Srinagar: Observing that speedy trial is an integral and inalienable right of an accused, the High Court of J&K and Ladakh on Wednesday issued guidelines to the trial courts to expedite the cases before them with specific reference to the stage of prosecution evidence.
A division bench of the court comprising Justice Atul Sreedharan and Justice Mohan Lal issued the guidelines while hearing an appeal filed by an appellant for the grant of bail of the accused whose case was listed on twenty-eight occasions before the Trial Court after framing of charge and preparation of the trial programme. During this period, out of thirty four prosecution witnesses only six witnesses have been examined till date.
The Court said after framing of charges against the accused, summons be issued to the eyewitnesses or, if it is a case where there are no eyewitnesses, then to those witnesses who are most material to prove the case of the prosecution.
“If summons is returned unserved for whatever reason, instead of wasting further time by resorting to the same process time and again, the next summons must be served through the office of the Superintendent of Police,” court said
If those summonses are also not served, the report of the police must reflect the reason why they have not been served”.
“ If the reasons given by the police in the report returning the summons unserved, reflect that the witnesses are unreachable/untraceable and that service cannot be effected on them on account of their non-availability, then the trial court must skip those witnesses and proceed to the next set of witnesses by issuing summons to them,” it said
The Trial Court, it said, must realise that the case of the prosecution is actually the case of the Union Territory through the police, against the accused persons.
The Court said it is the duty of the police to produce their witnesses before the trial Court. “By skipping a set of witnesses, the court is not closing their evidence but merely keeping them in abeyance, to be recorded as and when they are found by the police or appear on their own before the Trial Court at any stage before the conclusion of the trial”.
“In such a case, skipping of such witnesses would necessarily need the consent of Counsel for the defence and if opposed by the defence Counsel, for whatever strategic reasons the defence may have, then the court may issue fresh summons to the same set of witnesses”.
The Court said, however, in such a situation, the delay in conduct of trial would then be on account of the conduct of the defence for which the accused cannot claim violation of the right to a speedy trial at a later point of time.
“If material witnesses cannot be secured without delay, the court must explore the possibility of examining formal witnesses and expert witnesses if any and conclude the same”, the court said. “ Thereafter, notwithstanding the fact that there remain witnesses for the prosecution who have not been examined on account of the inability of the police to produce them for reasons reflected in the report of the police, the court must close the evidence of the prosecution and proceed to the next stage of the case”, it said.
“However, if any of the prosecution witnesses appears at a subsequent stage, before passing of the judgment by the trial Court, the court shall be free to exercise its jurisdiction under section 311 Cr.P.C. and record their statements in the interest of justice after considering objections of the defence, if any”.
The Court said the police on its part, must secure the mobile number and E- mails ids of all witnesses, if they possess the same. “This must be retained by them in the inner case diary to be used for transmitting the summons or messaging the witness regarding their date and time of appearance before the Trial Court to testify”.
“ The police must take care that the aforementioned details are NOT disclosed in the charge-sheet in order to ensure that the access of the accused to the witnesses is minimised to the greatest extent possible”.
The guidelines underscore that the Trial Court must also resort to the option of delivering summons through SMS and E-mail in addition to the conventional process, wherever possible.
“The purpose of the endeavour must be to secure the presence of the witnesses in the shortest possible time to complete the trial. The Courts must bear in mind that as long as the trial is in progress, presumption is always of innocence and not of guilt”.
“ It shall not be open to the police to put forward reasons of law- and-order work or any other of their functions as excuses for not complying with the order of the Trial Court to secure the presence of their witness”.
Such non-compliance on the part of the police, the court said, may constitute contempt of the Trial Court’s order, and the Trial Court shall be at liberty to initiate such proceedings against the police if it is not satisfied with the reply of the police for not complying with the order passed by it.
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