Excelsior Correspondent
Srinagar, Aug 2: The High Court has issued guidelines to the trial court across Jammu and Kashmir for speedy trial of criminal cases pending before these courts.
These guidelines have been issued by the Division Bench of Justice Atul Sreedharan and Justice Mohan Lal in a case whereunder the bench has observed that the delay in trial of the case is solely attributed to the prosecution.
The bench in delay of the trial has recorded that there has been a violation of the appellant’s right under Article 21 of the Constitution on account of the delay in trial and accordingly directed that the appellant be enlarged on bail subject to a personal bond of Rs 50, 000 and one surety in the like amount with the condition that he shall attend the proceedings before the trial court regularly personally, unless so exempted by the trial Court and his presence is recorded through his counsel.
Court was hearing a criminal appeal of an accused-Zahoor Ahmad Wani and his counsel has taken the attention of the court through the record of the proceedings and daily order sheets of the Trial Court from 07.07.2021 till 16.05.2023.
The case was listed on 28 occasions before the Trial Court after framing of charge and preparation of the trial programme, out of 34 prosecution witnesses only six witnesses have been examined till date.
The Court was informed that on all the occasions, the prosecution was unable to produce witnesses, besides six already witnesses. On two occasions i.e. on 24.12.2021 and 22.11.2022 the case was adjourned on account of non-availability of Presiding Officer.
The Division Bench after perusal of the trial proceedings observed that the Trial Court has never taken any serious measure to secure the presence of the prosecution witnesses and instead has mechanically been issuing summons repeatedly to the witnesses without recording in the order sheet the reasons for the absence of the witnesses on previous occasions.
Court has further added that Trial Court revealed a cavalier and routine attitude on its part and never has resorted to coercive procedures to compel the attendance of the witnesses and neither has it ever sought reasons from the prosecution for their failure to produce their witnesses.
The court after granting interim bail to the appellant-accused on account of delay in trial of case passed certain guidelines for the trial court in order to expedite the cases before them, with specific reference to the stage of prosecution evidence.
In one of the guidelines, the court said that after framing of charges against the accused, summons be issued to the eyewitnesses and in case there are no eyewitnesses, then summons be issued to those witnesses who are most material to prove the case of the prosecution.
“If summons are returned un-served for whatever reason, instead of wasting further time by resorting to the same process time and again, the next summons must be served through the office of the Superintendent of Police. If those summonses are also not served, the report of the police must reflect the reason why they have not been served”, read another guideline.
Court has clarified that if in any reason the summons issued through police are un-served, reflecting that the witnesses are unreachable or untraceable and that service cannot be effected on them on account of their non-availability, then the trial court must skip those witnesses and proceed to the next set of witnesses by issuing summons to them.
“The Trial Court must realize that the case of the prosecution is actually the case of the Union Territory through the police, against the accused persons. It is the duty of the police to produce their witnesses before the trial Court”, read the judgment.
The Court has made it clear that by skipping a set of witnesses, the court is not closing their evidence but merely keeping them in abeyance, to be recorded as and when they are found by the police or appear on their own before the Trial Court at any stage before the conclusion of the trial.
“In such a case, skipping of such witnesses would necessarily need the consent of Counsel for the defence and if opposed by the defence Counsel, for whatever strategic reasons the defence may have, then the court may issue fresh summons to the same set of witnesses. However, in such a situation, the delay in conduct of trial would then be on account of the conduct of the defence for which the accused cannot claim violation of the right to a speedy trial at a later point of time”, the DB said.
The Court has further guided that in case material witnesses cannot be secured without delay, the court must explore the possibility of examining formal witnesses and expert witnesses if any and conclude the same. Thereafter, notwithstanding the fact that there remain witnesses for the prosecution who have not been examined on account of the inability of the police to produce them for reasons reflected in the report of the police, the court must close the evidence of the prosecution and proceed to the next stage of the case.
“The police on its part must secure the mobile number and e-mails IDs of all witnesses, if they possess the same. This must be retained by them in the inner case diary to be used for transmitting the summons or messaging the witness regarding their date and time of appearance before the Trial Court to testify. The police must take care that the aforementioned details are not disclosed in the charge-sheet in order to ensure that the access of the accused to the witnesses is minimized to the greatest extent possible”, read one of the guidelines.
Court has further added that the trial court must also resort to the option of delivering summons through SMS and e-mail in addition to the conventional process, wherever possible and the purpose of the endeavour must be to secure the presence of the witnesses in the shortest possible time to complete the trial and must bear in mind that as long as the trial is in progress, presumption is always of innocence and not of guilt.
“It shall not be open to the police to put forward reasons of law and order work or any other of their functions as excuses for not complying with the order of the Trial Court to secure the presence of their witness. Such non-compliance on the part of the police may constitute contempt of the Trial Court’s order, and the Trial Court shall be at liberty to initiate such proceedings against the police if it is not satisfied with the reply of the police for not complying with the order passed by it”, the Court said.
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