STATE OF GUJARAT Vs. NARENDRASINH LAKHUBHA

JUDGEMENT

(1.) This appeal by the State of Gujarat is directed against the impugned judgment and order dated 10/04/1986 passed by Mr. P. M. Vyas, learned J. M. F. C., Jam-Jodhpur, wherein respondent-Narendrasinh Lakhubha and two others who came to be tried on the charge of obstructing one Jayantibhai Patel, a Ticket-Checker in State Transport Bus on duty and causing injury to him for the alleged offences punishable under Secs. 323, 332, 186, 504 and 34 of the I. P. C., were ordered to be acquitted in the midst of the trial by arbitrarily closing the prosecution evidence, denying the prosecution its precious right to examine the material witnesses and thereby bring home the charge against the accused persons ?

(2.) On perusal of the record and proceedings, it appears thatthe alleged offence took place on 5-9-1986 at 11-45 hours at Jam-Jodhpur in a bus. The charge-sheet in the said regard was filed on 11-11-1986. Thereafter, the charge Exh. 18 was framed and plea of the accused pursuant thereto was recorded on the very same day, i e., 18-2-1989, after about two years ? ? Thereafter, two Panch-witnesses that is to say, P. W. Nos. 1 and 2 were examined on 22-8-1989, while Panch-witness No. 3 was examined on 19-1-1990. It further appears that several times summons were issued to the injured complainant at his office address, one after another at Jamnagar, Upleta and Rajkot, where he was subsequently transferred and found to be serving at the relevant time which mechanically returned unserved with an endorsement, such as (i) not serving at the place of address; (ii) transferred, (iii) was on long leave, etc. etc. It also appears that at no point of time either the process server or the Investigating officer, and for that purpose, even the learned P.P. ever tried to find out the correct residential address of the complainant, particularly when he was not available at the place where he was ordinarily serving ? It further appears that the learned Magistrate also on his part, quite surprisingly leaving the fate of justice at the mercy of totally impersonal and callous attitude of the process server, without doing anything of his own to examine the injured complainant and the medical officer, all of a sudden closed the prosecution evidence quite arbitrarily and acquitted the accused ? Greater still is the surprise that the learned A.P.P. incharge of the case also did not even whisper objecting to the closing of prosecution evidence ? It is under these circumstances that the State has preferred the present acquittal appeal.

(3.) The aforesaid state of affairs distinctly surfaces three things on the top, namely, (i) the indiscreet approach of the learned Magistrate who abruptly acquitted the accused surrendering his will to do justice to the inefficient process serving agency by not at all further activating himself to examine the most important material prosecution witnesses, namely, the injured complainant and the medical officer, and instead by closing the prosecution evidence in all suddenness . (ii) the most irresponsible way in which the learned P.P. who neither tried to keep prosecution witnesses present before the Court, by taking the assistance first of the Investigating Officer and failing which that of the Police Inspector and the District Superintendent of Police, nor he objected to the closing of the prosecution evidence by the learned Magistrate ? ? and (iii) the careless manner in which the process serving agency mechanically went to the given address of the injured complainant and bounced back like a Tennis-ball with different endorsements on the summons, as pointed out above ? ? The way in which all these three important functionaries of the judicial system have let down the prosecution case and thereby the ultimate cause of justice is something quite nauseating and shocking enough, and accordingly, deserves to be strongly condemned and dealt with. his is not a new phenomena, as this sort of misconduct has practically become the recurring feature, which is found to be going on unabated because the superior authorities appears to be quite relaxed to control them ? In fact, in all important criminal cases, first of all it is the personal duty of the learned Magistrate to see that as far as possible, the case is decided on merits by examining the prosecution witnesses, and for that purpose, by issuing summons, failing which even the non-bailable warrants securing presence of the accused and/or the witnesses for examination purpose. Secondly, it is equally the personal duty of the learned P.P. incharge of the case to see that the summons or warrants, as the case may be, are taken out from the Court from time-to-time, and the accused/ witness(es) are duly served and kept present before the Court on the appointed day for examining them. In case, if the summons/warrants issued are not served for whatever reasons or are not returned either served or unserved, he should take assistance in the first place of the Investigating Officer of the case and in case of his transfer that of the Police Inspector of the area, and for that purpose, if need be, even that of the District Superintendent of Police to see that the processes issued by the Court are duly served in order to secure presence of the accused/witness(es) before the Court. If the learned P.P. fails to do any of these things, he is liable for explanation to the higher-ups, and if found guilty, should be dismissed forthwith. Not only that but even the learned Magistrate should not be hesitant in case the learned P.P. incharge of the case and the Investigating Officer fail to assist him in securing presence of either the accused or the witness(es) before the Court by writing a letter to the District Superintendent of Police, and thereafter by making suitable observations against the concerned delinquent in the judgment by forwarding a copy of the same to the concerned (i) District Superintendent of Police, (ii) District Magistrate, (iii) Secretary, Home Department at Gandhinagar, and (iv) Secretary, Legal Department, at Gandhinagar. In case, if the superior Court finds that the learned Magistrate has also failed in discharging the above duties, he is equally liable for explanation to the High Court, and appropriate action thereafter ? Not only these, but once it is found that the process serving agency is guilty of either delaying or avoiding service of the process, the Court should not feel hesitant in issuing notice of contempt against the wilful disobedience of the Court orders by such agencies ? Taking into consideration the fact that the process serving agency is not discharging its duty efficiently to the expectation and further still, the gradual decline in the sense of duty towards the administration of justice, the concerned District Superintendents of Police of the areas are directed to issue Circulars and periodical reminders to all such process serving agencies and Investigating Officers of the area, impressing upon them that : (i) if in the first place, the accused or the witnesses are not available at the given addresses, then in that case, they should make further appropriate inquiry as to where they are and try to collect fresh address and should send the same alongwith unserved summons so that the concerned Court will have an opportunity to issue subsequent summons on the fresh address, and (ii) in the second place in event of any wilful disobedience of the orders of the Court in delaying and avoiding to serve the process either on the accused or on witnesses, as the case may be, he would be visited with departmental proceedings over and above the contempt proceedings that may be taken up by the Court. This is indeed absolutely necessary for two reasons, namely : (i) it is because of the delaying tactics of process serving agencies that the case become old, get piled-up and thereby damage the quality of evidence to be recorded, and (ii) not having become stricter with the process serving agency so far it has developed a queer sense of irresponsibility and impunity which is quite dangerous to the system of 'Rule of Law' and the 'Administration of Justice.' In fact, the aforesaid two instructions in Gujarati language should be got printed and annexed with every copy of summons which is handed over to the process server, serving the process. It is earnestly hoped that the Home as well as the Legal Department would see to it that Circulars, as directed above, are issued by all the District Superintendents of Police to all the learned Public Prosecutors and the Police Officers of the State with a view to see that diffculty in the way of expeditious service of the process is ironed out in the interest of speedy criminal justice. Not only that, but it is equally the duty of Legal Department to see that while resolving to file an acquittal appeal, it should also screen through the 'rojkam' proceedings and find out whether the prosecution has failed in its duty to bring home the charge and for that purpose who is responsible and thereafter, to take appropriate action against the concerned one.