STATE OF GUJARAT Vs. RAJENDRASINH RAMJANSINH

JUDGEMENT

(1.) We have been simply stunned to find quite queer and totally indiscreet attitude of the learned Additional City Sessions Judge, Ahmedabad, in acquitting four accused persons on the most questionable ground, viz., that the prosecution failed to examine the witnesses. It is simply unfortunate and disgusting too, that on the one hand the learned trial Judge did not care to realise his own duty to do justice, as if he had none, and on the other hand, placing the entire blame on the prosecution side, as if that was just and sufficient ground to white-wash the accusation of serious offence levelled against the accused, more particularly in a serious case wherein sword has been used, and the accused has been arraigned for the offence punishable under Sec. 307 of the I. P. Code. It is indeed a settled legal position to be ignorant about by any experienced Judge that once the charge is framed, the ball is unquestionably in the court of the trial Court and the learned trial Judge has, indeed no alternative but to decide the case on merits one way or the other depending upon the quality of evidence produced before him. If the Investigating Agency was found to be careless, remiss in not assisting in keeping the witnesses present before it, the Court ought not have felt that utterly helpless in exercising its powers, by seeing that the witnesses were made to be kept present by adopting coercive method. Merely because apparently the learned trial Judge was annoyed and frustrated with the prosecuting agency in not keeping the witnesses present before the Court for examination on the date so fixed for hearing, that wrath, anger and displeasure could not have been given vent to the greatest detriment and prejudice of the cause of justice. To do so is not only indiscreet, illegal but with respect, we may further add and assert that it is gross judicial misconduct also. If the prosecuting agency did not keep witnesses present before the Court, what wrong, fault was indeed committed by the injured, aggrieved citizen who knocked the door of the Court for justice ? In fact, this is a case wherein we believe that if the prosecution failed to discharge its duty in keeping the witnesses present before the Court, likewise the trial Court has also unpardonably miserably failed in discharge of its duty in not issuing bailable, failing which even non-bailable warrants to the recalcitrant witnesses and concerned Investigating Officer to secure their presence before the Court and give evidence. Here in the instant case, in fact, it appears that the learned A.P.P. had asked for some time that was not granted by the trial Court. In our view, if the summons were served and it was brought to the notice of the Investigating Officer, and still, if the witnesses did not remain present, nothing prevented the learned trial Judge from issuing non-bailable warrants against the concerned witnesses, including the Police Officer. When the prosecution for whatever reasons does not keep the witnesses present before the Court and at this juncture, if the Court also, depending upon the mercy of the process serving agency surrenders its duty and will to do justice to the recalcitrant witness and/or to the inefficient investigation agency, then, in that case, we are afraid, in good many cases, the Court will have to record the order of acquittals. Under such circumstances, what is the difference between the Courts doing justice and the recalcitrant witnesses and inefficient process serving agency, hostile to the cause of justice ? To sit passive with the folded hands. Such unjust and illegal acquittals because of spineless attitude of the Judge is always nothing but a judicial suicide. We totally disapprove and condemn such negative attitude which has brought about the total failure of justice. If the criminal justice system is gradually failing, shaking the faith of people in it, it is entirely because of the unconcerned judicial attitude, with no sense of accountability to the cause of justice. This simply cannot be done and never done and yet we find that the learned trial Judge has done it. In fact, on this point of elementary duty of the Court and procedure to be followed when witnesses are not present or produced before the Court, there are plethora of judgments from this Court itself, and had indeed the learned trial Judge and for that purpose even the learned P.P. tried little even to go through the digest of cases, they could have surely found out a correct procedure and acted upon the same. To cite some such reported decisions, they are : (1) State of Gujarat v. Lalit Mohan, 1989(2) GLR 952; (2) State of Gujarat v. Ramanbhai R. Pandya, 1993(1) GLR 881; (3) State of Gujarat v. Dr. C. K. Patel, 1991(2) GLR 995; (4) State of Gujarat v. Kirit Maganbhai Patel, 1993(1) GLR 674; (5) State of Gujarat v. Lohana Prakash Dayalji and Anr., 1994(1) GLR 112; (6) State of Gujarat v. Shambhubhai Jivrambhai Patel, 1995(1) GLR 803; (7) B. J. Pandya, Octroi Inspector, Godhra Municipality v. Arvindkumar Kanubhai Hadial and Ors., 1995(2) GLR 1100; and (8) State of Gujarat v. Bhupatbhai Muljibhai and Anr., 1995(1) GCD 786. In this last mentioned case, in para 6, it is held as under :

(2.) Anyway, in the present case, since the case is not decided on merits, but stands disposed of merely because the witnesses were not examined by the prosecution, on such default acquittal we do not deem it necessary at all to issue notice to the respondents, and accordingly, the appeal is required to be straight-away allowed and remanded to the trial Court, for further trial according to law. Indiscreet orders such as the present one vest no right whatsoever in the accused to be heard before patently illegal and perverse order is quashed and set aside.

(3.) In the result, this appeal is partly allowed. The impugned judgment and order passed by the learned Addl. City Sessions Judge, Ahmedabad, in Sessions Case No. 66 of 1992 dated 3-7-1995 is hereby quashed and set aside, and the case is remanded to the trial Court with a direction to dispose of the same on merits according to law in light of the observations made above. Principal Judge, City Sessions Court is directed to entrust this matter to any learned Judge other than the one who passed the impugned order from which this appeal arises. In case, if the Investigating Officer once against fails to discharge his duty in securing the presence of witnesses, the trial Court is directed to take steps in light of the observations made hereinabove. 3.1 The Registry is directed to forward a copy of this judgment to (1) Director, Judicial Academy, Gujarat State, Ahmedabad; and (2) the Public Prosecutor, in charge of the case, for necessary information and immediate effective action.