'Mandate Of Day-To-Day Trial U/S 309 CrPC Is Thrown To The Wind': Bombay High Court Flags 'Unhealthy Practice' Of Trial Courts

The Bombay High Court while ordering a 'retrial' in a rape case, noted the 'alarming state of affairs' of most criminal trials, wherein the courts have failed to conduct a 'day-to-day' trial and therefore, issued guidelines for the lower courts to strictly adhere to section 309 of the Criminal Procedure Code (CrPC) and section 346 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Single-judge Justice Govind Sanap noted various lapses on the part of the trial judge and also the prosecution that prejudiced the case of the victim and also the accused. The judge was disturbed to note that only 10 witnesses were examined in 2 years and 4 months by three separate trial judges.

"It is to be noted that Section 309 of the CrPC (Section 346 of the BNSS) provides a mandate to the Court to conduct the trial on a day-to-day basis, after the commencement of the hearing. It has its roots through Article 21 of the Constitution of India, which recognises a speedy trial in a criminal case as a fundamental right. This mandate cannot be ignored. If the mandate of Section 309 CrPC is ignored, then it would tantamount to ignoring the mandate of Article 21 of the Constitution of India. In this case, the record reflects a very sorry state of affairs," Justice Sanap said in the order passed on September 30.

The two accused in the instant case, the judge noted, were arrested on April 6, 2016. The accused have a fundamental right to a speedy trial and similarly, the speedy trial is necessary for the victim as well as for the orderly society, the judge said.

"The crime of rape is not only against the victim but also against womanhood. On going through the record, I do not find any reason for the delay of 2 years and 4 months for recording the evidence of 10 witnesses. Perusal of the roznama as well as the record do not show that the Judge took all necessary steps consistent with the mandate of Section 309 of the CrPC. In my view, this is a very vital aspect. This aspect appears to have been neglected in most cases," the bench observed.

In the old good days, as far as the session trials were concerned, the Prosecutor would submit the programme for recording the evidence of the witnesses. The evidence would be recorded in those days within a period of one week or 10 days, depending upon the number of witnesses. It needs to be stated that Section 309 of the Cr.PC has been framed consistent with the mandate of Article 21 of the Constitution of India, which guarantees a speedy and fair trial, the court noted.

The court further noted that Section 309 of the CrPC (Section 346 of the BNSS) provides that, if the matter has to be adjourned on some other date, then the Judge concerned shall record the reasons. It provides that the adjournment must be an exception and not a rule.

"It needs to be mentioned that, while hearing more than 60 appeals, I have noticed that the mandate of Section 309 of the Cr.PC has not been complied with even in a single trial. The mandate has been thrown to the wind. It is further noticed that the evidence was recorded in a piecemeal manner. It is not a healthy practice followed by the Courts. The provisions of Section 309 of the Cr.PC are intended for speedy disposal of the trial. In my considered opinion, this aspect has been totally neglected. In my opinion, in the long term, it can cause failure of justice to the parties in the case. This is an alarming situation. This situation has to be attended to on a priority basis; otherwise, the situation would arise that the fate of the common man on this august institution would get further eroded," Justice Sanap said in the order.

Therefore, in order to ensure that the provision is scrupulously complied with, the bench issued the following directions:

• The mandate of Section 309 of the CrPC (Section 346 of the BNSS) needs to be followed in letter and spirit.
• In order to ensure the compliance of Section 309 of the CrPC, the Prosecutor, in-charge of the case, and the Judge seized with the case are required to ensure the strict compliance of Section 309 of the CrPC (Section 346 of the BNSS).
• The Prosecutor, in-charge of the case, is expected to submit a weekly programme for recording the evidence of the witnesses in the case.
• The Judge, seized with the case, is required to ensure the presence of the witnesses in terms of the schedule/weekly programme of the trial submitted by the Prosecutor.
• Once such a weekly programme is submitted and the case is fixed for recording the evidence, the Presiding Officer is required to ensure the production of the accused.

"This procedure, if followed scrupulously, can help in disposing of the old cases as well as the cases of under-trial prisoners. The facts noted in this case and other appeals show that this issue has been completely neglected," Justice Sanap said.

The bench, therefore, ordered the Registrar General and Registrar Inspection-I, to bring this order to the notice of the Judges in Maharashtra."Similarly, in order to ensure the compliance of this order, they have to put in place appropriate mechanism. The Registrar General and Registrar Inspection-I shall, therefore, ensure that by putting a proper mechanism in place, the compliance of the mandatory provisions of Section 309 of the Cr.PC (Section 346 of the BNSS) is ensured in letter and spirit. In this context, necessary directions can be issued to the Principal District and Sessions Judges to comply the directions," the bench ordered.

Besides this, the judge noted more such lapses like proper examination of evidence, no test identification parade being held, flaw in appreciating DNA and CA reports, non-production of accused in the court etc.

"All these facts if encapsulated together, would show that these inherent lacunas, defects, and drawbacks have caused miscarriage of justice. It has vitiated the entire trial," the judge said while ordering a retrial.

Appearance:

Advocates RR Vyas and Sharad Thakre were Appointed for the Appellant.

Additional Public Prosecutor SV Kolhe represented the State.

Case Title: Puranlal Dhurve vs State of Maharashtra (Criminal Appeal 155 of 2022)

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