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U. Kashaiah Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1972CriLJ1549
AppellantU. Kashaiah
RespondentThe State of Andhra Pradesh
Excerpt:
.....for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will..........had been cited by the prosecution in the case in order to contradict the above witnesses with the prior statements wherever it arises. that petition was dismissed and this resulted in criminal revision case no. 813/65 being filed before the high court and the high court by its order directed granting of copies of statements that may have a bearing on the case.5. as there was difficulty in supplying the copies to the accused as the court was not certain as to copies of which of the statements have to be supplied, another revision petition was filed before the high court and in that petition criminal revision case 79 of 1967 the sessions court was directed to permit the learned counsel to pick out the documents for which copies are necessary and summon documents which are not there and.....
Judgment:
ORDER

A.D.V. Reddy, J.

1. This is a classic instance of what is popularly known as 'Laws delays' for which the Courts are often blamed. For an offence committed in 1957-58 Crime No. 174/59 was registered by the Police and a charge sheet was filed on 15-3-1960 and the case P. R. C 14/64. ended in committal to the Court of Session by an order of the VI City Magistrate on 28-9-1964. That case is still at the stage where even the trial by the Court of Session has not been taken up though 12 years have elapsed from the date of alleged commission of offence and about seven years have elapsed from the committal to the Sessions Court.

2. The case against the accused is that A-l who was an Accountant and A-2 who was a cashier in the Nizam's College at Hyderabad, entered into a criminal conspiracy to dishonestly misappropriate certain amounts from the College funds relating to scholarships by drawing a second time scholarships already paid to the scholarship-holders as if they were not so paid, and in pursuance of the said conspiracy, they had falsified the accounts in respect of each of the amounts, forged documents and used the forged documents as genuine and wrongfully convened the amounts to their own use and thereby committed various offences under Sections 120B, 477A. 468, 468 read with 471 and 409. Indian Penal Code. Even at the stage of the committal proceedings a number of petitions were filed, one alleging want of authority required under Section 196-A of the Criminal Procedure Code, another alleging non-compliance with the provision of Section 233, Criminal Procedure Code and 239, Criminal Procedure Code resulting in Criminal Revision Cases Nos. 342 and 343 of 1960 in the High Court a petition against point trial resulting in Criminal R. C. 242/61 in the High Court; another petition raising the objection under Section 196-A Criminal Procedure Code once again resulting in Criminal Revision Case 806/63 in the High Court. After all this delay the case came to be committed to the Court of Session on 28-9-1964. Even after the committal the trial could not be taken up again due to a number of petitions being filed and taking the orders thereon in revisions to the High Court.

3. The witnesses cited by the prosecution are 46 in number, whereas for the accused 27 defence witnesses have been cited. With regard to the defalcations of the alleged funds prior to filing of the complaint before the Police the Vice-Chancellor of the University had constituted two committees, one headed by Sri Nawab Syed Jung Bahadur, a retired High Court Judge and the second headed by Mr. J. P. L. Gwynn as Chairman with Mr. Ali Akbar the then Director of Public Instructions and Mr. J. V. Subbarao the then Principal of the Law College as its members. The second Committee had examined 41 witnesses including the two accused and the then Principal of the Nizam's College Sri Prasadarao. On their report some punishment was imposed departmentally on Sri Prasadarao and complaints were made to the Police against the two accused and it is as a result of the investigation thereon that the present case arose and ended in the committal of the accused. The further delay after the committal centres round the supply of copies of the statements recorded by the Committee headed by Mr. J. P. L. Gwynn at the enquiry held by them and the summoning of Mr. Gwlynn who was cited as one of the defence witnesses.

4. On behalf of the accused a petition was filed for the granting of copies of statements recorded by the Committee, of witnesses who had been cited by the prosecution in the case in order to contradict the above witnesses with the prior statements wherever it arises. That petition was dismissed and this resulted in Criminal Revision case No. 813/65 being filed before the High Court and the High Court by its order directed granting of copies of statements that may have a bearing on the case.

5. As there was difficulty in supplying the copies to the accused as the Court was not certain as to copies of which of the statements have to be supplied, another revision petition was filed before the High Court and in that petition Criminal Revision Case 79 of 1967 the Sessions Court was directed to permit the learned Counsel to pick out the documents for which copies are necessary and summon documents which are not there and which are relevant and supply copies.

6. Thereafter on behalf of the accused, a petition was filed to issue summons to Mr. J. P. L. Gwynn who was bound over once, but who had left for England on his retirement, as a defence witness. An order was passed directing the accused to deposit the costs for summoning this witness and that order was taken to the High Court in revision and in Criminal Revision Case 337/68 it was pointed out that it was the duty of the Sessions Court to summon the witnesses cited, without burdening the accused with the expenses, that though the witness was outside the jurisdiction of the Court. summons however had to be issued and it was further ordered-

If it appears to the learned Judge that his attendance cannot be procured without an amount of delay and expense he will proceed with the trial in accordance with law.

Meanwhile it was ascertained from the 'Trade Wings', a travel agency, that the cost of summoning the witness would be Rupees 10,000/- and efforts were made to issue summons through the Government of India. The Government of India had stated that the power of the Indian Courts to issue summons or notices in Criminal Cases to witnesses residing abroad are geographically limited and as such the summons issued to Mr. Gwynn cannot be forwarded for service in the United Kingdom, that however the Government of India do have reciprocal arrangements with the Government of the United Kingdom for examination of witnesses residing there on commission. The accused however went to the High Court for further directions and the High Court in Criminal M. P. 925/70 found that Mr. Gwvnn who is sought to be summoned is only a formal witness and is not a material witness required to throw light on the guilt or otherwise of the accused as he is only summoned to prove the prior statements of witnesses recorded by him at the enquiry held by the Committee in case there are any contradictions and hence directed the Sessions Judge trying the case to decide after hearing both the advocates for the prosecution and the defence whether the attendance of Mr. Gwynn as a defence witness involves enormous cost and unreasonable delay and whether Mr. Gwynn's name has been included in the list of the defence witnesses for the purposes of vexation or delay or for defeating the ends of justice and after taking a decision to proceed with the case in accordance with law.

7. After these directions. the Court heard both the parties and passed the order holding that Mr. Gwynn's name has been included in the list of defence witnesses. for the purposes of vexation and delay that his being summoned involves enormous cost, that he need not be summoned as a defence witness, as there are other modes of proving prior statements of witnesses before the Committee and posted the case for trial on 12-10-1970. It is against this order that the accused have come in revision.

8. It may be noticed at the outset that the necessity for examining Mr. J. P. L. Gwynn as a defence witness for proving the prior statements of such of the prosecution witnesses who have been examined before him to prove the contradictions in their statements under Section 145 of the Evidence Act arises only after the 46 prosecution witnesses have been examined. Even among the array of the defence witnesses, he can be examined as the last. Therefore there is absolutely no understandable ground for not taking up the trial for such a long period. Summoning of Mr. Gwynn. even if necessary, at this stage, will be of no avail, as before he is examined all the prosecution witnesses have to ' be examined earlier and then only he can be examined. Therefore, he cannot be summoned to appear on any particular date, nor can he come and wait till examination of these witnesses is over as such examination may take considerable time. Therefore summoning of Mr. Gwynn at this stage even before the trial has started, is inexpedient and inappropriate.

9. The examination of Mr. Gwynn as a defence witness to prove the prior statements made before him by the witnesses cited will become necessary, only when any witness in his testimony now makes a statement which contradicts his prior statement. If no contradictions are elicited it is unnecessary, to prove the prior statements. made before the Committee and only if there is a contradiction the prior statement has to be put to him and even then only if he denies the prior statement, it may become necessary to prove that statement through the person who recorded it. If. on the other hand the witness should admit having made the prior statements before the Committee, proof of it will become unnecessary under Section 58 of the Evidence Act. In construing the mode of proof under Section 145 of the Indian Evidence Act, the Supreme Court in Tahsildar Singh v. State of U. P : 1959CriLJ1231 at page 1021 pointed out that resort to Section 145 would only be necessary if the witness denies that he made the former statement, as in that event it would be necessary to prove that he did. and if the former statement was reduced to writing then Section 145 requires that his attention must be drawn to those parts which are to be used for contradiction, but that position does not arise when the witness admits the former statement. Therefore, first, there may not be any contradictions, in which case summoning of Mr. Gwynn becomes unnecessary. Secondly, even if there are any contradictions and they are admitted by the witness his examination becomes unnecessary. Therefore. until the examination of the witnesses is over, the necessity for summoning Mr. Gwynn will not be known and the proceedings for summoning him can be taken immediately after the prosecution evidence is over.

10. The next question, however to be considered is whether under these circumstances is it necessary to summon Mr. Gwynn, who is 6000 miles away in a country with which there are no reciprocal arrangements for summoning him and summoning him will also cost a sum of Rs. 10,000/- and involve further delay, in enquiry of a crime that was committed about 12 years ago and with regard to which the trial in the Sessions Court has been pending for over seven years. The evidence of Mr, Gwynn is of a very formal nature i.e. to prove the contradictions, if any. in the prior statements made before him by some of the prosecution witnesses. The fact that he had recorded the statements of those witnesses in the enquiry held by him is not disputed by the prosecution. Mr. T. V. Sarma the learned Counsel for the accused urges that it is not a matter that depends on concessions that it is a question of strict proof of those prior statements and unless Mr. Gwynn is examined, those statements cannot be held to have been proved. What is however overlooked is that there are other modes of proving those statements recorded by Mr. Gwynn. It is not contended that If a witness, who had recorded certain statements, is either dead or otherwise not available. these statements cannot be proved at all. In this case, Mr. An Akbar and Mr. J. V. Subbarao were both members of the Committee which had enquired into the defalcations along with Mr. Gwynn and it was in their presence that the witnesses were examined. The report was signed by all of them. Though they do not appear to have signed in the deposition of every witness. They can be examined to prove the depositions recorded by Mr, Gwynn, They have also been cited as defence witnesses. Others acquainted with the hand-writing of Mr. Gwynn can also be examined to Drove them. In so far as what is required is a formal proof and the document can be proved otherwise than by examining Mr. Gwynn. I see no reason for summoning Mr. Gwynn at enormous cost, holding up further that trial which has already been held up for ever seven years. It is unnecessary under these circumstances to impute motive to anyone for this inordinate delay in the trial. The learned Counsel for the accused is equally anxious to see that the trial is expedited and his clients do not have to suffer the suspense further. With these observations, the petition is dismissed. The learned Sessions Judge is directed to proceed with the trial forthwith.


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