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Court Must Not Ignore the Mandate of Section 257 J&K Cr.P.C: High Court of Jammu & Kashmir and Ladakh at Srinagar

The question as to whether direction to produce evidence wherein assistance of Court is required but omitted, is valid, was examined by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR, before a bench consisting of Hon’ble Mr. Justice Sanjay Dhar, in the matter of Ghulam Mohammad Bhatt vs. State of Jamu & Kashmir & Anr. [CRMC No.100/2018], on 17.12.21.

The facts of the case were that an FIR for offences under Section 5(1) read 5(2) of Prevention of Corruption Act, 1988 and Section 161 of the Ranbir Penal Code, 1932 came to be registered against the petitioner and after investigation of the case challan was laid before the Court of Special Judge, Anticorruption, Srinagar (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 the J&K Criminal Procedure Code was recorded. The petitioner, in addition to requesting time for production of evidence, alleged the presence of an affidavit that would support his case.

The trial court noted that 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. Therefore, the application was dismissed. The petitioner challenged the aforesaid order of the trial court by way of a petition under Section 561-A of Jammu and Kashmir Criminal Procedure Code. The said petition was disposed of by the High Court. In pursuance of the High Court’s order, learned trial court in terms of interim order dated 19.03.2018 granted one opportunity to the petitioner to produce evidence in defence. However, instead of producing evidence in defence, petitioner again rushed to the High Court and filed the instant petition challenging the order dated 29.01.2018 and also sought recall of order dated 07.03.2018 passed by this Court.

The Learned Counsel for the Petitioners, submitted that the impugned order passed by the learned trial court was not sustainable in law, inasmuch as the defence of the petitioner had been shut out without affording him an opportunity of producing any evidence. It has been contended that it was not possible and practicable for the petitioner to get the relevant record from the GAD as also the witnesses to prove the execution of said affidavit without the assistance of the Court. It was also contended that because, in terms of order dated 07.03.2018 it was provided that in the event the petitioner fails to produce the evidence, the same shall be deemed as closed, he could not produce the evidence on the date fixed on account of the fact that without assistance of the Court, it was not practicable for him to do so.

The question arises as to what was the duty cast upon the trial court after passing of order dated 07.03.2018. Since there was an application filed by the petitioner before the trial court praying for summoning of record and the witnesses, it was incumbent upon the trial court to issue the summons and, at best, ask the petitioner to get the summons served upon the witnesses so that their statements could be recorded on the next date. Section 257 of Jammu and Kashmir Cr. P. C is very clear about it, as per which in case accused has entered his defence and he applies to the court to issue process for compelling attendance of any witness or production of any document, the court has to issue the process.

In the instant case, the High Court of Jammu & Kashmir and Ladakh at Srinagar, observed that learned trial court, instead of doing so, has vide its order dated 19.03.2018, which is on the record of the trial court, simply directed the petitioner to produce evidence whatever he wishes in defence. Obviously, petitioner 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 the learned trial Judge has approached the case after passing of order dated 07.03.2018 by the High Court. It was held that the learned trial court has ignored the mandate of Section 257 of J&K Cr. P. C while approaching the case at hand. Therefore, in order to secure the ends of justice, it was directed that it is necessary that the petitioner must be given an opportunity to produce his evidence in defence.

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Judgement reviewed by Bhargavi

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