CRR/14/2010 of MUKHTAR AHMED AND ORS. Vs STATE O J AND K on 21 December 2010

HIGH COURT OF JAMMU AND KASHMIR AT|JAMMU

Case: Cr. Rev. No.14/2010

Date :21 .12.2010

Mukhtar Ahmed and ors. Vs. State of Jammu & Kashmir

Coram:

Hon’ble Mr. Justice Virender Singh, Judge|

Appearing counsel:

For petitioner(s) : Mr. P. N. Goja, Advocate.Hor res#ondent(S): Mr. B. R. Chandan, D/AG.|

i)|Whether approved for reporting

in Press/Journal/ Media- Yes)

11) Whether to be reported inDigest/Journal: Yes|

All the four petitioners (to be referred as ‘accused’) arefacing trial in case F.I.R. No. 2950/2006 registered at Policestation Banihal under Sections 8/20 of Narcotic Drugs &|Psychotropic Substances Act, 1985 (for short to be referred to as‘NDPS Act’) for allegedly found to be in possession of 10 kg., (tenkilograms) of Charas. They are stated to be in custody since|November, 2006.

since the prosecution after availing many opportunitiescould not conclude its evidence, the learned trial Court vide)order dated 04.11.2008 (Annexure-A) closed the evidence ofprosecution and put the trial to next step i.e. recording the|statement of the accused under Section 342 Cr.P.C., which was|also done and after that accused were given an opportunity to lead evidence. When the case was amidst hearing argumentsand the matter was being argued by the Public Prosecutor, an|

application under Section 940 Cr.P.C. was filed by the State for|calling Investigating Officer and SDPO Banihal, which was|opposed by the accused vehemently, but ultimately allowed by|the learned Sessions Judge, Ramban vide impugned order dated23.02.2010. A fixed particular date for recording the statement|of the aforesaid two witnesses was fixed. Aggrieved of the said|order, the accused have knocked the door of this Court through|the instant criminal revision petition in which while issuing|notice, further proceedings before the trial Court are stayed.

Pursuant to the notice, Mr. B. R. Chandan, Dy. AG hasput in appearance. Trial Court record is also attached with theinstant petition.

Heard Mr. P. N. Goja, Advocate, learned counsel for all theaccused and Mr. B. R. Chandan, learned State counsel. Recordalso perused and the judgment reserved.

At the very outset, Mr. Chandan, learned State counselsubmitted that the instant revision petition is not maintainable,as calling or refusing to call a witness during the trial is an|interlocutory order. He cited Division Bench judgment of thisCourt in case S. K. Mahajan Vs. Municipality, Jammu andors.’ reported in 1982 Kashmir Law Journal 1, wherein in para|15, it is observed thus:-|

“715No party has a right to have awitness examined under Section 540. It can.only draw the attention of the Court bymaking a prayer to that effect. Whether or.not a witness is to be examined under this.section, the discretion entirely lies with the court, though it may be obligatory on its.part to summon the witness in case his.evidence appears to it to be essential for thejust decision of the case. Nevertheless, it is_the requirement of the court and not that ofthe party to see whether or not a witness is|to be examined. Viewed thus, an order)granting or refusing the prayer of the partyto have a witness examined under section|940 cannot be said to have determined anyright of the parties and consequently fails to.acquire the flavour of a final order. It is an.interlocutory order, pure and simple. I amnot prepared to accept the proposition,which to me too narrowly stated, that unlessthe order brings an end to the proceeding in)which it is made, it cannot be said to be a)finalorder.This,1n fact,Wa Stheconnotation placed upon the expression“final order” in Kuppaswami’s case (supra) .But it was not accepted by the SupremeCourt in Madhu Limay’s and V.C.Shukla’s|cases (supra). The apparent conflict was,however, sought to be avoided by creating athird category of orders to be known as“intermediate orders” as would appear from.the following observations made by hisLordshipsS.M.FAljJ,expressingthemajority view in V. C. Shukla’s case (supra):

Ratio decidendi

“To sum up, the essential attribute ofan tnterlocutory order is that titmerely decides some point or matteressential to the tissues sought but nota final decision or judgment on thematter in issue. An intermediate order|

is one which is made between the'commencement of an action and theentry of the judgment, Untwalia J. inthe case of Madhy Limaye vs. State ofMaharashtra clearly meant to convey|that an order framing charge is notan tnterlocutory order but ts anintermediate order as defined in the|passage, extracted above, in Corpus|Juris Secundum, Vol. 60. We find|ourselves in complete agreement withthe observations made in Corpus Juris.Secundum. It ts obvious that an order|of|framingthechargebeingan|intermediateorderfallssquarely|within.theordinaryandnaturalmeaning of the term “interlocutory|order” as used in S. 11 (1) of the Act.”

Mr. Chandan then submitted that while following the ratioof S.K. Mahajan’ case (supra), this Court (Single Bench) in|another case titled ‘Hem Raj Vs. State’ reported in 2006 (1)SLJ 96 has dismissed the revision petition of an accused whoseapplication for recalling witnesses was rejected holding it to be|interlocutory order.

Mr. Goja was not able to show any law contrary to it.

In view of the above, on this short ground alone, theinstant revision petition merits dismissal.

The other aspect of the case is, whether the impugnedorder is liable to be quashed being abuse of the process of the|Court or to secure the ends of justice under inherent powers of this|Courtenshrinedunder.Section561ACr.P.C.(corresponding to Section 482 of Central Code), despite revision|petition being not maintainable, because of the statutory bar.

section 540 Cr.P.C. (corresponding to Section 311 ofCentral Code) is in two parts. The first part deals with the|discretionary power of the Court, whereas the second part|imposes upon the Court an obligation for summoning or|recalling or examining any witness. So far as first part is|concerned, the Court can exercise its discretion at any stage|during the trial till the judgment is pronounced, whereas|according to the second part, the need of recalling or'summoning the witness would arise when the Court feels that|the evidence of a particular witness is essential to the just'decision of the case. While dealing with this aspect in case,|

‘Mohan Lal Shamji Soni v. Union of India and another’|reported in 1991 supp. (1) SCC 271, their Lordships of Apex|Court in para 16 of the judgment observed thus:

“16.The second part of section 540 aspointed out albeit imposes upon the court an.obligation of summoning or recalling and re-examininganywitnessandtheonlycondition prescribed is that the evidencesought to be obtained must be essential to.the just decision of the case. When any part.totheproceedingspointsOu+tthedesirability of some evidence being taken,then the court has to exercise its power.under this provision-either discretionary ormandatory-dependingOn|thefactsand|circumstances of each case, having in view that.themostparamountprinciple|underlying this provision is to discover or to.obtain proper proof of relevant facts in order.to meet the requirements of justice. In this|connection, we would like to quote withapproval the following views of Lumpkin, J.in Epps v. S., 19 Ga 118 (Am), which reads|thus:

“tt ts not only the right but the duty of thepresiding Judge to call the attention of thewitness to it, whether it makes for oragainst the prosecution; his aim betngneither to puntsh the tnnocent nor screenthe guilty, but to administer the lawcorrectly...Counseseekonlyfortheirclient’s success; but the judge must watch)thatjustice triumphs.”

Crux of the ratio of the aforesaid judgment is that the onlytest of exercising discretion under Section 940 Cr.P.C. is the|exigency of service and fair play. Legally there cannot be anylimitation on the power of the Court arising from the stage to|which trial may have reached for examination of a particularwitness under this Section. The note of caution is that|examination of a particular witness should be for a just decisionof the case. It is also well settled and accepted principle that a|CourtMUST.discharge1ts|statutoryfunction|whetherdiscretionary or obligatory according to law in dispensing|justice. A judge is neither pro prosecution, nor pro accused. Heis always pro justice.

Let us advert to the case at hand. Undoubtedly, theprosecution aiter availing many opportunities could not exhaust the list of witnesses inasmuch as, even the Investigating Officer|and SDPO, who in the present case, were very important|witnesses could not step into witness box because of certainlapses on the part of prosecution, which ultimately constrained|the trial Judge to close the evidence of the prosecution by the|order of the Court. This is how the discretion was once used by |the Court at one stage considering that the prosecution did not|deserve any more opportunity. It is also apparent on record thatthereafter no application for examining any of the left over'prosecution witness was moved by the prosecution till the trial|reached the stage of arguments and during the course of|arguments, the Public Prosecutor moved an application under|Section 540 Cr.P.C. tor the examination of aforesaid witnesses. |The delay in filing the said application for one or other reason, isapparent on record, but the casual approach shown by the|official handling the State case should not stand in the way of|substantial justice. After all justice is not to be made casualtyat the hands of the prosecution. Therefore, a corresponding|duty is cast upon the presiding officer to see that the cause ofjustice is advanced. However, this depends upon the facts of|each case and in the present case, the trial Court has rightly|adopted the correct approach.

The accused have been charged under Sections 8/20 ofNDPS Act for having in their possession a huge quantity|(Commercial Quantity) of Charas weighing 10 K.G. In such typeof case, the Investigating Officer is the most important witness|as he is one, who starts with the investigation, prepares recovery|

memo(s) and other important documents at the spot while|following the provisions of the Act. Therefore, his examination|in the Court was very necessary. The other witness (SDPO|Banihal) was also not less important witness to unfold the|prosecution case. Seeing it from that angle, evidence of both|these witnesses is essential for the just decision of the case. At|the same time, their examination would not cause any injustice|to the accused side as the prosecution does not want to bring|any fresh material on record against them, which can be termedas filling up lacunae in its case. Role of both these witnesses|was made known to the accused in the challan itself submitted|against them. No doubt, calling these two witnesses in the|witness box would certainly cause some delay in the conclusion|of the trial and the right of speedy trial is available to the|accused as enshrined under Article 21 of the Constitution of.India, but considering the entirety of facts of the present case, inmy considered view, the evidence of the aforesaid two witnesseswhen compared with delay, becomes more essential to serve the|ends of justice, which is paramount. Provisions of Section 561-A Cr.P.C. are devised to advance justice and not to frustrate it.Therefore, | do not find any good ground for quashing the|impugned order under inherent powers of this Court.

As all the four accused are languishing in jail sinceNovember, 2006, the trial of the case deserves to be wrapped upat the earliest as it has been delayed considerably for one reasonor the other. Therefore, the Prosecution is granted only one|opportunity to produce the aforesaid two witnesses in the Court.

The prosecution agency will be at liberty to seek dasti summonsalso in this regard.TrialCourtrecordbe|sent|backimmediately so that the trial is put on track without any further|delay by fixing the calendar.

The net result is that the instant petition is dismissedhaving no merit in it.

Before parting with the order, I would like to observe herethat the cases falling under NDPS Act are not to be taken|lightly/casually neither by the prosecution nor by the Court.ouch type of cases are required to be put on fast track by the|Court, may be by disturbing its regular calendar. In such type|of cases, the number of witnesses are very few, mainly the|witnesses of recovery, which includes the Investigating Officer|also. Therefore, trial Court should ensure that the witnesses to.the recovery, which are hardly 3/ 41in number are examined in |one set on one particular date at least, that too by fixing a shortdate after charge(s) are framed against the accused. Theinvestigating officer of the case can be called by the Public|Prosecutor in advance to ensure the presence of witnesses on|the date(s) fixed by the trial Court. By doing so, in my view,|within a short span, the prosecution can exhaust its list and|thereafter by giving a reasonable opportunity to the accused for|producing his evidence in defence, if he so chooses, certainly|after recording statement under Section 342 Cr.P.C., the entire|trial process can culminate within four to six months.

At the same time, cases under N.D.P.S. Act should behandled only by those police officer(s), who has been imparted special training in this regard and are in know of the provisionsof the Act. Mishandling of the case of this type has far reaching|effect, which in turn, can disturb the entire social fabric.Therefore, a sincere effort is required in this direction so thatreal culprit involved in the nefarious activity does not have any|escape, simply on account of procedural flaws at the end of the|prosecution.

I have been informed that Narcotic Central Bureau (J&KZone) is already functional in the State. Therefore, it would be|most appropriate, if the cases registered under N.D.P.S. Act are|investigated by specialized hands.

Let copy of the order be sent to all District & SessionsJudges, Chief Secretary/ Director General of Police (DGP), State|of Jammu and Kashmir, and also to Incharge Narcotic Central|Bureau (J&K Zone) for immediate attention and appropriate|action.

Registrar Judicial to comply with the order at once. |

( Virender Singh ) |

Judge

Jammu

21.12.2010|Narinder