Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.
13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a "special reason" for bypassing the mandate of Section 309 of the Code.
14. If any court finds that the day-today examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case).
18. It is no justification to glide on any alibi by blaming the infrastructure for skirting the legislative mandates embalmed in Section 309 of the Code. A judicious judicial officer who is committed to his work could manage with the existing infrastructure for complying with such legislative mandates. The precept in the old homily that a lazy workman always blames his tools, is the only answer to those indolent judicial officers who find fault with the defects in the system and the imperfections of the existing infrastructure for their tardiness in coping with such directions.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CR. MISC. BAIL APPLICATION NO. 8609/2013
SHIVA @ SAVARAM VS. STATE OF RAJASTHAN
DATED : 08.11.2013
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Citation; 2014 (1) crimes 102 Raj
Today, S.B. Criminal Misc. Bail Application No.
8609/2013 preferred by Shiva @ Savaram and S.B.
Criminal Misc. Bail Application No. 8610/2013 instituted by
Sanchita Gupta @ Shilpi are listed.
Both
the
petitioners
have
been
named
as
accused in case FIR No. 122/2013 registered at Women
Police Station, Jodhpur (West), Jodhpur corresponding to
FIR No.0/13 registered at Police Station Kamla Market, New
Delhi.
The FIR has been registered for offences under
Sections 342, 376, 354(A), 506 and 509/34 of IPC and
Section 23, 26 of Juvenile Justice (Care and Protection of
Children) Act 2000 and Section 8 of Protection of Children
from Sexual Offences Act, 2012.
It has been very fairly submitted that during
pendency of these petitions, charge sheet has been filed by
the prosecution against the accused.
It is stated that now the case is fixed before the
trial court on 16.11.2013 for considering as to whether any
cognizance of offence is to be taken against the accused or
not and if so, for what offence ?
Counsel for the petitioners has submitted that
since charge sheet is voluminous, an adjournment be
granted to place the same on record.
The case of the prosecution is that a child
defined under the provisions of Protection of Children from
Sexual Offences Act, has been raped.
Section 309 of the Criminal Procedure Code was
amended
by
the
Parliament
vide
the
Criminal
Law
(Amendment) Bill, 2012 i.e. Bill No.63 of 2013. Proviso to
Section 309 Cr.P.C. reads as under :
“Provided that when the inquiry or trial
relates to an offence under sections 376
to 376D of the Indian Penal Code, the
inquiry or trial shall, as far as possible, be
completed within a period of two months
from the date of filing of the charge
sheet.”.
There is a legislative command that in case of
rape, every trial must be concluded within a period of two
months from the date of the filing of the charge sheet. The
relevant portion from the statement of objects and reasons
to the Criminal Law (Amendment) Bill, 2012 can be
reproduced as under :
“The
Criminal
Law
(Amendment)
Bill,
2012 was introduced in the Lok Sabha on
4th December, 2012 in order to provide for
stringent punishment for crimes against
women, as also to provide for more victim
friendly procedures in the trials of such
cases. After the horrendous incident of
gang
rape,
which
occurred
on
16th
December, 2012 in Delhi, a Committee,
headed by Justice J. S. Verma was set up
to make recommendations on amending
the various laws to provide for speedy
justice
and
enhanced
punishment
for
offenders in cases of sexual assault of
extreme
nature.
The
Justice
Verme
Committee submitted its Report on 23rd
January, 2013.......................................
...........................................................
...........................................................
4. The Criminal Law (Amendment) Bill,
2103 seeks to amend the Indian Penal
Code, 1860, the Criminal Procedure Code,
1973, the Indian Evidence Act, 1872 and
the Protection of Children from Sexual
Offences Act, 2012. These amendments
seek to:— ............................................
...........................................................
...........................................................
(h) amend sections 54-A, 154, 160, 161,
164, 198-B, 273, 309 and 327 of the Code
of Criminal Procedure, 1973 for providing
for women friendly procedures; greater
sensitivity to the requirement of physically
and mentally disabled persons, under-
aged children and old persons in the
course
of
investigation
and
trial;
for
speedy trial of rape cases, and better
recording of evidence.
Hon'ble the Apex Court in Akil @ Javed vs.
State of NCT of Delhi (Criminal Appeal No. 1735 of 2009)
decided on December 6, 2012 has given directions to the
every trial court to adhere to the provisions of Section 230
along with Section 309 of Criminal Procedure Code.
The
trial court is bound to comply with the order of Hon'ble the
Apex Court along with command of law for which Criminal
Law (Amendment) Bill, 2012 was introduced.
Hon'ble the Apex Court in Akil @ Javed's case
(supra) has held as under :
“25. .......... We wish to issue a note of caution to
the
trial Court dealing with sessions case to
ensure that there are well settled procedures laid
down under the Code of Criminal Procedure
as
regards the manner in which the trial should be
conducted in sessions cases in order to ensure
dispensation of justice without
providing
any
scope for unscrupulous elements to meddle
with the course of justice to achieve some
unlawful advantage. In this respect, it
is
relevant to refer to the provisions contained in
Chapter XVIII of the
Criminal Procedure
Code
whereunder Section 231 it has been specifically
provided that on the date fixed for examination
of witnesses as provided under Section 230, the
Session’s Judge should proceed to take all such
evidence as may be produced in support of the
prosecution and that in his discretion may permit
cross-examination of
any
witnesses to be
deferred until any other witness or witnesses have
been examined or recall any witness for further
cross-examination.
26. Under Section 309 of Cr.P.C. falling under
Chapter XXIV it has been specifically stipulated
as under:
“309. Power to postpone or
proceedings.—(1)
In
adjourn
every inquiry or
trial, the proceedings shall be held as
expeditiously as possible,
particular, the
when
and
in
examination of
witnesses has once begun, the same 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 Sections 376
to Section 376 D of the Indian Penal Code
(45 of 1860), the inquiry or trial shall, as
far
as
possible,
be completed within a
period of two months from the date
of commencement of the examination of
witnesses.
(2) If the court, after taking
of
an
offence,
cognizance
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
are
in
attendance,
when
witnesses
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 show
cause against the sentence proposed to be
imposed on him.
Explanation 1 – If sufficient evidence has
been
obtained
to raise a suspicion that
the accused may have committed an
offence and it appears likely that further
evidence may be obtained by a remand
this is a reasonable cause for a remand.
Explanation 2 – The terms on which
an
adjournment
or postponement may
be granted include, in appropriate cases,
the payment of costs by the prosecution
or the accused.”
27. In this context it will also be worthwhile
refer to a
Delhi in Circular
to
circular issued by the High Court of
No.1/87
12th January
dated
1987. Clause 24A of the said circular reads as
under:
“24A
disturbing
Sessions
trend
cases
of
trial
of
being adjourned, in
some cases to suit convenience of counsel
and
in
some
others
because
the
prosecution is not fully ready, has come to
the notice of the
High
Court.
Such
adjournments delay disposal of Sessions
cases.
The
High
Court
considers
it
necessary to draw the attention of all the
Sessions Judges and Assistant Sessions
Judges
once
provisions
Procedure,
of
again
the
1973,
to
Code
the following
of Criminal
Criminal
Rules
of
Practice, Kerala, 1982 and Circulars and
instructions on the list system
issued
earlier,
in order to ensure the speedy
disposal of Sessions cases.
1.(a)
In every enquiry or trial, the
proceedings shall be held as expeditiously
as
possible,
particular, when
the examination of witnesses has once
begun,
the
and,
same
in
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.
(Section 309 (1) Crl.P.C.).
(b) After the commencement of the trial,
if the court 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. If witnesses
are in attendance
no
adjournment
or
postponement shall be granted, without
examining them,
reasons be
to
except for special
recorded,
(Section 309 (2) Cr.P.C.).
in
writing.
2. Whenever more than three months
have
elapsed
between the
date
of
apprehension of the accused and the close
of
the trial in the Court of Sessions, an
explanation of the
cause of delay, (in
whatever court it may have occurred)
shall
be furnished,
the copy of
while
the
transmitting
judgment. (Rule 147
Crl. Rules of Practice).
3. Sessions cases should be disposed
of
within six weeks of their institution, the
date of commitment being taken as the
date of institution in Sessions Cases.
Cases pending for
longer periods should
be regarded as old cases in respect of
which explanations should be furnished in
the calendar statements
and in the
periodical returns. (High Court Circular
No. 25/61 dated 26th October 1961).
4.
Sessions
cases
should
be
given
precedence over all other work and no
other work should be taken up on sessions
days until the sessions work for the day is
completed.
A
Sessions
case
once
posted should not be postponed unless
that is
has
unavoidable,
begun,
continuously
it
and once the trial
should
proceed
from day to day till it is
completed. If for any reason, a case has
to be adjourned or postponed, intimation
should be
given forthwith to both sides
and immediate steps be taken to stop the
witnesses and secure their presence on
the adjourned date.
On receipt of the order of commitment the
case should be posted for trial to as early
a date as possible, sufficient
three
weeks,
securing
the
being
time,
say
allowed
witnesses.
Ordinarily
should be possible to post two
for
it
sessions
cases a week, the first on Monday and
the second on Thursday but sufficient
time should be allowed for each case so
that one case does not telescope into the
next.
to
Every endeavour should be made
avoid
telescoping
necessary, the
and
for
this,
if
court should commence
sitting earlier and continue sitting later
than the normal hours.
Judgment in the
case begun on Monday should ordinarily
be pronounced in the course
week
and
of
the
that begun on Thursday the
following Monday.
(Instructions on
the
list system contained in the O.M. dated
8th March 1984).
All the Sessions Judges and the Assistant
Sessions Judges are directed to adhere
strictly
to
the
above
provisions and
instructions while granting adjournments
in Sessions Cases.
28. In this context some of the decisions which
have
specifically
which
has
dealt with such a
caused
serious
inroad
situation
into
the
criminal jurisprudence can also be referred to. In
one of the earliest cases reported in Badri Prasad
V. Emperor - (1912) 13 Crl. L.J. 861, a Division
Bench of the Allahabad High Court has stated
the legal position as under:
“....Moreover, we wish to point out that it
is
most
inexpedient for a Sessions trial
to be adjourned. The intention of the
Code is that a trial before a Court of
Session should proceed and be dealt with
continuously
from its inception to
its
finish. Occasions may arise when it is
necessary to grant
adjournments, but
such adjournments should be granted only
on the strongest possible ground and for
the shortest possible period.....
(Emphasis added)
29. In a decision reported in Chandra Sain Jain and
others V. The State - 1982 Crl. L.J. NOC 86 (ALL)
a Single Judge has held as under while interpreting
Section 309 of Cr.P.C.
“Merely because the prosecution is being
done by
C.B.I.
or
by any
other
prosecuting agency, it is not right to
grant adjournment on their mere asking
and the Court
has
to
justify every
adjournment if allowed, for, the right to
speedy trial is part of fundamental rights
envisaged
under
Art.
21
of
the
Constitution, 1979 Cri LJ 1036 (SC), Foll.”
(Emphasis added)
30. In the decision reported in The State V. Bilal
Rai and others - 1985 Crl. L.J. NOC 38 (Delhi) it
has been held as under:
“When witnesses of a party are present,
the
court
endeavour
should
to
make every possible
record
their
evidence
and they should not be called back again.
The work fixation of the Court should be
so arranged as not to direct the presence
of witnesses whose evidence cannot be
recorded. Similarly, cross-examination of
the witnesses
should
be
immediately after the
completed
examination
in chief and if need be within a short
time
thereafter.
should
be
No
long
allowed.
adjournment
Once
the
examination of witnesses has begun the
same should be
continued from day to
day.”
(Emphasis added)
31. In the decision reported in Lt. Col. S.J.
Chaudhary
V.
State
(Delhi Administration) -
(1984) 1 SCC 722, this Court in paragraphs 2 and
3 has held as under:
“2. We think it is an entirely wholesome
practice for the trial to go on from day-
to-day. It is most
expedient
that
the
trial before the Court of Session should
proceed
and be dealt with continuously
from its inception to its finish. Not only
will
it result in expedition, it will also
result in the
elimination
of manoeuvre
and mischief. It will be in the interest of
both
the prosecution and the defence
that the trial proceeds from
day-to-day.
It is necessary to realise that Sessions
cases must
not
be tried piecemeal.
Before commencing a trial, a Sessions
Judge
must
satisfy
himself
that
necessary evidence is available.
is not, he may postpone the
only
on
the
case,
it
but
strongest possible ground
and for the shortest possible
Once
If
all
period.
the trial commences, he should,
except for a very pressing reason which
makes
an
adjournment
inevitable,
proceed de die in diem until the trial is
concluded.
3. We are
unable
to
appreciate
the
difficulty said to be experienced by the
petitioner. It is stated that his Advocate is
finding it difficult to attend the court from
day-to-day.
It
is
the
duty
of
every
Advocate, who accepts the brief in a
criminal case to attend the trial from day-
to- day. We cannot over-stress the duty
of the Advocate to attend to the trial from
day-to-day. Having accepted the brief, he
will
be
committing
professional duty, if
attend.
The
a
he
criminal
breach
so
of his
fails to
miscellaneous
petition is, therefore, dismissed.”
(Emphasis added)
32. In a recent decision of the Delhi High Court
reported in State V. Ravi Kant Sharma and Ors. -
120 (2005) DLT 213, a Single Judge of the High
Court has held as under in paragraph 3:
“3. True the Court has discretion to
defer
the
cross-examination. But as a
matter of rule, the Court cannot orders in
express terms that the examination-in-
chief of the witnesses
particular
month
examination
is recorded in a
and
his
cross-
would follow in particular
subsequent month. Even otherwise it is
the demand of the criminal jurisprudence
that criminal trial must proceed day-to-
day.
The
fixing
of
examination-in-chief
dates
of
the
only
for
lengthy
witnesses and fixing another date i.e. 3
months later for the purposes of cross-
examination
criminal
is
certainly
administration
against
of
the
justice.
Examination-in-chief if commenced on a
particular date, the Trial Judge has
to
ensure that his cross-examination must
conclude either on the same date or the
next day if cross-examination is lengthy or
can continue on the consecutive dates.
But postponing the cross-examination to
a longer period of 3 month is certainly
bound to create legal complications as
witnesses
chief
whose
recorded
examination-in-
earlier
may
insist
on
refreshing their memory and therefore
such an
allowed
occasion
to
the demand
should
not
be
arise particularly when it is
of
the
criminal
law
that
trial once commence must take place on
day-to-day basis. For these reasons, the
order passed by the learned Additional
17/43be
committing
professional duty, if
attend.
The
a
he
criminal
breach
so
of his
fails to
miscellaneous
petition is, therefore, dismissed.”
(Emphasis added)
32. In a recent decision of the Delhi High Court
reported in State V. Ravi Kant Sharma and Ors. -
120 (2005) DLT 213, a Single Judge of the High
Court has held as under in paragraph 3:
“3. True the Court has discretion to
defer
the
cross-examination. But as a
matter of rule, the Court cannot orders in
express terms that the examination-in-
16/43
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chief of the witnesses
particular
month
examination
is recorded in a
and
his
cross-
would follow in particular
subsequent month. Even otherwise it is
the demand of the criminal jurisprudence
that criminal trial must proceed day-to-
day.
The
fixing
of
examination-in-chief
dates
of
the
only
for
lengthy
witnesses and fixing another date i.e. 3
months later for the purposes of cross-
examination
criminal
is
certainly
administration
against
of
the
justice.
Examination-in-chief if commenced on a
particular date, the Trial Judge has
to
ensure that his cross-examination must
conclude either on the same date or the
next day if cross-examination is lengthy or
can continue on the consecutive dates.
But postponing the cross-examination to
a longer period of 3 month is certainly
bound to create legal complications as
witnesses
chief
whose
recorded
examination-in-
earlier
may
insist
on
refreshing their memory and therefore
such an
allowed
occasion
to
the demand
should
not
be
arise particularly when it is
of
Sessions Judge to that extent will not hold
good in the eyes of law and therefore the
same is liable to be set aside. Set
as such. Learned Additional
aside
Sessions
Judge should refix the schedule of dates
of examination of prosecution witnesses
and shall ensure that examination-in-chief
once commences cross- examination is
completed without any interruption.”
(Emphasis added)
33. In a comprehensive decision of this Court
reported in State of U.P. V. Shambhu Nath Singh
and others - (2001) 4 SCC 667 the legal position
on this aspect has been dealt with in extenso.
Useful
reference can be made to paragraphs 10,
11 to 14 and 18:
“10. Section 309 of the Code of Criminal
Procedure
(for
short “the Code”) is the
only provision which
confers
power on
the trial court for granting adjournments
in criminal proceedings.
The conditions laid down by the legislature
for
granting such adjournments have
been clearly incorporated in the
section.
It reads thus:
309. xxxx
xxxx
xxxx
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11. The first sub-section mandates on the
trial courts that the proceedings shall be
held
expeditiously
but
the
words
“as
expeditiously as possible” have provided
some play at the joints and it is through
such play
that
delay
often
creeps
in
the trials. Even so, the next limb of the
sub-section sounded for a more vigorous
stance to be adopted by the court at a
further advanced stage of the trial. That
stage
is
when
examination
of
the
witnesses begins. The legislature which
diluted
the
vigour of the mandate
contained in the initial limb of the
section
by
using
the
sub-
words
expeditiously as possible” has chosen
“as
to
make the requirement for the next stage
(when examination of the witnesses has
started) to be quite stern. Once the case
reaches that stage the statutory command
is
that
continued
the
such
from
witnesses
examination
day
to
day
“shall be
until all
in attendance have been
examined”. The solitary exception to the
said stringent rule is, if the court finds
that adjournment “beyond the following
day to be necessary” the same can be
granted for which a condition is imposed
on the court that reasons for the same
19/43
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should be recorded. Even this dilution has
been taken away when witnesses are in
attendance
before the court. In such
situation the court is not
given
any
power to adjourn the case except in the
extreme contingency for which the second
proviso to sub-section (2) has imposed
another condition, “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”.
(emphasis supplied)
12. Thus,
once
the
legal
examination
position
is
that
of witnesses started,
the court has to continue the trial from
day
to
day
until
all
witnesses
in
attendance have been examined (except
those whom the party has given up). The
court has to record reasons for deviating
from
the
said
course.
Even
that
is
forbidden when witnesses are present in
court, as the requirement then is that the
court has to examine them. Only if there
are
“special
reasons”,
which
reasons
should find a place in the order for
adjournment,
that
alone
can
confer
jurisdiction on the court to adjourn the
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case
without
examination of witnesses
who are present in court.
13. Now, we are distressed to note that it
is
almost
a
common practice and
regular occurrence that trial courts flout
the said command with impunity. Even
when witnesses
are
present, cases are
adjourned on far less serious reasons or
even on flippant grounds. Adjournments
are granted even in such situations on the
mere asking for it. Quite often such
adjournments are granted to suit the
convenience of the advocate concerned.
We make it clear that the legislature has
frowned
at
granting
adjournments
on
that ground. At any rate inconvenience of
an advocate is not a “special reason” for
bypassing the mandate of Section 309 of
the Code.
14. If any court finds that the day-to-
day
examination of witnesses mandated
by the legislature cannot
be
complied
with due to the non-cooperation of the
accused
or
his
counsel
the court can
adopt any of the measures indicated in
the
sub-section
i.e.
remanding
the
accused to custody or imposing cost on
the party who wants such adjournments
21/43
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(the
cost
must
be
commensurate
with the loss suffered by the witnesses,
including the
expenses to attend the
court). Another option is,
when
the
accused is absent and the witness is
present to be examined, the court can
cancel his bail, if he is on bail (unless an
application is made on his behalf seeking
permission for his counsel to proceed to
examine the witnesses present even in his
absence
provided the accused gives an
undertaking
in
writing
that
he would
not dispute his identity as the particular
accused in the case).
18. It is no justification to glide on any
alibi by blaming the infrastructure for
skirting
the
legislative
mandates
embalmed in Section 309 of the Code. A
judicious
judicial
officer
who
committed to his work could
with
the
existing
is
manage
infrastructure
for
complying with such legislative mandates.
The precept in the old homily that a lazy
workman always blames his tools, is the
only answer to those
indolent
judicial
officers who find fault with the defects
in
the
system
and
the
imperfections of the existing infrastructure
for their tardiness in coping with such
directions.”
(Emphasis added)
34. Keeping the various principles, set out in the
above
decisions,
in mind when we examine the
situation that had occurred in
where
PW.20
18.09.2000
and
was
the case on hand
examined-in-chief
was cross
on
examined after two
months i.e. on 18.11.2000 solely at the instance of
the appellant’s counsel on the simple ground that
the counsel was engaged in some other matter in
the High Court on the day
when
PW.20 was
examined-in-chief, the adjournment granted by the
trial
Court at the relevant point of time only
disclose that the Court was oblivious of the specific
stipulation contained in Section 309 of Cr.P.C.
which mandate the requirement of sessions trial to
be carried on a day to day basis. The trial Court
has not given any reason much less to state any
special circumstance in order to grant such a long
adjournment
of
two
months
for
the
cross-
examination of PW.20. Everyone of the caution
indicated in the decision of this Court reported in
Rajdeo Sharma V. State of Bihar - 1998 Crl. L.J.
4596 was flouted with impunity. In the said
decision a request was made to all the High Courts
to remind
all the trial Judges of the need to
comply with Section 309 of the Code in letter and
spirit. In fact, the High Courts were directed to
take note
of the conduct of any particular trial
Judge who violates the above legislative mandate
and to adopt such
administrative action against
the delinquent judicial officer as per the law.
35. It is unfortunate that in spite of the specific
directions
once
issued
again
in
by this Court and reminded
Shambhu
Nath
(supra)
such
recalcitrant approach was being made by the trial
Court
unmindful
the adverse
affecting
consequences
of the society
serious
at
large
flowing therefrom. Therefore, even while disposing
of this
appeal
by confirming the conviction and
sentence imposed on the appellant by the learned
trial
Judge,
as
confirmed
by
the
impugned
judgment of the High Court, we direct the Registry
to forward a copy of this decision to all the High
Courts to specifically follow the instructions issued
by this Court in the decision reported in Rajdeo
Sharma (supra) and reiterated in Shambhu Nath
(supra) by issuing appropriate circular, if already
not issued. If such
issued,
circular
has
already
been
as directed, ensure that such directions
are scrupulously followed by the trial Courts
without providing scope for any
deviation
in
following the procedure prescribed in the matter of
a trial of sessions cases as well as other cases as
provided under Section 309 of Cr.P.C.
respect, the High Courts will
also
In
be
this
well
advised to use their machinery in the respective
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State Judicial Academy to achieve the desired
result. We hope and trust
High Courts would take
that
the
serious
respective
note
of
the
above directions issued in the decisions reported
in
Rajdeo
Sharma
(supra)
extensively quoted and
subsequent
decision
of
which has been
reiterated in the
this
Court reported in
Shambhu Nath (supra) and comply
with
the
directions at least in the future years.
36. In the result, while we upheld the conviction
and sentence imposed on the appellant, we issue
directions in
the
light
of
the
provisions
contained in Section 231 read along with Section
309 of Cr.P.C. for the trial Court to strictly adhere
to the procedure prescribed therein in order to
ensure speedy trial of cases and also rule out
the
by
possibility of any maneuvering taking place
granting
undue
long adjournment for mere
asking.
It goes without saying that speedy trial in rape
cases,
not only ensures fair trial and examination of the
witnesses without any influence, but also is for the benefit
of the accused whose reputation is at a stake. Acquittal if
granted, shall not only restore reputation, but shall bring an
end to the ordeal faced by the accused.
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It will be also necessary to notice that Law
Commission in its Report No.239 has recommended that
expeditious investigation and trial of criminal cases against
an influential person, is an imperative.
It will be apposite here to quote few portions
from the above Report of Law Commission :
“1.3 Public interest demands that the
criminal cases especially those related to
serious crimes are concluded within a
reasonable time so that those guilty are
punished. Further, from the point of view
of accused also, the right to speedy trial is
a fundamental right. People get frustrated
in the system if at every stage there is
delay and the process of justice is not
allowed to take its normal course, more
so, when deliberate attempts are made to
subvert and delay the process. Further,
with the long passage of time, whatever
evidence is there, it will vanish or eclipse.
Oral evidence which in most of the cases
is vital to the prosecution, will take a
devious
witnesses
or
distorted
and
course.
witnesses
with
Hostile
faded
memories will be writ large in the system,
with the long passage of time.”
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One of the accused in the present case, is
perceived as a Godman and wields a lot of influence as he is
having a very large following.
As to who can be termed
influential in public life, Law Commission in its report
observed as under :
“3. Influential persons in public life –
illustrative list. The question whether the
term ‘influential person in public life’
needs to be defined has engaged the
attention of the Law Commission. The
Commission feels that such definition is
not feasible and it does not serve any
purpose. The influential persons are not
merely those who are holding or who have
held public offices; even their henchmen
and close relations, the rich and powerful
and men with muscle power having links
with one or the other political party are
quite influential in their own way and they
have the potential to create stumbling
blocks
for
smooth
investigation
and
effective trial. Moreover, it is not desirable
to give too much of an expansive meaning
to this term so as to 13 include elected
representatives at the Panchayat level or
all the office-bearers of various political
parties. To specify with precision the term
‘influential person in public life’ is a
complex task. It is a wide and nebulous
term. The whole object of
specifying
influential persons in public life as a
category is to enable the Police and
Judicial Officers concerned to keep track
of cases involving such persons and to
endeavour
avoidance
bottlenecks
in
the
of
way
delays
of
and
speedy
investigation and trial.”
It is to be noted that in the State of Rajasthan,
Special Courts have been created for trial of offences
against woman.
A court too, to this effect has also been
established at Jodhpur.
Thus noticing the necessity of speedy trial, this
Court directs the trial court to proceed with this case from
16.11.2013
onwards
and
decide
the
issue
whether
cognizance is to be taken against the accused or not and if
so, for what offences ? The trial court shall without any
interruption and hindrance proceed with the trial on day to
day basis till its conclusion so that the speedy trial is
ensured.
In the present case, as per prosecution case, a
child has been raped.
publicity.
This case has attracted much
Reputation of the family of the child has
immensely suffered.
Till today, the State has given no
compensation to the child.
Way back, this Court in Suo Moto vs. State of
Rajasthan decided on 01st June, 2005
- RLW 2005(2) Raj
1385, took suo moto notice and had given directions to
evolve a scheme for providing compensation to the victims
of rape. This Court has held as under :
COMPENSATION TO VICTIM :
27.
Turning
to
the
question
of
compensation, It is now well established
by a series of decisions of the Apex Court
that "right to life does not mean animal
existence but means thing more namely
the right to live with human dignity'. This
was first held by the Apex Court in Francis
Coralle Mullin v. The Administrator, Union
Territory of Delhi, AIR 1981 SC 746.
28. The Mallimath Committee has also
made
recommendations
as
to
the
compensation for victim. In para 6.8.7
and
6.8.8,
the
Committee
has
recommended as follows:
"6.8.7 Sympathizing with the plight of
victims
under
Criminal
Justice
administration and taking advantage of
the obligation to do complete justice
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under the Indian Constitution in defense
of human rights, the Supreme Court and
High Courts In India have a late evolved
the practice of awarding compensatory
remedies not only in terms of money but
also in terms of other appropriate reliefs
and remedies. Medical justice for the
Bhagalpur blinded victims, rehabilitative
justice to the communal violence victims
and compensatory justice to the Union
Carbide
victims
are
examples
of
this
liberal package of reliefs and remedies
forged by the apex Court. The recent
decisions In Nilahati Behera v. State of
Orissa [(1993)
2
SCC
746]
and
in Chairman, Railway Board v. Chandrima
Das are illustrative of his new trend of
using
Constitutional
jurisdiction
to
do
justice to victims of crime. Substantial
monetary
compensations
have
been
awarded against the instrumentalities of
the State for failure to protect the rights
of the victim.
6.8.8
These
decisions
have
clearly
acknowledged the need for compensating
victims of violent crimes irrespective of
the
fact
whether
offenders
are
apprehended or punished. The principle
Invoked Is the obligation of the State to
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protect basic rights and to deliver justice
to victims of crimes fairly and quickly. It is
time that the Criminal Justice System
takes not of these principles of Indian
Constitution and legislate on the subject
suitably."
29. In Shri Bodhisattwa Gautam's case
(supra), the Court observed as follows:
"Rape is thus not only a crime against the
person of a woman (victim), It is a crime
against the entire society. It destroys the
entire psychology of a woman and pushes
her Into deep emotional crises. It is only
by
her
sheer
will
power
that
she
rehabilitates herself in the society which,
on coming to know of the rape, looks
down upon her in derision and contempt.
Rape is, therefore, the most hated crime.
It is a crime against basic human rights
and is also violative of the victim's most
cherished
of
the
Fundamental
Rights,
namely, the Right to Life contained in
Article
21.
To
many
feminists
and
psychiatrists, rape is less a sexual offence
than
an
act
of
aggression
aimed
at
degrading and humiliating women. The
rape laws do not, unfortunately, take care
of the social aspect of the matter and are
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inept in many respects."
30. In a landmark judgment of the Apex
Court
in
the
case
of Delhi
Domestic
Working Women's Forum v. Union of
India, (1995) 1 SCC 14, parameters have
been laid down under which a case of rape
is to be travelled.
31. In
P.
Rathinam
v.
Union
of
India, 1989 Supp(2) SCC 716 the Apex
Court laid down the principle of interim
compensation to be paid to the victim
pending trial. In the said case, the Apex
Court directed the State Government to
pay a compensation of Rs. 20,000/- to the
victim pending trial.
32. In another case State of Maharashtra
v. Rajendra Jawanmal Gandhi, AIR 1997
SC
3986
the
Apex
Court
awarded
compensation to the victim in a sum of
Rs. 40,000/-.
33. A leading case of the Apex Court in
this line is Chairman, Railway Board v.
Chandrima Das,(2000) 2 SCC 465. In the
said case, a foreign tourist (Bangladeshi)
was gang raped at the Howrah Railway
Station.
The
Apex
Court
upheld
the
compensation of Rs. 10 lacs awarded by
the Calcutta High Court on a petition filed
under the label of "P.I.L." by an advocate
viz; Chandrima Das. In the said case, the
Apex Court has referred to the number of
instances, wherein the compensation has
been awarded by the Constitutional Courts
In India i.e. the Supreme Court and the
High Courts In exercise of their powers
under
Articles
32
and
226
of
the
Constitution respectively in cases related
to
the
custodial
deaths
and
medical
negligence. Reference may be made to
(1) Nilabati
Behera
v.
State
of
Orissa, (1993) 2 SCC 746 (2) State of
M.P. v. Shyamsunder Trivedi, (1995) 4
SCC 262; (3) People's Union for Civil
Liberties v. Union of India, (1997) 3 SCC
433; (4) Kaushalya v. State of Punjab,
(1999) 6 SCC 754; (5) Supreme Court
Legal
Aid
Bihar, (1991)
Committee
3
SCC
v.
482;
State
of
(6) Jacob
George (Dr) v. State of Kerala, (1994) 3
SCC 430 (7) Paschim Banga Khet Mazdoor
Samity v. State of W.B., (1996) 4 SCC
37; and (8) Manju Bhatia v. New Delhi
Municipal Council,(1997) 6 SCC 370.
34. Thus, the argument that the victim is
a foreign national and, therefore, no relief
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can be granted to her under the public
law, is not available for two reasons:
Firstly;
on
the
jurisprudence
ground
based
on
of
domestic
Constitutional
provisions; and
Secondly; on the ground of human rights
jurisprudence
based
on
the
Universal
Declaration of Human Rights, 19481 which
has the international recognition as the
'Moral Code of Conduct' having been
adopted by the General Assembly of the
United Nations.
35.
The
International
Covenants
and
Declarations as adopted by the United
Nations have to be respected by all
signatory states and the meaning given to
the provisions of those Declarations and
Covenants have to be such as would help
in
effective
implementation
of
those
rights. The applicability of the United
Nation's Universal Declaration of Human
Rights and the principles thereof may
have to be read, if need be, into the
domestic jurisprudence.
36. Our Constitution guarantees all the
basic and fundamental human rights set
out in the Universal Declaration of Human
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Rights, 1948, to its citizens and other
persons.
These
basic
human
and
fundamental rights are enumerated in Part
III of the Constitution of India. The nature
of the enumerated in Part III are basic In
nature. These are the basic human rights
without
which
the
development
of
woman's personality will be in jeopardy.
37. The fundamental rights enumerated in
the Constitution are available to all people
who are residing within the territory of
India of course some fundamental rights
are exclusively reserved for the citizens of
India only. Article 21 of the Constitution of
India ensures right to life and personal
liberty to all. The meaning of the word
'life' in Article 21 cannot be narrowed
down. According to the tenor of the
language used in Article 21, it is available
not only to every citizen of the country
but also non- citizens. On this principle,
any person coming within the country as a
tourist or in any other capacity will be
entitled to the protection of their fives in
accordance
with
the
constitutional
provisions. They are also entitled to right
to life in this country. Thus, they are
having the right to live, so long as they
are here, with human dignity. Just as the
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State is under an obligation to protect the
life of every citizen In this country, so also
the State is under an obligation to protect
the life of the persons who are not citizens
but are in the country either residing as a
tourist. The fundamental rights under our
Constitution are almost in consonance
with the rights contained in the Universal
Declaration of Human Rights as also the
Declaration of Civil and Political Rights and
the Covenants of Economic Social and
Cultural Rights, to which India is a party,
having ratified them. That being so, since
'life' is also recognized as a basic human
right
in
the
Universal
Declaration
of
Human Rights, 1948, It has to have the
same meaning and Interpretation as has
been placed on that word by the Apex
Court in its various decisions relating to
Article 21 of the Constitution.
38. However, the rights guaranteed under
Part
III
of
the
Constitution
are
not
absolute. These rights are subject to
reasonable restrictions. Therefore, in case
of
non-citizens
also
these
rights
are
available subject to such restrictions ascompensation of Rs. 10 lacs awarded by
the Calcutta High Court on a petition filed
under the label of "P.I.L." by an advocate
viz; Chandrima Das. In the said case, the
Apex Court has referred to the number of
instances, wherein the compensation has
been awarded by the Constitutional Courts
In India i.e. the Supreme Court and the
High Courts In exercise of their powers
under
Articles
32
and
226
of
the
Constitution respectively in cases related
to
the
custodial
deaths
and
medical
negligence. Reference may be made to
(1) Nilabati
Behera
v.
State
of
Orissa, (1993) 2 SCC 746 (2) State of
M.P. v. Shyamsunder Trivedi, (1995) 4
SCC 262; (3) People's Union for Civil
Liberties v. Union of India, (1997) 3 SCC
433; (4) Kaushalya v. State of Punjab,
(1999) 6 SCC 754; (5) Supreme Court
Legal
Aid
Bihar, (1991)
Committee
3
SCC
v.
482;
State
of
(6) Jacob
George (Dr) v. State of Kerala, (1994) 3
SCC 430 (7) Paschim Banga Khet Mazdoor
Samity v. State of W.B., (1996) 4 SCC
37; and (8) Manju Bhatia v. New Delhi
Municipal Council,(1997) 6 SCC 370.
34. Thus, the argument that the victim is
a foreign national and, therefore, no relief
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can be granted to her under the public
law, is not available for two reasons:
Firstly;
on
the
jurisprudence
ground
based
on
of
domestic
Constitutional
provisions; and
Secondly; on the ground of human rights
jurisprudence
based
on
the
Universal
Declaration of Human Rights, 19481 which
has the international recognition as the
'Moral Code of Conduct' having been
adopted by the General Assembly of the
United Nations.
35.
The
International
Covenants
and
Declarations as adopted by the United
Nations have to be respected by all
signatory states and the meaning given to
the provisions of those Declarations and
Covenants have to be such as would help
in
effective
implementation
of
those
rights. The applicability of the United
Nation's Universal Declaration of Human
Rights and the principles thereof may
have to be read, if need be, into the
domestic jurisprudence.
36. Our Constitution guarantees all the
basic and fundamental human rights set
out in the Universal Declaration of Human
Human Rights world has undergone many
changes.
Many
political,
social
and
economic changes occurred world wide.
The new global menace-terrorism has
greatly
disturbed
the
global
scenario.
Primacy of the interest of the nation and
security of the State will have to read Into
the Universal Declaration as also in every
article dealing with fundamental rights
including Article 21.
39. In National Human Right Commission
v.
State
of
Arunachal
Pradesh
and
Anr., (1996) 1 SCC 742 the court held
that
the
Indian
Constitution
confers
certain rights on every human being, may
be a citizen of this Country or not, which
Includes right to life. The Court observed
thus:
"We are a Country governed by the Rule
of Law. Our Constitution confers certain
rights on every human being and certain
other rights on citizens. Every person Is
entitled to equality before the law and
equal protection of the laws. So also, no
person can be deprived of his life or
personal
liberty
except
according
to
procedure established by law. Thus, the
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State is bound to protect the life and
liberty of every human being, be he a
citizen or otherwise..."
40. The Gujarat High Court in Ktaer Abbas
Habib Al Qutaifi and Anr. v. Union of India
and Ors., 1999 Cr.L.J. 919 relying on the
Universal Declaration of Human Rights
and the Article 33 of the United Nations
Convention on the Status of Refugees,
held that the protection of human life and
liberty is available to refugees, if his
activities are not prejudicial to the law and
order or security of the Country. The
Court also observed that the Member
nations are expected to respect such
conventions. It was a case of an Iraqi
refugee. The Court applied the principle of
'Non- refoulment' which means that no
State shall return a refugee to the country
where his life may be in danger.
41. In the case of People's Union for Civil
Liberties v. Union of India, (1997) 1 SCC
301 the Supreme Court referred to Article
17 of the International Covenant on Civil
and Political Rights, 1966 and Article 12 of
the
Universal
Declaration
of
Human
Rights, 1948, so as to derive from Article
21 a right to privacy in India. The court
observed In this connection:
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"International law today is not confined to
regulating
the
relations
between
the
States. Scope continues to extend. Today
matters of social concern, such as health,
education
and
economics
apart
from
human rights fall within the ambit of
International law is more than ever aimed
at individuals. It is almost an accepted
propositions of law that the Rules of
customary international law which are not
contrary to the municipal law shall be
deemed
to
be
incorporated
in
the
domestic law."
42. In the instant case, the German
tourist is not a citizen of India, but she
being
a
tourist,
entitled
to
all
the
constitutional rights available to a citizen
so far as 'right to life' is concerned. She is
entitled to be treated with dignity and is
also entitled to the protection of her
person as guaranteed under Article 21 of
the Constitution. As a national of another
country, she cannot be subjected to a
treatment which is below dignity, nor
could
she
be
subjected
to
physical
violence at the hands of anybody. In this
case, it is not merely a matter of violation
of an ordinary right of a person, but the
violation of fundamental rights is involved.
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43.
Considering
all
the
facts
and
circumstances of the case, we consider it
appropriate to award a compensation of
Rs. 3 lacs to the victim in the instant case,
payable by the State Government.”
It is to be noted with lot of satisfaction that due
to initiative taken by the courts, the Legislature by
introducing Act No.5 of 2009 had introduced Section 357A
by
enacting
Victim
Compensation
Scheme.
Whether
accused is acquitted or convicted irrespective of that, a
victim is to be compensated.
Having held that a victim of rape is entitled to
compensation, this Court has to ponder, whether in the
facts and circumstances of given case, the compensation,
as an interim measure, can be awarded to the victim and if
so, what safeguards are to be ensured by the Court that the
same is not misused.
National Commission for Women had prepared a
Revised Scheme For Relief and Rehabilitation of Victims of
Rape. The scheme revised on 15th April, 2010 has noticed
the necessity of providing interim compensation to the
victim of rape.
The statement of objects and reasons of the
Scheme read as under :
“The Hon’ble Supreme Court in Delhi
Domestic Working Women’s Forum Vs.
Union of India and others writ petition
(CRL)
No.362/93
had
directed
the
National Commission for Women to evolve
a “scheme so as to wipe out the tears of
unfortunate
Supreme
regard
victims
Court
to
the
of
rape’’.
observed
that
Directive
The
having
principles
contained in the Article 38(1) of the
Constitution, it was necessary to set up
Criminal Injuries Compensation Board, as
rape victims besides the mental anguish,
frequently incur substantial financial loss
and in some cases are too traumatized to
continue
in
employment.
The
Court
further directed that compensation for
victims shall be awarded by the Court on
conviction of the offender and by the
Criminal
Injuries
compensation
board
whether or not a conviction has taken
place. The Board shall take into account
the pain, suffering and shock as well as
loss of earnings due to pregnancy and the
expenses of child birth if this occurs as a
result of rape.
To
direction
give
of
effect
the
to
the
Hon'ble
aforesaid
Court,
the
National Commission for women had sent
a draft scheme to the Central Government
in 1995. The Committee of Secretaries
had on this given the following guidelines
in this regard:-
(i). That a plan scheme would be prepared
by
the
NCW/DWCD
for
disbursing
compensation to the victims of rape and
the scheme should also provide for interim
compensation.”
For
re-integration
and
rehabilitation
of
the
victims of rape, ground realities are too traumatic. A victim
of rape requires long term counselling; physical and
psychological therapy, social security, gainful employment.
All these facilities are lacking. To make the rape victim to
wait and have patience till the trial is concluded, is to leave
her to the miseries without applying any balm or providing
succour.
A
rape
victim
cannot
stand
in
the
hostile
atmosphere, until some aid is provided by the society.
Since institutions for providing psychological counselling to
overcome the scar, are not available and for gainful
employment, institutions to provide vocational education
are also lacking. Only means to rehabilitate victim of rape
is to provide compensation.
What compensation is to be
awarded is a prerogative of the trial judge, after conclusion
of the trial.
Rape victims urgently require sustenance or
subsistence for integration and to live with dignity in the
society.
The courts always in a given case can provide
interim compensation. Providing of interim compensation, in
no way, shall have any bearing on the trial. The courts
while awarding interim compensation, neither pronounce
the accused as guilty nor victim as sufferer.
Suffice it to say, where a person, who has
levelled an allegation and has opted to come in public glare,
efforts must be made to insulate her, so that he can defend
her case with dignity. For availing lawful remedy, best legal
professional
help should be made available to the rape
victim to espouse her cause. One cannot become oblivious
of the fact that in present case top-notch professionals are
standing for the accused.
The
interim
relief
awarded,
can
reduced or enhanced by the trial court.
always
be
In the given
circumstances, to ensure that such an interim compensation
awarded is not misused, way can be evolved for return of
the amount, if it is held by the trial court that the case has
been falsely instituted.
In that case, the amount can be
recovered along with damages from the person, who, on
the basis of false allegations has set the criminal law into
motion.
Consequently, a direction is issued to the State
Government to pay compensation of Rs.Three Lacs, as an
interim measure, to the victim. The compensation shall be
paid to the victim within one month from today.
The State
Government while disbursing compensation, shall take an
indemnity bond from the victim, so that in case the case is
held to be false, the amount is returned to the State with
interest and damages to be accessed by the trial court.
Nothing
said
herein
shall
be
construed
as
expression on the merits of the case and the trial court shall
confine itself strictly to the evidence adduced in the trial,
uninfluenced by any observation made herein above.
On prayer made by counsel for the petitioners,
the case is adjourned and the present petitions be listed
after order of the trial court on issue of cognizance is placed
on record.
Copy of this order be forthwith sent to trial court
for strict compliance.
(KANWALJIT SINGH AHLUWALIA), J.
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