Narcotics – Call Records – Accused can be allowed to summon call record of the mobile telephones of concerned police officers to show that they were not near the location of recovery but were at some other location.

Mr. Raj Shekhar Attri, J. (Oral) - This is a petition under Section 482 of Code of Criminal Procedure for setting aside order dated 13.7.2018 (Annexure P-6) passed by learned Judge, Special Court, Jalandhar whereby cross-examination of a material witness namely ASI Nirmal Singh has been ordered to be treated as Nil emanating from case FIR No.263 dated 14.10.2017 registered at Police Station Adampur, District Jalandhar (Rural) under Section 21 of Narcotic Drugs and Psychotropic Substances Act.

Notice of motion.

2. On the asking of the Court, Mr. Saurav Khurana, DAG, Punjab, who is present in Court, accepts notice on behalf of the State.

3. On 5.6.2018, the case was fixed for recording evidence of the prosecution witness. On that day, one PW namely Nirmal Singh was present but the same was deferred on the request of the learned defence counsel on the ground that an application for summoning the call details of the telephone numbers of the police officials, as such, learned Judge has passed the following order on 5.6.2018:

“Examination in chief of PW ASI Nirmal Singh is recorded but his cross examination deferred at the request of the learned defence counsel on the ground that he has filed an application for summoning the call details of the telephone numbers. He has also filed an application in this regard. Copy supplied. For filing reply to the application, the case is to come up on 13.07.2018. No other PW is present. Let remaining PWs be summoned for the date fixed.

4. However, on 13.7.2018, said application had been disposed of and the petitioner was not allowed to cross-examination. In fact, the cross-examination was ordered to be treated as Nil.

5. I have heard the learned counsel for the parties and gone through the record.

6. Every criminal trial is a process of discovery of truth. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the reality and to advance the cause of justice.

7. In Ram Chander v. State of Haryana, (1981) 3 SCC 191, while speaking about the role of a judge in a criminal trial, Hon’ble Supreme Court observed that if a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.

8. Hon’ble Apex Court in Maneka Sanjay Gandhi and another v. Rani Jethmalani, (1979) 4 SCC 167, though in a different context, observed:-

“Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate when- the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.”

9. Hon’ble Supreme Court in Zahira Habibullah H. Sheikh and another v. State of Gujarat and others, 2004 (2) RCR (Criminal) 836 has made the following observations:-

“The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to