REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 2045-2046 OF 2017 (Arising out of Special Leave Petition (Crl.)Nos.8994-8995 of 2015)

DOONGAR SINGH & ORS. …Appellants

Versus

THE STATE OF RAJASTHAN …Respondents

WITH

CRIMINAL APPEAL NO. 2047 OF 2017 (Arising out of Special Leave Petition (Crl.)No.1761 of 2016)

NARAIN CHANDELIA & ORS. …Appellants

Versus  

THE STATE OF RAJASTHAN …Respondent

O  R  D  E  R

1. Delay condoned.  Leave granted.

2. For the murder of one Bhagwan Singh at Sikar, Rajasthan, on 27th

May,  2005,  20  persons  were  tried.   Nine  have  been  convicted

concurrently  by  the  trial  court  and  the  High  Court.   They  are  the

appellants.  Others have either been acquitted or have died.

3. We have heard learned counsel for the parties at great length and

also perused the record.  We do not find any infirmity in the orders of

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the court below calling for our interference under Article 136 of the

Constitution of India.  The appeals are, accordingly, dismissed.

4. Before  parting  with  this  matter,  we  must  record  a  disturbing

feature in the conduct of the trial of the present case.   After recording

examination-in-chief of the star witness, PW-14 Prabhu Singh, on 13th

April,  2010,  the  matter  was  adjourned  on  the  request  of  defence

counsel  to  25th August,  2010 i.e.  for about more than four months.

After  that,  part  evidence  of  the  witnesses  was  recorded  on  24th

September, 2010 and the matter was again adjourned to 11th October,

2010. Before  that,  four  witnesses  of  the  same  family  in  their

statements recorded on 10th April, 2010 had become hostile.

5. In a criminal case of this nature, the trial court has to be mindful

that for the protection of witness and also in the interest of justice the

mandate of  Section 309 of the Cr.P.C.  has to be complied with and

evidence should be recorded on continuous basis.  If this is not done,

there  is  every  chance  of  witnesses  succumbing  to  the  pressure  or

threat of the accused.

6. This aspect of the matter has received the attention of this Court

on number of occasions earlier.  In State of U.P.  versus  Shambhu

Nath Singh and Others1 this Court observed it was a pity that the

1  (2001) 4 SCC 667

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sessions  court  adjourned  the  matter  for  a  long  interval  after

commencement of evidence, contrary to the mandate of Section 309

of the Cr.P.C.  Once examination of witnesses begins, the same has to

be  continued  from  day-to-day  unless  evidence  of  the  available

witnesses is recorded, except when adjournment beyond the following

day has to be granted for reasons recorded.  This Court observed:

“12. Thus, the legal position is that once examination of  witnesses started,  the court  has  to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up).  The court  has to record reasons for deviating from the said course. Even that is forbidden when  witnesses  are  present  in  court,  as  the requirement  then is  that  the  court  has  to  examine them.  Only  if  there  are  “special  reasons”,  which reasons  should  find  a  place  in  the  order  for adjournment, that alone can confer jurisdiction on the court  to  adjourn  the  case  without  examination  of witnesses who are present in court.

13. Now, we are distressed to note that it is almost a common  practice  and  regular  occurrence  that  trial courts  flout  the said command with impunity.  Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any  rate  inconvenience  of  an  advocate  is  not  a “special  reason”  for  bypassing  the  mandate  of Section 309 of the Code.

14. If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied  with  due  to  the  non-cooperation  of  the accused or his counsel the court can adopt any of the

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measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who  wants  such  adjournments  (the  cost  must  be commensurate  with  the  loss  suffered  by  the witnesses,  including  the  expenses  to  attend  the court). Another option is, when the accused is absent and the witness is present to be examined, the court can  cancel  his  bail,  if  he  is  on  bail  (unless  an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present  even  in  his  absence  provided  the  accused gives  an  undertaking  in  writing  that  he  would  not dispute his identity as the particular accused in the case).

15. The  time-frame  suggested  by  a  three-Judge Bench of this Court in Raj Deo Sharma v. State of Bihar2 is  partly  in  consideration  of  the  legislative mandate  contained  in  Section  309(1)  of  the  Code. This is  what the Bench said on that score: (SCC p. 516, para 16)

“16.The  Code  of  Criminal  Procedure  is comprehensive  enough  to  enable  the Magistrate to close the prosecution if the prosecution  is  unable  to  produce  its witnesses  in  spite  of  repeated opportunities.  Section  309(1)  CrPC supports  the  above  view  as  it  enjoins expeditious  holding  of  the  proceedings and continuous examination of witnesses from  day  to  day.  The  section  also provides  for  recording  reasons  for adjourning the case beyond the following day.”

xxx xxx xxx

17. We  believe,  hopefully,  that  the  High  Courts would have issued the circular desired by the Apex Court  as  per  the  said  judgment.  If  the  insistence

2  (1998) 7 scc 507

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made by Parliament through Section 309 of the Code can be adhered to by the trial courts there is every chance of the parties cooperating with the courts for achieving the desired objects and it would relieve the agony which witnesses summoned are now suffering on account of their non-examination for days.

xxx xxx xxx

19. In some States a system is evolved for framing a schedule  of  consecutive  working  days  for examination of witnesses in each sessions trial to be followed. Such schedule is fixed by the court well in advance after  ascertaining the  convenience of  the counsel  on both sides. Summons or process would then  be  handed  over  to  the  Public  Prosecutor  in charge of the case to cause them to be served on the  witnesses.  Once  the  schedule  is  so  fixed  and witnesses  are  summoned  the  trial  invariably proceeds  from day  to  day.  This  is  one  method  of complying with the mandates of the law. It is for the presiding officer of each court to chalk out any other methods, if any, found better for complying with the legal  provisions  contained  in  Section  309  of  the Code.  Of  course,  the  High  Court  can  monitor, supervise and give directions, on the administration side,  regarding  measures  to  conform  to  the legislative  insistence  contained  in  the  above section.”

7. The  above  decision  has  been  repeatedly  followed.  In  Mohd.

Khalid  versus  State of W.B.3,  this Court noted how adjournment

can result in witnesses being won over.  It was observed:

“54.  Before parting with the case, we may point out that  the  Designated  Court  deferred  the cross-examination of the witnesses for a long time. That  is  a  feature  which  is  being  noticed  in  many cases.  Unnecessary adjournments give a scope for a

3  (2002)7 SCC 334

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grievance that the accused persons get a time to get over the witnesses.  Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code.  When a witness  is  available  and his  examination-in-chief  is over, unless compelling reasons are there, the trial court  should  not  adjourn  the  matter  on  the  mere asking.  These aspects were highlighted by this Court in  State of U.P.  versus  Shambhu Nath Singh4 and N.G. Dastane  versus Shrikant S. Shivde5 … … …”

8. Again in  Vinod Kumar  versus  State of Punjab6  this Court

noted how unwarranted adjournments during the trial jeopardise the

administration of Justice.  It was observed:

“3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question:  Is  it  justified  for  any  conscientious  trial Judge  to  ignore  the  statutory  command,  not recognise “the felt necessities of time” and remain impervious  to  the  cry  of  the  collective  asking  for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracising the concept that a civilised and orderly society thrives on the rule of law which includes “fair trial” for the accused as well as the prosecution?

4. In the aforesaid context, we may recapitulate a passage from Gurnaib Singh v. State of Punjab7: (SCC p. 121, para 26)

“26.  …  we  are  compelled  to  proceed  to reiterate  the  law  and  express  our  anguish pertaining  to  the  manner  in  which  the  trial

4  (2001) 4 SCC 667 5  (2001) 6 SCC 135 6  (2015)3 SCC 220 7  (2013)7 SCC 108

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was conducted as it depicts a very disturbing scenario. As is demonstrable from the record, the  trial  was  conducted  in  an  extremely haphazard  and  piecemeal  manner. Adjournments were granted on a mere asking. The cross-examination of the witnesses were deferred without recording any special reason and dates were given after a long gap. The mandate of the law and the views expressed by  this  Court  from time to  time appears  to have  been  totally  kept  at  bay.  The  learned trial Judge, as is  perceptible,  seems to have ostracised  from his  memory  that  a  criminal trial has its own gravity and sanctity. In this regard,  we  may  refer  with  profit  to  the pronouncement  in  Talab  Haji  Hussain v. Madhukar Purshottam Mondkar8 wherein it has been  stated  that  an  accused  person  by  his conduct cannot put a fair trial into jeopardy, for it is the primary and paramount duty of the criminal courts to ensure that the risk to fair trial  is  removed  and  trials  are  allowed  to proceed smoothly without any interruption or obstruction.”

9. In spite of repeated directions of this Court, the situation appears

to have remained unremedied.  

10. We hope that the Presiding Officers of the trial courts conducting

criminal  trials  will  be mindful  of  not giving such adjournments after

commencement of the evidence in serious criminal cases.

11. We are also of  the view that it  is  necessary in the interest of

justice that the eye-witnesses are examined by the prosecution at the

earliest.

8  AIR 1958 SC 376

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12. It is also necessary that the statements of eye-witnesses are got

recorded during investigation itself under Section 164 of the Cr.P.C.  In

view of amendment to Section 164 Cr.P.C. by the Act No. 5 of 2009,

such statement of witnesses should be got recorded by audio-video

electronic means.  

13. To conclude:

(i) The trial courts must carry out the mandate of Section 309

of the Cr.P.C. as reiterated in judgments of this Court, inter

alia, in  State of U.P.  versus  Shambhu Nath Singh and

Others9,  Mohd. Khalid  versus  State of W.B.10  and

Vinod Kumar  versus  State of Punjab11 .

(ii) The eye-witnesses must be examined by the prosecution as

soon as possible.

(iii) Statements of eye-witnesses should invariably be recorded

under Section 164 of the Cr.P.C. as per procedure prescribed

thereunder.  

14. The  High  Courts  may  issue  appropriate  directions  to  the  trial

courts for compliance of the above.

9  (2001) 4 SCC 667 10  (2002)7 SCC 334 11  (2015)3 SCC 220

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15. A copy of  this  order  be sent  by  the  Secretary  General  to  the

Registrars of all the High Courts for being forwarded to all the presiding

officers in their respective jurisdiction.

………………………………………J. (ADARSH KUMAR GOEL)

………………………………………J. (UDAY UMESH LALIT)

NEW DELHI; NOVEMBER 28, 2017.

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