ORDER

Shiv Narayan Dhingra

1. This petition under Section 482 Cr.P.C. has been preferred by the petitioner assailing an order dated 4th December, 2009 whereby the learned ACMM closing the evidence of prosecution. He closed the evidence because the witnesses who were to appear on that day did not appear. The order of learned ACMM records that it was made clear that service and appearance of the witness was the responsibility of the prosecution as the accused respondent was coming all the way from Hong Kong for hearing of this case.

2. It is averred by the petitioner, supported by an affidavit that the charge in this case was framed by the Court on 19th August 2006 after conclusion of precharge evidence and thereafter prosecution has diligently conducted the case. On the other hand, it is submitted by counsel for the respondent/accused that the charge was framed after 16 years of pendency of the case.

3. I consider this whole procedure of pre-charge evidence itself is defective. Recording of evidence in a warrant trial case twice first before framing of charge and then after framing of charge, where the complainant is a government department is not warranted. Since the courts are still sticking to old procedure that there should be first pre-charge evidence and all witness should appear in pre-charge evidence in a warrant trial case and then there should be post-charge evidence calling the same witnesses again for examination and cross examination. This approach is not only tiresome and harassing for the accused but also for the witnesses and the prosecution. It is for the legislature to consider a change in procedure so that in those cases where a complaint is filed by a government department and not by the police, the complaint should be treated as a police report. The 16 years of wastage of time that took place in this case could have been avoided.

4. However, that is not the issue before this Court. The issue is whether closure of evidence by learned ACMM because of non-appearance of Mr. D.D. Kaushik and other witnesses was justified or not.

5. It would be seen that Mr. D.D. Kaushik has appeared in the Court on 3rd October 2007 and on that date he was partly examined and his remaining examination was deferred. He again appeared on 14th July, 2008 but he was discharged on that day as certain diaries filed with documents by the prosecution on court record were not traced by the Ahlmad. On 3rd October 2008, the witness Mr. D.D.Kaushik was again summoned and he attended the Court but was again not examined by the Court because Ahlmad did not trace the diaries.

6. It is surprising that the court of learned ACMM would have adjourned the case despite the witness being in attendance for so many hearing for such a trivial reason that the Ahlmad was not able to trace the diaries. He should have hauled up the Ahlmad for negligence and should not have fixed the case for evidence unless diaries were traced.

7. Repeatedly summoning of witnesses is a harassment for the witnesses. The witness in this case to appeared in the Court for his evidence time and again because either the court had no time for him by the court was not able to keep its house in order and could take action against the Ahlmed who was not able to trace the record. Once the Ahlmad was able to trace out the diaries, then only the witness should have been summoned. It is surprising that the court of ACMM summoned the witness without verifying about the diaries having been traced out and then sent back the witness on the ground that the diaries were not traceable.

8. The case was then fixed for 4th December 2009 for evidence it is submitted by the counsel for the petitioner that the process fee was filed immediately when the matter was fixed on 27th October 2009 for summoning of this witness. However, the Ahlmed did not prepare the summons of the witness in time and gave summons of the witness to the petitioner either on 20th of 21st November 2009 while the