The Supreme Court has expressed displeasure over the fact that 351 sessions trials are pending in the Union Territory of Jammu and Kashmir for more than five years. Out of these cases, 250 cases are pending at the stage of recording of oral evidence of witnesses, the court was intimated earlier regarding pending cases. The long pendency of the cases in the lower courts is something that the apex court has flagged here reminding the prosecutors that the accused should not be treated in a cavalier manner.
In what seems like a callous, insensitive response, a government counsel tried to pass the inordinate delay to Covid endemic. Indeed Covid-19 delayed many things when it was razing but a few years have passed by when all restrictions imposed due to its spread were lifted. Reminding that the accused persons have a right to a speedy trial, the court said that the UT must come up with a plan to conclude the pending trials at the earliest. It may be recalled that the Supreme Court last month granted bail to a man, accused in a murder case, after finding that his trial had been pending for more than seven years and only seven witnesses had been examined by the prosecution so far.
Looking at the sorry state of affairs, a Bench comprising Justice J B Pardiwala and Justice K V Viswanathan had then directed Chandraker Bharti, Principal Home Secretary, Union Territory of Jammu & Kashmir, to appear online on the next date of hearing. It has also asked the Secretary to place on record the pending criminal trials where the accused has been under custody for more than 5 years.
Additional Solicitor General Aishwarya Bhati placed the details on record. As per the affidavit filed by Secretary Chandraker, who appeared via video-conferencing, 351 trial cases are pending for more than five years, involving 585 accused persons; two cases are at the stage of charge/evidence; six are at the stage of judgment and 235 cases at the prosecution witness stage. Moreover, 14 trial cases are at the 313 CrPC stage (erstwhile Section 342 of the Ranbir Penal Code) and 34 are at final arguments.
After hearing the details, Justice Pardiwala questioned why so many trials are pending for more than 5 years. “What are the Trial Courts doing? Accused is in jail past five years, his trial is not concluded. That is something very serious… Why are you not able to produce the witnesses for the recording of the oral testimonies? Is it the failure of the investigating agency to produce witnesses that is causing the delay in the conclusion of the trial? We should know, we should go to the root of the problem. Present case is very gross,” he said.
Justice Viswanathan asked, “if there is any proposal as to when the trials are likely to be concluded”. It may also be recalled that the Supreme Court had called for a report from the trial court on the flagrant delay. As per the report received, the Trial Court had asked the prosecuting agency to produce the prosecution witnesses. But in the 23 hearings, no witnesses were produced.
“So for 23 times, the trial must have been adjourned only because 3, 4, 5 and 6 (prosecution witnesses) could not be produced… Prosecution did not produce any evidence on 26 judicial hearings before Trial Court to prove the police report and before this Court on 56 judicial hearings despite judicial directions. Only 7 witnesses have been examined till date. 11 witnesses are from Hisar, Haryana”, Justice Pardiwala remarked. In the last hearing, it was submitted by ASG Bhati that some delay was caused due to the COVID-19 pandemic. Justice Pardiwala observed that while some delay was understandable due to the COVID pandemic, the continued delay thereafter made no sense.
Justice Pardiwala also orally said that even if the prosecution tries to establish a murder case, it would fall under culpable homicide not amounting to murder, as there was no intention or knowledge on the part of the accused. He asked the Home Secretary if there is a lack of Trial Courts or Judges in J&K. “Are you all short of Trial Courts? Are you short of Trial Judges? Are you all short of Public Prosecutors? What is the problem? We are not able to understand. Rather it is unpalatable for us to accept that you are unable to produce the prosecution witnesses for examination. That is your responsibility, you have to bring them”, Justice Pardiwala said, adding the J&K High Court should have intervened in the matter.
The Court has now sought further details, including the number of witnesses in the 235 pending cases, how many of them have been examined, and when the witnesses were last examined. Justice Viswanathan orally remarked that this is a “pilot study” for the Court.
Also Read: West Asian War: Wave of uncertainty
The Court observed: “In pursuance of our order, the Principal Secretary, Home Department, has joined online. We also looked into the affidavit filed by Bharti, Principal Secretary. It appears to us from the information furnished in the affidavit, more particularly the status of the undertrials, that there are in all 351 Sessions Trials pending in J&K. There are in all 585 accused persons facing trials. However, the shocking fact is that these trials, 351 in number, are pending for more than 5 years. Another disturbing feature highlighted in the chart is that out of 351 cases, 235 cases are pending at the stage of recording of the oral evidence of the witnesses”.
“There could be many reasons for the delay in all these cases. However, we should not ignore or overlook the fact that the accused has a right to speedy trial as enshrined under Article 21. Once charge is framed, it is expected that the Trial Court will record oral evidence and conclude at the earliest. Prima facie, it appears that these cases are delayed as the prosecuting agency is unable to produce prosecution witnesses for examination. This could hardly be a ground for delay in the conclusion of the trial”, the Supreme Court said.
The Bench said, “we have taken up the issue very seriously. The whole idea in initiating this exercise is to ensure that undertrials do not languish in jail for an indefinite period of time. The victims also deserve speedy justice. Many times, we have observed that justice should not only be done to the accused person. Justice is also to be done to the victims and the kin and kith of the victims”.
