VIJAY KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) PRESENT petition is filed under Section 482 Code of Criminal Procedure 1973 against the order dated 10.4.2014 passed by learned Commissioner and order dated 4.9.2014 passed by learned Judicial Magistrate 1st Class Kandaghat District Solan whereby opportunity of cross examination of PW3 Ram Singh investigating officer was declined. It is pleaded that on dated 10.8.2004 FIR was registered against petitioner under Section 61(1)(14) of the Punjab Excise Act 1914 and Sections 181, 190(2) of the Motor Vehicle Act 1988 at police station Kandaghat District Solan HP and case No. 48/3/2004 was registered in the Court of learned Judicial Magistrate 1st Class Kandaghat District Solan HP. It is further pleaded that case was listed before learned trial Court on dated 17.8.2013 and investigating officer PW3 Ram Singh was suffering from cancer and was not in a position to appear before the Court personally and thereafter commission was issued under Section 285 Cr.PC with direction to learned Commissioner for examination of PW3 Ram Singh who was investigating officer of the case. It is further pleaded that thereafter matter was listed before learned Commissioner for examination of PW3 I.O. Ram Singh. On dated 13.9.2013 learned Commissioner issued notice to I.O. Ram Singh through special messenger. Thereafter case was listed on dated 18.9.2013, 19.11.2013, 12.12.2013, 14.1.2014, 7.2.2014, 18.3.2014 and lastly on 10.4.2014 before learned Commissioner. It is further pleaded that thereafter learned Commissioner vide order dated 10.4.2014 did not record statement of witness Ram Singh despite presence of witness Ram Singh before Commissioner with observation that statement of PW3 Ram Singh was already recorded when accused was declared as proclaimed offender. It is further pleaded that learned Commissioner held that statement of PW3 I.O. Ram Singh could be read as evidence under Section 299 Cr.PC. It is further pleaded that thereafter on dated 4.9.2014 case was listed before learned trial Court and petitioner appeared before learned trial Court i.e. Judicial Magistrate 1st Class Kandaghat District Solan HP and learned trial Court held that case pertains to year 2004 and case was listed before learned Commissioner but accused did not appear before learned Commissioner on several dates and learned trial Court closed right of cross examination of accused by order of Court. Thereafter case was listed for recording statement of witness under Section 313 Cr.PC. It is pleaded that right of cross examination is the basic right of the petitioner. Prayer for acceptance of petition sought. Per contra response filed on behalf of non -petitioner pleaded therein that case was listed before learned Commissioner for recording the statement of witness namely Ram Singh several times. It is further pleaded that petitioner or his Advocate did not appear before learned Commissioner for cross examination purpose. It is further pleaded that sufficient opportunities were granted to the petitioner to cross examine the witness. It is further pleaded that petitioner has voluntarily did not appear before learned Commissioner for the purpose of cross examination and learned trial Court had rightly closed right of cross examination of petitioner in accordance with law. Prayer for dismissal of petition sought.

(2.) COURT heard learned Advocate appearing on behalf of petitioner and learned Additional Advocate General appearing on behalf of non -petitioner and also perused the record carefully.

(3.) SUBMISSION of learned Advocate appearing on behalf of petitioner that order of learned Commissioner dated 10.4.2014 is contrary to law and same be set aside is accepted for the reasons hereinafter mentioned. It is proved on record that case No. 48/3/2004 was registered under Section 61(1)(14) of the Punjab Excise Act 1914 and under Sections 181, 190(2) of the Motor Vehicle Act 1988 against the petitioner. It is proved on record that petitioner was declared as proclaimed offender by learned trial Court on dated 2.1.2009 and thereafter learned trial Court recorded statement of prosecution witnesses namely, Satish Kumar, Dinesh Kumar and Ram Singh. It is proved on record that thereafter on dated 25.6.2010 learned trial Court consigned file of the case to record room with direction that case would be revived as and when proclaimed offender i.e. petitioner would surrender before the Court or when proclaimed offender would be apprehended in accordance with law. It is proved on record that thereafter on dated 12.12.2011 present case was revived by learned trial Court and thereafter case was listed for prosecution evidence by learned trial Court. It is proved on record that thereafter on dated 17.8.2013 learned trial Court directed that the statement of prosecution witness namely ASI Ram Singh who was investigating officer would be recorded through commission as per provision of Section 285 Cr.PC because prosecution witness namely retired ASI Ram Singh was suffering from cancer and was residing within territorial jurisdiction of learned Chief Judicial Magistrate Sirmour District at Nahan. It is proved on record that on dated 17.8.2013 learned trial Court directed accused to submit interrogatory in writing so that same could be sent to learned Commissioner. It is proved on record that accused did not submit any interrogatory and thereafter learned Commissioner listed the case on dated 13.9.2013, 18.9.2013, 19.11.2013 12.12.2013, 14.1.2014, 7.2.2014, 18.3.2014 and 10.4.2014. It is proved on record that on dated 10.4.2014 witness Ram Singh appeared before learned Commissioner but learned Commissioner did not record the statement of prosecution witness namely Ram Singh on the ground that statement of PW3 Ram Singh was already stood recorded as PW3 when accused was declared as proclaimed offender. Learned Commissioner held that since accused was not putting his appearance before Commissioner therefore learned Commissioner held that no further action was required in the present case. Learned Commissioner held that statement of PW3 Ram Singh could be read in evidence as mentioned under Section 299 Cr.PC. It is proved on record beyond reasonable doubt that learned Commissioner did not record statement of PW3 Ram Singh on dated 10.4.2014 despite presence of witness Ram Singh before learned Commissioner. It is held that learned Commissioner was under legal obligation to comply the direction of learned trial Court. It is proved on record that learned Commissioner did not execute the direction of learned trial Court but on the contrary learned Commissioner had given his own findings that examination of ASI Ram Singh was not essential in the present case and learned Commissioner has given his own finding contrary to direction of learned trial Court that statement of I.O. Ram Singh could be read as per provision of Section 299 Cr.P.C. It is held that learned commissioner had committed illegality by way of not complying direction of learned trial Court for recording the statement of I.O. Ram Singh despite presence of Ram Singh before learned Commissioner on dated 10.4.2014. It is held that learned commissioner was under legal obligation to record the statement of I.O. Ram Singh as directed by learned trial Court. It is held that learned Commissioner did not execute the order of learned trial Court as per requirement of Section 286 of the Code of Criminal Procedure 1973. In view of above stated facts it is held that order of learned commissioner dated 10.4.2014 is not sustainable as per law.