Bombay High Court Flags ‘Unhealthy Practice’ of Trial Courts

While ordering a ‘retrial’ in a rape case, the Bombay High Court noted the ‘alarming situation’ of most criminal cases; here the courts have failed to conduct a ‘day-to-day’ trial and hence the lower courts are required to strictly comply with Section 309 of the Code of Criminal Procedure (CrPC) and Section 346 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

single judge Justice Govind Sanap He pointed out various shortcomings of the trial judge and also the prosecution which damaged the case of the victim and also the accused. The judge was disturbed that only 10 witnesses were heard by three different trial judges in 2 years and 4 months.

“It is worth noting that Section 309 of the CrPC (Article 346 of the BNSS) empowers the Court to conduct the hearing on a daily basis after the commencement of the hearing. The roots of this are as follows: The Constitution of India has made it a fundamental right to have speedy trial in a criminal case.” 21 of the Constitution of India, this power cannot be ignored. If the power of Article 309 of the CrPC is ignored, it would amount to ignoring the power of Article 21 of the Constitution of India. In this case, the record reflects a very sad situation.” Judge Sanap said the following in the decree published on September 30.

The judge noted that the two defendants in the current case were arrested on April 6, 2016. The right to speedy trial is a fundamental right of the accused and similarly speedy trial is necessary for both the victim and the orderly society. said the judge.

“The crime of rape is not only against the victim but also against femininity. Looking at the record, I do not see any reason for the delay of 2 years and 4 months in taking the statements of 10 witnesses. The reading of the warrant is as follows: further, the records do not show that the Judge took all necessary steps in accordance with the power of Section 309 of the CrPC . In my opinion, this is a very vital issue.” the bench observed.

When it came to trial hearings in the good old days, the Prosecutor would schedule the recording of witnesses’ statements. In those days, evidence was recorded within a week or 10 days, depending on the number of witnesses. It is worth noting that Section 309 of the Cr.PC has been framed in accordance with the provisions of Article 21 of the Constitution of India, which guarantees a speedy and fair trial, the court observed.

The Court further stated that Section 309 of the CrPC (Section 346 of the BNSS) provides that if the case has to be adjourned to another date, the Judge concerned must record the reasons. It stipulates that postponement should be the exception and not the rule.

“I must point out that while hearing more than 60 appeals, I noticed that not even in a single case has the mandate of Section 309 of the Cr.PC been complied with. The mandate has been thrown aside. It should also be noted that recording evidence piecemeal is not a sound practice followed by the Courts.” In my opinion, the provisions of Article 309 of the CMK in this regard are aimed at the rapid conclusion of the trial. I think this is a worrying situation that may cause injustice to the parties in the long run, otherwise the fate of the ordinary people in this supreme institution will worsen. will also wear out” Judge Sanap said the following in his order.

Therefore, in order to ensure strict compliance with the provision, the board has issued the following instructions:

• The instruction of CrPC Section 309 (BNSS Section 346) needs to be followed in letter and spirit.
• In order to ensure compliance with Section 309 of the CrPC, the Prosecutor in charge of the case and the Judge presiding over the case must ensure full compliance with Section 309 of the CrPC (Article 346 of the BNSS). .
• The Prosecutor prosecuting the case is expected to submit a weekly schedule for recording the statements of witnesses in the case.
• The judge who presides over the case must ensure the attendance of witnesses according to the schedule/weekly schedule of the hearing presented by the Prosecutor.
• When such a weekly schedule is presented and the case is decided for the recording of evidence, the President is required to ensure the presence of the accused.

“This procedure, if followed scrupulously, can help in finalizing old cases as well as cases of undertrial detainees. The facts recorded in this case and other appeals show that this issue has been completely neglected.” Judge Sanap said the following.

The bench, therefore, directed the Registrar General and the Registrar Inspection-I to bring this order to the notice of judges in Maharashtra.“Similarly, they need to put in place appropriate mechanism to ensure compliance of this order. Therefore, Registrar General and Registrar Audit-I, I will therefore ensure compliance of mandatory provisions by putting in place appropriate mechanism. Section 309 of Cr.PC (BNSS’) “Article 346 of the Code) has been provided in writing and in spirit. In this regard, necessary directions may be given to the Principal District and Sessions Judges to comply with the instructions.” bench ordered.

Besides this, the judge also ruled for proper examination of the evidence, failure to conduct the test ID parade, defect in the appreciation of DNA and CA reports, failure to present the accused to the court, etc. He pointed out more flaws such as.

“All these facts taken together show that these inherent lacunae, flaws and disadvantages led to a perversion of justice. This invalidated the entire case.” the judge said as he ordered the retrial.

Appearance:

Advocates RR Vyas and Sharad Thakre Appointed for the Appellant.

The State was represented by Additional Prosecutor SV Kolhe.

Case Title: Puranlal Dhurve v. State of Maharashtra (Criminal Appeal No: 155, 2022)

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