Bhagwant Kaur vs State of Haryana

H.S. Bedi, J.

The present is a case of glaring example of how the judicial process has been scuttled by the accused, who stand charged for offences under section 302 etc. of the Indian Penal Code. It also indicates the frustration of the Court in proceeding with the trial on account of the prolonged lawyers strike in Ambala which has led to an inordinate delay and by the conduct of the accused, which further aggravated that delay.

This petition has been presented by Bhagwant Kaur mother of deceased Jasminder Singh and Gurmit Singh praying that though the case had been registered on 29th June, 1988 for the murder of her sons which had been committed on that day, there had been practically no progress towards the conduct of the trial.

This case first came up before me on 10th August, 1994 when I sought a report from the Sessions Judge, Ambala as to why the trial has not been even partially completed despite the passage of so many years. A report dated 2nd September, 1994 was received in this Court and on perusal thereof I issued notice to the accused for 12th October, 1994, when on that date itself Mr. R.S. Ghai, Sr. Advocate accepted notice on their behalf.

A reply has been filed by Mr. Ghai, and Mr. P.S. Hundal, Advocate was requested by me to lend assistance in this case.

The matter has been argued by the learned counsel for the parties.

The facts have been taken primarily from the report of the Sessions Judge, Ambala as the facts given in the petition are very sketchy. It appears that the challan was presented on 1st October, 1988 and the case was committed to the Court of Sessions vide order dated 16th November, 1988. 16th February, 1989 was fixed for recording of the prosecution evidence and on that date though the P.Ws were present their evidence could not be recorded as the lawyers were on strike. The case thereafter was adjourned for evidence to the following dates:

10th May, 1989;

11th May, 1989;

12th July, 1989;

13th July, 1989;

21st September, 1989; and

22nd September, 1989.

Though the prosecution evidence was present on all these dates it could not be recorded on account of the lawyers'' strike. On 21st September, 1989 Shri Pritam Pal, learned Additional Sessions Judge, Ambala, who was conducting the trial declined to do so for certain reasons and vide order dated 26th September, 1989, the case was withdrawn from that court and transferred to the court of Shri. B.R. Vohra, Additional Sessions Judge, Ambala, who adjourned the case on 29th November, 1989 for recording of the prosecution evidence. It is also significant that all the nine accused, who stood charged under sections 302/149 of the Indian Penal Code were in custody upto that date whereas the two accused Paramjit Kaur and Hardip Kaur charged under section 201 only thereof were on bail. On 29th September, 1989 no prosecution evidence was present and but as the lawyers were on strike the case was adjourned to 15th February, 1990. On that date, too, the case was adjourned to 20th April, 1990 for the same reason. On 20th April, 1990, some of the P.Ws were present but the lawyers were on strike and the case was once again adjourned to 3rd July, 1990 for recording of the prosecution evidence. In the meanwhile, Shri B.R. Vohra was transferred to Jagadhri and this case was also transferred to the Court of Shri B.R. Vohra at Jagadhri. He took up the case on 11th June, 1990 and issued notices to the accused for 15th June, 1990 but on that day referred the matter back to Ambala as the Jagadhri Courts lacked the territorial jurisdiction with regard to the trial. The learned Sessions Judge, Ambala vide his order dated 8th August, 1990 thereafter withdrew this case from the court of Shri B.R. Vohra and transferred it to that of Shri R.S. Madan, Additional Session, Judge, Ambala. Thereafter vide order dated 25th August, 1990 the case was adjourned to 3rd December, 1990 for recording of the prosecution evidence and on that day the report of the Forensic Science Laboratory were tendered in evidence by the Public Prosecutor. However, the P.Ws who were present could not be examined as Mr. Sawhney, the learned defence counsel did not turn up. The case was accordingly adjourned to 12th April, 1991 for recording of the prosecution evidence. On that day three P.Ws were present and were duly examined and various affidavits were also tendered and the matter was adjourned to 15th July, 1991 for the remaining prosecution evidence. On that day, the examinationinchief of two of the prosecution witnesses was recorded but their crossexamination was deferred as Shri Anil Kausik, Advocate for some of the accused had fallen ill. The case was accordingly adjourned to 14th November, 1991 and it is significant that by that date all the accused had been released on bail. On 14th November, 1991, some of the P.Ws were present, but their evidence could not be recorded on account of the lawyers'' strike and the case was adjourned to 26th February, 1992 for the prosecution evidence when it was once again adjourned for the same reason and purpose to 5th June, 1992. This long date was given as no earlier date was suitable to the defence counsel. On 5th June, 1992, accused Jas Raj Singh was absent and an application for exemption personal appearance supported by a medical certificate was filed and his presence was exempted on that date. The case was, thereafter, taken up on the orders of Inspecting Judge and sent to the court of Shri S.D. Anand, Additional Sessions Judge, Ambala. Thereafter, the case was taken up by Shri K.K. Chopra, Additional Sessions Judge, Ambala on 6th June, 1992, who adjourned the case to 3rd July, 1992 for presence of the accused. On 3rd July, 1992, Shri Chopra adjourned the case to 21st September, 1992 for recording the prosecution evidence and on that day though various P.Ws were present their evidence could not be recorded in the absence of the defence counsel on account of lawyers'' strike and the case was adjourned to 21st, 22nd and 23rd December, 1992. On 21st December, 1992 some of the P.Ws were present but their evidence could not be recorded as accused Jasraj was absent and an application for seeking exemption from personal appearance was filed on the ground that at he was lying admitted in the General Hospital, Naraingarh. The case was accordingly adjourned to 19th April, 1993 and the accused was burdened with costs of Rs. 750/. It needs to be highlighted that the Additional Sessions Judge while adjourning the case on that day noted that counsel for the accused had undertaken that all the accused would be present on the next date of hearing. However, on 19th April, 1993 though various P.Ws were present, Harbel Singh accused was absent and proceedings under section 446, Cr.P.C. were initiated against him and the P.Ws were discharged and notice was issued to Harbel Singh for 5th May, 1993. On 5th May, 1993 all the accused including Harbel Singh appeared in Court and he was taken into custody and the case was adjourned to 20th, 21st and 22nd September, 1993 for prosecution evidence. On 20th September, 1993 however various P.Ws were once again present, but their evidence could not be recorded as accused Harpal Singh was absent on that day with the result that the P.Ws present were also discharged. The learned Sessions Judge, however, noted in the order dated 20th September, 1993 that since Harbel Singh had got bail from the High Court, he was not competent to cancel the same but the bail bond and surety bong were nevertheless sought to be forfeited and notice was issued to Harpal Singh and his surety for 27th October, 1993. On 27th October, 1993 all the accused were present and the case was adjourned to 3rd, 4th and 5th February, 1994 for recording of the prosecution evidence. On that day though various P.Ws were present their evidence could not be recorded as accused Paramjot Singh absented himself on that day and the counsel for the accused could not give a satisfactory explanation for his absence. The P.Ws were accordingly discharged. As Paramjot Singh too had been granted bail by the High Court, the trial Judge issued notice to him for forfeiture of his bonds for 2nd March, 1994. On that day all the accused including Paramjot Singh were present and he was taken into custody and the case was adjourned to 23rd, 24th and 25th March, 1994 for recording of prosecution evidence. In the meanwhile, the case was taken up by the Additional Sessions Judge, Ambala on 23rd May, 1994 and the case was adjourned to 25th May, 1994 and on that day the case was adjourned to 22nd 23rd and 24th August, 1994 for recording of the prosecution evidence. Once again on 22nd August, 1994 though various P.Ws were present, their, evidence could not be record as Harbel Singh accused was absent from the court and an application for his personal appearance accompanied by a medical certificate stating that he stood admitted to the General Hospital, Naraingarh was filed. Frustrated by the attempts of the accused to delay the trial, the public Prosecutor on that day made a request in Court that the matter be proceeded without the presence of accused Harbel Singh and the witnesses present in Court be examined, but this request of the Public Prosecutor was opposed by the counsel appearing for the said accused, who submitted that he had no instructions to allow the trial to proceed without his appearance. The learned counsel also stated that it was not possible for him to crossexamine the remaining witnesses in the absence of accused Harbel Singh. It appears that the learned Additional Sessions Judge, Ambala was left with no option but to discharge the P.Ws but it was observed by him that the certificate issued by the Medical Officer of the General Hospital, Naraingarh did not inspire confidence and the request of accused Harbel Singh appeared to be mala fide and was an attempt to delay the trial. It was also noted by the learned Additional Sessions Judge that bail of Harbel Singh could not be cancelled by him as he too had been granted bail by the High Court. It was further observed by him that even the bail granted to Paramjot Singh could not be cancelled as he too had been granted bail by the High Court. The Additional Sessions Judge also recorded in the order that the conduct of the accused was an abuse of process of the Court.

I have reproduced full details with regard to the sequence of events that have preceded the filing of the present criminal misc. petition. It will be seen from a reading thereof that upto 3rd December, 1990 the trial could not proceed primarily on account of strike by the lawyers in Ambala but from that date till now the delay has been occasioned either by the accused themselves or some adjournments have been sought by their counsel.

Mr. R.S. Ghai, Sr. Advocate, learned counsel, has urged that the accused could not be penalised for the period the lawyers were on strike. To my mind, this argument is without merit. Once the case is listed for hearing on a particular date, the counsel have no justification to remain away from the trial and no benefit can be sought by the accused on the ground that as their counsel were on strike the trial stood inordinately delayed. Even otherwise there is virtually no explanation for the delay after December, 1990. The accused cannot be given advantage of their own wrong and allowed to remain on bail frustrating and setting at naught the efforts of the prosecution to proceed with the trial. In this connection, Mr. P.S. Hundal appearing has highlighted the observations of the Supreme Court in Gurcharan Singh v. State (Delhi Administration), 1978 Criminal Law Journal 129 wherein while dealing with the question of cancellation of bail the reasonable possibility of the presence of the accused not being secured at the trial is one of the grounds on which bail can be cancelled. The case before me is even more glaring than that one before the Supreme Court as in this case there is no question of a reasonable possibility referred to in the judgment but a grim reality whereby one or the other accused have been able to frustrate the trial since 1990.

Mr. Ghai the learned counsel for the respondent has also urged that on admitted facts the proper course would be to cancel the bail of those accused who had not appeared on the dates fixed. This request would be acceptable to some extent if the trial had not been delayed so inordinately. The conduct of the accused does not inspire confidence whatsoever and there is a reasonable apprehension that the presence of the accused will not be secured unless the bail of all is cancelled.

Mr. Ghai has finally argued that Paramjit Kaur and Hardip Kaur who have been charged under section 201 of the Indian Penal Code should be allowed to remain on bail. This request appears to be justified but a direction is issued that in case these two accused do not appear on any date that is fixed for trial, the bail already granted to them will be deemed to be automatically cancelled and they shall be taken into custody forthwith.

For the reasons recorded above, this petition is allowed, the bail granted to the accused (except Paramjit Kaur and Hardip Kaur) is, hereby, ordered to be cancelled and the accused be taken into custody forthwith.

A direction is also issued to the trial Court to record the prosecution evidence on the date fixed i.e. 14th December, 1994 and to complete the trial as soon as possible. It is, however, clarified that the trial will only proceed after all the nine accused have been arrested and even if even one such accused remains at large, the trial will be adjourned.