Mukesh Ahirwar vs State Of Madhya Pradesh & Ors

This is fourth application filed under Section 439 of Cr.P.C. for grant of bail.

The applicant has been arrested on 29.1.2018 in connection with Crime No.24/2018 registered by Police Station Nateran, District Vidisha for offence punishable under Sections 377, 323, 294, 506, 34 of IPC and under Sections 3/4, 5/6 of Protection of Children from Sexual Offences Act, 2012.

This case has a disturbing history. The applicant is facing trial and is in jail. His earlier bail application, which was registered as M.Cr.C. No. 27774/2018 was disposed of by this Court by order dated 6-8-2018, which reads as under :

"The reasons given by learned Additional Sessions Judge, Ganj Basoda, District Vidisha for fixing such a long date doesnot appear to be correct especially when this Court has granted liberty to the applicant vide order dated 4-4-2018 to file bail application after victim is examined. There appears to be no justification in not enforcing presence of victim and recording his statement.

Learned Additional Sessions Judge, Ganj Basoda, District Vidisha is directed to record the statement of victim on the next date fixed by him and in case the prosecution fails to produce the victim on the next date, then coercive action for seeking presence of victim be taken fixing the case on the weekly basis.

With the aforesaid, this application is dismissed with liberty to the applicant that in case prosecution fails to record statement of victim and fails to produce the victim on or before next date fixed before learned Additional Sessions Judge Ganj Basoda District, Vidisha, then the applicant will be at liberty to approach the court again."

It appears that the direction given by the Co-ordinate Bench of this Court by order dated 6-8-2018, fell on deaf ears, and unfortunately, the Trial Court did not try to comply the order dated 6-8-2018. On 29-8-2018, the prosecution witness Anil Tiwari was present before the Court, but the Trial Court, instead of recording his evidence, deferred his examination on the ground that the counsel for the applicant had not made preparation. The case was adjourned to 30-8-2018 and on the said date, Pradeep (P.W.1) was examined and cross examined. The case was then adjourned and on 28nd and 29th September 2018, the case was adjourned for 11th and 12th of October, 2018 because neither the witnesses were present nor the summons issued against the witnesses were received back either served or unserved. On the said date also, neither the summons were received back served or unserved and the case was adjourned for 28th and 29th of November 2018. On 28th and 29th of November 2018 also, the case was adjourned as neither the bailable warrant/summons were received back either served or unserved and the case was adjourned for 28th and 29th of December 2018. On the said date, again the case was adjourned as neither the summons were received back served or unserved. On 10th and 11th of January 2019 also, the case was adjourned as the summons issued against Anil Tiwari and the victim were not received back either served or unserved.

As the trial was not progressing, accordingly reply was sought from the Superintendent of Police Vidisha regarding non-execution of warrants/summons, who appeared personally before this Court on 13-2-2019 and filed his written reply and also made oral submissions. It is mentioned in the reply that the summons against Anil and victim were served for 11th and 12th of October 2018 and the same were filed before the Trial Court, however, the Trial Court in its order dated 11th of October 2018 has observed that the summons have not been received back either served or unserved. In the order sheet dated 12th of October 2018, it was mentioned that the warrant issued against Vinay Singh was received back served however, the said witness was not present. There is no mention of service of summons on other witnesses, whereas according to the police, the summons were served and were returned back to the Court. Thus, it is clear that correct order sheet has not been recorded by the then Presiding Judge.

Thereafter the case was adjourned to 28th and 29th of November 2018. As 28th of November 2018 was holiday, therefore, the case was taken up on 29th November 2018 and it was mentioned that the warrant/bailable warrant/summons issued against the witnesses have not been received back either served or unserved. Accordingly, the case was adjourned to 28th and 29th of December 2018. The police in its reply has mentioned that the summons/warrant/bailable warrant as mentioned in order dated 29th of November 2018 were never received in the police station. On 28th and 29th of December 2018, it was mentioned that the summons/warrants/bailable warrant issued against the witnesses have not been received back either served or unserved (However, the said summons/warrants/bailable warrants were never sent to the concerning police station). Accordingly, it was directed that fresh warrant/summons/bailable warrant be issued and the case was adjourned to 10th and 11th of January 2019. The police has submitted its reply mentioning that the said summons/warrants/bailable warrants were never received in the police station. Again on 10th and 11th of January 2019, it was mentioned that the summons/warrant/bailable warrants have not been received back either served or unserved.

Thus, it is clear that the Presiding Judge was recording order sheets without confirming that whether the summons/warrants/bailable warrants have been sent to the police station or not?

Accordingly, this Court had directed the Presiding Judge to submit his explanation. It has been mentioned that the summons/warrants/bailable warrants were given to the Court Munshi. However, when this Court by order dated 6-8-2018 had already expressed its displeasure on the manner in which the trial was being conducted, then it was expected that the Trial Court would take the matter seriously, however, surprisingly, inspite of the fact that the summons were served upon the victim as well as Anil Tiwari, the Presiding Judge in its order sheet dated 11th and 12th of October 2018, has mentioned that the summons/warrant/bailable warrants have not been received back either served or unserved, whereas according to the police, the same were returned back after due service on the witnesses.

Thus, it is clear that not only the Court Munshi has shown utter disregard to this Court by flouting the order dated 6-8-2018, but even the Trial Court, also did not care to comply the order dated 6-8-2018 passed in M.Cr.C. No. 27774/2018.

Thus, it is clear that the Trial Judge, has not verified from the Court Munshi that whether the summons/warrants/bailable warrants are being sent to the police station or not, and had recorded the order sheets in a most mechanical manner. At the same time, the police department is equally responsible for the inaction of the Court Munshi.

Therefore, the Superintendent of Police, Vidisha is directed to take necessary action against the responsible Court Munshi for not forwarding the summons/warrants/bailable warrants issued by the Court.

Let a copy of this order be sent to Superintendent of Police, Vidisha for necessary information and compliance. Superintendent of Police, Vidisha is directed to submit his compliance report to the Principal Registrar of this Court by 28.3.2019.

Similarly, this Court is of the view that the Trial Judge in spite of order dated 6.8.2018 has also not taken the matter seriously and has dealt with the case in a most casual manner. Prima facie incorrect order sheets have been recorded. It has been held in catena of judgments that the order sheets of the Court are sacrosanct. The Supreme Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak reported in (1982) 2 SCC 463, has held as under :

"4. When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation." We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

In R v. Mellor Martin, B. was reported to have said:

"We must consider the statement of the learned Judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity."

In King-Emperor v. Barendra Kumar Ghose Page, J. said:

"... these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive : It is not to be criticized or circumvented; much less is it to be exposed to animadversion."

In Sarat Chandra Maiti v. Bibhabati Debi Sir Asutosh Mookerjee explained what had to be done:

"... It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment..."

The Supreme Court in the case of SUZUKI PARASRAMPURIA SUITINGS PVT. LTD. VS. MAHENDRA PETROCHEMICALS LTD. (IN LIQUIDATION) AND OTHERS by Judgment dated 8-10-2018 passed in C.A. No. 10322 of 2018 has held as under :

"11. The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally belied from the recitals contained in the order dated 09-2-2015. Time and again this Court has held that the recitals in the ordersheet with regard to what transpired before the High Court are sacrosanct."

Thus, it is clear that the Judges' record is conclusive and sacrosanct, therefore, it is the duty of a Judge to record the order sheets correctly and with all sincerity. In the present case, in the month of October 2018, it was mentioned that the summons have not been served, whereas according to the police, the summons were returned back after serving the same. Similarly, in the subsequent order sheets, the Trial Judge had directed for issuance of summons/warrants/bailable warrants, but the Trial Court, without confirming that whether the summons/warrants/bailable warrants have been actually issued or not, has mentioned in the subsequent order sheets that the summons/warrants/bailable warrants were not received back either served or unserved, whereas according to the police, the said summons/warrants/bailable warrants were never received in the police station. Thus, in the light of the observations made by this Court in order dated 6-8-2018, it is clear that the Trial Judge(s) has/have not taken the matter seriously. Accordingly, the Principal Registrar of this Court is directed to forward the reply submitted by the Superintendent of Police along with reply/explanation submitted by the Trial Judge, to the Principal Registrar (Vigilance), Jabalpur, who is directed to look into the matter and to take necessary action in the matter.

So far as the application for bail is concerned, the Superintendent of Police has assured that the witnesses shall be produced before the Trial Court. Accordingly, the bail application is dismissed.