The Punjab and Haryana High Court recently set aside a Trial Court order closing prosecution evidence after the Investigating Officer in the case failed to appear as witness despite multiple attempts. ASI Kewal Singh even ignored the arrest warrant issued against him.
The complainant had also filed an application under Section 311 of CrPC for summoning Singh, but that was also dismissed by the trial court stating that prosecution had availed numerous opportunities to lead evidence but the said witness did not present himself to get recorded his statement.
Justice Jasjit Singh Bedi observed that the trial court is not powerless in such cases and that it ought to have taken coercive steps against the official witness. It added that the impugned orders amount to punishing the complainant, for no fault on his part.
"In the present case, the Trial Court has shown complete helplessness in securing the presence of ASI Kewal Singh to depose as a prosecution witness. In fact by closing the prosecution evidence and dismissing the application under Section 311 Cr.P.C. it is the complainant who has been penalised for the act and conduct of the State. The Trial Court should have taken coercive steps to secure the presence of the unexamined witness."
The petitioner had lodged a FIR under Sections 326, 452, 323, 427 and 34 of the IPC, however, during the trial, the official prosecution witnesses were not coming forward for getting their statements recorded. He contended that examination of the investigating officer is essential for the proper adjudication of the Trial.
The trial court issued summons, then a bailable warrant followed by two arrest warrants in Singh's name but he did not appear.
The High Court, while relying on Section 311 of the CrPC and on the case of Om Parkash v. State of Haryana and Others, 2015 (3) RCR (Criminal) 557, said that:
"Court has ample powers to summon a material witness, or recall and re-examine any person already examined if his evidence appears to be essential for the just decision of the case. Further, the Trial Court is not powerless where it finds that there is laxity on the part of the prosecution to produce its witnesses. In fact, the Court ought to adopt coercive steps to secure the presence of unexamined prosecution witnesses, more so, when they happened to be official witnesses."
Accordingly, the Court ordered that ASI Kewal Singh, a material witness in the case, shall be examined by the Trial Court on issuance of summons to him in accordance with law. The Court also made it clear that in case ASI Kewal Singh plays truant with the Court and chooses not to appear as has been the case earlier, the Senior Superintendent of Police, shall take him into custody and produce him in the Court to depose as a prosecution witness.
Case Title: Faqir Chand v. State of Punjab and Others