Supreme Court Sets Aside Directions Issued By P&H High Court Regarding Appearance Of Prosecution Witnesses

The Supreme Court recently set aside the directions issued by the Punjab & Haryana High Court regarding issuance of summons to prosecution witnesses in a criminal trial.

The High Court, in its order passed on May 27, 2022, had adopted the directions issued by the Madhya Pradesh High Court in Rambahor Saket and others vs State of M.P.(2018) and reiterated those guidelines as follows-

• After framing of charges against the accused, summons be issued to the eyewitnesses or to those witnesses who are most material to prove the case of the prosecution
• If summons are returned unserved for whatever reasons, 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 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 and there is no prospect of them being found within a reasonable time, then the trial court must skip those witnesses and proceed to the next set of witnesses by issuing summons to them.
• 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
• If material witnesses cannot be procured without delay, the court must explore the possibility of examining formal witnesses and expert witnesses if any, and conclude the same. Thereafter, the remaining 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 case of the prosecution and proceed to the next stage of the case.
• 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 of the Trial Court's order,

The P&H High Court directed that these guidelines should apply to all courts within the territories of Punjab, Haryana and Chandigarh.

On August 8, a Supreme Court bench comprising Justices S Ravindra Bhat and Aravind Kumar set aside these directions. 

"A rigid rule like this cannot be made through a judicial fiat", the bench orally remarked.

Background

The High Court had passed the above directions while granting bail to an accused in a murder case. While hearing the case, the High Court noted that the Trial Court had issued proclamation under Section 82 CrPC against two prosecution witnesses for failing to appear. Taking a critical view of this approach, the High Court sought an explanation from the Trial Court.

"It is surprising that the trial Court has adopted a procedure under Section 82 Cr.P.C. against a witness, though the procedure under Section 82 Cr.P.C. is meant for the appearance of an accused person", the HC observed. 

The HC added “The perusal of Section 82(4) Cr.P.C. clearly shows that a witness cannot be declared a proclaimed offender, if he fails to appear despite service of non-bailable warrants, rather the procedure to be adopted by the Court is provided under Section 350 Cr.P.C."

The HC also highlighted that the trial court failed to take notice of section 174 IPC where a witness doesn’t appear after an order is passed by a public servant, he can be punished for imprisonment for up to 6 months or a fine.

In State's appeal, the Supreme Court noted that if a person doesn’t appear after a proclamation is issued against him under Section 82, CrPC then the punishment for the same is provided under Section 174-A Indian Penal Code.

The court finally held that “It is evident that the impugned order has inadvertently or otherwise entirely overlooked Form 5 and 6 and the important provisions of the Code of Criminal Procedure, Sections 83 and 174A IPC. Therefore, to the extent, they issue directions to the State and to all Courts within the territories of Punjab, Haryana and the Union Territory of Chandigarh; are hereby set aside.

Case title: State of Haryana v Darshan Singh

Citation: 2023 LiveLaw (SC) 638

Click Here To Read/Download Order

Click here to read the order passed by P&H HC