STATE OF SIKKIM Vs. M K O NAIR

JUDGEMENT

(1.) This revision challenges the validity of the Order dt. 4-2-1985, passed by the learned Additional Sessions Judge, Gangtok, whereby the prayer made by the prosecution for adjournment and issue of fresh summonses to two witnesses, namely, Shri K. P. Chinnaswami, Assistant Director of Education, Tamil Nadu, and Shri G. Krishnamoorthy, S. P., Special Branch, Kerala, was at first allowed on payment of Rs. 500/- as costs, but later on the prosecution declining to pay the costs, was refused and the prosecution evidence was closed.

(2.) FIR against both the accused-respondents was lodged on 23-3-1982, and they were arrested and released on bail some time in March or April, 1982. A charge-sheet was filed against them on 1-9-1982, by the Sikkim Vigilance Police under S. 120B read with Ss. 468, 471 and 417, Penal Code. Charges were framed against both the respondents under Ss. 120B, 468, 471 and 417, Penal Code, by the learned Sessions Judge on 18th May, 1983, and the prosecution evidence commenced on 25-10-1983. On 9-10-1984, the prosecution made an application for issue of warrants of arrest against both the witnesses, namely, Shri K. P. Chinnaswamy, Asstt. Director, Technical Education, Government of Tamil Nadu, Madras, and G. Krishnamoorthy, S. P., Alleppey, Kerala. However, a radiogram message had earlier been received from Shri Krishnamoorthy making a request for sending sufficient advance TA for journey to Sikkim and back and also for one month's notice for getting sanction for proceeding to Sikkim. The learned Sessions Judge observed that no advance could be sent to the witness for want of any provisions in this regard in the relevant rules. Regarding Chinnaswami no intimation had been received. Therefore the learned Sessions Judge ordered the issue of fresh summons to Krishnamoorthy and bailable warrant against Shri Chinnaswamy for 5-11-1984. Further, in view of the fact that the learned Sessions Judge was proceeding on long leave, he transferred the case to the learned Additional Sessions Judge. On 5-11-1984, the learned Additional Sessions Judge found that the processes had not been received back after service. However, a letter dt. 1-10-1984, had been received from the Director, Technical Education, Madras stating that the summons had been served on K. P. Chinnaswamy on 21-9-1984, and he had already made a request for obtaining the orders of the Government of Tamil Nadu to attend the Court in Sikkim and also for sanction of necessary T. A. advance. He further stated that the Government of Tamil Nadu was being addressed to accord necessary permission to attend the case in Sikkim. He made a request to adjourn the case and further stated that as soon as the orders of Government of Tamil Nadu were received, the fact would be intimated to the Court to fix a date for appearance of the officer. In view of this letter and also because no report was received about the service of the summons in respect of the other witness, the learned Additional Sessions Judge ordered the issue of summonses to both the witnesses for 10-12-1984. On 10-12-1984, the processes were not received back after execution and on the request of the prosecution, summonses were directed to be issued again for 7-1-1985, with the direction that the prosecution should see that the processes were executed and returned in time. However, in the meanwhile another letter dt. 3-12-1984, was received from the Director of Technical Education, Madras, Tamil Nadu, who, while returning the summons relating to Chinnaswamy issued for 5-10-1984, stated that summons should, in future, be sent through the Commissioner and Secretary to the Education Department, Government of Tamil Nadu, as already stated in his earlier letter dt. 1-10-1984. It was further stated that it was only after the receipt of the permission from the Government of Tamil Nadu that Shri Chinnaswamy could be deputed for appearing in the Court in connection with the case. By this letter also, a request was made for adjourning the case stating that as soon as the order of the Government of Tamil Nadu was received, the fact would be intimated to the Court to fix a date for appearance of the officer. On 13-12-1984, a prayer was made on behalf of the prosecution to issue summonses to the witnesses through the Vigilance Department for execution. This request was allowed and the summonses were ordered to be issued for 4-2-1985. By 4-2-1985, also the summonses were not received after execution. On that date even, the Vigilance Department did not intimate to the Court as to what had happened to the summonses which had been issued by the Court on the previous date through them for execution. On the other hand, the prosecution moved an application on that date stating that it was not known if the summonses had been received by the witnesses or not. A prayer was also made for issue of fresh summonses to the witnesses through their respective departmental heads under registered post and that summonses should be signed by the Presiding Officer himself and not by the Reader. The learned Additional Sessions Judge observed in his order dt. 4-2-1985, that on the previous date the prosecution had itself undertaken to get the processes executed but they failed to do so and that ever since the case was transferred to him no progress could be made in the case in the absence of the two witnesses. He further observed that one of the accused, namely, Shri Koshi John, had to come to the Court all the way from Kerala only for this case and the prosecution had had several opportunities to produce the two witnesses. With these observations, the learned Additional Sessions Judge passed an order adjourning the case on payment of Rs. 500/- as costs; but immediately thereafter the prosecution expressed inability to pay the costs, adding that the Court might proceed further with the case. Consequently, adjournment was refused and prosecution evidence was declared closed. Feeling aggrieved, the State of Sikkim has filed this revision.

(3.) Shri V. J. Rao, the learned Advocate-General appearing on behalf of the petitioner challenges the validity of the impugned order on three grounds, firstly, that the summonses were not proper inasmuch as they bore the signatures of the Reader and not of the Presiding Officer of the Court; secondly, that there is no provision in the Cr. P.C. for awarding costs and, therefore, the order imposing costs was in violation of law; and thirdly, that it is not only the duty of the prosecution to produce evidence in a cognizable case instituted on a police report but also the duty of the Court to see that all the witnesses are examined before the stage is reached to decide the case and, therefore, evidence could not be closed by the Court until all the witnesses had been examined.