Quashed

Geeta Dey v. the State of Assam

Gauhati HC9 Jan 2019Crl.Pet./17/2019

Case brief

AI extract

What is this about?

High Court set aside Sessions Judge's order closing prosecution evidence because witness was summoned but service was not verified before dismissing her absence. Court directed witness to appear for evidence recording.

What did the court decide?

Impugned order dated 18.12.2018 set aside and quashed; petitioner directed to appear on 25.01.2019 for evidence recording with opportunity for cross-examination.

Geeta Dey Vs the State of Assam — Civil Procedure and Limitation | Gauhati HC (2019)

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GAHC010003852019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet. 17/2019

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1:GEETA DEY

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W/O. LT. PARESH CH. DEY, VILL. NAZIRAJAN, P.O. CHOTA HAIBOR, P.S. SADAR, DIST. NAGAON, ASSAM.

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VERSUS

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1:THE STATE OF ASSAM REP. BY PP, ASSAM.

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Advocate for the Petitioner : MR. P P DUTTA

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

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ORDER

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Date : 09-01-2019

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Heard Mr. T. J. Mahanta, learned Sr. Counsel assisted by Mr. A. Mahanta, learned counsel for the petitioner as well as Mr. P.S. Lahkar, learned Additional Public Prosecutor, Assam for the sole Opposite Party.

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This criminal petition by the petitioner is against the order dated 18.12.2018 passed by learned Additional Sessions Judge No. 1, Nagaon Assam in Sessions Case No. 163(N)/17 (Corresponding PRC No. 2030/2014 and GR No. 1565/2014) arising out of Nagaon P.S. Case No. 632/2014, under Sections 448/394 IPC wherein the petitioner is the informant.

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By the impugned order dated 18.12.2018, the learned Trial Judge, due to non-

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appearance of the petitioner, closed the evidence for prosecution witnesses of the case and fixed the said Sessions Case on 10.01.2019 for statement of the defence and argument.

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Placing the certified copy of the order dated 01.11.2018 passed by the learned Additional Sessions Judge No. 1 Nagaon in said Sessions Case No. 163(N)/17, Mr. Mahanta, learned Sr. Counsel has brought to the notice of this court that on the said date, the learned Trial Judge was pleased to issue summons to the petitioner considering her as the vital witness of the case and also issued summons to the other witnesses of the case fixing 18.12.2018 for necessary order. He submitted that on 18.12.2018, the learned Trial Judge without considering any report regarding service of summons upon the petitioner and other witnesses and without following the provisions of the Chapter VI of the Cr.P.C. that too without ascertaining regarding service of summons on her, passed the impugned order dated 18.12.2018 and closed the evidence of the prosecution witnesses of the case and thereby caused irreparable loss and prejudice to her and the prosecution.

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Mr. Mahanta, learned Sr. Counsel further submitted that petitioner is a 73 years old lady and is suffering from various age related ailments and she is willing to appear before the learned Trial Judge on the date that may be fixed by this Court for recording of her evidence as prosecution witness.

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As such, it is prayed by the petitioner that the impugned order dated 18.12.2018 passed by the learned Additional Sessions Judge, Nagaon in the Sessions Case No. No. 163(N)/17 for violation of the Chapter VI of the Cr.P.C. needs to be set aside and quashed for the ends of justice.

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From the perusal of the impugned order dated 18.12.2018, as well as the order dated 01.11.2018 it is seen that the learned Trial Judge without ascertaining the facts as to whether the summons was duly served upon the petitioner or not, though considered her as the vital prosecution witness of the case, being the informant of the case, closed the evidence of the prosecution due to her non-appearance before the Court in the said case on 18.12.2018. As per provisions of Cr.P.C. if a witness, despite the receipt of summons, does not appear before the Court on the date fixed and remains absent without any steps, the Court has the power to issue Warrant of Arrest against the said witness for his/her production for such appearance

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so as to record his/her evidence in the case.

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In the present case it is seen that without first coming to the conclusions that the summons was duly served or not, in terms of the order dated 01.11.2018 passed earlier by him, the learned Additional Sessions Judge, Nagaon, passed the impugned order dated 18.12.2018 in the said Sessions Case No.163(N)/17, without complying the provisions of the Cr.P.C. and closed the evidence of the prosecution witnesses(s) of the said Case due to nonappearance of the petitioner and fixed the said Sessions Case No. 163(N)/17 on 10.01.2019 for the statement of the defence and argument of the case, inspite of the fact that the Court on the previous date found her to be vital witness for adjudication of the said Sessions Case.

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As the impugned order dated 18.12.2018 passed by learned Additional Sessions Judge No. 1, Nagaon in Sessions Case No. 163(N)/17 being not inconformity with the provisions of the Cr.P.C., therefore in exercise of the power conferred under Section 482 Cr.P.C. The same is hereby set aside and quashed, for the interest of justice directing the petitioner to appear before the learned Additional Session Case No. 1, Nagaon in said Sessions Case No. 163(N)/2017 on 25.01.2019 and on her such appearance on the said date, the learned Trial Judge shall fixed the date for recording of the evidence of the present petitioner as prosecution witness in the said Sessions Case No. 163(N)/2017 intimating the defence, giving opportunity to it to cross-examine her.

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With the aforesaid observations and directions, this Criminal Petition stands disposed of.

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JUDGE

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Comparing Assistant

Geeta Dey v. the State of Assam

Case brief

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Geeta Dey v. the State of Assam

Case brief

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