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IN THE HIGH COURT OF ALLAHABAD
SUBHASH VIDYARTHI, J.
Jaikun Nisha – Appellant
Versus
State of Uttar Pradesh – Respondent
Criminal Misc. Bail Application No. 2737 of 2024
Decided On : 02-09-2024
(A) Code of Criminal Procedure, 1973 - Section 309 - Bail application - The court emphasized the necessity of adhering to the statutory mandate for expeditious trial proceedings, particularly the requirement to examine witnesses on a day-to-day basis once their examination has commenced. The court noted the disturbing trend of witnesses turning hostile due to prolonged delays in trials, which undermines the integrity of the judicial process. (Paras 5, 6, 10, 12)
(B) Witnesses - Hostility - The court expressed concern over the increasing phenomenon of witnesses retracting their statements, attributing it to various factors including intimidation and protracted trials, which adversely affect the justice delivery system. (Paras 11, 12)
Facts of the case:
The applicant's second bail application was filed after the first was rejected, citing changes in witness testimonies that raised concerns about the integrity of the prosecution's case.
Findings of Court:
The court found that the long duration taken to record witness statements likely allowed for undue influence, thus denying bail.
Issues: The main issues included the adherence to Section 309 Cr.P.C. and the implications of witness hostility on the trial's integrity.
Ratio Decidendi: The court ruled that adherence to statutory provisions regarding witness examination is crucial to prevent undue influence and ensure justice.
Result: Bail application rejected.
JUDGMENT :
SUBHASH VIDYARTHI, J.
1. Heard Sri Suraj Singh Visen, learned counsel for the applicant, Sri Abhishek Kumar Singh, the learned AGA for the State and perused the records.
2. This is the second bail application seeking release of the applicant on bail in Case Crime No. 121 of 2022, under Sections 498-A, 304-B, 302 and 201 IPC and 3/4 D.P. Act, registered at Police Station-Khodhare, District-Gonda.
3. The first bail application of the applicant bearing No. 14638 of 2022 was rejected by means an order dated 22.03.2023. The second bail application has been moved on the ground that subsequent to rejection of the first bail application of applicant, the informant has been examined as PW-1 and her husband has been examined as PW-2. PW-1 has not supported the cross-examination and PW-2 has been declared to be hostile.
4. When this Court perused the statement of PW-1, which was recorded on 5 dates between 18.10.2023 and 07.08.2024, it appears that in her statement recorded on 18.10.2023, the informant fully supported the prosecution case. She stated that all the accused persons used to harass her daughter by demanding dowry. On 29.07.2022, her son-in-law Mukeem had told her that her daughter had ran away from the home at 12:00 in the night. Six days thereafter, the dead-body of the informant’s daughter was recovered from a septic tank situated in front of a Madarasa adjacent to the accused persons’ house. Her cross-examination was recorded on 21.03.2024, 23.05.2024, 05.06.2024 and 07.08.2024. She supported the prosecution case till 05.06.2024, on which date she stated that she had visited the matrimonial home of her daughter about one month’s prior to the incident and her daughter had told her that the accused persons used to harass her. However, in her cross-examination recorded on 07.08.2024, PW-1 turned turtle and started supporting the accused persons. Statement of PW-2 was recorded thereafter on 27.08.2024 and he has been declared hostile. Now the applicant is seeking his release on bail on this ground after his first bail application was rejected by a reasoned order.
5. The long period of about 10 months consumed by the trial Court in this case in recording the statement of PW-1, during which period PW-1 has sided with the accused, is very disturbing Cross-examination of prosecution witnesses need to be recorded on day-to-day basis to avoid the possibility of witnesses being influenced. The statutory provision in this regard in contained in Section 309 Cr.P.C. which is being reproduced below:
(1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:
Provided that when the inquiry or trial relates to an offence under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA or Section 376-DB of the Indian Penal Code (45 of 1860), the inquiry or trial shall be completed within a period of two months from the date of filing of the charge sheet.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to
The court emphasized the necessity of adhering to Section 309 Cr.P.C. for expeditious witness examination to prevent undue influence and maintain trial integrity.
The court emphasized the necessity of adhering to Section 309 Cr.P.C. for timely witness examination to prevent undue influence and ensure justice in criminal trials.
The court reinforced that adjournments in criminal trials should be granted sparingly and only for valid reasons, emphasizing the importance of timely cross-examination.
Grant of Bail - Right of under trial enshrined under Article 21 of the Constitution of India may be considered and protected inasmuch as they should not be compelled to serve maximum punishing.
The right to cross-examine witnesses must be exercised promptly, and adjournments should only be granted for compelling reasons to ensure a fair trial.
Timely cross-examination is essential for a fair trial; delays can compromise witness integrity and affect justice.
Accused have a right to represent themselves through a pleader but cannot cross-examine witnesses using non-advocates without court permission, ensuring procedural integrity.
The main legal point established is that once the examination of a witness begins, the trial should proceed continuously, with adjournments only granted for the strongest possible reasons, and the du....
Examination-in-chief – Witnesses - Merely providing a witness in such a situation for cross-examination would be of no consequence because witness has to be re-heard keeping in view principle of de n....
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