MAHENDER SINGH Vs. STATE

JUDGEMENT

(1.) THE investigating officer has failed to produce public witnesses in the trial court on 5. 09. 2008 for their examination depsite directions issued by this court vide its order dated 7th July, 2008. A plea is being taken that on 5. 9. 2008 since work was transferred to newly constructed dwarka District Court, New Delhi, the court file was not available and the witnesses could not be examined. Admittedly, no public witness was present before the court on 5. 9. 2008.

(2.) LEARNED counsel for the petitioner submits that the court/police file was available with the court and since there was no witness present, the trial court adjourned the case for 15th October, 2008 for recording of prosecution evidence. It seems that Investigating Officer has made a false statement before this court.

(3.) THE complainant and other public witnesses could not be examined by the trial court as the prosecution has failed to produce them in the court on various dates so fixed. The report on the process issued against these witnesses indicated that they were not traceable. It was the duty of the investigating Officer to see that the case was properly prosecuted before the trial court and in case the witnesses had left the given address, trace them out and get the process served upon them or produce them in the court for their examination. Under these circumstances, when the prosecution has failed to produce public wit-nesses despite various opportunities granted and in view of the fact that witnesses are not available at the given address, the petitioner who is in judicial custody since 16th November, 2005 i. e. for about three years, should not be allowed to languish in jail. In the facts and circumstances of the case, where the whereabouts of the witnesses are not known the possibility of the petitioner influencing public witness is also ruled out