Shivlal vs State Of Rajasthan

Accused-petitioner, facing trial in Sessions Case No.242/2017 pending before Additional Sessions Judge No.4, Jodhpur Metropolitan, Jodhpur for offence punishable under Sections 341, 323, 324, 325 and 307/34 IPC has made fifth attempt for seeking bail.

The first bail application on behalf of petitioner was dismissed as not pressed on 04.08.2017 followed by second on 20.09.2017. Yet again, petitioner made attempt for seeking bail but the same was rejected on 26.02.2018, however, it was observed that learned trial Court is expected to expedite the trial and conclude the same at the earliest. It appears that despite efforts being made by learned trial Court, there was no material progress in the trial, inasmuch as, injured-Lunaram did not appear for recording his statements. A plea was sought to be raised by the injured that he is unable to depose. Thereupon, the learned trial Court issued necessary direction for constituting Medical Board but the Medical Board, without physically examining the injured, declined to furnish any report in want of requisite documents produced by the injured.

This situation entailed rejection of the bail by learned trial Court and this Court also rejected fourth bail application with following directions:-

"Upon consideration the submissions made at Bar and perusal of the order-sheets of learned trial Court, it is crystal clear that the learned trial Court has already ordered for constituting Medical Board to examine the injured. In such circumstances, it is rather strange as to why the Medical Board has asked the injured to furnish the requisite documents for ascertaining his inability to depose rather than examining him to opine about his state of health. The Medical Board, after examining the injured, can very well tender its opinion as to whether he is in a position to depose before the Court or not. Therefore, it is expected of the learned trial Court to issue necessary directions to the Medical Board to examine the injured within 15 days from the date of production of this order. However, at this stage, sans report of the Medical Board, I feel disinclined to grant bail to the petitioners.

It is made clear that after receipt of opinion of the Medical Board, the petitioners would be at liberty to apply for bail afresh before learned trial Court."

It is argued by learned counsel that although learned trial Court directed the Medical Board to examine the injured but he himself did not appear before the Medical Board and on his behalf his brother Omaram has submitted a written application that injured will not appear for his medical examination. Be that as it may, learned trial Court rejected bail application of the petitioner in absence of requisite report of Medical Board.

I have heard learned counsel for the petitioner as well as learned Public Prosecutor and perused the order passed by learned trial Court and also considered a very vital fact that trial has though materially progressed but the proceedings are being halted in absence of evidence of the injured. It is also borne out from the record that, at the threshold, petitioner was arrested on 10.06.2017 and because of non-appearance of the injured-witness trial is not progressing. In view thereof, in the peculiar facts and circumstances of the case and considering a very vital fact that injured-witness himself is not willing to get himself medically examined from the Medical Board, it would not be appropriate to keep petitioner in custody till conclusion of the trial.

Accordingly, while refraining to make any comment on merits of the case, this fifth bail application, solely on the ground of aforementioned material change in the circumstances, is allowed.

Accordingly, this fifth bail application under Section 439 Cr.P.C. is allowed and it is ordered that accused-petitioner, Shivlal S/o Sh. Kallaram, arrested in connection with F.I.R. No.48/2017, Police Station Jhanwar, District Jodhpur, may be released on bail; provided he furnishes a personal bond of Rs.50,000/- with two sureties of like amount to the satisfaction of learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.