Jammu & Kashmir High Court
S. Ajit Singh vs State Of J. And K. on 26 November, 1998
Equivalent citations: 2000CRILJ343
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
ORDER Arun Kumar Goel, J.
1. This is an application for grant of bail filed by the petitioner, after he was unsuccessful in the Court below.
2. Facts as revealed from the record of this case are that the petitioner was arrested on 12-5-1996 for having allegedly committed offence under Section 302, RPC. After completion of the investigation, he was sent to face the trial in the Court below. Since the offence was exclusively triable by the Court of Session, he stood committed. After having examined the record of the case, Court below was satisfied that there is prima facie case, therefore, charges were framed against him on 31-8-1996.
3. It may also be relevant to notice that there are in all 16 witnesses named in the list of witnesses attached with the Challan and in more than twenty Schedules, only eight of them have been examined. A perusal of the record further shows that on two occasions, Presiding Officer was on leave and on two occasions, witnesses present . could not be examined, since lawyers were on strike. In the ordinary course of things, the evidence of the prosecution should have been concluded within a reasonable time, but unfortunately reading of the day to day order-sheets indicates that invariably witnesses were not present on most of the hearings. There was nothing to suggest as to whether for the dates fixed, witnesses were in fact served or if not served, what was the report on the summons issued to them.
4. In a given situation, prosecution may have reasonable and valid justification for non-appearance of the witnesses, but for that purpose, it has to make out a case, which is not the situation in the present case. Strangely enough despite number of schedules having been fixed, evidence have not been concluded and the petitioner has been made to languish in Jail for no fault of his so far as it concerns non-production of the witnesses.
5. In addition to this, it may also be worthwhile to notice here that speedy and expeditious trial is also a fundamental right of an accused as it concerns his life and liberty. It hardly further needs to be emphasised that with a view to achieve the constitutional mandate embodied in Article 21 of the Constitution of India, it is incumbent upon the prosecution to ensure that it not only sends the accused like the petitioner to stand the trial, but also ensures that the trial is concluded expeditiously without any unnecessary delay. In case this is not ensured it will be against the spirit and mandate of the Constitution. In the context of the present case on the question of summoning witnesses, attention of the Court also needs to be drawn to the provisions of Jammu and Kashmir Code of Criminal Procedure concerning the summoning of the witnesses, coupled with the Criminal Rules and Orders for the Guidance of Courts, Jammu and Kashmir State, Volume II, Chapter II onwards thereof. The purpose behind enacting the provisions of the Code of Criminal Procedure as well as Criminal Rules (Supra) is one to ensure speedy trial and its conclusion at the earliest.
6. While opposing this bail application, learned Government Advocate submitted that there is no merit in this application, which needs to be dismissed, not only this, but he further forcefully urged to uphold the order of the trial Court, dismissing the application of the petitioner for the grant of bail on 25-5-1998. While advancing this argument, Shri P. C. Sharma pointed out with reference to the prosecution evidence recorded so far that it will not be safe muchless proper to allow this application. This plea was not only contradicted by Shri Johl, but he also urged that the witnesses so far examined do not make out a case against the petitioner accepting all the statements to be correct, of course without admitting those to be so. Plea based on the prosecution evidence is not being taken up, because any discussion thereon and consequential observation might prejudice the case of either of the parties in the Court below.
7. In the background of this case, as well as on account of circumstances explained hereinabove, this Court is constrained to observe that non-examination of witnesses after having been allowed numerous opportunities does not justify the continuance of the petitioner to be kept in custody during the pendency of the trial. Especially when no reasonable muchless justifiable cause has been made out from the record for non-examination of its evidence by the prosecution.
8. No other point is urged.
9. For the reasons set out hereinabove, this application is allowed and the petitioner is ordered to be admitted to bail on his furnishing personal bail-bond in the sum of Rs. 25,000/- with the two sureties in the like amount to be furnished by him to the satisfaction of the trial Court, undertaking to appear during the course of the trial in the Court below.
10. It is further ordered that the petitioner shall appear before the trial Court on each date of hearing, he will not tamper with the prosecution evidence, besides not terrorising/over-awing any of the prosecution witnesses. Similarly he will also not advance any threat, promise or inducement to any person acquainted with the facts of this case so as to dissuade him from disclosing truth to the Court.
11. Subject to these conditions, this application is allowed.