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Report No. 154

During the Appeal and Revision

1. Information not available.

2. Non-appearance of the Petitioner.

3. Non-appearance of the Respondent.

4. Presiding Officer on leave/official duty.

5. Awaiting Order of transfer.

6. Non-supply of record of lower court.

7. Non-preparedness of counsel for petitioner.

8. Adjourned for next stage.

9. No time left/court busy with other case.

10. Listed for miscellaneous work, therefore, adjourned.

11. Judgment/Order not ready.

12. Information not available.

A perusal of the aforesaid causes reveals that they are not insurmountable and can be avoided by taking prompt and necessary steps by concerned authorities, namely, investigation agencies, prosecuting agencies, defence counsel and witness and the process servers and above all the courts.

39.4 Experience shows that the accused often adopt delaying tactics so that prosecution witnesses may not be examined early against him so that he may be able to win them over with the passage of time or as is well said that scars of wound heel up with the passage of time. In many cases, the intensity of vengeance to teach bitter lesson to the accused for his deeds, fades away with the passage of time.

Thus, ultimately, the accused goes scot free sheerly on account of manoeuvring adjournments by the accused, during the trial. Even, the prosecution also can be absolved from the blame of seeking adjournments on various grounds. Mr. Justice of Chinnappa Reddy in State of Maharashtra V. Champalal, AIR 1981 SC 1675, observed:

"We are not unmindful of the delays caused by tardiness and tactics of the prosecuting agencies. We know of trials which are over delayed because of the indifference and somnolence of the deliberate inactivity of the prosecuting agencies.

Poverty struck dumb accused persons too feeble to protest, languish in Prisons for months and years on and awaiting trial because of the insensibility of the prosecuting agencies Sometimes when the evidence is of a weak character and a conviction is not probable result the prosecuting agencies adopt delaying tactics to keep the accused persons in incarceration as long as possible and to harass them.

This is a well-known tactic in most conspiracy cases. Again, an accused person may be seriously jeopardised in the conduct of his defence with the passage of time. Witnesses for the defence may become unavailable and their memories too may fade like those of the witnesses for the prosecution. In such situations, in appropriate cases, we may readily infer an infringement of the right to life and liberty guaranteed by Article 21 of the Constitution."

39.5 The Constitution Bench of the Supreme Court in M.S. Sheriff v State of Madras, AIR 1954 SC 397 (399) held that "it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust".

39.6 It is therefore, quiet-essential to combat with the problem of adjournments on this count. This can be dealt with by providing the similar measures as laid down under order XVII of the Code of Civil Procedure introduced with effect from Feb. 1, 1977 by Act 104 of 1976. The Law Commission in its Seventy Seventh Report on Delay and Arrears in Trial Courts, Chapter 6, para. 6.10 has also recommended for strict enforcement of these provisions. Clauses (a) to (e) of the Proviso to sub-order 1(2) of Order XVII are reproduced herein below for our ready reference:

"Provided that:

(a) when the hearing of the suit has commenced, it shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary;

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time;

(e) where a witness is present in court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in--chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid."

The Law Commission in its Seventy-Seventh Report also observed that the suggestions made regarding delay and arrears in respect of civil cases will also hold good for criminal cases.

39.7 We feel that in view of delay in trial of criminal cases also on account of adjournment it is desirable to incorporate the following additional provision in the light of the decision in State of Gujarat v. Narender Singh Lakhubhai, 1995 (1) 445

"(f) where the court is of the opinion that the inquiry or trial of the case is being delayed or adjourned on account of any official belonging to the prosecuting agency or associated with it, the court shall make an order holding the person responsible for such act and communicate the order to the concerned head of the agency for incorporating in the service records of the concerned official as well as for recommending suitable criminal and disciplinary action against him."

In order to further keep a check upon the court there is a need to further provide the following measure:

"(g) Every criminal court shall send a return in the prescribed proforma to the Chief Justice of the High Court stating the particulars of the cases in which the adjournments were granted by them during the inquiry or trial of cases detailed reasons therefor".

We feel that the aforesaid measure, if strictly adhered to, would further curtail to a great extent delay caused on account of adjournments unduly thought by the accused as well as the prosecuting agencies.

The Code of Criminal Procedure, 1973 Back

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