Salim @ Sallo vs State

R.C. Lahoti, J.

There is a race and rush for enacting laws. Those entrusted with passing legislations are rarely concerned with the implementation. The Welfare State seems to be happy by placing on record that it has passed ante-dowry laws and several other laws providing for stringent and deterrent punishments for dowry deaths, illegal traffic in narcotics and psychotropic substances and similar other crimes. They feel that their responsibility is over by giving the public sop by hard bound statutes, taking away sometimes the discretion of the Court in the matter of bails and passing sentences. The police is happy by releasing statistics to the press as to number of cases registered, investigated and challaned by it in the Court. If the cases are not decided, the blame is placed at the doors of the judiciary to say that the fault lies there. Rarely, and possibly never, one bothers to look at and find out the causes for delay and take effective remedial steps at eradicating such causes. This is neither a voice of frustration nor a hollow criticism. It is what necessarily follows from the hard facts of the present case.

The accused/Petitioner facing a charge u/s 302 I.P.C. having caused brutal murder of his own wife because his dowry demands were not fulfilled has come up to this Court seeking bail for the fifth time. His earlier four petitions have been rejected on consideration of merits of the case against him; this Court having expressed an opinion repeatedly that the nature of the accusation and the facts of the case did not justify bail being granted to him. This time, plea of delay at the trial violating fundamental right of an accused to speedy trial has been forcibly pressed in service in support of prayer for bail. I have called for the record of the sessions trial and looked into it.

Kibla alias Kamarunnisa was in her early twenties and was with her husband in his room in the dead of the night falling between 7th and 8th May 1987 when the husband poured kerosene oil on the victim and set her on fire. Her cries attracted others. Badly burnt, she was shifted to the hospital at midnight soon after the incident. Dr. Ashok Jadon recorded her dying declaration on 8-5-87 at 1-30 P.M. Another dying declaration was recorded by Naib Tahsildar, in the presence of Dr. Argat, R S.O. on duty who certified that the patient was conscious and capable of giving dying declaration. Both the dying declarations are thumb marked by the declarant. Both implicate the accused positively. This is the prosecution case.

Investigation having been completed, challan was filed on 9-10-87. The case was committed to the Court of sessions on 13-11-1987 and was taken up on 27-11-87 for the first time by the Sessions Court- A simple charge us/. 302 I.P.C., which would not have taken more than 10 minutes in being framed by any judicial officer of the rank of Sessions Judge, took not less than 13 dates of hearing; a fact which deserves to be noticed by the District and Sessions Judge, Gwalior conducting annual inspections of the Courts subordinate to him Thereafter, the case was posted for trial, The progress of the trial thereafter deserves to be noticed and would cause concern to anyone who has a little faith in the sense of law and justice. For convenience, I sum up the gist of several proceeding in a tabular form:

Date

Proceedings

Accused produced or not

18-8 88

Prosecution witnesses not present

Accused not Produced

19-8-88

One witness P. W. 1 was present and examined. No other witness present.

22-8-88

P. W. 2 Dr. C P. Upadhyay examined in chief. Cross-examination deferred as property in the case was not produced in the Court by the police. Other witnesses not present.

Accused not produced

19-9-88

P.Ws. Sakuranbai, Salim and Bashir Khan present. Could not be examined in the absence of the accused.

Accused not produced

20-9-88

P.W. 3/4 Salim, Bashir Khan examined. P.W. Sakuranbai given up. None other present.

19 11-88

Prosecution witnesses not present.

Accused not produced

31-11 88

Prosecution witnesses not present.

15-12-88

Prosecution witnesses not present.

Accused not produced

16-12-88

Prosecution witnesses not present. T.I. Hakimsingh, MadhokumarP.Ws. ordered to be summoned by bailable warrants of Rs. 100/-each.

Accused not produced

30-1-89

P.W. 5 Madhokumar and Dr. Ashok not present. Ordered to be served by bailable warrants of Rs. 100/-each. Other witness absent.

31-1-89

P.W. D.R. Kuire, NaibTahsildar present but discharged, ordered to be resummoned for the next date. Dr. Ashok and Madhokumar were summoned by bailable warrants of Rs. 100 each.

Accused not produced

3-3-89

P.W. Madhokumar absent though served. Ordered to be served by non-bailable warrant. Other P.Ws. ordered to be summoned by bailable warrants of Rs. 200/- each.

Accused not produced

28-3 89

Prosecution witnesses not present.

Accused not produced

20-4-89

Prosecution witnesses not present.

16-6-89

Prosecution witnesses not present.

21-7-89

Prosecution witnesses not present. P.Ws. Batoli and ChotelalPatwari absent though served. Ordered to be summoned by bailable warrants of Rs. 200/- each.

4-8-89

Prosecution witnesses absent Ordered to be summoned by bailable warrants of Rs. 200/- each.

5-9-89

Prosecution witnesses absent.

This bail petition was filed on 23-8-89 and came up for hearing on 25-8-89. As the case was fixed for trial on 5-9-89 hearing of the bail petition was fixed for 6-9 89. On that date, the counsel for the Petitioner reported of no progress at the trial. Hence, the record was ordered to be requisitioned. The learned Counsel has vehemently stressed that looking to the leisurely progress made in the past at the trial, one can be sure that even on the next date nothing substantial is likely to happen.

This is not an isolated case. In numberless cases while hearing criminal cases specially the bail petitions and several petitions u/s 482 Cr. P. C. seeking quashing of the proceedings before the original criminal Courts it has come to my notice that the sessions trials are being conducted worse than ordinary warrant cases The summonses are issued but it is a rare event to find that the police has returned the summonses after service, even when the witnesses are local or Government employees and sometimes officials of the police department. Though served, the appearance of the witnesses is again rare because the summonses are taken too lightly. It will not be an exaggeration of facts to record that bailable warrants or non bailable warrants are never served. At least compliance is never reported to the Court. It is a fortunate day for the Courts holding sessions trials to see that the prosecution witnesses have made their appearance; but pleasure of good fortune cannot be enjoyed for a moment because the misfortune of non-production of the accused from judicial custody eclipses the progress of trial tying down the hands of judge prepared to proceed ahead. In numberless cases, it has come to my notice that not only the accused is not produced but even the warrant is not produced before the Court. Those responsible do not have the courtesy (not to talk of obligation) of informing the Court of the cause for non-production of the accused before the Court. It appears that the provisions in the Cr.P.C. relating to judicial remand are not meant for them or they feel not bound to follow them at all.

Provisions has been made by Section 69 of the Code of Criminal Procedure, 1973 for service of summons on witnesses by post. Still no funds have been placed at the disposal of Courts to make use of the provision. And then the question would be whether postal department would be able to bear this additional burden on postmen who are already too overburdened.

A case of dowry death committed in the heart of a big city like Gwalior, promptly reported to the police, and duly investigated, should have alerted all concerned in speeding up the progress towards the goal of justice. If the accused is guilty let there be an early conviction followed by punishment so as to have deterrent and reformatory effect on the accused and the public. If innocent and falsely roped in, let the accused have an early acquittal. "The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in public mind and that the innocent should be absolved as early as is consistent with a fair and impartil trial"- observed their Lordships in Trimbak Vs. The State of Madhya Pradesh, para 16. A mere order of bail may not remove suffering of an innocent facing trial on a serious charge of murder because of the serious agony and mental torture which he would have to undergo until exonerated.

Adjournment should be the exception rather than rule. Increase the number of judges. Do all you can. But all these steps would provide a paper solution only to cry against delays if all concerned do not cooperate with judges in expediting hearing. If the state of affairs such as has been exhibited by the facts of this case (one example only of thousands similars) is not improved the day is not far off when the Courts would be reduced only to crime figure shredding devices. File a challan; let the case rot for a few counted months/years in the Court and the accused in jail or under proceedings, and then allow the proceedings to be quashed for violation of right to speedy trial; without there being any occasion arriving for adjudication on the issue whether the accused was rightly indicated or not. What will happen to the reformatory, retributive and deterrent theories of punishment?

In several cases apprehensions have been whispered at the bar during the course of hearings that the process serving machinery gets mixed up with the accused in heinous offences so as to avoid or delay service on the witnesses resulting in their nonappearance and thereby conveniently providing the accused with a ground for bail in the name of delay at the trial (though not entitled otherwise) and thereafter an opportunity of tampering with the witnesses or protracting the trial otherwise, by misusing the liberty of bail which fact the witnesses arc often afraid of bringing to the notice of the Court.

Do they, who are responsible with the implementation of the laws have time and conscience enough to divert their attention to these aspects of the criminal justice ?

On four occasions, I have denied bail to the Petitioner for the reasons already indicated. I am alive to the fundamental right of the Petitioner to a speedy trial To strike a balance, it is ordered:

(i) The prosecution shall take all care to serve the witnesses not served so far and make positive efforts for producing them before the Court on the date fixed. The investigating officer must be instructed to be present before the Court on that date. There should be no difficulty in procuring attendance of the public servants like Doctors, Naib Tahsildar, and Patwari, not examined so far including Dr. Upadhyay whose cross-examination is yet to be concluded;

(ii) The prosecutor incharge of the case must see that the case property has been produced before the Court and if not, instruct the concerning police station to do so within a week without fail;

(iii) The trial Court must examine all the witnesses available on the date fixed;

(iv) The case shall not be adjourned for more than a fortnight at a time and the Court shall not hesitate in taking coercive steps for securing attendance of non-cooperative witnesses;

(v) The trial Court shall maintain a proper record of the summons/ warrants issued and the person entrusted with service thereof. In the event of default the matter shall be reported to High Court for taking action u/s s. 10, 12 of the Contempt of Courts Act, 1972 because the default may tantamount to obstructing of the administration of justice;

(vi) If recording of the prosecution evidence is not completed by 26-10-89, the Petitioner shall be released on 27-10-89 or thereafter on his furnishing a personal bond in amount of Rs. 10,000 with two solvent sureties each in an amount of Rs. 5,000/- for his appearance on all dates of hearing before the trial Court.

Let a copy of this order be forwarded to Chief Secretary, Government of M. P., the Home Secretary, Government of M. P., Director General of Police, Director General of Prosecution, Director General of Prisons who, it is expected, would pay a serious attention towards solving the problem of non-production of the accused in judicial custody before the Court on one pretext or the other and would also take care to device means to see that those responsible for serving summons and warrants on the witnesses do so without fail and pay a serious attention towards their obligation assisting the Court in the matter of administration of justice. A copy of the order shall be forwarded to the Dist. and Sessions Judge, Gwalior with reference to observations made in para 4 above. Let one copy be provided to Dy. Advocated General, Gwalior who may take up the matter with local officers post haste.

Disposed of accordingly.