The Supreme Court in Asaram Bapu matter has recently allowed the plea filed by the State of Rajasthan challenging the order passed by the Rajasthan High Court summoning IPS Officer Ajay Lamba as a witness in a minor rape case.

The Apex Court requested the High Court to take up the appeal for an expeditious hearing as Asaram had already suffered incarceration for nearly ten years.

The two-Judge Bench comprising Justice Sanjiv Khanna and Justice M.M. Sundresh held, “… the appeal is allowed, and the impugned judgment is set aside. We request the High Court to take up the appeal for an expeditious hearing, as the respondent – Asharam @ Ashumal has already suffered incarceration for nearly ten years. We also clarify that the observations made in the present judgment are for the disposal of the issues raised, and the criminal appeal will be decided by the High Court without being influenced by any observations and findings recorded herein.”

The Bench said that the criminal appeal which is ripe for hearing before the High Court has not been taken up and has been delayed by moving the application under Section 391 of the Cr.PC. for the recording of additional evidence, which was filed nearly eight years after the date of occurrence.

“If we carefully look at the reasons given, which have found favour in the impugned judgment, we can easily visualize that there could be further applications for recording of additional evidence of the main witnesses”, noted the Court.

Senior Advocate Manish Singhvi appeared on behalf of the appellant/State while Senior Advocate Anish R. Shah appeared on behalf of the respondent/Asaram.

Facts -

An appeal was preferred by the State of Rajasthan against the judgment passed by the Rajasthan High Court, Jodhpur Bench allowing the application filed by the respondent under Section 391 of the CrPC, and directing summoning and recording of evidence of Ajay Pal Lamba, who was posted as Deputy Commissioner of Police in August 2013 and wrote a book “Gunning For The Godman: The True Story Behind Asaram Bapu’s Conviction”.

The respondent was charge-sheeted and after a trial lasting almost five years, vide judgment passed by the Magistrate, Special Court, Protection of Children from Sexual Offences Act, 2012, he was convicted for the offences under Sections 370(4), 342, 354-A, 376(2)(f), 376-D, 506, 509/34 and 120-B of the IPC and Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2006, and Sections 5(f)/6, 5(g)/6, and 8 of the POCSO Act. He was sentenced to undergo rigorous imprisonment for different periods, and life imprisonment for the remainder of his natural life, with fine and default stipulations.

The Supreme Court after hearing the contentions of the counsel observed, “… the discretion under Section 391 of the Cr.P.C. should be read as somewhat more restricted in comparison to Section 311 of the Cr.P.C., as the appellate court is dealing with an appeal, after the trial court has come to the conclusion with regard to the guilt or otherwise of the person being prosecuted. The appellate court can examine the evidence in depth and in detail, yet it does not possess all the powers of the trial court as it deals with cases wherein the decision has already been pronounced.”

The Court asserted that it is not only a matter of delay but also the hardship to the victim/witnesses when they are recalled for examination and that the recall is certainly permitted if essential for the just decision and for which there should be a tangible reason that fair trial would suffer without it.

“The discretion is to be exercised judiciously to prevent failure of justice, and must not be exercised arbitrarily. In our opinion, the appellate court must be equally, if not more cautious, of the desire to delay the hearing of the appeal, or the attempt to lead additional evidence to explore a chance of contradictory evidence”, said the Court.

The Court further noted that the right to speedy trial, including speedy disposal of an appeal, is not the exclusive right of an accused, but an obligation of the court towards society in general, and the victim in particular.

“The process of ascertaining the truth requires compliance of procedures and rules of evidence. In a well-designed system, judicial findings of formal legal truth should coincide with substantive truth. This happens when the facts contested are skillfully explored in accordance with the procedure prescribed by law”, also asserted the Court.

Accordingly, the Court allowed the appeal, set aside the judgment of the High Court, and requested the High Court to take up the appeal expeditiously.

Cause Title- State of Rajasthan v. Asharam @ Ashumal

Click here to read/download the Judgment