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% 18.08.2011
Present: Mr. Arun Rathi, Advocate for the petitioner/revisionist.
Ms. Jasbir Kaur, APP for the respondent/State.
+Cri.M.A.No.9663/2011{Exemption)
Exemption allowed, subject to all just exceptions.
Application stands disposed of.
Cri.Rev.P.368/2011 & Cri.M.A. 9664/2011
% 18.08.2011
Present: Mr. Arun Rathi, Advocate for the petitioner/revisionist.
Ms. Jasbir Kaur, APP for the respondent/State.
+Cri.M.A.No.9663/2011{Exemption)
Exemption allowed, subject to all just exceptions.
Application stands disposed of.
Cri.Rev.P.368/2011 & Cri.M.A. 9664/2011
Shushan Kumar Azad, the revisionist herein, is a Sub-Inspector in
Delhi Police. He was cited as a witness in case FIR No. 535/2009, P.S.
Maurya Enclave titled State Vs. Rajesh @ Prem. On hearing dated osth
July, 2011, he was supposed to appear in the Trial Court as a witness pursuant to the summons issued. He could not appear on the aforesaid date of hearing as he had to go to Bombay in investigation of some other case, as such, he instructed ASI Pramod Kumar to appear in the proceedings and inform the court about his inability to appear as a witness pursuant to the summons for that date. Learned Additional
Sessions Judge on being informed accordingly was not satisfied with the explanation given by ASI Pramod Kumar on behalf of the petitioner and rejected his request and imposed cost of < 3000/- with the direction to deduct the same from the salary of the petitioner with following observation:
"A request has been received on behalf of witness 51
Bhushan Azad through AS/ Pramod Kumar, who has not appeared despite service, I am not satisfied by the grounds raised in the request which request is hereby declined. 51 Bhushan Azad has been given an opportunity to appear in the court but AS/ Pramod
2011:DHC:19876
Kumar who is present in the court along with the request, submits that he is not available and in this regard has sought to justify the absence of the witness by placing his reliance on the order of the ACMM-1 dated 2.6.2011. It is further evident from the said order that the officer 51 Bhushan Azad is not properly investigating other cases. Under these circumstances, I am compelled to issue bailable warrants against 51
Bhushan Azad to the tune of ~ 25,0001- to be got executed through the ACP concerned for next date on cost of ~3000/- to be deducted from his salary".
Petitioner, aggrieved of the aforesaid order, has filed this revision petition.
Reading of aforesaid order gives an impression of judicial arrogance.
Though, learned Additional Sessions Judge has recorded dissatisfaction with the ground raised in the request for exemption from appearance by the petitioner, learned Additional Sessions Judge has not cared to reproduce or refer to the explanation given for non-appearance or the reasons as to why the explanation was not acceptable. It is further noticed in the order that learned Additional Sessions Judge has made comments about extraneous matter by recording that it is evident from the learned ACMM's order dated 2.6.2011 that the petitioner is not properly investigating other cases. There is nothing in the order to provide basis of such a sweeping observation. Learned ASJ has not even cared to reproduce the relevant portion of the order of ACMM. Senior judicial officers are expected to exercise restraint while dealing with judicial matter. and follow the procedure of law. Section 350 CrPC provides for summary procedure for punishment for attendance by a witness in obedience to summons. If at all, learned Additional Sessions
Judge was of the view that action under Section 350 CrPC was called for, it was expected of the court to serve the petitioner with a show-cause notice as to why he should not be punished for non-compliance with the summons for appearance. In utter disregard of this provision, the learned
ASJ in a hasty manner has gone on to impose the cost of ~ 3000/- on a public servant, without affording him an opportunity to explain his absence on the date of hearing. Had learned ASJ followed the procedure under Section 350 CrPC, the petitioner would have submitted relevant evidence/documents to show that his absence in the court on the date of hearing was unintentional and he was prevented from appearing in the court as he had to go to Bombay for investigation of a case under
Cinematography Act.
In view of the above, it is obvious that the impugned order passed by- the learned Additional Sessions Judge is against the procedure prescribed under Section 350 CrPC and cannot be sustained. I accordingly accept the revision petition and set aside the impugned order dated
5.7.2011.
Revision petition stands disposed of.
Order dasti.
AUGUST 18, 2011 akb v
(AJIT BHARIHOKE)
JUDGE
Delhi Police. He was cited as a witness in case FIR No. 535/2009, P.S.
Maurya Enclave titled State Vs. Rajesh @ Prem. On hearing dated osth
July, 2011, he was supposed to appear in the Trial Court as a witness pursuant to the summons issued. He could not appear on the aforesaid date of hearing as he had to go to Bombay in investigation of some other case, as such, he instructed ASI Pramod Kumar to appear in the proceedings and inform the court about his inability to appear as a witness pursuant to the summons for that date. Learned Additional
Sessions Judge on being informed accordingly was not satisfied with the explanation given by ASI Pramod Kumar on behalf of the petitioner and rejected his request and imposed cost of < 3000/- with the direction to deduct the same from the salary of the petitioner with following observation:
"A request has been received on behalf of witness 51
Bhushan Azad through AS/ Pramod Kumar, who has not appeared despite service, I am not satisfied by the grounds raised in the request which request is hereby declined. 51 Bhushan Azad has been given an opportunity to appear in the court but AS/ Pramod
2011:DHC:19876
Kumar who is present in the court along with the request, submits that he is not available and in this regard has sought to justify the absence of the witness by placing his reliance on the order of the ACMM-1 dated 2.6.2011. It is further evident from the said order that the officer 51 Bhushan Azad is not properly investigating other cases. Under these circumstances, I am compelled to issue bailable warrants against 51
Bhushan Azad to the tune of ~ 25,0001- to be got executed through the ACP concerned for next date on cost of ~3000/- to be deducted from his salary".
Petitioner, aggrieved of the aforesaid order, has filed this revision petition.
Reading of aforesaid order gives an impression of judicial arrogance.
Though, learned Additional Sessions Judge has recorded dissatisfaction with the ground raised in the request for exemption from appearance by the petitioner, learned Additional Sessions Judge has not cared to reproduce or refer to the explanation given for non-appearance or the reasons as to why the explanation was not acceptable. It is further noticed in the order that learned Additional Sessions Judge has made comments about extraneous matter by recording that it is evident from the learned ACMM's order dated 2.6.2011 that the petitioner is not properly investigating other cases. There is nothing in the order to provide basis of such a sweeping observation. Learned ASJ has not even cared to reproduce the relevant portion of the order of ACMM. Senior judicial officers are expected to exercise restraint while dealing with judicial matter. and follow the procedure of law. Section 350 CrPC provides for summary procedure for punishment for attendance by a witness in obedience to summons. If at all, learned Additional Sessions
Judge was of the view that action under Section 350 CrPC was called for, it was expected of the court to serve the petitioner with a show-cause notice as to why he should not be punished for non-compliance with the summons for appearance. In utter disregard of this provision, the learned
ASJ in a hasty manner has gone on to impose the cost of ~ 3000/- on a public servant, without affording him an opportunity to explain his absence on the date of hearing. Had learned ASJ followed the procedure under Section 350 CrPC, the petitioner would have submitted relevant evidence/documents to show that his absence in the court on the date of hearing was unintentional and he was prevented from appearing in the court as he had to go to Bombay for investigation of a case under
Cinematography Act.
In view of the above, it is obvious that the impugned order passed by- the learned Additional Sessions Judge is against the procedure prescribed under Section 350 CrPC and cannot be sustained. I accordingly accept the revision petition and set aside the impugned order dated
5.7.2011.
Revision petition stands disposed of.
Order dasti.
AUGUST 18, 2011 akb v
(AJIT BHARIHOKE)
JUDGE
JUDGMENT