Trial court can't feign 'helplessness' if official witnesses fail to appear: Punjab and Haryana HC

Tribune News Service

Saurabh Malik

Chandigarh, September 15

The Punjab and Haryana High Court has made it clear that a trial court cannot feign “helplessness” in matters where the official witnesses are not appearing despite the issuance of summons. Justice Pankaj Jain of the High Court also made it clear that the court orders, requiring the presence of the witnesses, were required to resonate with the authority of law.

Summon them through alternative mode

The justice delivery process cannot be left to the mercy of official witnesses, who are evading the process. In case the witnesses fail to come, they have to be summoned through an alternative mode as prescribed under the law. Justice Pankaj Jain

“The justice delivery process cannot be left at the mercy of official witnesses, who are evading process”, Justice Jain asserted, adding that an alternative mode prescribed under the law was required to be enforced to ensure their presence.

The assertion came during the hearing of a case seeking the setting aside of an order dated October 12, 2018, passed by the Jalandhar Judicial Magistrate First Class, whereby the prosecution evidence was ordered to be closed. The petitioner had also challenged another order dated November 17, 2018, whereby Jalandhar Sessions Judge dismissed the revision petition against the trial court order.

Justice Jain’s Bench was told that the petitioner was a victim, on whose complaint an FIR alleging cheating, criminal breach of trust and other offences was registered under the provisions of the Indian Penal Code and the Arms Act at the Bhogpur police station in Jalandhar district.

The prosecution evidence was closed after the cited witnesses failed to appear before the court during the course of the trial. Appearing before the Bench, the petitioner’s counsel submitted that the witnesses to be examined were official, including the investigating officer. Their non-examination was bound to seriously dent the prosecution case.

After hearing the counsel for the parties and “carefully going through the case record”, Justice Jain asserted that the investigating officer had surprisingly been avoiding the process of law. A whole chapter in the Code of Criminal Procedure was devoted to summoning, apart from Section 350 which could always be invoked by the court, where persons failed to appear despite being summoned.

“The witnesses to be examined are official and include the investigating officer. The revisional court erred in holding that no illegality can be found with the order. Trite it is that wherever the investigating officer fails to examine it can prove to be fatal for the prosecution. Non-examination of the witnesses is not in the interest of either of the parties,” Justice Jain asserted.

Before parting with the case, Justice Jain asserted the orders passed by the courts below consequently were found to be erroneous. As such, the same were being set aside. The trial court would, under the circumstances, provide effective opportunities to the prosecution to lead evidence.

“In case the official witnesses failed to come present, they be summoned through alternate mode as prescribed under the law,” Justice Jain concluded.

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