Madhya Pradesh High Court
Raman @ Rohit Chauhan vs The State Of Madhya Pradesh on 9 December, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 9 th OF DECEMBER, 2022
MISCELLANEOUS CRIMINAL CASE No. 57755 of 2022
BETWEEN:-
RAMAN @ ROHIT CHAUHAN S/O LATE SHRI
RAJENDRA SINGH CHAUHAN, AGED 36 YEARS,
OCCUPATION: PRIVATE WORK, R/O GRAM BASAI
THANA BELA DISTRICT AURAIYA UP PRESENT
RESIDENT OF SHRIKRASHNA NAGAR GADAIPURA
HAJIRA DISTRICT GWALIOR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI M.C.PATHAK-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION HAZIRA, GWALIOR
.....RESPONDENT
(MS. KALPANA PARMAR-PANEL LAWYER FOR STATE)
(SHRI ATUL GUPTA-ADVOCATE FOR COMPLAINANT)
This application coming on for hearing this day, the court passed
the following:
ORDER
Case diary is available.
This fourth application under Section 439 of Cr.P.C. has been filed for grant of bail. The third application was dismissed by order dated 22.02.2022 passed in M.Cr.C. No.6086/2022.
The applicant has been arrested on 22/8/2020 in connection with 2 Crime No.292/2019 registered at Police Station Hazira, District Gwalior for offence under Sections 302, 307, 341, 147, 148, 149, 294, 120-B, 201, 202 of IPC and Section 25/27 of the Arms Act.
This repeat application has been filed for grant of bail mainly on the ground of delay.
It is submitted by counsel for applicant that applicant filed a SLP (Crl.) No.4793/2022 which was dismissed by order dated 20.05.2022 with liberty to the applicant to renew his request for bail, in the event, the trial is not concluded within a period of six months from today. It is submitted that although the period of six months has expired but even a single witness has not been examined. To buttress his contention, counsel for applicant has filed the copy of the order sheets of the Trial Court.
According to the order sheets, charges were framed on 08.01.2022. Thereafter, on 25.03.2022, trial program was filed and the case was fixed for 17.05.2022. On 17.05.2022, the prosecution witnesses Omkar and Ravindra were present but the co-accused Sonu alias Ajay Tomar filed an application under Section 91 of Cr.P.C and accordingly the case was adjourned and both the witnesses were bound over for the next date. On the same day, at about 4 pm, the counsel for prosecution witness Omkar Singh filed an application to the effect that as soon as the witness came outside the courtroom, he has been threatened by the accused that in case if gives his evidence, then he would be killed. Accordingly, the said fact was taken into consideration and by observing that it is the duty of prosecution/police to provide protection to witness, the said application was rejected.
3This Court is unable to understand the reasoning assigned by the Trial Court. If a witness is making a complaint to the Trial Court with regard to the threat extended by the accused persons, then the Trial Court should have directed the Police authorities to provide adequate security and should not have dismissed the application by saying that it is the duty of the police.
Be that whatever it may.
The case was adjourned for 13.07.2022. On 13.07.2022, the prosecution sought time for filing reply to application under Section 91 of Cr.P.C and some of the accused persons were not present and their application under Section 317 of Cr.P.C was also filed and accordingly the case was adjourned to 17.08.2022. On 17.08.2022 also, some of the co-accused persons were not present and their application under Section 317 of Cr.P.C was allowed. The prosecution witness Omkar Singh was present but his evidence was not recorded and he was bound over for the next date and the case was fixed for 21.09.2022. On 21.09.2022, the prosecution witness Omkar Singh did not appear and accordingly an arrest warrant was issued and the case was also adjourned for arguments on application under Section 91 of Cr.P.C. On 21.11.2022, some of the co- accused persons did not appear and accordingly the application under Section 317 of Cr.P.C was filed which was allowed. The prosecution witness Omkar Sigh was present but his evidence was not recorded and he was bound over for the next date and now the case has been fixed for 09.01.2023.
4It is really shocking that the Trial Court on one hand is adjourning the matter for arguments and orders on application under Section 91 of Cr.P.C and in spite of fixing the case for recording the statement of prosecution witnesses is not recording the evidence of prosecution witnesses who are present. This conduct of the Trial Court cannot be appreciated at all.
Be that whatever it may.
Looking to the order sheets, it cannot be said that the prosecution is at fault. In fact the witnesses are appearing but for one reason or the other, it is the Trial Court which is not recording the statements of the witnesses. Furthermore, some of the co-accused persons are also not appearing before the Trial Court, therefore, this Court is of the considered opinion that as there is no fault on the part of prosecution, therefore, the prayer for bail cannot be accepted.
It is made clear that on the next date of hearing if a prosecution witness is present, then the Trial Court shall positively record his examination in chief. If any of the co-accused is not present and files an application under Section 317 of Cr.P.C, then the said application shall be allowed only if the co-accused gives an undertaking that evidence of witnesses may be recorded in presence of their counsel and they will not claim any prejudice on the ground of examination of witnesses in their absence.
With aforesaid observation, the application is dismissed. Let a copy of this order be immediately sent to the Trial Court for 5 necessary information and compliance.
(G.S. AHLUWALIA) JUDGE Aman Digitally signed by AMAN TIWARI Date: 2022.12.09 14:50:07 +05'30'