Holding

Trial courts must strictly adhere to Section 309 CrPC, ensuring continuous day‑to‑day examination of witnesses and recording eye‑witness statements under Section 164 by audio‑video, with appropriate sanctions for non‑compliance.

Summary

The case concerned the murder of Bhagwan Singh in Sikar, Rajasthan, where twenty accused were tried and nine were convicted. The Supreme Court noted that after the examination-in-chief of a key witness, the trial was adjourned for over four months, leading to several witnesses turning hostile. The Court held that under Section 309 of the Code of Criminal Procedure (CrPC) the trial must proceed on a day‑to‑day basis once evidence commences, and any adjournment beyond the next day requires a special reason recorded in the order. It further directed that eye‑witness statements should be recorded during investigation under Section 164 of the CrPC by audio‑video means, as amended by Act 5 of 2009. The Court dismissed the appeals and issued directions to High Courts to ensure compliance with these mandates, emphasizing the protection of witnesses and the interest of justice.

Issues considered

Whether the trial court violated the mandate of Section 309 CrPC by granting prolonged adjournments after commencement of evidence.
Whether the trial court should record eye‑witness statements under Section 164 CrPC by audio‑video means.
What measures can be taken when a trial court fails to comply with the continuous‑examination requirement.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 309

Subjects

murdercriminal trialadjournmentSection 309 CrPCwitness protectioncontinuous examinationSection 164 CrPCaudio‑video recordingSupreme Court directionscriminal procedure

Judgment

[2017] 11 S.C.R. 222

A DOONGAR SINGH & ORS.
v.
THE STATE OF RAJASTHAN
(Criminal Appeal Nos. 2045-2046 of2017)
B NOVEMBER 28. 2017
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.)
Code of Criminal Procedure. 1973:
ss.309 and 164 -Adjournment of criminal proceedings - In
c a murder case, after exami11atio11-in-chief of the star witness. mat/er
adjourned for about four months - Ajier recording part evidence.
m<1tler again a<fjourned - Held: In a criminal case of the nature as
in the present case, trial court has to be mindful that for protection
of wimesses and also in the interest of justice, mandate of s.309
has to be complied with and eddence should be recorded on
D
co/1/inuous basis - Presiding Officers of trial courts conducting
criminal trials should be minciful of not giving adjoummen/s qfter
co111111e11cement of rhe evidences in serious cri111ina/ cases - lt is
uecessalJ' in the interest ojjustice that e; e-u il11esses are got recorded
1 1

during investigation itse/( ul.d 64 by audiu-1•ideo electronic means -
E Criminal Tri<4.
Stale of U.P. v. Shambhu Nath Singh and Others (2001)
4 SCC 667 : [2001) 2 SCR 85~: Mulul. Khalid v. State
of 11'.B. (2002) 7 SCC 334 : )20021 2 Suppl. SCR 31;
Vinud Kumar v. State of Punjah (2015) 3 SCC 220
F [2015) l SCR 504 - relied on.
Case Law Reference

[2001] 2 SCR 854 relied on Para 6
[2002] 2 Suppl. SCR 31 relied on Para 7
G
[20151 l SCR 504 relied on Para 8
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 2045-2046of2017.

H
222
DOONGAR SINGH & ORS. v. THE STATE OF RAJASTHAN 223

From the Judgment and Order datctl 12.05.2015 of the High Court A
of Judicature for Rajasthan at Jaipur in DBCRA Nos. 872 and 1066 of
2011.
WITH
Crl.A. No. 2047 of20l7.
B
S. S. Shamshery, AAG. Sushi! Kuma Jain, Sr. Adv., Puncct Jain,
Ms. Christi Jain, Harsh Jain, Abhinav Gupta, Ms. Pratibha Jain, Ms.
Parijat Bhardwaj, Ms. G. M. Padma Priya, T. Mahipal, A<lvs. for the
appearing parties.
Cavcator-in-person. c
The following Order of the Court was delivered:
ORDER
l. Delay condonctl. Leave granted.
2. For the murder of one Bhagwan Singh at Sikar, Rajasthan, on D
27'" May, 2005, 20 persons were tried. Nine have been convicted
concw'fently by the trial court and the High Cowt. They are the appellants.
Others have either been acquittetl or have died.
3. We have heard learned counsel for the parties at great length
and also perused the record. We do not find any infirmity in the orders of E
the cou1t below calling for our interference under Article 136 of the
Constitution of!ndia. The appeals arc, accordingly, dismissed.
4. Before parting with this matter, we must record a disturbing
feature in the conduct of the trial of the present case. After recording
examination-in-chief of the star witnes>, PW-14 Prahhu Singh, on 13'" F
April, 2010, the matter was adjourned on the request of defence counsel
to 25'" August, 20 I 0 i.e. for about more than four months. After that,
· part evidence of the witnesses was recorded on 241h September, 2010
an.d the matter was again adjourned to 11 '" October, 20 I0. Before that,
four witnesses of the same family in their statements recorded on 1o•h
April, 2010 had become hostile. G

5. In a criminal case of this nature, the trial court has to be mindful
that for the protection of witness and also in the interest of justice the
mandate of Section 309 of the Cr.P.C. has to be complied with and
evidence should be recorded on continuous basis. If this is not done,
H
224 SUPREME COURT REPORTS [2017] ll S.C.R.

A there is every chance of witnesses succumbing to the pressure or threat
of the accused.
6. This aspect of the matter has received the attention of this
Court on number of occasions earlier. Jn St11te of U.P. ••er.ms Shttmbhu
Ntttll Si11glt 1111d Others' this Court observed it was a pity that the
B sessions court adjourned the matter for a long interval after
commencement of evidence, contrary to the mandate of Section 309 of
the Cr.P.C. Once examination of witnesses begins, the same has to be
continued from day-to-day unless evidence of the available witnesses is
recorded, cx~ept when adjournment beyond the following day has to be
granted for reasons recorded. This Court observed:
c
"12. Tims, the legal posi1ion is that once examination of
H ,·,,:,:sse\· _11arll!cl, the court has ro continue the trial fro111 da.v

to da.v until all tt•itnesses in atten(fance have heen exa111i11ed
(except those whom the party has given up). The court has lo
record reasons for devialing from the said course. Even that
D is forbidden when witnesses are present in court, as the
requirement then is that the co11r1 has to examine them. Only
if' there are "special reasons", which reasons should find a
place in the order for adjournment, that alone can confer
jurisdiction on the court to adjourn rhe case without
E e.--ran1ination of' 1vitnesses 1·rho are 11resent in court.
13. Now, we are distressed to i:ote that it is almost a common
11ractice and regular occurrence that trial courts flout the
said command with impunity. Even when witnesses are
11resent, cases are adjourned on j(1r /e._\'S serious reasons or
F even 011 flippa/1/ ground" A<(jottrnme/1/s are gra111ed even i11
such situalions 011 the mere asking for it. Quite often such
adjour111nents are granted to suit the conrenience of the
advocate co11cerned. We make it clear that the legislature has
frowned at granting adjournments on thll/ ground. At any
rate inconvenience of' an advocate is not a "special reason"
G for bypassing lhe mandale of Section 309 of the Code.
14. If any court ji11ds that the day-to-day examination of
witnesses mandated by the legislature cannot be complied with
due ta the 11011-coaperation of the accused or his wunse/ the
1
(200IJ 4 sec 667
H
DOONGAR SINGH & ORS. v. THE STATE OF RAJASTHAN 225

court can adopt any of the measures indicated in the sub- A
section i.e. re111a11ding the accused 10 custod_v or iJnposing
cos/ on rhe party who wanrs such adjournmems (the cost must
be com1nensurate v.'ifh the loss s1~fj'ered bJ' the l'llitnesses,
including the expei1ses to attend the cmtrr). Another option
is, when the accused is absent and the witness is present ro be
B
examined, the court can cancel his bail, if he is on bail (unless
an applicario11 is made on his behalf seeking permission for
his counsel to 1>roceeci to exc11ni11e the lvitnesses present even
in his ,;bsence provided rhe accused gives an underraking i11
writing that he would not dispute his identity as the particular
accused in the case). c
15. The time-ji-ame suggested by a three-Judge Bench of this
Court in Raj Deo Slwm111 v. State of Bihar2 is partly in
consideration of the legislative mandate contained in, Section
309(1) of the Code. This is what the Bench said 011 that score:
(SCC p. 516, para 16) D
"16.The Code of Criminal Procedure is comprehensive enough
to enable the Magistrate to close the prosecution if the
prosecution is unable to produce its witnesses in spite of
repeated opportunities. Section 309(1) CrPC supports the
above view as it enjoins expeditious holding of the E
proceedings and continuous examination of witnesses from
day to day. The section also provides for recording reasons
for adjourning the case berond the following day. "
xxx xxx xxx
17. 1fe believe. hopeful(v. that the High Courts would have F
issued the cirmlar desired by the Apex Court as per the said
judgment. ff the insistence made by Parliame11t through
Section 309 of the Code c:an be adhered to by the trial courts
there is every chance of the parties cooperating with the courts
for achieving the desired o~jects and it would relieve the agony G
which witnesses summoned are now suffering on account of
their non-examination for days.
xxx xxx xxx

'(1998) 1sec so1
H
226 SUPREME COURT REPORTS [2017] l l S.C.R.

A 19. In some Stutes a system 1s evolved j(;r framing a schedule
o.l consecutive 1vurking da:vs for examination of· lVitnesses in
each sessions trial to be followed. Such schedule is fixed by
the court 1-v·e/I in advance ajier ascertaining the co11ve11ie11<.:e
of the counsel on hath sides. Summons or process would then
he handed over to the Puhlic Prosecutor in charge of the
B
case to cause 1hc111 to be !•;ervecl u/1 the 1vitnes:•;es. ()nee the
scheclule is su .fixecl un£i 1vit11e,1.,·ses are sun1111u11ecl the trial
invariably proceeds from day to day. This is one metlwd 1f
complying with the 11u11ula1es of the law. It is for the presiding
ofjicer of each court to chalk 0111 any other method~. if any,
c found better far complying with tile legal provisions contained
in Section 309 v( the Code. Of wurse, the High Court cwt
n1011ito1: su11ervise an(i give directions. on the ach11inis1ration
,-.,·ide, reg,1rtling 1nec1s11res to cu11for111 to the legislative
insistence contained in the ahove section."
D 7. The above decision has been repeatedly followed. In Mohd.
Kiwi hi versus Stute of 1¥.B. '. this Court noted how adjournment can
result in witnc·sscs being won over. It was observed:
"'54. Befort! parting ll'ith the case, we may poillf out that the
Designatetl Cvurt de.f'erred the cross-exan1inatio11 uf lhl!
E H'ilnesses for a long ti111e. That is a feature tvhich is being
notice<i in rnany cases. Unneces.'•ial:J' tul)o11r111ne11ts give a
sco11e Jin· a grievu11ce that the accuse</ 11erso11s get a tilne to
get over the i,vit11esses. H'f1'·1tever be Ille truth in this allegation,
the fat·/ remains that such adiournments lack the spirit o(
Section 309 of the Code. When a witness is cm1ilab/e and his
F exan1i11ation-in-chie_f is over, 1111/ess co1n11elli11~'S reasons are
there. the trial court should not adjourn !he matter 011 the
mere asking. These aspects were highlighted by this Court in
St11te of U.P. versus S/111111blr11 N11/ll Si11glr' and N.G D11sta11e
versus Shrikt111t S. S/Jivde-:. ......... "
G 8. Again in J111od K11111ar rer.rns Slate of P1111jab6 this Court
noted how unwarranted adjournments during the trial jeopardise the
administration of Justice. It was observed:
'(2002) 7 sec 334
• (2001 H sec 667
•t200116 sec 135
H "(2015) 3 sec 220
DOONGAR SINGH & ORS. v. THE STATE OF RAJASTHAN 227

"3. The narration of the sad chronology shocks the judicial A
conscience and gravitates the mind to pose a question: ls it
justified for any conscie111ious trial Judge to ignore the
statutor_y connnand, not recognise ''the }'ell necessities oj'ti1ne"
ancl ren1ai11 in111ervio11s to the Cl}' of· the collective asking for
justice or give an indecent and uncalled for burial lo the
B
conception of" trial, totally ostracising tire concept thal a
civilised and orderly sociely thrives on the rule of law wlriclr
includes 'fair trial" ./(Jr /he accused as well as the
prosecution?
4. Jn the aj0rest1i(f cv111ex1. 1ve 1110.v recapitulate a passage
from G11r11t1ib Singh v. State of P1111jab 1: (SCC p. 121,
c
para 26)
"26 . ... we are compelled lo pmceed to reiterate tire law
and express our anguish pertaining to the nu111ner in 1vhich
the trial was conducled as it depicts a very dislurbing
scenario. As is demonstrable fi'om the record, the trial was D
conducted in an extremely haphazard and piecemeal
nu1nne1: Alljour11111ents ll'ere granted 011 a 111ere asking. The
cross-exan1ination oj' the ·r'l'itnesses irere ,fe/errecf lvithout
recording any special reason anc/ elates l\'ere given C!f/er a
long gap. The mandate of the law and the views expressed E
by this Court fi"om time lo time appears lo have been total(v
kept at bay. The teamed trial Judge, as is perceplib/e,
see1m lo have os/racised fi'om his memory that a criminal
trial has ils own grm'ity and sanctity. ln this regard, we
may refer with profit to the pronouncement in Ta/ab Haji
Hussain v. Madhukar Purshottam Mo11dkar' wherein it has F
be<'n stated that cm accused person by his conduct cannot
put a fair /rial into jeopardv, for it is /he primary c111d
paramount duty of the criminal co11rls lo ensure Iha/ the
risk to fi1ir trial is removed and trials are allowed lo proceed
smoothly without any inlerruption 01· obstmction. " G
9. In spite ofrcpcated directions of this Court, the situation appears
to have remained unremedied.

'(201J)7SCC 108
"AIR 1958 SC 376
H
228 SUPREME COURT REPORTS [2017] I I S.C.R.

A 10. We hope that the Presiding Officers of the trial cou11s
conducting criminal trials will be mindful of not giving such adjourni, 1ents
after commencement of the evidence in serious criminal cases.
11. We are also of the view that it is necessary in the interesi of
justice that the eye-witnesses arc examined by the prosecution a! the
B earliest.
12. It is also necessary that the statements of eye-witnesses arc
got recorded during investigation itself under Section 164 of the Cr.P.C.
In view of amendment to Section 164 Cr.P.C. by the Act No. 5 of 2009,
such statement of witnesses should be gut recorded by audio-video
C electronic mc•ans.
13. To conclude:
li) The trial courts must carry out the mandate of Section 309 of
the Cr.P.C. as reiterated in judgments of this Court, inter
a!ia, in State of U.P. 1•ersus Sha111bh11 Nath Singh and
D Others', Mohd. Khalitl vers11s State of 1V.B. '0 and Vi11od
Kumar vers11s State of Pu11jab" .
(ii) Tim eye-witnesses must be examined by the pros1:cution as
soon as possible.
(iii) Statements of eye-witnesses should invariably be recorded
E
under Section 164 of the Cr.P.C. as per procedure prescribed
thereunder.
14. The High Courts may issue appropriate directions to the trial
couns for compliance of the above.
F 15. A copy of this order be sent by the Secretary General to the
Registrars of all the High Cow1s for being forwarded to all the presiding
officers in their respective jurisdiction.

Kalpana K. Tripathy Dirl'ctions is~ued.

'(2001l4 sec 667
"(200211sec334
"<201s1Jsec220