CHANDRASHEKHAR,J. - (1.) In a recent judgment the Supreme Court has observed; "the criminal justice system in this country is on crossroad".
(2.) In the last one month since I was assigned roster for bail matters, I have come across cases which make me believe that Jharkhand is no exception. There are cases in which; case-diary has been produced after as many as 5 adjournments, witnesses have not been examined even after 23 adjournments or for about 3 years, eye-witness and the informant have not been made charge-sheet witnesses, the post-mortem examination report does not record any observation regarding external injury on the dead body, and investigation is conducted, in Special cases in which investigation cannot be conducted by an officer below the rank of Dy. S.P., by an officer in the rank of Assistant Sub-inspector of police. These are the issues which require immediate attention of the police and the prosecutor. The cases which have been listed today are broadly divided under four categories: I. Witnesses not produced by the prosecution (i) it is stated that no prosecution witness has been examined after 09.09.2014. (ii) it is stated that after 10 adjournments from 25.11.2016, 3 prosecution witnesses were examined and, thereafter, trial is pending for examination of the remaining prosecution witnesses. (iii) the case was committed to the Court of sessions on 23.05.2014 and charges were framed on 12.11.2014. Out of 8 prosecution witnesses, 3 were examined by 22.01.2016 and another witness (P.W.4) was examined on 27.05.2016, however, thereafter no witness was produced by the prosecution for more than 1 year. Referring to judgment in Hussain and Another Vrs. Union of India reported in (2017) 5 SCC 702, Sri A.K. Kashyap, the learned Senior counsel for the petitioner submits that speedy trial is implicit under Article 21 of the Constitution of India and denial of this right entitles the petitioner for grant of bail. (iv) (Kamdara P.S. Case No.15/2015); the trial Court while rejecting the prayer for bail has recorded that "even after exhausting all processes, attendance of prosecution witnesses has not been secured". (v) when the prosecution failed to produce witnesses, prosecution evidence was closed and, now a judgment of acquittal has been recorded. (vi) last prosecution witness was examined on 15.09.2015 and thereafter 23 adjournments have been granted, however, remaining prosecution witnesses have not been examined. (vii) in these cases also there is considerable delay in examining the remaining prosecution witnesses. II. Material witnesses not cited as witness in charge-sheet (i) the informant has not been made a charge-sheet witness. (ii) an eye-witness to the occurrence has not been made a charge-sheet witness. III. Post-mortem examination report (i) the post-mortem examination reports in these cases do not make any observation, whether there was any external injury on the dead body or not. IV. Investigation by an officer not authorized to conduct investigation (i) investigation in this case has been conducted by an officer in the rank of Assistant Sub-inspector of Police whereas, Prevention of Corruption Act , 1988 mandates that investigation cannot be done by an officer below the rank of Dy. S.P. and in cases where the state government has issued appropriate notification by an officer in the rank of Inspector of police.
(3.) Way back, Police Order No.47 was issued on 28.09.1950 addressing the concern regarding non- appearance of the police officers/investigating officers during the trial. Police Order No.47 reads as under: POLICE ORDER No. 47 "It has been brought to the notice of Government that attendance of the police officers and men in court is not ensured and that processes, etc., against them are treated mechanically. In future the headquarters Deputy Superintendent of Police will be held personally responsible for proper and prompt attention to processes received in police office. A special register should be maintained to indicate the postings, and leave addresses of all SubInspectors, Assistant SubInspectors, Writer Constables of the district and the Head Moharrir under the supervision of the Headquarters Deputy Superintendent of Police will be responsible for keeping it uptodate. Likewise, the Sub divisional Police Officer/Circle Inspector should maintain similar registers for officers and men under their charge. This register should invariably be consulted before processes are dealt with to guard against mistakes and delays. (1) Another register should also be maintained in the office of the Superintendent of Police showing, (1) date of receipt of summons, (2) date of dispatch to the persons concerned, (3) returnable date, (4) date of service, and (5) date of return from police office to the issuing Court. A 24 similar register should be maintained by the Sub divisional Police Officers and Circle Inspectors in respect of summonses sent through them. The service return of the summonses shall be sent to the issuing court through the office from which they were received. (2) Considerable dislocation of work and expenditure of travelling allowance are caused when officers are repeatedly summoned to appear in Courts to give evidence after they have been transferred to some other district. Officers proceeding on leave or transfer must themselves give to the Court SubInspectors a list of cases in which they have to give evidence. It should then be the duty of the court officers to arrange for the evidence of such officers being taken on contiguous dates before they leave the district. If this is not possible, such officer should be informed accordingly and they will furnish to the prosecuting officer their addresses. In such cases, the summonses may be sent under registered cover well in advance or telegraphically. Defence lawyers generally desire to examine the investigating officer last. Much harassment is often caused to police officers by the repeated absences of a small number of prosecution witnesses. In such situation prosecuting officers should press for the police officer's evidence being recorded as soon as the majority of the prosecution witnesses have been examined and give the assurance that the investigating officer would be recalled if desired after all the prosecution witnesses have testified. Every police officer summoned to appear in Court shall, if he cannot appear on the date fixed inform the Magistrate the prosecuting officer of the reason of his failure. This explanation should not be a matter of routine. If the reason for absence is found not satisfactory, the defaulters should be severely dealt with." It should be the duty of the Court SubInspectors to report to the Superintendent of Police cases of failure on the part of police officers to attend court. Any Court SubInspector/ A.D.P. who fails to carry out these instructions should also be suitably dealt with." ;