Sita Ram vs State of Madhya Pradesh

This is applicant Sitaram''s third bail application u/s 439 (1), Cr. P. C., before this Court.

Applicant Sitaram along with 11 persons are facing charges under Sections 147/148 and 302 read with Section 149, IPC. Deceased Ramji Sharan and Arun Kumar were shot in the aforementioned roiting.

The applicant was arrested on 11-8-1988. Co-accused Siyawar, who is the son of the applicant, jumped bails and is at large. The first bail application of the applicant was rejected by this Court in Criminal Misc. Case No. 1719/90, decided on 7-1-1991. In that order, 1 gave reasons and held that I was not satisfied that the pendency of the Sessions case at the evidence stage had any relevance with the prosecuting agency at any stage of the trial. The ground of delay has been pressed in the service in the third bail application as well. Initially, the Public Prosecutor proposed to examine 38 prosecution witnesses.

On 18-4-91, P. W. 1 Badri Prasad, an eyewitness, deposed that the applicant shot Arun Kumar in the chest. His examination-in-chief remained incomplete was being represented by Shri Vinay Kant Sharma, Advocate, on an appointment u/s 304, Cr. P. C., for the purpose of defending the applicant.

On 30-4-91, Shri V. K. Saxena, Advocate, filed his memorandum of appearance for applicant Sitaram and co-accused Siyawar; and declared that he would not be representing accused Hanuman Sharan. The latter''s personal presence was dispensed with by the Court and Shri Ramvilas Sharma, Advocate, was appointed u/s 304, Cr. P. C, for his defence.

Shri V. K. Saxena, Advocate, made an application praying for the examination of the eye-witnesses, namely, Badri Prasad, Kriparam, Kan-haiyalal, Rajaram, Kriparam S/o Ramcharan Kayasth, Vaidehisharan and Rajendra at one time. Shri Saxena further declared that he would begin cross-examination of the eye-witnesses after all of them were examined-in-chief. The trial judge allowed the application are the request of Shri V. K. Saxena.

The aforementioned stipualations having been introduced in the trial at the instance of the present applicant himself, the applicant himself will be taken to have grasped the implications in a case in which there were 15 witnesses inclusive of the 6 eye-witnesses were to be cross-examined by about 8 defence counsel appearing for the accused persons in the case, that is, the trial was going to be a long-drawn out affair. On the same day, the Court ordered the production of accused Komalsingh, who was absent that day, from the Central Jail, Gwalior, where he was reportedly in custody in Crime No. 32/91 (P. S. Gondan), u/s 307, I. P. C.

On 1-5-1991, accused Komal Singh was not produced despite the issuance of a production warrant addressed to jail. Hence, three witnesses including eye-witnesses Kanhaiyalal and Badri Prasad had to go back unexamined.

On 9-5-1991, accused Komal Singh, who had been released from jail, and 5 other accused persons were absent. The case was refixed for receiving the evidence prosecution witnesses

On 29-5-1991, Badri Prasad, an eye-witness, was further examined-in-chief. Thereafter, the cross-examination was reserved by the accused persons. Badri Prasad''s examination-in-chief was completed, and two other eyewitnesses Kriparam S/o Ramdayal (P. W. 2) and Kanhaiyalal (P. W. 3) were examined-in-chief. On a request of the accused persons, cross-examination of these two witnesses was reserved pending the examination-in-chief of the other eye-witnesses. Witnesses Rajendra and Jaiveer Singh Yadav were absent after service of the summonses. Shri P. N. Mishra. Advocate, rued his power for applicant Sitaram.

On 30-5-1991, three prosecution witnesses had defaulted in appearance after service of summonses on them.

On 31-5-1991, the prosecution gave up Vaidehisharam, an eye-witness, who was in attendance. Eight witnesses were absent despite service for them bailable warrants of arrest were ordered to be issued.

On 25-6-91, 26-6-91 and 27-6-91, prosecution witnesses were absent, their summonses had not been received back.

On 27-6-91, on the applicant''s application dated 25-9-91, it was ordered that the applicant be produced in the Court with a special guard.

On 15-7-1991, it was found that witness Gayaprasad was absent despite service while witness Suraj Singh''s summonses have not been received back.

On 16-7-1991, P. W. 4 Mahesh Kumar Yadav, was examined and discharged. The prosecution gave up two witnesses of which one was in attendance.

On 17-7-1991, witness Suraj Singh was examined and discharged. The prosecution gave up Gaya Prasad. An eye-witness, named, Rajaram was examined-in-chief He was declared hostile and was permitted to be cross-examined by the Prosecutor. The accused persons reserved their right to cross-examine this witness after the examination-in-chief of remaining eyewitnesses was over.

On 31-7- 1991, the prosecution gave up two eye-witnesses, namely, Rajendra, Kriparam S/o Ramcharan and Rambabu on the ground that they had turned up hostile. Thus, only four eye-witnesses remain to be cross-examined. They were P. W. 1 Badri Prasad, P. W. 2 Kriparam S/o Ramdayal, P. W. 3. Kanhaiyalal S/o Ramkishore and P. W. 6 Rajaram S/o Kassu. All of them have deposed that the applicant shot Arun Kumar, one of the two murdered persons.

On 1-8-1991, five Police employees, summoned as witnesses, were absent, their summonses had not come buck.

On 2-8-1991, P. W. 1 Badri Prasad was cross-examined by Shri Pradeep Gupta, Advocate on behalf of accused Siyasharan, Komal Singh and Nathu and by Shri A. K. Barua, Advocate, on behalf of Kashiram, Harcharan Ramjeewan and Shriram. No time having been left that day, Shri P. N. Mishra, Advocate, began his cross-examination of P. W. 1 Badri Prasad on 3-8-1991. The testimony on 3-8-1991 ran to 11 paragraphs. The cross-examination was reserved for want of time. Two eye-witnesses, named, P. W. 2 Kriparam and P. W. 3 Kanhaiyalal were in attendance.

On 3-8-1991, the Court finding it difficult to accede to the request of the Prosecutor that the case be continued from day to day as the three eyewitnesses were in attendance, because several other cases had already been posted for receiving the evidence adjourned the case to 19-8-1991.

On 8-8-1991, the present bail application was filed in this Court.

On a cumprative(sic) view of the factors determining the terms and the progress of the recording of the prosecution evidance in the trial pre-conditioned by the request of the accused persons themselves for reserving the cross-examinations of the four eye-witnesses till completion of their respective direct examinations, it is not possible to agree with the submissions of the applicant that the pace of the progress in the trial was owning to any remissness on the part of the presiding Judge or any wilful act or omission on the part of the prosecution. The fact that four eye-witnesses have given evidence to the effect that the applicant shot dead Arun Kumar has to be given its due weight while considering the applicant''s application for being released on bail. More so, when the cross-examinations of three eye-witnesses are still to commence and the fourth remains to be further cross-examined by the applicant. The fact that the prosecution had to give up a good many eye-witnesses as having become hostile to the prosecution has also to be kept in view.

The aforementioned situation is to be viewed in the context of the following circumstances.

The earlier bail applications were rejected by this Court. Thereafter, four eye-witnesses had given direct evidence about the alleged role of the applicant in the murder of Arun Kumar in particular and about the murder of deceased Ramji Sharan constructively. When such an evidence is on record showing the manner and nature of the commission of the offence, the possibility of an accused, situated as the applicant is absconding of further delaying the trial or tampering with the witnesses-four eye-witnesses remain to be cross-examined cannot be lost sight of in the larger interests of criminal administration of justice. These factors have to be given weight because every order involving the exercise of the judicial discretion has to take into account all the relevant circumstances of a case, more so, specially in a murder case.

The applicant''s learned Counsel has cited certain rulings in respect to advance the plea for grant of bail.

In Babu and Ors. v. State of M.P. 1978 JLJ 592., H. G. Mishra, J., admitted the accused persons to bail on the ground that the trial was to commence from the date of the order. The order does not show what was the evidence and what was the nature and the manner of the commission of the offence as disclosed in the challan papers, it is, therefore, not possible to say that the two cases are comparable so far as the relevant circumstances are concerned.

In Madheshwardhari Singh and Another Vs. State of Bihar, a Full Bench was dealing with a case, in which the FIR was lodged on 20th November, 1966, in respect of offences under Sections 467, 409 and 120-B, IPC. The Petitioner was arrested and granted provisional bail on 29-4-1975 and the same was confirmed on 21-11-1975. A charge-sheet was filed on 30-1-1976. It took nearly 18 months for furnishing copies of challan papers to the accused persons. There were 40 witnesses in the case. Most of them were officials including 7 police officers. The prosecution failed to produce the remaining witnesses even after several adjourments. Ultimately, the trial Court applied a closure to the prosecution evidence on 19-4-1984. This had happened 16 years after the commencement of the case. However, the revision was allowed and the judicial Magistrate was directed to give an opportunity to the prosecution. The prosecution continued to make default. Once again, the Judicial Magistrate applied the closure to the prosecution evidence on 1-9-1984. This time again the Sessions Judge allowed this revision filed by the State. Thereafter, only one witness was examined. The case of the prosecution was closed on 1-5-1985, and the accused was examined u/s 313, Cr. P. C. On 20-5-1985, written notes of arguments were fifed by the Petitioner objecting that there was no valid sanction for the prosecution. The prosecution took up the stand that the sanction order was raissing. There was a prayer for searching it and for the reconstruction thereof. The Petitioner opposed the prayer. The Magistrate granted further time to the prosecution. After 20 years having been spent in investigation and trial, the Petitioner made an application to the High Court for quashing the whole proceeding for the blatant violation of the constitutional right of a speedy public trial.

So, the facts of the two cases are entirely different. While the focus in the reported case was about the speedy trial in a case where the fault lay entirely with the Police and the prosecuting agency. Is such the ruling in question does not advance the case of the applicant in the light of what has already been said at paragraphs 23 and 24 (Supras).

In Anurag Baitha Vs. State of Bihar, A Full Bench was dealing with a question of bail u/s 389 (1), Cr. P. C., in an appeal against conviction in a murder case. It is, therefore, apparent that what was said in this case for admitting an accused/Appellant to bail would be germane to a plea for bail u/s 389 (1), Cr. P. C. The case is, therefore, of no help to the applicant.

In Munna v. State of M.P. 1987 C.Cr.J (MP) 124, B. M. Lal, J., admitted accused persons to bail facing trial since middle of the year 1985 in two cases and facing trial since January, 1984 in one case. The order was passed on 27-9-1986. The order does not show what was the nature and manner of the commission of the offences as reflected in the challan papers. However, the Court observed that the accused persons had done nothing to prolong the trials. As such this case is also of no help to the applicant.

In Salim v. State 1990 J.D.D. (Cr.) 10., R. C. Lahoti, J. conditionally granted bail to the accused persons on a fifth bail application. The accused was charged with setting fire on his wife resulting in her death in May, 1987. The charge-sheat was filed on 9-10-1987. The case was committed on 13-11-1987. It took 13 days of hearing for framing a charge between 18-8-1988 to 5-9-1989. There were 18 hearings. Even then, the prosecution evidence was no where at the closing stage. R. C. Lahoti, J., was rightly exercised over the non-product ion of the failure of the accused in the Court from jail and by the failure of the state to get the witnesses served. There was also the non-production of the property in the case. The Court gave detailed instructions to the trial Judge. Even then R. C. Lahoti, J. did not admit the applicant to bail forthwith, but passed a conditional order that if the prosecution evidence was not over by 26-10-1989, the Petitioner would be entitled to be released on bail on 27-10-1989. The factors of the pendency of this cited case and in the case before me are not comparable as is clear from my observations at paragraphs 23 and 24 (Supras).

In Kaniram and Ors. v. State of M.P. 1991 JLJ 273 (sic) : 1991 (1) MPJR SN 30, V. D. Gyani, J., observed that in the cases before the Court, committal trial had been delayed for want of committal orders which in turn had been delayed or deferred for non-product ion of reports either from the Chemical Examiners or from the State Forensic Science Laboratory. The facts of the reported case and the case before me are not comparable. In fact, V. D. Gyani, J., observed at para 23 that no inflexible rule could be laid down as regards the length and lapse of time which would entitle an accused in custody facing serious charge triable by the Court of Section. At para 24, it was said where the bail was claimed on the ground of delay, the Court may cunsider exceptional peculiarities of the case and refuse to grant the bail. So, this case is also of no help to the applicant.

In Ramsatish v. State of M.P. Criminal Misc. Case No. 2 of 1988, decided by Dr. T. N. Singh, J., it is observed that the applicant had been in custody for one year. There is nothing in the case to show what the evidence was against the applicant. Hence, this case is also of no help to the applicant.

In the result considering all the circumstances of the case, I am of the view that the applicant does not deserve to be admitted to bail. The bail application is rejected. The trial Court is hereby directed to give due priority to this case and to fix this case for examination of eye-witnesses for three days, and to see that all the eye-witnesses turn up in time and to seek that co-operation of defence counsel to finish the examination of the eye-witnesses in those three days. If necessary the hearing be extended till all the eyewitnesses are examined.