Doongar Singh vs The State Of Rajasthan on 28 November, 2017

                                                                             REPORTABLE

                                      IN THE SUPREME COURT OF INDIA
                                     CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL APPEAL NOs. 2045-2046 OF 2017
                  (Arising out of Special Leave Petition (Crl.)Nos.8994-8995 of 2015)

          DOONGAR SINGH  ORS.                                             …Appellants

                                                    Versus

          THE STATE OF RAJASTHAN                                           …Respondents

                                                    WITH

                                     CRIMINAL APPEAL NO. 2047 OF 2017
                         (Arising out of Special Leave Petition (Crl.)No.1761 of 2016)

          NARAIN CHANDELIA  ORS.                                          …Appellants

                                                   Versus

          THE STATE OF RAJASTHAN                                           …Respondent

                                                O R D E R

1. Delay condoned. Leave granted.

2. For the murder of one Bhagwan Singh at Sikar, Rajasthan, on 27 th

May, 2005, 20 persons were tried. Nine have been convicted

concurrently by the trial court and the High Court. They are the

appellants. Others have either been acquitted or have died.
Signature Not Verified

Digitally signed by
MAHABIR SINGH
Date: 2017.11.30

3. We have heard learned counsel for the parties at great length and
15:05:25 IST
Reason:

also perused the record. We do not find any infirmity in the orders of

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the court below calling for our interference under Article 136 of the

Constitution of India. The appeals are, accordingly, dismissed.

4. Before parting with this matter, we must record a disturbing

feature in the conduct of the trial of the present case. After recording

examination-in-chief of the star witness, PW-14 Prabhu Singh, on 13 th

April, 2010, the matter was adjourned on the request of defence

counsel to 25th August, 2010 i.e. for about more than four months.

After that, part evidence of the witnesses was recorded on 24 th

September, 2010 and the matter was again adjourned to 11 th October,

2010. Before that, four witnesses of the same family in their

statements recorded on 10th April, 2010 had become hostile.

5. In a criminal case of this nature, the trial court has to be mindful

that for the protection of witness and also in the interest of justice the

mandate of Section 309 of the Cr.P.C. has to be complied with and

evidence should be recorded on continuous basis. If this is not done,

there is every chance of witnesses succumbing to the pressure or

threat of the accused.

6. This aspect of the matter has received the attention of this Court

on number of occasions earlier. In State of U.P. versus Shambhu

Nath Singh and Others1 this Court observed it was a pity that the

1 (2001) 4 SCC 667

2
sessions court adjourned the matter for a long interval after

commencement of evidence, contrary to the mandate of Section 309

of the Cr.P.C. Once examination of witnesses begins, the same has to

be continued from day-to-day unless evidence of the available

witnesses is recorded, except when adjournment beyond the following

day has to be granted for reasons recorded. This Court observed:

“12. Thus, the legal position is that once examination
of witnesses started, the court has to continue the
trial from 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 then 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.

13. Now, we are distressed to note that 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. We make it clear that the legislature has
frowned at granting adjournments on that ground. At
any rate inconvenience of an advocate is not a
“special reason” for bypassing the mandate of
Section 309 of the Code.

14. If any 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
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measures indicated in the sub-section i.e. remanding
the accused to custody or imposing cost on the party
who wants such adjournments (the cost must be
commensurate with the loss suffered by the
witnesses, including the expenses to attend the
court). 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 on 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).

15. The time-frame suggested by a three-Judge
Bench of this Court in Raj Deo Sharma v. State of
Bihar2
is partly in consideration of the legislative
mandate contained in Section 309(1) of the Code.
This is what the Bench said on that score: (SCC p.
516, para 16)

“16.The Code of Criminal Procedure is
comprehensive enough to enable the
Magistrate to close the prosecution if the
prosecution is unable to produce its
witnesses in spite of repeated
opportunities. Section 309(1) CrPC
supports the above view as it enjoins
expeditious holding of the proceedings
and continuous examination of witnesses
from day to day. The section also
provides for recording reasons for
adjourning the case beyond the following
day.”

xxx xxx xxx

17. We believe, hopefully, that the High Courts
would have issued the circular desired by the Apex
Court as per the said judgment. If the insistence

2 (1998) 7 scc 507

4
made by Parliament through Section 309 of the Code
can be adhered to by the trial courts there is every
chance of the parties cooperating with the courts for
achieving the desired objects and it would relieve the
agony which witnesses summoned are now suffering
on account of their non-examination for days.

xxx xxx xxx

19. In some States a system is evolved for framing a
schedule of consecutive working days for
examination of witnesses in each sessions trial to be
followed. Such schedule is fixed by the court well in
advance after ascertaining the convenience of the
counsel on both sides. Summons or process would
then be handed over to the Public Prosecutor in
charge of the case to cause them to be served on
the witnesses. Once the schedule is so fixed and
witnesses are summoned the trial invariably
proceeds from day to day. This is one method of
complying with the mandates of the law. It is for the
presiding officer of each court to chalk out any other
methods, if any, found better for complying with the
legal provisions contained in Section 309 of the
Code. Of course, the High Court can monitor,
supervise and give directions, on the administration
side, regarding measures to conform to the
legislative insistence contained in the above
section.”

7. The above decision has been repeatedly followed. In Mohd.

Khalid versus State of W.B. 3, this Court noted how adjournment

can result in witnesses being won over. It was observed:

“54. Before parting with the case, we may point out
that the Designated Court deferred the
cross-examination of the witnesses for a long time.

That is a feature which is being noticed in many
cases. Unnecessary adjournments give a scope for a

3 (2002)7 SCC 334

5
grievance that the accused persons get a time to get
over the witnesses. Whatever be the truth in this
allegation, the fact remains that such adjournments
lack the spirit of Section 309 of the Code. When a
witness is available and his examination-in-chief is
over, unless compelling reasons are there, the trial
court should not adjourn the matter on the mere
asking. These aspects were highlighted by this Court
in State of U.P. versus Shambhu Nath Singh 4
and N.G. Dastane versus Shrikant S. Shivde 5 …
… …”

8. Again in Vinod Kumar versus State of Punjab 6 this Court

noted how unwarranted adjournments during the trial jeopardise the

administration of Justice. It was observed:

“3. The narration of the sad chronology shocks the
judicial conscience and gravitates the mind to pose a
question: Is it justified for any conscientious trial
Judge to ignore the statutory command, not
recognise “the felt necessities of time” and remain
impervious to the cry of the collective asking for
justice or give an indecent and uncalled for burial to
the conception of trial, totally ostracising the concept
that a civilised and orderly society thrives on the rule
of law which includes “fair trial” for the accused as
well as the prosecution?

4. In the aforesaid context, we may recapitulate a
passage from Gurnaib Singh v. State of Punjab7:

(SCC p. 121, para 26)

“26. … we are compelled to proceed to
reiterate the law and express our anguish
pertaining to the manner in which the trial
4 (2001) 4 SCC 667
5 (2001) 6 SCC 135
6 (2015)3 SCC 220
7 (2013)7 SCC 108

6
was conducted as it depicts a very disturbing
scenario. As is demonstrable from the record,
the trial was conducted in an extremely
haphazard and piecemeal manner.

Adjournments were granted on a mere asking.
The cross-examination of the witnesses were
deferred without recording any special reason
and dates were given after a long gap. The
mandate of the law and the views expressed
by this Court from time to time appears to
have been totally kept at bay. The learned
trial Judge, as is perceptible, seems to have
ostracised from his memory that a criminal
trial has its own gravity and sanctity. In this
regard, we may refer with profit to the
pronouncement in Talab Haji Hussain v.
Madhukar Purshottam Mondkar8
wherein it has
been stated that an accused person by his
conduct cannot put a fair trial into jeopardy,
for it is the primary and paramount duty of the
criminal courts to ensure that the risk to fair
trial is removed and trials are allowed to
proceed smoothly without any interruption or
obstruction.”

9. In spite of repeated directions of this Court, the situation appears

to have remained unremedied.

10. We hope that the Presiding Officers of the trial courts conducting

criminal trials will be mindful of not giving such adjournments after

commencement of the evidence in serious criminal cases.

11. We are also of the view that it is necessary in the interest of

justice that the eye-witnesses are examined by the prosecution at the

earliest.

8 AIR 1958 SC 376

7

12. It is also necessary that the statements of eye-witnesses are got

recorded during investigation itself under Section 164 of the Cr.P.C. In

view of amendment to Section 164 Cr.P.C. by the Act No. 5 of 2009,

such statement of witnesses should be got recorded by audio-video

electronic means.

13. To conclude:

(i) The trial courts must carry out the mandate of Section 309

of the Cr.P.C. as reiterated in judgments of this Court, inter

alia, in State of U.P. versus Shambhu Nath Singh and

Others9, Mohd. Khalid versus State of W.B. 10 and

Vinod Kumar versus State of Punjab11 .

(ii) The eye-witnesses must be examined by the prosecution as

soon as possible.

(iii) Statements of eye-witnesses should invariably be recorded

under Section 164 of the Cr.P.C. as per procedure prescribed

thereunder.

14. The High Courts may issue appropriate directions to the trial

courts for compliance of the above.

9                   (2001) 4 SCC 667
10                  (2002)7 SCC 334
11                  (2015)3 SCC 220

                                       8

15. A copy of this order be sent by the Secretary General to the

Registrars of all the High Courts for being forwarded to all the presiding

officers in their respective jurisdiction.

………………………………………J.

(ADARSH KUMAR GOEL)

………………………………………J.

(UDAY UMESH LALIT)
NEW DELHI;

NOVEMBER 28, 2017.

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Article source: Supreme Court

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