Rajesh vs State of U.P.

J. C. Gupta, J.—Counteraffidavit filed on behalf of the complainant is taken on record.

Heard applicant''s counsel, the learned A.G.A. and Shri J.B. Singh appearing for the complainant. This is second bail application. First bail application has already been rejected on merits by the order dated 7111998.

It is contended by the applicant''s that the applicant is in jail for the last about 26 months and no substantial progress in the trial has been made. It is further contended that so far only the statement of (PWl) Ashwani Kumar, who also claims himself to have received injuries during the course of incident, has been recorded and from the perusal of his statement the prosecution case becomes doubtful. On the other hand, it is contended by the complainant''s counsel that the applicant has been assigned the role of firing and the doctor who conducted the postmortem examination has opined that cause of death was shock and haemorrhage as a result of fire arm injury on head. There are two more injured witnesses left to be examined. No case for bail is made out.

So far as delay in trial is concerned a perusal of the order sheet would indicate that charges were framed on 2021999 and 9 31999 was fixed for evidence. However, the statement of (PW1) Ashwani Kumar commenced from 17799 and instead of continuing the statement of the said witness on the next day the trial Court adjourned the case to 21799. On this date the statement could not be recorded due to paucity of time and then case was adjourned to 31799. On this date on the application of accused persons case was adjourned to 10899. Accused persons then again got the case adjourned on 611 1999. Since 2922000 no evidence could be recorded as lawyers were on strike.

In the circumstances the proceeding agency alone cannot be blamed for this delay, and to some extent the defence it self was guilty of the same. The learned Sessions Judge has also not proceeded with the trial in accordance with the provisions of Section 309 Cr. P.C. which required that the evidence in the Sessions trial shall be recorded in continuation without any break on day to day basis.

In the circumstances this application is disposed of with the direction to the trial Court to proceed with the case on day to day basis and record the evidence of witnesses in continutation without any break. The trial Court shall make every endeavour to conclude the trial expeditiously, within a period of two months from the date a certified copy of this order is produced. It is further made clear that if the learned Sessions Judge who is dealing with this case still does not proceed with the case in accordance with the provisions of Section 309 Cr. P.C. this court will take a serious note of this lapse.

Let a copy of this order be supplied to the parties counsel within 48 hours on payment of usual charges.