JAMAJI GAMBHIRJI THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The question of quite a recurring nature, arising during the trial and subsequently many a time at the, appellate stage as well, and accordingly of very great importance that precisely falls for our consideration in this matter is as to - "What indeed is the duty rather the primary duty of the concerned Investigating Officer in-charge of the case and/or his successor; the Public Prosecutor and the Court also to re-arrest and thereby reclaim the presence of accused already charge-sheeted to make him face the trial when he is found to be absconding?"

(2.) . When on 13-8-1996, Criminal Revision Application No. 217 of 1996 was placed before us for admission, it was noticed that as quite unexpected these days the trial of the Sessions Case came to be terminated within the short period of six months only from the date of the offence!! Such an expeditious state of affairs are indeed and undoubtedly quite good, heartening and welcome too, but at the same time since the expeditious trials of-late had in fact started fading into the distant dreams it brought about little surprise to us!! Under the circumstances, for the time being we just could not believe this as bearing in mind the threatening explosive backlog of cases in the Sessions Courts, reaching a flashing point, it was little impossible for Sessions Court to accomplish the dream of expeditious trial within six months. We were rather bit surprised, and accordingly by an order dated 13-8-1996, called for the information from the learned Sessions Judge, Mehsana regarding (i) as to in all how many Sessions Cases were pending before him and his other Additional Sessions Judges? (ii) of which Years? (iii) accordingly, the further information was also called for as to at what serial number the Sessions Case No. 80 of 1996 was listed in the case register, (iv) whether any priority was given to the particular Sessions case under the present Revision application? And if yes, (v) what were the special reasons for the same? In response to these questions, the learned Sessions Judge by his report dated 21st August 1996 submitted necessary information. After perusing the same, since we felt that further information was necessary, by an order dated 26-8- 1996, attention of the learned Sessions Judge, Mehsana was invited to the chart submitted by his additional learned Judges annexed to his report and pursuant thereto he was further directed to report back : (i) As to why two old Sessions cases, each of the year 1961 and 1983 were still pending? (ii) What steps the concerned learned Sessions Judge had taken to expedite the trial? (iii) Further, so far as the chart pertaining to cases as on 1-6-1996 of the concerned learned Addl. Sessions Judge was concerned, he was directed to state right from the year 1990 till 1996 in which of the Sessions Cases the accused were on bail and how many accused persons were in jail; (4) whether the Sessions Case No. 80/96 was in any way prior to other cases; (5) so far as the other concerned learned Judge was concerned, he was directed to inform why the Sessions Case each of 1987, 1990 and 1991, three cases of the year 1992 and six cases of the year 1993 were still pending? (6) were the accused in the said cases on bail? (7) they are charged of what offences? (8) what steps the learned Judge had taken to expedite the trial? (9) so far as the Sessions Court (Camp) at Patan is concerned, the concerned learned Trial Judge was also asked why the cases of the year were taken. These informations were directed to be laid before us on or before 5-9-1996. In response to this, the concerned learned Judges have submitted their respective reports found annexed with a forwarding letter dated 4-9-1996 of the District & Sessions Judge. On perusal of the said report, we have come across indeed quite starting, shocking, alarming and unbelievable state of affairs wherein two Sessions Cases, being Sessions Cases No. 57/61 and 74/83 are still pending because the accused were absconding!! This is quite regrettable and has just set us thinking as to whether the administration of justice has any duty, rather accountability, to the citizen in the matter of doing justice! When we say the administration of justice, it necessarily means that its inseparable components are the Investigating Officer, the process serving constable. The Public Prosecutor in charge of the case and, last but certainly not the least, is the learned Trial Judge also in whose Court the cases are pending. When the duty belongs to all the four components, can any one of them i.e., the Investigating Officer, the concerned process server, learned PP and the learned Trial Judge shirk their respective duties by passing the buck, throwing burden on each other and not discharging their own!! We can quite understand that so far as the learned Trial Judge is concerned, personally he may not, of his own, know which accused were absconding and since when ? But, then, certainly, the Registrar of the Sessions Court or for that purpose even the Superintendent of criminal branch cannot escape from the ultimate responsibility of checking up the Special Register which is required to be maintained wherein it is stated whether the accused is granted bail or not and whether he has absconded? This is required to be consistently monitored every week by asking the concerned PP and the Police Officer to supply material and moment it is noticed that the accused is absconding this fact should be immediately notified on the urgent board before the Court to pass appropriate order/s. In fact the special Board in matter of (i) the absconding accused, (ii) further in such cases where sureties are required to be given notice and final orders to be passed against them and (iii) non-services of notices and/or notices issued not received back either served or unserved to accused/witnesses/sureties, etc., as the case may be, should invariably be prepared and placed before the Court to pass appropriate orders. Thus at the regular interval the stock of the said Register and thereby of the situation is required to taken ultimately bringing it to the notice of the learned Judge who in his turn was bound to call upon the PP and the concerned Investigating Officer also as to what steps they had taken and if no steps are taken, appropriate directions are given to them to coerce the presence of the absconding accused to face the trial. It prima facie appears that unfortunately all the concerned officers have been totally oblivious of their respective duties. We believe that all the three aforesaid components of the administration of justice in the first instance are expected to know their respective obligations under Art. 21 Of the Constitution of India to deliver speedy justice, in the second instance what are the relevant provisions in the Criminal Procedure Code, 1973 and in the Gujarat Police Manual, Vol. III in respect of cases wherein the accused are absconding. For this purpose, for sake of convenience and immediate reference the relevant provisions as engrafted in Sections 82, 83 and 84, etc. of the Code and in particular Section 82 is reproduced as under :

(3.) . It is simply unfortunate as it prirna facie appears to have happened that the accused after committing crime and their arrest and charge-sheet filed against them have been found to be absconding, and the duty of all the components of the Administration of Justice as if came to an end and nothing further was required to be done! This is what the right or wrong impression created in this case. We quite understand that ordinarily it is a primary duty of the Investigating agency, thereafter of the learned PP to bring this aspect to the notice of the Court and obtain appropriate orders for tracking down the absconding accused by follow up action, following the necessary procedure as envisaged in Section 82 of the Code read with Rule 219 of the Police Manual referred above. But, then, as it is unfortunately happening these days, because of quite wooden, impersonal, unconcerned attitude, approach and the utter lack of responsibility and sense of accountability and further as if there is none to call for an account and explanation of grossly defaulting officers, holding them ultimately responsible, if the Investigating Officer and the PP do not discharge their duties, should the Court also sit quietly and passively waiting indefinitely doing nothing, when the ultimate duty of doing justice undoubtedly lies on the head of the Trial Judge? As stated above, we can understand that the learned trial Judge may not know as out of hundreds or thousands of accused, which of the accused were actually absconding, but then if the Special register for the purpose is maintained in respect of the accused absconding and if such matters are regularly taken on the weekly board every week to find out whether the absconding accused had been traced or not, then in that case the Court informed accordingly can certainly do something in the direction of expeditious trial. Nothing of the sort appears to have been done. Now it appears from the report of the learned Judge that at long last he has called the concerned P.S.I, for the execution of non-bailable warrants in the aforesaid two Sessions cases, namely, Sessions Case No. 57/61 and Sessions case No. 74/ 83 with an instruction to serve them personally at the earliest !! This is quite good as better late than never but then this does leave behind the unpleasant impression of remissness on the part of all concerned involved. We hope and trust that all Criminal Courts of the State henceforth shall be vigilant enough in this material regard!