UAPA | Jammu & Kashmir High Court Issues Guidelines To Expedite Trials Especially During Stage Of Prosecution Evidence

The appellant's counsel argued that the delay in trial violated the appellant's fundamental right to a speedy trial as enshrined in Article 21 of the Constitution.

The court examined the records of proceedings before the Trial Court and found that out of 34 prosecution witnesses, only six had been examined in two years. The delay in the trial was solely attributed to the prosecution's inability to produce witnesses, and the Trial Court's lack of proactive measures to secure their presence.

Taking note of this, the bench emphasized that the right to a speedy trial is an integral part of an accused person's rights under Article 21 of the Constitution. It further referred to Union of India Vs. K.A. Najeeb – (2021) and clarified that even in cases governed by statutory bars on bail, delay in trial can still be a valid ground for considering bail. It thus enlarged the appellant on bail.

Court said that while assessing delay in trial and whether there is an accrual of a right to bail on the grounds of delay in trial, Trial Courts should factor (A) the period of incarceration of the accused from the date of arrest till the filing of the chargesheet, (B) the delay in examining the witnesses for the prosecution, (C) the expeditious conduct or the lack of it on the part of the prosecution to produce its witnesses, (D) the conduct of the Court and its anxiety or its absence, in resorting to coercive measures to secure the presence of witnesses where the witnesses abstain despite service of process on them and,(E) whether the conduct of the accused reveals that he is responsible for the delay in trial.

The High Court also issued following guidelines to the Trial Courts to expedite the cases before them, with specific reference to the stage of prosecution evidence:

(A) After framing of charges against the accused, summons be issued to the eyewitnesses or, if it is a case where there are no eyewitnesses, then to those witnesses who are most material to prove the case of the prosecution,

(B) If summons is returned unserved for whatever reason, instead of wasting further time by resorting to the same process time and again, the next summons must be served through the office of the Superintendent of Police. If those summonses are also not served, the report of the police must reflect the reason why they have not been served,

(C) If the reasons given by the police in the report returning the summons unserved, reflect that the witnesses are unreachable/untraceable and that service cannot be effected on them on account of their non-availability, then the trial court must skip those witnesses and proceed to the next set of witnesses by issuing summons to them. The Trial Court must realise that the case of the prosecution is actually the case of theUnion Territory through the police, against the accused persons. It is the duty of the police to produce their witnesses before the trial Court. By skipping a set of witnesses, the court is not closing their evidence but merely keeping them in abeyance, to be recorded as and when they are found by the police or appear on their own before the Trial Court at any stage before the conclusion of the trial. In such a case, skipping of such witnesses would necessarily need the consent of Counsel for the defence and if opposed by the defence Counsel, for whatever strategic reasons the defence may have, then the court may issue fresh summons to the same set of witnesses. However, in such a situation, the delay in conduct of trial would then be on account of the conduct of the defence for which accused cannot claim violation of the right to a speedy trial at a later point of time,

(D) If material witnesses cannot be secured without delay, the court must explore the possibility of examining formal witnesses and expert witnesses if any and conclude the same. Thereafter, notwithstanding the fact that there remain witnesses for the prosecution who have not been examined on account of the inability of the police to produce them for reasons reflected in the report of the police, the court must close the evidence of the prosecution and proceed to the next stage of the case. However, if any of the prosecution witnesses appears at a subsequent stage, before passing of the judgment by the trial Court, the court shall be free to exercise its jurisdiction under section 311 Cr.P.C. and record their statements in the interest of justice after considering objections of the defence, if any,

(E) The police on its part, must secure the mobile number and E-mails ids of all witnesses, if they possess the same. This must be retained by them in the inner case diary to be used for transmitting the summons or messaging the witness regarding their date and time of appearance before the Trial Court to testify. The police must take care that the aforementioned details are NOT disclosed in the charge-sheet in order to ensure that the access of the accused to the witnesses is minimised to the greatest extent possible,

(F) The Trial Court must also resort to the option of delivering summons through SMS and E-mail in addition to the conventional process, wherever possible. The purpose of the endeavour must be to secure the presence of the witnesses in the shortest possible time to complete the trial. The Courts must bear in mind that as long as the trial is in progress, presumption is always of innocence and not of guilt.

(G) It shall not be open to the police to put forward reasons of law-and-order work or any other of their functions as excuses for not complying with the order of the Trial Court to secure the presence of their witness. Such non-compliance on the part of the police may constitute contempt or the Trial Court's order, and the Trial Court shall be at liberty to initiate such proceedings against the police if it is not satisfied with the reply of the police for not complying with the order passed by it.

Case Title: Zahoor Ahmad Wani Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 207

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