Punjab & Haryana High Court
Punjab & Haryana High Court
Litigation News

Courts not helpless, cannot abdicate functions at mercy of recalcitrant witnesses: Punjab & Haryana HC to lower courts [Read Order]

The legislature has enacted statutory provisions for the Court to compel the appearance of witness and execution of the coercive process. “It is for the Courts to effectively exercise the powers”, the Court said.

Meera Emmanuel

The Punjab and Haryana High Court recently made strong observations over the the failure of subordinate courts to exercise their statutory powers towards ensuring optimal court case management and the timely disposal of cases (Vijay Pal v. State of Haryana and anr).

While dealing with a case where the trial court had issued summons to a witness after an 8-year gap, having earlier closed prosecution evidence and fixed the matter for final arguments, Justice Arun Kumar Tyagi said,

“The Court is not helpless and can not abdicate its function by rendering and accepting itself to be subject to mercy of the recalcitrant witnesses or police officers. The legislature has already taken the remedial measures by enacting … statutory provisions conferring powers on the Court to compel the appearance of witness and also execution of the coercive process. Now it is for the Courts to effectively exercise the powers conferred on them.”
Punjab and Haryana High Court

Notably, the Court highlighted that the Court cannot close prosecution or defence evidence merely citing the failure of the parties to produce the same, “without making genuine and sincere efforts to secure the attendance of the prosecution or defence witnesses whose evidence is essential for just decision of the case.

However, the judge added that the Court may close the evidence where there is gross neglect or deliberate delay on the part of the parties with the aim of frustrating the Court process or defeating the ends of justice.

In view of the same, the judge also highlighted the following findings concerning the duties imposed on courts to ensure an effective and timely trial to the extent possible:

  • If the prosecution or the accused applies for assistance of the Court in securing presence of prosecution or defence witnesses, the court cannot generally decline such assistance and insist that the prosecution or the accused must produce the evidence on own responsibility.

  • However, assistance of the Court for summoning of defence witnesses can be declined where the application for such assistance is made for the purpose of vexation or delay or for defeating the ends of justice.If any police officer/official or any officer/official of any of the law enforcement agencies of the State fails to execute the process issued by the Court for securing presence of the witnesses, the Court is duty bound to take appropriate action for ensuring requisite compliance with its order and due execution of the process issued.

  • The Court cannot close the prosecution or defence evidence without initiating appropriate action against the defaulting officer/official, looking into reasons for non-compliance, taking requisite remedial steps, and making sincere efforts for ensuring compliance with its orders and due execution of the process issued by it.

  • If the court allows the application and issues process for securing presence of the witnesses but the witnesses fail to appear in compliance with process served on them, the Court is duty bound to take action against the witnesses failing to appear in the court without any lawful excuse and also to secure their presence in the Court by issuing coercive process.

  • The Court can close evidence where there is gross neglect, deliberate delay or remissness/misconduct on the part of the party with the aim of frustrating the Court process or for defeating the ends of justice.

In the case at hand, the judge dismissed the application challenging the trial court’s decision to re-summon a witness on account of the prosecution’s failure to produce certain original documents, finding that the trial Court had the power to do so under Section 311 of the CrPC.

The power under Section 311 of the Cr.P.C. can be exercised at any stage of the case before passing of the judgment and is, therefore, in the very nature of things meant to be exercised even after closing of the evidence of the prosecution or the accused”, the Court said.

Sound methods of Court management the need of the hour, says HC

The judge noted that at present, “there are nagging problems of the witnesses particularly the official/police witnesses not attending the Court and the Police Officers not obeying Court directions by not serving summons, executing warrants, producing documents, etc., which plague the Judicial system to such an extent that huge number of cases remain static without any progress.”

In this backdrop, the judge also made critical note that trial courts often fix a large number of cases for evidence due to the uncertainty regarding attendance of the witnesses. Due to such practices, the Court’s work pressure is only heightened, it was pointed out. As explained in the order,

The same also not only adversely affects the smooth functioning of the Court but also has the fall out of the Court feeling relieved from work pressure if the witnesses do not turn up.”

The Court added that his also has the undesirable effect of courts becoming complacent to the non-attendance of witnesses and the non-execution of court processes, with the court ultimately “getting involved in vicious circle of forced improper working which is commonly known as running three Courts at a time.”

Commenting further on the effect of such a passive approach, the High Court detailed,

“The court goes on giving dates after dates lingering the case and considering itself to be helpless and later feeling disgusted due to non-appearance of the witnesses or non-execution of the court process closes the evidence of prosecution or the accused on the ground of the case being very old.”

The judge emphasised that the need of the hour is for courts to adopt sound methods of court and case management. In this regard, the following broad suggestions were also mooted:

  • Verifying the presence of the witnesses for the date of hearing fixed and accommodating them by giving further dates if so required by communication with them through some nodal officer of the Court/office of the Public Prosecutor.

  • Calling upon prosecution or the accused under Section 294 of the Cr.P.C. to admit or deny genuineness of documents may obviate the necessity of summoning witnesses to prove them in case of admission.

  • Recording of evidence of formal character on affidavits under Section 296 of the Cr.P.C. may ease the burden.

  • The Court must prepare at the time of framing of charges schedule of dates for all stages in the criminal case.

  • The Court must avoid giving liberal adjournments, adopt method of ‘Sessions Trial’ and give block of dates for evidence.

  • The Court can examine the witnesses in attendance on consecutive dates and not defer their cross examination for long period.

The judge added that the courts should also take steps in the following areas, i.e.,

  • for protection of the witness in case of their intimidation by the accused;

  • for reimbursement of the expenses incurred by them in attending the Court; and

  • for prosecution of the witnesses turning hostile for illegal gratification.

Before parting with the case, the Judge directed that a copy of the order be circulated to all judicial officers in Punjab, Haryana and Chandigarh.

Further, it has also been suggested that the order be incorporated as part of course material at the Judicial Academy, Chandigarh under the head “Compelling of attendance of witnesses and execution of Court process.

Read the Order:

Vijay Pal v. State of Haryana and anr.pdf
Bar and Bench - Indian Legal news