Madan Awasthi Vs Rajeev Kohli

The present petition has been directed against the order dated 03.06.2025 passed by learned Judicial Magistrate First Class, Manali, District Kullu, H.P. (learned Trial Court) vide which the evidence of the petitioner(complainant before the learned Trial Court) was closed by the order of the court. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (N.I. Act).

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Learned Trial Court found sufficient reason to summon the accused and ordered the issuance of a summons.

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The matter was listed for the complainant’s evidence on 10.03.2025 and was adjourned on the request of learned counsel for the complainant for 03.06.2025. The complainant is an aged person and he is suffering from various ailments. He filed his affidavit, but could not appear for crossexamination. The learned Trial Court closed the evidence by the order of the Court without appreciating that the complainant is an aged person. He was pursuing his case diligently and could not appear before the learned Trial Court due to illness on 10.3.2025 and 03.06.2025. The accused has a legal liability of ₹40,00,000/-, and the complainant would be deprived of his hard-earned money by the order passed by the Court. The complainant has a very good case in his favour. Therefore, it was prayed that the present petition be allowed and the order dated 03.06.2025 passed by the learned Trial Court be set aside.

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Mr. Lovneesh Singh Thakur, learned counsel for the petitioner, submitted that the complainant could not appear before the learned Trial Court due to his old age and ailment. Procedure is a handmaiden of justice, and the complainant would be deprived of his hard-earned money if the order is not set aside. Therefore, he prayed that the present petition be allowed and the order dated 03.06.2025 passed by the learned Trial Court be set aside.

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I have given considerable thought to his submissions made at the bar and have gone through the records carefully.

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A perusal of the certified copies of the ordersheet maintained by the learned Trial Court shows that the matter was listed for the cross-examination of the complainant for the first time on 26.12.2022. The matter was taken on 15.03.2023, and was adjourned for cross-examination of the complainant. An application under Section 220 of Cr.P.C. was filed on 08.06.2023, which was ultimately disposed of on 04.12.2024. The matter was adjourned for the complainant’s evidence on 10.03.2025, and it was made clear that it would be the only opportunity for the complainant to adduce the evidence. None of the complainant’s witnesses appeared on 10.03.2025, and the matter was adjourned on the request of the learned counsel for

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the complainant for 03.06.2025 as an exceptional last opportunity. It was also made clear that in case of failure to produce the evidence, the opportunity to examine the witnesses would be closed by the order of the Court. No witness appeared on 03.06.2025, and learned Trial Court closed the evidence by order of the Court.

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Certified copies of the order-sheets also show that the complainant did not appear before the Court after 08.06.2023. He was represented by his counsel. Learned Trial Court was conducting the summons trial, and Section 256 of Cr.P.C. obliged the complainant to appear on every date of hearing, and in case of failure, the complaint was liable to be dismissed. However, the learned Trial Court did not resort to this provision and adjourned the matter repeatedly at the request of learned counsel for the complainant.

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Section 309 of Cr.P.C. provides that the proceedings shall be conducted from day to day basis unless the Court finds that the adjournment of the same beyond the following day is necessary for the reasons to be recorded in writing.

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Proviso (a) to Section 309 of Cr.P.C. reads that an adjournment cannot be granted at the request of the party

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except where the circumstances are beyond its control. Thus, the adjournment cannot be claimed as a matter of right but can only be granted on sufficient cause being shown.

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The record of the learned Trial Court does not show that any application for exemption was filed on behalf of the complainant informing the Court that he was unable to attend the Court due to old age or an ailment. Thus, the plea taken before this Court that the appearance of the complainant before the learned Trial Court was not possible due to old age and ailment cannot be accepted.

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Learned Trial Court had made clear on 04.12.2024 that the matter was adjourned for complainant’s witnesses 10.03.2025, and it would be the only opportunity for the complainant to lead evidence. However, the complainant did not produce any evidence, and the learned Trial Court cautioned the complainant that the evidence be produced as the last opportunity on 03.06.2025, failing which the opportunity to examine the evidence would be closed by the order of the Court. Again, the complainant did not produce any evidence. This shows the scant regard for the Court and the orders passed by it. Since the learned Trial Court had made clear that the evidence

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would be closed by the order of the Court in case of failure to produce the evidence, the learned Trial Court cannot be faulted for acting as per the order by closing the evidence. This was already made known to the parties, and there was no surprise to anyone.

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It was submitted that the adjournment should have been granted in the interest of justice. This submission cannot be accepted. Delhi High Court held in Jasbir Sobti v. Surender Singh, 2008 SCC OnLine Del 845, that adjournments cannot be granted in the interest of justice. It was observed:

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6. The question that arises for consideration is as to whether another opportunity is to be given to the plaintiffs under the cloak of ‘in the interest of justice’. The answer to this question would lie in replying to the related question, namely, whether the interest of justice demands that the case be decided on merits even when there are lapses galore on the part of the plaintiffs in not prosecuting the case diligently, thereby delaying the process endlessly. We are afraid, in the name of justice, that no such licence can be given to the plaintiffs. No doubt, if there is a minor procedural lapse, that can be condoned, and the main purpose of the Court is to see that such cases are decided on merits. However, that would not mean that the plaintiffs or the defendants are allowed to drag on the proceedings unnecessarily by taking adjournments continuously. Again, that does not mean that the parties do not take steps in further progress of/the case, namely, fail to file the documents, conduct admission/denial and even fail to appear repeatedly. We have to keep in mind the interests of the opposing party as well. If the matter is dragged out like

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this and the opposing party is made to appear on each date and asked to come on the next date only because nobody is appearing on behalf of the plaintiffs, it causes unnecessary harassment to the opposite party as well. Therefore, in all such matters, the Court is under a duty to weigh the interests of both parties and maintain balance in so far as these conflicting interests are concerned.

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7. The problem of arrears in the Indian courts is well known. We have 30 million cases pending in the various District Courts and the High Courts. Many attempts are being made to clear these arrears and to ensure that the cases are decided speedily, and there is no unnecessary delay in the disposal of these cases. If the proceedings in a particular case linger until the judgment is delivered and the case is decided after a number of years, the adverse effects of this are well known. No doubt, if we have the dictum ‘Justice hurried is justice buried’ on the one hand, we cannot gloss over another equally forceful maxim ‘Justice delayed is justice denied’. In a situation like this, callousness, indifference and laxity on the part of the plaintiffs in pursuing the suit cannot be tolerated. It cannot be the privilege of the plaintiffs to file a suit and not prosecute it, enter an appearance or keep the matter pending indefinitely.”

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Similarly, it was held in Ishwarlal Mali Rathod v.

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Gopal, (2021) 12 SCC 612: (2023) 2 SCC (Civ) 625: 2021 SCC OnLine

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SC 921 that the grant of repeated adjournments without any justification is not proper. It was observed at page 616:

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8. Grant of repeated adjournments in a routine manner and how it ultimately affects the justice delivery system as such came to be considered by this Court in a catena of decisions, and asking/granting of repeated adjournments have been repeatedly condemned by this Court.

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8.1. In Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [Shiv Cotex v. Tirgun Auto Plast (P) Ltd . , (2011) 9 SCC 678 : (2011) 4 SCC (Civ) 817] , it is observed and held in paras 14 to 17 as under : (SCC pp. 682-83)

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“ 14 . … Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be a silent spectator and leave control of the case to a party to the case who has decided not to take the case forward?

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15 . It is sad, but true, that the litigants seek—and the courts grant—adjournments at the drop of a hat. In the cases where the Judges are a little proactive and refuse to accede to the requests for unnecessary adjournments, the litigants deploy all sorts of methods to protract the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in the justice delivery system and realise that adjournments do dent the efficacy of the judicial process, and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner or later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit.

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16 . No litigant has a right to abuse the procedure provided in CPC. Adjournments have grown like cancer, corroding the entire body of the justice delivery system.…

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17 . … A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit—whether the plaintiff or the defendant—

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must cooperate with the court in ensuring the effective work on the date of the hearing for which the matter has been fixed. If they do not, they do so at their own peril.”

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8.2. Commenting on the delay in the justice delivery system, although in respect of the criminal trial, Krishna Iyer, J. in Babu Singh v. State of U.P. [Babu Singh v. State of U.P., (1978) 1 SCC 579: 1978 SCC (Cri) 133] has observed in para 4 as under : (SCC p. 581)

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“ 4 . … Our justice system, even in grave cases, suffers from slow motion syndrome, which is lethal to “fair trial”, whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”

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8.3. In Noor Mohammed v. Jethanand [Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754] , using very harsh words and condemning the repeated adjournments sought by the lawyers and granted by the courts, this Court has observed in paras 1, 12, 13, 27 and 28 as under : (SCC pp. 206-07, 209-10 & 215-16)

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“ 1 . In a democratic body polity which is governed by a written Constitution and where the Rule of Law is paramount, the judiciary is regarded as a sentinel on the qui vive not only to protect the fundamental rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied. Sacrosanctity of the Rule of Law neither recognises a master and a slave nor does it conceive of a ruler and a subject, but, in quintessentiality,

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encapsulates and sings in the glory of the values of liberty, equality and justice in accordance with the law requiring the present generation to have the responsibility to sustain them with all fairness for the posterity ostracising all affectations. To maintain the sacredness of democracy, sacrifice in the continuum by every member of the collective is a categorical imperative. The fundamental conception of democracy can only be preserved as a colossal and priceless treasure where virtue and values of justice rule supreme and intellectual anaemia is kept at bay by constant patience, consistent perseverance, and argus-eyed vigilance. The foundation of justice, apart from other things, rests on the speedy delineation of the lis pending in courts. It would not be an exaggeration to state that it is the primary morality of justice and the ethical fulcrum of the judiciary. Its profundity lies in not allowing anything to cripple the same or to do any act which would freeze it or make it suffer from impotency. Delayed delineation of a controversy in a court of law creates a dent in the normative dispensation of justice, and in the ultimate eventuate, the Bench and the Bar gradually lose their reverence, for the sense of divinity and nobility really flows from the institutional serviceability. Therefore, historically, emphasis has been laid on individual institutionalism and collective institutionalism of an adjudicator while administering justice. It can be stated without any fear of contradiction that collective collegiality can never be regarded as an alien concept to the speedy dispensation of justice. That is the hallmark of duty, and that is the real measure.

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12 . The proceedings in the second appeal before the High Court, if we allow ourselves to say so, epitomise the corrosive effect that adjournments can have on litigation and how a lis can get entangled in the tentacles of an octopus. The philosophy of justice, the role of a lawyer and the court, the obligation of a litigant and all legislative commands, the nobility of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make way for apathy and indifference when delay of the present nature takes place, for procrastination on the part of anyone destroys the values of life and creates a catastrophic turbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralysed by adjournments and nondemonstration of due diligence to deal with the matter. One cannot be oblivious to the feeling of necessities of the time. No one can afford to sit in an ivory tower. Neither a Judge nor a lawyer can ignore “the total push and pressure of the cosmos”. It is devastating to expect infinite patience. Change of attitude is the warrant and command of the day. We may recall with profit what Justice Cardozo had said:

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“It is true, I think, today in every department of the law that the social value of a rule has become a test of growing power and importance.” [Benjamin N. Cardozo, The Nature of Judicial Process (Cosimo Inc., 2009) 73]

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13 . It has to be kept in mind that the time of leisure has to be given a decent burial. The sooner it takes place, the better it is. It is the obligation of the present generation to march with the times and remind oneself every moment that the rule of law is the centripodal

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concern, and delay in the delineation and disposal of cases injects an artificial virus and becomes a vitiating element. The unfortunate characteristics of endemic delays have to be avoided at any cost. One has to bear in mind that this is the day, this is the hour, and this is the moment when all soldiers of law fight on the path. One has to remind oneself of the great saying, “Awake, Arise, ‘O’ Partha”.

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27 . The anguish expressed in the past and the role ascribed to the Judges, the lawyers and the litigants is a matter of perpetual concern, and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law, and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact are like a disorderly state of the physical frame of a man suffering from an incurable and fast progressive malignancy. Delay either by the functionaries of the court or the members of the Bar significantly exhibits indolence and one can aphoristically say, borrowing a line from Southwell “creeping snails have the weakest force [ Robert Southwell, “Loss in Delay”, in William B. Turnbull (Ed.) , The Poetical Works of the Rev. Robert Southwell (John Russell Smith, London 1856), p. 60] ”. Slightly more than five decades back, talking about the responsibility of the lawyers, Nizer Louis had put it thus:

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‘I consider it a lawyer's task to bring calm and confidence to the distressed client.

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Almost everyone who comes to a law office is emotionally affected by a problem. It is only a matter of degree and of the client's inner resources to withstand the pressure [ Nizer Louis, My Life in Court (Doubleday & Co. Inc., New York 1961), p. 213] .’

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A few lines from the illustrious Justice Frankfurter are fruitful to recapitulate:

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‘I think a person who throughout his life is nothing but a practising lawyer fulfils a very great and essential function in the life of society. Think of the responsibilities on the one hand, and the satisfaction on the other, to be a lawyer in the true sense [ Felix Frankfurter, “Proceedings in Honour of Mr Justice Frankfurter and Distinguished Alumni, Occasional Pamphlet No. 3” (Harvard Law School, Cambridge, 1960), pp. 45] .’

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28 . In a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry's faith in the system. It is faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to, and, rightly so, to guillotine much of the time at the altar of reason. Timely delivery of justice keeps the faith ingrained and establishes sustained stability. Access to speedy justice is regarded as a human right that is deeply rooted in the foundational concept of democracy, and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all

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concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage, losing the centrality of purpose. Therefore, whoever has a role to play in the justicedispensation system cannot be allowed to remotely conceive of a casual approach.”

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8.4. In the aforesaid decision [Noor Mohammed v. Jethanand, (2013) 5 SCC 202: (2013) 2 SCC (Civ) 754] , this Court also considered the role of the advocate in the justice delivery system and considered the earlier decisions in paras 17 to 22 which read as under: ( Noor Mohammed case[Noor Mohammedv.Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754], SCC pp. 212-14 )

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“ 17 . In Ramon Services (P) Ltd. v. Subhash Kapoor [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118: 2001 SCC (Cri) 3: 2001 SCC (L&S) 152] , after referring to a passage from Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. [Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37] , the Court cautioned thus : ( Ramon Services case [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118: 2001 SCC (Cri) 3: 2001 SCC (L&S) 152], SCC p. 126 , para 15)

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‘ 15 . … Nonetheless, we put the profession on notice that in future the advocate would also be answerable for the consequences suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self-imposed dereliction of its advocate. We may further add that the litigant who suffers entirely on account of his advocate's non-appearance in court has also the remedy to sue the advocate for damages, but that remedy

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would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has the power to permit the party to realise the costs from the advocate concerned. However, such a direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause, the court can certainly absolve him from such a liability.’

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Be it noted, though the said passage was stated in the context of a strike by the lawyers, yet it has its accent on non-appearance by a counsel in the court.

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18 . In this context, we may refer to the pronouncement in P.D. Khandekar v. Bar Council of Maharashtra [P.D. Khandekar v. Bar Council of Maharashtra, (1984) 2 SCC 556: 1984 SCC (Cri) 335 ], wherein the Court observed that : (SCC p. 563, para 9)

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‘ 9 . … An advocate stands in a loco parentis towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succour in times of need.’

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19 . In S.J. Chaudhary v. State (Delhi Admn.) [S.J. Chaudhary v. State (Delhi Admn.), (1984) 1 SCC 722: 1984 SCC (Cri) 163] , a three-Judge Bench, while dealing with the role of an advocate in a criminal trial, has observed as follows : (SCC pp. 723-24, para 3)

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“ 3 . We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his advocate is finding it difficult

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to attend court from day to day. It is the duty of every advocate who accepts the brief in a criminal case to attend the trial from day to day. We cannot over-stress the duty of the advocate to attend to the trial from day to day. Having accepted the brief, he will be committing a breach of his professional duty if he so fails to attend.”

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20 . In Mahabir Prasad Singh [Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37] , the Bench, laying emphasis on the obligation of a lawyer in his duty towards the Court and the duty of the Court to the Bar, has ruled as under : (SCC p. 44, paras 17-18)

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‘ 17 . … “A lawyer is under obligation to do nothing that shall detract from the dignity of the court of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the Judge, and scrupulously observe the decorum of the courtroom.” ( Warevelle's Legal Ethics , p. 182)

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18 . Of course, it is not a unilateral affair. There is a reciprocal duty for the court also to be courteous to the members of the Bar and to make every endeavour for maintaining and protecting the respect which members of the Bar are entitled to have from their clients as well as from the litigant public. Both the Bench and the Bar are the two inextricable wings of the judicial forum, and therefore, the aforesaid mutual respect is sine qua non for the efficient functioning of the solemn work carried on in courts of law. But that does not mean that any advocate or a group of them can boycott the courts or any particular court and ask the court to desist from discharging judicial functions. At any rate, no advocate can ask the court to avoid

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a case on the ground that he does not want to appear in that court.’

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21 . While recapitulating the duties of a lawyer towards the court and society, being a member of the legal profession, this Court in O.P. Sharma v. High Court of P&H [O.P. Sharma v. High Court of P&H, (2011) 6 SCC 86 : (2011) 3 SCC (Civ) 218 : (2011) 2 SCC (Cri) 821 : (2011) 2 SCC (L&S) 11 ] has observed that : (SCC p. 92, para 17)

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‘ 17 . The role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nation's administration was to be governed by the rule of law.’

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The Bench emphasised the role of eminent lawyers in the framing of the Constitution. The emphasis was also laid on the concept that lawyers are the officers of the court in the administration of justice.

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22 . In R.K. Garg v. State of H.P. [R.K. Garg v. State of H.P., (1981) 3 SCC 166: 1981 SCC (Cri) 663 ], Chandrachud, C.J., speaking for the Court pertaining to the relationship between the Bench and the Bar, opined thus: (SCC p. 170, para 9)

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‘ 9 . … the Bar and the Bench are an integral part of the same mechanism which administers justice to the people. Many members of the Bench are drawn from the Bar, and their past association is a source of inspiration and pride to them. It ought to be a matter of equal pride to the Bar. It is unquestionably true that courtesy breeds courtesy, and just as charity has to begin at home, courtesy must begin with the Judge. A discourteous Judge is like an ill-tuned

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instrument in the setting of a courtroom. But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.’ ”

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9. Today, the judiciary and the justice delivery system are facing the acute problem of delay, which ultimately affects the right of the litigant to access to justice and the speedy trial. Arrears are mounting because of such delay and dilatory tactics, and asking for repeated adjournments by which advocates and mechanically and in a routine manner granted by the courts. It cannot be disputed that due to the delay in access to justice and not getting timely justice, it may shake the trust and confidence of the litigants in the justice delivery system. Many a time, the task of adjournments is used to kill justice. Repeated adjournments break the back of the litigants. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system and shakes the faith of the common man in the justice dispensation has to be discouraged. Therefore, the courts shall not grant the adjournments in a routine manner and mechanically, and shall not be a party to the cause for delay in dispensing justice. The courts have to be diligent and take timely action in order to usher in an efficient justice dispensation system and maintain faith in the rule of law.

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10. We are also aware that whenever the trial courts refuse to grant unnecessary adjournments, many times they are accused of being strict, and they may face the displeasure of the Bar. However, the judicial officers shall not worry about that if his conscience is clear and the

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judicial officer has to bear in mind his duties to the litigants who are before the courts and who have come for justice and for whom the courts are meant, and all efforts shall be made by the courts to provide timely justice to the litigants.

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It was laid down by the Hon’ble Supreme Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220: (2015) 2 SCC (Cri) 226: (2015) 1 SCC (L&S) 712: 2015 SCC OnLine SC 53 that adjournments in criminal trials have become a malignancy. It was observed at page 226:

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“If one is asked a question, what afflicts the legally requisite criminal trial in its conceptual eventuality in this country the two reasons that may earn the status of phenomenal signification are, first, procrastination of trial due to non-availability of witnesses when the trial is in progress and second, unwarranted adjournments sought by the counsel conducting the trial and the unfathomable reasons for acceptation of such prayers for adjournments by the trial courts, despite a statutory command under Section 309 of the Code of Criminal Procedure, 1973 (CrPC) and series of pronouncements by this Court. What was a malady at one time, with the efflux of time, has metamorphosed into malignancy. What was a mere disturbance once has become a disorder, a diseased one, at present.”

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It was held in Bablu Kumar v. State of Bihar, (2015) 8

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SCC 787: (2015) 3 SCC (Cri) 862: 2015 SCC OnLine SC 632 that the Court must see that neither the defence nor the prosecution

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takes unnecessary adjournments. It was observed at page 798:

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“22 Keeping in view the concept of a fair trial, the obligation of the prosecution, the interest of the

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community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truant with the criminal trial nor corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. The law does not countenance a “mock trial”. It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and takes the trial under their control. The court is under the legal obligation to see that the witnesses who have been cited by the prosecution are produced by it, or if summons are issued, they are actually served on the witnesses. If the court is of the opinion that the material witnesses have not been examined, it should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all the material witnesses, but that does not necessarily mean that the prosecution can choose not to examine any witness and convey to the court that it does not intend to cite the witnesses. The Public Prosecutor who conducts the trial has a statutory duty to perform. He cannot afford to take things in a light manner. The court also is not expected to accept the version of the prosecution as if it is sacred. It has to apply its mind on every occasion. Non-application of mind by the trial court has the potential to lead to the paralysis of the conception of a fair trial.”

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It was held in Asha Ranjan v. State of Bihar, (2017) 4

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SCC 397: (2017) 2 SCC (Cri) 376: 2017 SCC OnLine SC 140 that the accused cannot go on seeking the adjournments in the name of a fair trial. It was observed at page 435:

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“63. While appreciating the concept of public interest in such a situation, the Court is required to engage itself in construing the process of fair trial, which ultimately subserves the cause of justice and remains closer to constitutional sensibility. An accused, in the name of a fair trial, cannot go on seeking adjournments, defeating the basic purpose behind the conducting of a trial as enshrined under Section 309 CrPC. He cannot go on filing applications under various provisions of the Criminal Procedure Code, whether tenable or not, and put forth a plea on each and every occasion on the bedrock that the principle of fair trial sanctions it. In such a situation, as has been held by this Court, the prosecution, which represents the cause of the collective and the victim, who fights for a remedy of his individual grievance, is allowed to have a say, and the court is not expected to be a silent spectator. Thus, the discord that arises when there is intra-conflict in the same fundamental right, especially in the context of a fair trial, has to be resolved with regard being had to the obtaining fact situation. An accused who has been able to, by his sheer presence, erode the idea of safety of a witness in court, or, for that matter, impair and rusts the faith of a victim in the ultimate justice, and such erosion is due to fear psychosis prevalent in the atmosphere of trial, is not to be countenanced as it is an unconscionable situation. Such a hazard is not to be silently suffered because the “Majesty of Justice” does not allow such kinds of complaints to survive.”

¶133

18. The Hon’ble Supreme Court noticed the provisions of Section 309 of Cr.P.C.in Doongar Singh v. State of Rajasthan, (2018)

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13 SCC 741 and issued the directions to the learned Trial Courts

¶135

to carry out the mandate of Section 309 of Cr.P.C. It was observed:-

¶136

4. In a criminal case of this nature, the trial court has to be mindful that, for the protection of the witness and

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also in the interest of justice, the mandate of Section 309 CrPC has to be complied with, and evidence should be recorded on a continuous basis. If this is not done, there is every chance of witnesses succumbing to the pressure or threat of the accused.

¶140

5. This aspect of the matter has received the attention of this Court on a number of occasions earlier. In State of U.P. v. Shambhu Nath Singh [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667: 2001 SCC (Cri) 798] , this Court observed it was a pity that the Sessions Court adjourned the matter for a long interval after commencement of evidence, contrary to the mandate of Section 309 CrPC. Once examination of witnesses begins, the same has to be continued from day to day unless evidence of the available witnesses is recorded, except when adjournment beyond the following day has to be granted for reasons recorded. This Court observed: (SCC pp. 67375, paras 12-15, 17 & 19)

¶141

“ 12. Thus, the legal position is that once examination of witnesses starts, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are “special reasons”, which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.

¶142

13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often, such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has

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frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a “special reason” for bypassing the mandate of Section 309 of the Code.

¶146

14. If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case).

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15. The time-frame suggested by a three-Judge Bench of this Court in Raj Deo Sharma v. State of Bihar [Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507: 1998 SCC (Cri) 1692] is partly in consideration of the legislative mandate contained in Section 309(1) of the Code. This is what the Bench said on that score: (SCC p. 516, para 16)

¶148

‘ 16. The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. Section 309(1) CrPC supports the above view as it enjoins expeditious holding of the proceedings and continuous examination of witnesses from day to day. The section also provides for recording reasons for adjourning the case beyond the following day.’

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17. We believe, hopefully, that the High Courts would have issued the circular desired [ Raj Deo Sharma (2) v. State of Bihar, (1999) 7 SCC 604 at p. 614, para 14: 1999 SCC (Cri) 1324] by the Supreme Court as per the said judgment. If the insistence made by Parliament through Section 309 of the Code can be adhered to by the trial courts, there is every chance of the parties cooperating with the courts for achieving the desired objects, and it would relieve the agony which witnesses summoned are now suffering on account of their non-examination for days.

¶153

¶154

19. In some States, a system has evolved for framing a schedule of consecutive working days for the examination of witnesses in each sessions trial to be followed. Such a schedule is fixed by the court well in advance after ascertaining the convenience of the counsel on both sides. Summons or process would then be handed over to the Public Prosecutor in charge of the case to cause them to be served on the witnesses. Once the schedule is so fixed and witnesses are summoned, the trial invariably proceeds from day to day. This is one method of complying with the mandates of the law. It is for the presiding officer of each court to chalk out any other methods, if any, found better for complying with the legal provisions contained in Section 309 of the Code. Of course, the High Court can monitor, supervise and give directions, on the administration side, regarding measures to conform to the legislative insistence contained in the above section.”

¶155

6. The above decision has been repeatedly followed. In Mohd. Khalid v. State of W.B. [Mohd. Khalid v. State of W.B., (2002) 7 SCC 334: 2002 SCC (Cri) 1734], this Court noted how adjournment can result in witnesses being won over. It was observed: (SCC p. 366, para 54)

¶156

“ 54. Before parting with the case, we may point out that the Designated Court deferred the crossexamination of the witnesses for a long time. That is a feature which is being noticed in many cases.

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Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons are there, the trial court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667: 2001 SCC (Cri) 798] and N.G. Dastane v. Shrikant S. Shivde [N.G. Dastane v. Shrikant S. Shivde, (2001) 6 SCC 135]. …”

¶160

7. Again, in Vinod Kumar v. State of Punjab [Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712] this Court noted how unwarranted adjournments during the trial jeopardise the administration of justice. It was observed: (SCC p. 227, paras 3-4)

¶161

“ 3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question: Is it justified for any conscientious trial Judge to ignore the statutory command, not recognise “the felt necessities of time” and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracising the concept that a civilised and orderly society thrives on the rule of law which includes “fair trial” for the accused as well as the prosecution?

¶162

4. In the aforesaid context, we may recapitulate a passage from Gurnaib Singh v. State of Punjab [Gurnaib Singh v. State of Punjab, (2013) 7 SCC 108: (2013) 3 SCC (Cri) 49] : (SCC p. 121, para 26)

¶163

‘ 26. … we are compelled to proceed to reiterate the law and express our anguish pertaining to the manner in which the trial was conducted, as it depicts a very disturbing scenario. As is demonstrable from the record, the trial was conducted in an extremely haphazard and

¶164

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piecemeal manner. Adjournments were granted on a mere asking. The cross-examination of the witnesses were deferred without recording any special reason, and dates were given after a long gap. The mandate of the law and the views expressed by this Court from time to time appear to have been totally kept at bay. The learned trial Judge, as is perceptible, seems to have ostracised from his memory that a criminal trial has its own gravity and sanctity. In this regard, we may refer with profit to the pronouncement in Talab Haji Hussain v. Madhukar Purshottam Mondkar [Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376: 1958 Cri LJ 701] wherein it has been stated that an accused person by his conduct cannot put a fair trial into jeopardy, for it is the primary and paramount duty of the criminal courts to ensure that the risk to fair trial is removed and trials are allowed to proceed smoothly without any interruption or obstruction.’”

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8. In spite of repeated directions of this Court, the situation appears to have remained unremedied. We hope that the Presiding Officers of the trial courts conducting criminal trials will be mindful of not giving such adjournments after commencement of the evidence in serious criminal cases. We are also of the view that it is necessary in the interest of justice that the eyewitnesses are examined by the prosecution at the earliest.

¶168

xxxxx

¶169

10. To conclude:

¶170

10.1. The trial courts must carry out the mandate of Section 309 CrPC as reiterated in judgments of this Court, inter alia, in State of U.P. v. Shambhu Nath Singh [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667: 2001 SCC (Cri) 798], Mohd. Khalid v. State of W.B. [Mohd. Khalid v. State of W.B., (2002) 7 SCC 334: 2002 SCC (Cri) 1734] and Vinod Kumar v. State of Punjab [Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712].

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11. The High Courts may issue appropriate directions to the trial courts for compliance with the above.

¶174

Therefore, the learned Trial Court was acting as per

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the mandate of the Hon’ble Supreme Court, and no fault can be found with the order passed by the learned Trial Court.

¶176

20. The present petition has been filed under Section

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528 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, for invoking the inherent jurisdiction. It is trite to say that the inherent jurisdiction of the Court is sparingly exercised to prevent the abuse of the process of the Court or to serve the ends of justice. In the present case, the complainant abused the process of law by not producing the evidence; therefore, he could not be helped by invoking the inherent jurisdiction, and there is no reason to exercise the inherent jurisdiction.

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21. No other point was urged.

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In view of the above, the present petition fails and it is dismissed.

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The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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(Rakesh Kainthla) Judge

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10^th September, 2025. (ravinder)

Madan Awasthi v. Rajeev Kohli

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Madan Awasthi v. Rajeev Kohli

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