Supreme Court - Daily Orders
Saint Asha Ram vs State Of Rajasthan on 30 January, 2017
Author: Chief Justice
Bench: Chief Justice, N.V. Ramana
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(CRIMINAL) NO.7946/2016
Saint Asha Ram ..Petitioner
versus
State of Rajasthan ..Respondent
O R D E R
The petitioner has filed the instant special leave petition, seeking regular bail. It is not a matter of dispute, that the instant application is the third bail application, filed under Section 439 of the Code of Criminal Procedure. During the course of hearing, it was submitted, that the petitioner has co-operated through out, and has not sought any unnecessary adjournments, and that, keeping in mind his age, which is 79 years, and the length of his incarceration till date, which is approximately three years and five months, he should be granted the concession of bail. More so, because the prosecution evidence has since been closed, and there is therefore no ground to fear any influence over prosecution witnesses at this stage.
2. Even though the instant prayer for the concession of bail under Section 439 of the Code of Criminal Procedure was originally canvassed on the basis of a communication dated 08.11.2016, Signature Not Verified attributed to the office of the Jail Superintendent, Central Jail, Digitally signed by PARVEEN KUMAR Date: 2017.01.30 18:09:05 IST Reason: Jodhpur, Rajasthan, yet the same having been withdrawn at a subsequent stage, will not be taken into consideration for 2 disposing of the present application.
3. Insofar as the stand of the State of Rajasthan is concerned, the prayer made at the behest of the petitioner is strongly opposed. It is submitted, that it is the accused himself, who is responsible for the delay and prolongation of the trial, and had he not unnecessarily delayed the trial, which could have been over, by now. In this behalf, in order to demonstrate deliberate delay, it is pointed out, that the investigating officer was summoned on 104 dates of hearing, for cross-examination.
4. In addition to the above, it is pointed out, that there were several attacks on prosecution witnesses, and two of the prosecution witnesses were killed during the trial. During the course of hearing, learned counsel for the petitioner, does not seriously contest the fact, that there were attacks on prosecution witnesses. It is however his contention, that since the petitioner himself was in jail, the above incident cannot be attributed to the petitioner.
5. In addition to the above, learned counsel for the respondent – State of Rajasthan pointed out, that it is up to the accused himself, inasmuch as, he can seek the disposal of the trial at the earliest, by concluding the recording of his defence witnesses, without any delay. In this behalf, it is also pointed out, that consequent upon an order, having been passed by the Rajasthan High Court at Jodhpur, the trial is being conducted, on a day to day basis.
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6. Having given our thoughtful consideration to the sequence of events, brought out by the learned counsel for the rival parties, we are satisfied, that the facts and circumstances of this case, do not commend us to grant the concession of bail, under Section 439 of the Code of Criminal Procedure, to the petitioner. It is not possible for us to overlook the fact, that the trial in the matter was unnecessarily prolonged, and just one prosecution witness, was recalled 104 times, for cross-examination. It can also not be overlooked, that during the period when prosecution witnesses were examined, there were number of attacks on the witnesses, leading to the death of the two prosecution witnesses. It is also not out of place to mention, that even the lady Investigating Officer – PW3, was threatened by a hired assassin. The said assassin, we were informed, has since been arrested, and is being proceeded against. Accordingly, we find no justification in the prayer made by the petitioner for the grant of regular bail to the petitioner.
7. There is another issue, which arises for consideration at our hands, in the facts that have emerged, during the course of hearing (as have already noticed hereinabove), the prayer for bail at the hands of the petitioner, was originally based on a communication dated 8.11.2016, purportedly to have been issued by the office of the Jail Superintendent, Central Jail, Jodhpur, Rajasthan. The contents of the aforesaid communication are extracted hereunder:
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OFFICE OF THE JAIL SUPERINTENDENT, CENTRAL JAIL, JODHPUR RAJASTHAN No.Jail/2016/2921 Dated:08.11.2016 To Shri Ajay Kumar Sharma Sri Asha Ram Ji Ashram, Pal Gram, Near D.P.S. Crossing, Jodhpur (Rajasthan) Sub : Furnishing of information under Section 6 of the Act RTI, 2005.
Please refer to your RTI application dated 26.10.2016. In the above matter, the point-wise information sought by you is as under:
1. On 02.09.2013, when Shri Asha Ram was taken into judicial custody in Central Jail, Jodhpur as per medical reports his weight of body was noted as 77 Kgs., whereas as per latest jail reports his weight has been noted to be 62 Kgs.
2. Some specific medicines were prescribed in the Jodhpur Medical Board Report dated 01.07.2016 which was received in jail on 07.08.2016 only on the Hon'ble Jodhpur HC's verbal instructions to PP in the undersigned's presence on 05.08.2016. These medicine including CBZ (Carbamezepine 100mg, 200mg and so on) to which Shri Asha Ram has been diagnosed to be allergic in the previous reports. However, as prescribed, these medicines are being continuously being administered to Shri Asha Ram and are not discontinued until some severe complications like rashes, dizziness and urine and stool incontinence are noticed on patient's examination by the jail doctor. In addition he also takes Ayurvedic Medication as prescribed by Dr. Arun Tyagi, MD, which has been allowed by the Supreme Court. However, hot seitz bath therapy prescribed for treatment of Lower 5 urinary tract symptoms and physiotherapy prescribed for treatment of Bilateral Sacral Radiculopathy could not be provided to him as these facilities are not available in Jail.
There were 18 further tests prescribed in the said report for determining the causes of a disease CIDP confirmed and diagnosed by this board, which are yet to be conducted on the patient till date at Jodhpur Hospital.
3. No. It is not correct that Shri Asha Ram passes his stools at all times in his clothes and bed only. In fact during the morning routine, he manages to go to toilet and urinates/defecates there only. However during the day it has been noticed by the undersigned as well the jail doctors and Dr. Arun Tyagi that Shri Asha Ram is still unable to control his stool and urine and has been noticed to have spoiled his clothes and bed invariably. Dr. Tyagi, his doctor, duly approved by SC, has continuously reported that his medicines are not giving desired results in the health of Shri Asha Ram.
4. No. There is no such provision to provide any attendant to any prisoner as per jail manual.
5. Medical Record of the prisoner Asha Ram is being consolidated and certified copies will be provided to you as soon as possible.
6. Yes. Its true that till date since 02.9.2016, Shri Asha Ram has never been admitted into any of the allopathic State Govt. Hospitals i.e. MGH or MDM for any indoor treatment.
7. Yes. Its true that during the year 2016 till date, Shri Asha Ram was neither admitted into AIIMS Jodhpur nor into Dr. Sarvepalli Radhakrishnan Rajasthan Ayurveda Hospital as per the SC orders dated 24.10.2016. The reason was that AIIMS Jodhpur does not have indoor facilities as yet. Similarly, Dr. Arun Tyagi, who was the H.O.D. and Incharge of the Dr. Sarvepalli Radhakrishnan Rajasthan Ayurveda Hospital till June 2016 has specifically mentioned in the jail records that the facilities required for treatment of the special nature of diseases of the prisoner are not available at the said hospital.
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8. From 08.01.2016 to 09.08.2016, there has been 41 hearings in the Trial Court in this case. Out of which on all hearings but on 5 times, the prisoner could not be taken to the court. On 4 occasion, it was because of lack of guard, reported by Rajasthan Police and on 1 occasion it was because the jail Doctor strictly advised against sending the prisoner due to his acute Medical Conditions.
9. Yes. Its true that a Hawaldar namely Ashok Chowdhary was sent by Jail Authorities with Shri Asha Ram in his flight from Jodhpur to Delhi on 18.09.2016 for security reasons.
10. No, he did not report, in oral or in writing, any misbehavior, indiscipline or breach of security measures by Asha Ram's supporters.
PIO & Superintendent, Central Jail, Jodhpur.” (emphasis is ours) A perusal of the factual position, depicted in paragraph 3, reveals a situation, wherein any Court would have extended the concession of bail, on being satisfied of the truthfulness of the projected facts. It however needs to be noticed, that the factual position recorded in the above extracted letter, was contested at the hands of the State Government, this Court passed the following order on 06.12.2016:
“Since there is some dispute regarding the genuineness of the letter No. Jail/2016/2921 dated 08th November, 2016, purportedly written by the office of the Jail Superintendent, Central Jail, Jodhpur, Rajasthan to Shri Ajay Kumar Sharma, Jodhpur, let the petitioner file a photocopy of the said letter on affidavit. He shall also produce the original letter in the Court on the next date of hearing.....” (emphasis is ours)
8. Consequent upon the passing of the above order, the 7 petitioner filed an affidavit in compliance. Paragraphs 4 to 11 of the above affidavit are relevant for the consideration of the issue in hand. The same are accordingly reproduced hereunder:
“4. That the Deponent submits that the unfortunate sequence of events that led to the filing of the said RTI Reply dated 8.11.2016 is that a copy of the aforesaid RTI Reply along with an RTI application dated 28.10.2016 were handed over to the deponent by one of the Sadhaks who introduced his name as Ganesh Kumar Lohar. Assuming the same to be an accurate and genuine copy of the original reply to the RTI application dated 28.10.2016 sent by Sri Ajay Kumar Sharma by post to PIO, Central Jail, Jodhpur, the deponent in the backdrop of the earlier RTI Replies obtained through Vijay Kumar Sharma and finding the reply in the interest of the Petitioner's cause gave copy of the said reply along with the RTI application in good faith to the Petitioner's Advocate on Record.
5. The Deponent submits that the purported reply dated 8.11.2016 was filed under a bona fide belief of it being true and the Deponent did not take care to obtain a hard copy, acting carelessly, thereby causing inconvenience to this Hon'ble Court.
6. The deponent has the highest respect for this Hon'ble Court and is far from violating any order of this Hon'ble Court. The deponent, therefore, tenders its unqualified apology in respect of such neglect and careless conduct and further submits that the same was totally unintentional and beyond the control of the Deponent.
7. The deponent humbly submits that while giving such instruction he did not take any permission from the petitioner, who is incarcerated in Jodhpur Central Jail for about three and a half years continuously. Similarly further I state that believing the RTI reply dated 8.11.2016 to be a truthful and genuine reply to the RTI Application dated 28.10.2016 made by Sri Ajay Kumar Sharma, even I intimated the Advocate on Record while instructing him to annex the copy along with the rejoinder, and thus inadvertently made him belief it to be a true and correct copy of the original in my possession.8
8. The deponent humbly submits that in order to comply with the order dated 06.12.2016 of this Hon'ble Court, the Deponent has made all possible efforts to procure the original copy of the said RTI reply dated 08.11.2016, but has been unable to trace the same as Shri Ajay Kumar Sharma has reported that unlike on previous two occasions such a reply dated 08.11.2016 to his RTI application dated 28.10.2016 was never received by him this time nor did he send such a reply to the deponent's residence.
9. The Deponent also tenders his unqualified and unconditional apology before this Hon'ble Court for instructing the Petitioner's Advocate on record to place/file the true typed copy of the aforesaid RTI reply as an annexure to the Rejoinder to the Counter affidavit filed in the present matter, believing it to be a true and genuine copy. The deponent humbly submits that such action on the part of the Deponent was neither intentional nor deliberate, nor intended to mislead this Hon'ble Court at any point of time.
10. In views of the submissions made hereinabove, before this Hon'ble Court, the Deponent tenders unconditional apology in respect of alleged non-compliance, if any, with the said order dated 06.12.2016 and further submits that the same was totally un-intentional and inadvertent.
11. That the deponent has already intimated to the Petitioner that taking responsibility of the lapse he no longer wishes to continue as the Pairokar and that somebody competent may be appointed to canvass the Petitioner's interest before this Hon'ble Court.
(emphasis is ours) A collective perusal of the communication dated 8.11.2016, and the affidavit filed by the deponent/pairokar reveal, that the deponent/pairokar had placed reliance on an allegedly fictitious document, to persuade this Court, to extend the benefit of bail to the petitioner. The aforesaid document has been described as 9 unreliable by the deponent/pairokar himself, and he has taken the responsibility of the lapse committed by him for placing the communication dated 8.11.2016, on the record of the case. The instant action at the hands of the pairokar, and/or the petitioner, constitutes a serious offence, and cannot be let off merely by tender of apology. We therefore hereby direct the registration of the first information report, based on the letter dated 08.11.2016 (extracted hereinabove), as also, the affidavit of compliance filed in furtherance of the motion Bench order dated 06.12.2016. We direct the concerned Investigating Officer, to complete the investigation at the earliest, and in case an offence is made out, to initiate criminal proceedings against all concerned parties, in accordance with law.
9. In view of the facts and circumstances of the case, recorded hereinabove, we are also of the view, that the instant petition deserves to be dismissed with exemplary costs. Ordered accordingly. Costs are quantified at Rs.1,00,000/- (Rupees one lac only). The aforesaid costs shall be deposited by the petitioner with the Supreme Court Legal Services Authority, within four weeks from today.
10. Needless to mention, that if the aforesaid costs are not deposited within the time granted, the Registry is directed to re-list the case, for recovery of costs.
…...................CJI
[JAGDISH SINGH KHEHAR]
NEW DELHI; …....................J.
JANUARY 30, 2017. [N.V. RAMANA]
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ITEM NO.36/1 COURT NO.1 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 7946/2016
(Arising out of impugned final judgment and order dated 09/08/2016 in SBCMB No. 3846/2016 passed by the High Court Of Rajasthan At Jodhpur) SAINT ASHA RAM Petitioner(s) VERSUS STATE OF RAJASTHAN Respondent(s) (With office report) Date : 30/01/2017 This petition was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE N.V. RAMANA For Petitioner(s) Mr. Sndeep S. Ladda, Adv.
Ms. Rashmi Nandakumar,Adv.
Mr. Devender Singh, Adv.
For Respondent(s) Mr. Tushar Mehta, ASG Ms. Ruchi Kohli,Adv.
Mr. Yash Mishra, Adv.
Mr. Vieraj Anand, Adv.
Mr. Adit Khurana, Adv.
Mr. Pukhrambamm Ramesh Kumar, Adv. Mr. Abhey Narula, Adv.
Mr. Uday Manaktala, Adv.
UPON hearing the counsel the Court made the following O R D E R We therefore hereby direct the registration of the first information report, based on the letter dated 08.11.2016 (extracted in the signed order), as also, the affidavit of compliance filed in furtherance of the motion Bench order dated 06.12.2016. We direct the concerned Investigating Officer, to complete the investigation at the earliest, and in case an offence is made out, to initiate criminal proceedings against all concerned parties, in accordance with law.
The special leave petition stands dismissed with costs, quantified at Rs.1,00,000/- (Rupees one lac only). The costs shall 11 be deposited with the Supreme Court Legal Services Authority, within four weeks from today.
Needless to mention, that if the aforesaid costs are not deposited within the time granted, the Registry is directed to re-list the case, for recovery of costs.
(Renuka Sadana) (Parveen Kumar)
Assistant Registrar AR-cum-PS
[signed order is placed on the file]