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2021 Supreme(J&K) 327
IN THE HIGH COURT OF JAMMU & KASHMIR AND AT SRINAGAR
SANJAY DHAR, J.
Ghulam Mohammad Bhat - Appellant
Versus
State Of J&K And Anr. - Respondents
CRMC No.100 of 2018
Decided on : 17-12-2021
For the Appellant :Mr. G.A. Lone, Advocate.
For the Respondent: Mr. B.A. Dar, Sr. AAG.
Point of Law: If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate, shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
Headnote:
Prevention of Corruption Act - Section 5(1) read 5(2) - Ranbir Penal Code - Section 161 - Jammu and Kashmir Cr.P.C - Sections 257, 342 and 561-A - Interim order - Public servant taking gratification other than legal remuneration in respect of an official act - Process for compelling production of evidence at instance of accused - Trial court in terms of interim order granted one opportunity to the petitioner/accused to produce evidence in defence - It appears that instead of producing evidence in defence, petitioner again rushed to this Court and filed the instant petition challenging the order and he also sought recall of order passed by this Court - Petitioner/accused has submitted that impugned order passed by the learned trial court is not sustainable in law, inasmuch as defence of petitioner/accused has been shut out without affording him an opportunity of producing any evidence. It has been contended that it was not possible and practicable for petitioner to get relevant record from GAD as also the witnesses to prove execution of said affidavit without assistance of Court. Learned counsel has also submitted that because, in terms of order.
Finding of the Court :
It is clear that in case accused has entered his defence and he applies to court to issue process for compelling attendance of any witness or production of any document, the court has to issue process. In instant case, learned trial court, instead of doing so, has vide its order, which is on the record of the trial court, simply directed the petitioner/accused to produce evidence whatever he wishes in defence. Obviously, petitioner/accused could not have produced the document in question without the assistance of the Court. Thus, grave prejudice has been caused to the petitioner by the manner in which learned trial Judge has approached the case after passing of order by this Court. The learned trial court has ignored the mandate of Section 257 of J&K Cr.P.C while approaching case at hand. Therefore, in order to secure the ends of justice, it is necessary that the petitioner/accused is given an opportunity to produce his evidence in defence
Result: Petition disposed of
JUDGMENT :
1) Petitioner has challenged order dated 29.01.2018 passed by Special Judge, Anticorruption, Srinagar, whereby the learned Special Judge has dismissed the application of petitioner for calling of record and for leading of evidence in defence.
2) Before coming to the impugned order, it would be necessary to give the background facts that have led to the filing of the instant petition.
3) FIR No.34/2007 for offences under Section 5(1) read 5(2) of Prevention of Corruption Act and Section 161 RPC came to be registered against the petitioner and after investigation of the case challan was laid before the Court of Special Judge, Anticorruption, Srinagar (hereinafter referred to as the trial court). After framing of charges against the petitioner on 12.06.2009, the prosecution led evidence in support of the charges whereafter statement of the petitioner under Section 342 of J&K Cr.P.C was recorded. The petitioner/accused sought time to produce evidence in defence and in the meanwhile filed an application before the learned trial court, wherein it was averred by the petitioner that he has come to know that complainant-PW(1) had sworn and filed an affidavit before the concerned authority during investigation of the case and that contents of said affidavit touch the merits of the case that would assist the Court in arriving at just decision of the case. It was further averred in the said application that the affidavit in question is in possession of General Administration Department of the Government and the same is required to be summoned along with witnesses who have identified the deponent as also the Magistrate who has attested the said affidavit.
4) The aforesaid application of the petitioner/accused came to be dismissed by the learned trial court vide the impugned order, relevant portion whereof is reproduced as under:
“Perusal of the record reveals that there is no mention of any such affidavit filed by the complainant before GAD in the charge sheet or the deposition of the complainant recorded on 19.05.2014 nor he has been questioned about such affidavit by the learned defence counsel. If there was any such affidavit favouring the defence, it would have been known to him from the very beginning. In any case, he had the opportunity to question the complainant about that affidavit which latter was examined. The applicant has maintained silence as to when he came to know about the bearing of the affidavit which leads only inference that he was aware from very beginning. therefore, there is substance in the objection taken by the prosecution that instant application has been filed to gain time for protracting the trial and hence allowing such application would necessarily lead to re-opening of the trial.
For the forgoing reasons, the application is dismissed. No DW is present and sufficient time has already been given to the accused for leading the defence. In the circumstances there is no justification for granting further time for the production of defence witnesses. The defence evidence is, therefore, closed. Now the file shall come up for final arguments on 19.02.2018.”
5) The petitioner/accused challenged the aforesaid order of the trial court by way of a petition under Section 561-A of Jammu and Kashmir Cr.P.C. bearing No.78/2018. The said petition was disposed of by this Court in terms of order dated 07.03.2018, which is reproduced as under:
“This petition is disposed of with the direction to the court below to provide an opportunity to the petitioner for producing his evidence in defence and in case he does not produce the evidence on the appointed date before the court below, in that event, the evident in defence shall be deemed as closed.”
6) In pursuance of the aforesaid order, learned trial court in terms of interim order dated 19.03.2018 granted one opportunity to the petitioner/accused to produce evidence in defence. However, it appears that instead of producing evidence in defence, petitioner again rushed to this
