27 Feb 2011

Judges not to act like clerks: High Court

Holding that the Judges were not to act like clerks and thus could not refuse to act when the prosecution did not act diligently, the Delhi High Court in a recent decision [Directorate of Revenue Intelligence v. Pawan Kumar] set aside the order passed by the lower court declaring that the judges had sufficient powers under the law "to summon additional evidence suo moto and has also power to question the witnesses and if he finds that investigation was mis-directed". The High Court particularly noted the refusal to exercise the powers on flimsy grounds.

The High Court inter alia observed as under;
4. It is apparent from the complaint made before the ACMM that accused and certain custom officers were hand in glove with each-other in order to deprive the state exchequer of the duties. The custom officers were also made accused in the case. If learned ACMM considers some witnesses had been left out, instead of using its power of summoning additional witnesses under Section 311 Cr. P.C. during trial and to see that the culprit are punished, the learned ACMM seemed to have acted more like a Clerk than like a Judge and was happy in discharging everybody on the ground that there was no investigation on the point how the goods were allegedly exported, who were the officers posted at Customs Port at the relevant time and what goods were exported. 
5. No doubt, we follow adversorial system of prosecuting criminals but a Judge is not supposed to act only as an umpire to blow whistle. A Judge has certain duties assigned to him under Cr. P.C. to ensure that those who commit crime do not go scot free on mere technical grounds. A Judge has power to summon additional evidence suo moto and has also power to question the witnesses and if he finds that investigation was mis-directed, the Judge can still ensure that necessary witnesses are summoned in the Court and examined. The learned ACMM has been passing similar order almost in every cases and instead of using his judicial powers under various provisions of Cr. P.C., has been washing off his hands by discharging the accused persons on flimsy grounds. 
6. The issue of sanction in another similar order of ACMM was considered by this Court in its judgment dated 25th October, 2010 delivered in the Crl. Rev. P. No. 305 of 2010, Directorate of Revenue Intelligence Vs. Mohd. Anwar and the order was set aside. The order dated 1st June, 2010 passed by learned ACMM being patently illegal and contrary to record is hereby set aside.

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