Kewal Krishan alias Pappu vs State of Punjab

K.S. Kumaran, J.

F.I.R. No. 127 dated 23.4.1998 under Sections 302 and 201 I.P.C. has been registered at Police Station Sadar, Ludhiana on the statement of Inder Pal wherein it has been stated that on 23.4.1998, he in the company of Jaswinder Singh, had seen the deadbody of an unidentified woman on one side of Ganda Nala near Vishavkarma Nagar, Tajpur Road, Ludhiana. According to him, the deadbody was swollen, tongue was pressed between the teeth and both the eyes were protruding.

The petitioner on arrest moved an application for bail before the Sessions Judge, Ludhiana, but his application was dismissed. Therefore, the petitioner has moved this petition before this Court under Section 439 Cr.P.C. for bail.

I have heard the counsel for both the sides and perused the records on file.

Learned counsel for the petitioner contends that the case remained untraced for about six months and that on 2.9.1998 with the aid of the photographs of the deadbody, it was identified to be that of Sunita. He contends that there is no eyewitness for this occurrence but the petitioner is alleged to have made an extra judicial confession to one Pal Chand, and that it is stated Pal Chand who had produced the petitioner before the police. Learned counsel for the petitioner contends that there is no evidence against the petitioner except an iron rod, which has been planted upon him, and which was not even bloodstained. Learned counsel for the State, on the other hand, contends that apart from this extra judicial confession and the recovery, there is also the statement of two persons who had lastly seen the deceased in the company of the petitioner and, therefore, the petitioner is not entitled to be released on bail.

The petitioner had previously moved Criminal Miscellaneous No. 5273M of 1999 for bail. That petition was dismissed on 31.3.1999 inspite of the fact that the petitioner had raised the same pleas in support of his prayer for bail in view of the fact that the learned counsel for the State had reported that the case was fixed for 26.4.1999 for the examination of the witnesses. A direction was given to the Sessions Judge, Ludhiana to complete the trial and dispose of the case before 28.5.1999. But inspite of the direction, the trial has not been completed and that is why the petitioner has now approached this Court for bail.

While ordering notice to the A.G. Punjab, remarks of the Sessions Judge, Ludhiana were called for as to why the case has not been disposed on or before 28.5.1999. The learned Sessions Judge has sent his remarks wherein he has stated that he was taken over as the Sessions Judge on 4.6.1999 and by that time, 8 witnesses had already been examined and one more witness was also examined by him on 4.6.1999. He has also stated that the case had to be adjourned for the remaining prosecution witnesses and that still 8 prosecution witnesses remain to be examined. He has further stated that the courts remained closed from 16.6.1999 to 30.6.1999 and he had to go on vacation from 1.7.1999 to 23.7.1999 and, therefore, the case was adjourned to 29.7.1999. He has further stated that this is a serious case of murder and after the examination of prosecution witnesses, statement of accused has to be recorded under Section 313 Cr.P.C. and accused has also to be given a reasonable opportunity to produce his evidence in defence. Therefore, he has sought for extension of time till 31.10.1999.

But the learned counsel for the petitioner points out that Pal Chand before whom the petitioner allegedly made extra judicial confession, was examined as PW7 and he has not supported the case of the prosecution at all. Learned counsel for the petitioner has also produced the copy of the deposition of PW7Pal Chand who was examined on 26.4.1999. Learned counsel for the petitioner contends that in view of this and fact and in view of the fact that there is no eyewitness at all, the petitioner is entitled to be released on bail especially when the prosecution has failed to produce the remaining witnesses and has not completed the evidence of the prosecution so that the case could have been disposed of by 28.5.1999, as directed by this Court.

Without meaning to express any opinion on the merits of the case, I am of the view that the petitioner in this case is entitled to be released on bail. As pointed out already, the petitioner had raised the same pleas in his previous application for bail, and this Court, taking note of the allegations, had dismissed the application on 31.3.1999 only because the case was directed to be disposed of before 28.5.1999 since the case was fixed at that time for evidence on 26.4.1999. It may be that present Presiding Officer has taken charge on 4.6.1999. But the learned Sessions Judge has failed to adhere to the provisions of Section 309 Cr.P.C. which provides that the trial once commenced shall be continued from day to day till the witnesses in attendance have been examined. As to why all the witnesses were not produced on 4.6.1999, and as to why the provisions of Section 309 Cr.P.C. have not been adhered to, are not explained at all. The police have developed a tendency to ask for adjournments in sessions cases and they are freely granted by the Sessions Courts without adhering to the provisions of Section 309 Cr.P.C. While adjournments are freely given, the accused are allowed to languish in jail. Such adjournments are given sometimes even for long periods, i.e. 3 to 5 months. Such a tendency is deprecated and should be stopped and sessions cases should go from day to day. If the prosecution is granted long adjournment, then the defence also takes its own time for examining the defence witnesses after the examination of the accused under Section 313 Cr.P.C. If adjournments are freely given to the prosecution, then necessarily the Presiding Officers are forced to give adjournment for the examination of defence witnesses as well. Therefore, it is absolutely necessary for the Presiding Officers to see that the prosecuting agency adheres to the sessions schedule once fixed, and brings all the witnesses to Court and proceed with the examination of the witnesses to Court and proceed with the examination of the witnesses on a day to day basis as provided for under Section 309 Cr.P.C. The Presiding Officers shall not also give adjournment on any ground even to the defence also, once the examination of witnesses has commenced except in very rare and exceptional circumstances.

But, in this case, I find that there has been a clear violation of not only the order of this Court, but also the provisions of Section 309 Cr.P.C. The Sessions Judge has stated that the case was put up before him on 4.6.1999. He had examined one witness on that date and adjourned the case for examination of the remaining eight witnesses to 29.7.1999. This Court''s direction that the case should be disposed of before 28.5.1999 has not been taken serious note of at all. Otherwise the learned Sessions Judge would not have adjourned the case to 29.7.1999 in total disregard of the direction of this Court as well as the mandate of Section 309 Cr.P.C. He would not have also asked for extension of time till 31.10.1999. The fact that the prosecuting agency has not brought all the witnesses is no valid excuse, since it is the duty of the Court to exercise effective control by strictly adhering to Section 309 Cr.P.C.

Having disregarded the direction of this Court and the provisions of Section 309 Cr.P.C., it was totally unnecessary for the learned Sessions Judge to have pointed out in his remarks that the remaining witnesses have to be examined, that the accused have to be examined under Section 313 Cr.P.C., and that the accused have also to be given opportunity for leading evidence. All these have to be done subject to the provisions of Section 309 Cr.P.C., should have been borne in mind.

In these circumstances, I am of the view that the prosecution cannot be allowed to take adjournments after adjournments and thereby keep the accused in jail, especially in a case like this where there is no eyewitness and where the person to whom allegedly the extra judicial confession was made, has not supported the case of the prosecution.

Ultimately, this petition is allowed and the petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of the Sessions Judge, Ludhiana.

Registry is directed to send a copy of this order to the concerned Sessions Judge by namecover, which he should acknowledge. The receipt of the acknowledgement be reported by the Registry.