DSP LYNCHING CASE: Court lets prosecution witness make statement in absence of accused

Directs jail superintendents, district SSPs to produce under trials on next date or else appear in person

MUDASIR YAQOOB
Srinagar, Publish Date: Jun 22 2018 11:41PM | Updated Date: Jun 22 2018 11:41PM
DSP LYNCHING CASE: Court lets prosecution witness make statement in absence of accusedFile Photo

A trial court here on Friday allowed prosecution witness to record his statement before the court in absence of accused in the 2017 lynching case of a deputy superintendent of police.

DSP Muhammad Ayub Pandit was lynched at Nowhatta, a  Downtown area in Srinagar on 22 June 2017.

The court of the fourth additional session judge Srinagar, Kamlesh Pandit, allowed the recording of the statement of the prosecution witness after one of the defence counsels, advocate Mushtaq Ahmad Dar, agitated the non-production of the accused. 

Dar said: “My clients (the accused in the case) are not produced before the court for past eight hearings. Today the prosecution witness is again present but my clients have not been brought. I am the authorized pleader of my clients. Prosecution witness be allowed to record the statement today for fair and speedy trial, which is their (accused persons) fundamental right.”

As the special public prosecutor vehemently opposed the defence counsel plea to record the prosecution witness’ statement in absence of the accused, Dar cited various provisions of law, their interpretation by the apex court and also referred to various Supreme Court and J&K High Court judgments to support his argument.

After hearing the prosecution and the defence counsel, the court ordered the recording of the statement of the witnesses today itself. 

No under trial in the case was produced before the court today. This has happened on the 9th consecutive hearing. 

The court observed: “In this case no effective hearing has taken place for last so many months due to the non-production of under trials and non-production of prosecution witnesses. The accused persons have right to speedy trial as guaranteed by the constitution and mandated by Supreme Court in so many of its judgments.” 

"The term presence in section 273 central code (corresponding to section 353 cr pc of state code) does not mean actual physical presence in the court. One does not have to consider dictionary meanings when a plain reading of the provision brings out what was intended,” the court said while referring to Supreme Court judgment.

The court said that section 273 provides for dispensation from personal attendance. “In such cases evidence can be recorded in the presence of the pleader. The presence of the pleader is thus deemed to be presence of the accused."

“I do not see any impediment in recording the statement of the witness in attendance, in presence of their advocates, who have not been brought before the court. Consequently, it is ordered that the statement of the said witness be recorded today itself,” the court said.

Seventeen persons have been named accused in this case who are presently lodged in different jails.

The court directed the jail superintendents and the district SSPs to produce under trials within their jurisdiction on next date “without any further misadventure or lame excuse otherwise the defaulting jail superintendent/s and district SSPs shall appear in person before this court for explaining the reason of default.”

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