Case Note & Summary
The petitioner, Siraj Daulatkhan Pathan, was cited as an eye witness in a murder case (Avinash Bharate, murdered on 31 March 2009) but was not examined during the trial. The prosecution's case was that the accused, respondents 2 to 9, had assaulted the deceased over a dispute at a dance show. The petitioner's statement under Section 161 of the Code of Criminal Procedure was recorded and annexed to the charge sheet, yet he was not called to testify. Several other material witnesses, including eye witnesses and panch witnesses, turned hostile, and the co-witness Subhash Markad, who accompanied the petitioner, was discharged after he refused to cooperate. Witness summons issued to the petitioner were returned unserved, and a subsequent application for fresh summons was rejected by the trial court. The trial concluded on 22 October 2010, and the accused were acquitted on 30 October 2010. The petitioner claimed he learned of the acquittal only in January 2013 and filed the writ petition seeking to quash the acquittal and remand the case for a fresh trial so that he could be examined. He relied on the Supreme Court's decision in the Best Bakery case (Zahira Habibulla H Sheikh v. State of Gujarat). The State supported the petitioner's plea, filing an affidavit that a proposal for appeal had been made but not pursued. The accused respondents opposed, arguing that the petitioner, a mere witness, had no locus standi to challenge an acquittal; the statutory remedy was limited to an appeal by the State under Section 378 or by a victim under Section 372 CrPC. They also pointed to the delay and the improbability of the petitioner being unaware of the trial given his close association with Subhash Markad. The High Court examined the record and held that the petitioner had no right to appeal or to file a writ petition indirectly questioning the acquittal. The court found that the prosecution had not acted remissly; it had made reasonable attempts to secure the petitioner’s presence, and the trial court’s refusal to reissue summons was within its discretion. The court distinguished the Best Bakery case, noting that here the witness had never been examined, no retraction was involved, and no extraordinary circumstances existed. The delay of over two years and the petitioner's improbable ignorance of the trial also weighed against him. Consequently, the court dismissed the writ petition and discharged the rule.
Headnote
A) Criminal Procedure - Appeal against Acquittal - Locus Standi of Witness - Code of Criminal Procedure, 1973, Sections 372, 378 - A person who is merely cited as a prosecution witness and whose statement under Section 161 was recorded has no right to prefer an appeal against acquittal; appeal lies only to the State with leave or to a victim as defined under Section 372 - The petitioner, not being a victim, cannot indirectly challenge acquittal by way of a writ petition, as the law requires the mode prescribed to be followed - Held that the writ petition is a circuitous attempt to impugn the judgment and is not maintainable (Paras 10-11). B) Criminal Procedure - Reopening Trial - Powers under Section 311 CrPC - Code of Criminal Procedure, 1973, Section 311 - The trial court has discretion to recall or summon any person as a witness; refusal to reissue summons to the petitioner was justified where the prosecution had several opportunities and the petitioner was not traceable despite summons, and other material witnesses had turned hostile - Held that no fault can be found with the trial court or the prosecution (Paras 8-9). C) Writ Jurisdiction - Delay and Laches - Constitutional Law - The petitioner approached the court more than two years after acquittal, alleging he learned of the order only in January 2013, but it was improbable given his close friend's participation; allowing such delayed challenges would open floodgates for unscrupulous witnesses - Held that the delay is also a factor against the petitioner (Paras 11-12). D) Precedent - Distinguishability - Best Bakery Case - The Supreme Court in Zahira Habibulla H Sheikh had quashed acquittal on unique facts including a witness retracting after filing an affidavit under compelling circumstances; here the petitioner never testified and the trial was not marred by such extraordinary circumstances - Held that the Best Bakery case does not apply to the facts (Para 12).
Issue of Consideration
Whether a person who is an eye witness to a crime can prefer a Writ Petition impugning the order of acquittal and insist for reopening the trial and examining him as a witness.
Final Decision
The writ petition was dismissed. The rule was discharged. The court held that the petitioner, being a mere witness, has no locus standi to impugn the acquittal directly or indirectly; the prescribed mode of challenge is an appeal under Section 378 by the State with leave or by a victim under Section 372. The court found no merit in the petition and that the prosecution had made adequate efforts to secure the petitioner's presence. The delay in filing and the improbability of the petitioner's ignorance of the trial also weighed against him.
Law Points
- A witness has no locus standi to file a writ petition challenging an acquittal
- appeal against acquittal can only be filed by the state or a victim under the Code of Criminal Procedure
- when a statute prescribes a specific mode of challenge
- other modes are impermissible
- delay in filing writ petition by witness may be fatal
- powers under section 311 CrPC are discretionary and court's refusal justified if prosecution had sufficient opportunity
