definitely was casual in its

approach in not producing the witnesses despite having

been availed 66 opportunities to do so. But when the

court closed the opportunity of prosecution to adduce

evidence on 17.01.2014, the record reflects that when

the informant came to know about it, he gave the

addresses of the doctors. The prosecution or the State

Agency would have been in a better position to find out

the addresses of the doctors, who examined the victims

of the case. But they failed to do so. The informant

appeared and provided the addresses. The court rejected

the application on the ground that the prosecution has

already availed 66 opportunities. This cannot be said to

be correct order.

14. As stated, the evidence of the doctors is

necessary for the just decision of the case. Both the

doctors, who are witnesses, were Government

employees. Then how a court could observe that the

witnesses are not being produced? Why the court is not

ensuring their processes? Why the court is not following

its processes? These are larger questions.

15. Learned counsel for the private

respondents has also raised an apprehension that,

perhaps, the witnesses might not be staying at the

addresses given in application 129B in the trial, which

has been rejected. It might happen. 8 years is a long

time in the career of any Government servant. But then,

this Court is of the view that the prosecution definitely

needs to be given another opportunity to provide the

addresses of the doctorsAccordingly, the revision

deserves to be allowed.

16. The revision is allowed.

17. The order dated 03.02.2014 is set aside.

18. The application filed by the prosecution

under Section 311 of the Code is allowed. The

prosecution shall give the updated address of both

witnesses, Dr. Surya Prakash Jayant and Dr. Rajendra

Singh, within a period of two weeks from today by way of

filing an application. It may very well be verified from the

official record. Therefore, the court shall issue processes

against those witnesses and ensure their presence.

19. The Court below is requested to decide the

case as early as possible preferably within 5 months

from today.

20. Let a copy of this judgment along with the

lower court record be sent to the court concerned.

(Ravindra Maithani, J.) 01.08.2022 Ravi Bisht