CRLMB9434/2010 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Cr. Misc. 2nd Bail Application No.9434/2010 Surender Singh @ Nikka Vs. State of Rajasthan Date of Order ::: 26.11.2010 Hon'ble Mr. Justice Mohammad Rafiq Shri Jai Raj Tantia, Counsel for petitioner Shri Rajendra Yadav, Public Prosecutor Shri Jainendra Jain, Counsel for complainant Shri Prahlad Singh, Additional Superintendent of Police, Bharatpur, present-in-person #### //Reportable// By the Court:- Heard learned counsel for petitioner, learned Public Prosecutor as well as learned counsel for complainant and perused material made available to me during arguments of case. This is second application for bail filed by petitioner because his first bail application was rejected by this court vide order dated 28.07.2010 by observing that at that stage the court was not inclined to enlarge petitioner on bail. It was however observed that he would be at liberty to again apply for bail before court below itself after statements of Ram Singh, Kehar Singh and Gurucharan Singh are recorded. This second bail application has been filed on premise that out of those, two witnesses, namely, Ram Singh and Kehar Singh, have been abandoned by prosecution and statement of Gurucharan Singh has been recorded, CRLMB9434/2010 // 2 // who has not supported prosecution version. In that order, Director General of Police, Rajasthan, Jaipur, was required to take necessary action against those who are found responsible for collaborating in the act of hushing up a cognizable offence and allowing cremation of deceased Mst. Veeru Kaur, who died due to poisoning and not a natural death even without postmortem. He was required to submit his action-taken-report within three months. The report is on record. Subsequently, explanation was sought for as to why those two witnesses were abandoned. Shri Rajendra Yadav, learned Public Prosecutor, has produced for perusal communication dated 25.11.2010 received by him from Deputy Inspector General of Police, CID (CB), Rajasthan, Jaipur, that Station House Officer Shri Rajendra Chauhan has been served with charge-sheet under Rule 16 of the CCA Rules and Deputy Superintendent of Police Shri Jai Singh Bareth, RPS, has been served with charge-sheet under Rule 17 of the CCA Rules, because it was under their supervision that dead body of Mst. Veeru Kaur, was allowed to be cremated without postmortem-report. Since action has been initiated, I am not inclined to pass any further order except saying that at-least for a period of one year those officers may not be given any field posting and Director General of Police, Rajasthan, shall see that the order to this effect is complied with. CRLMB9434/2010 // 3 // Coming now to two prosecution witnesses, who have not been produced for evidence by the prosecution, explanation which is given is that they have in their statements under Section 161 Cr.P.C. not supported prosecution case and clearly stated that deceased consumed some poison and therefore died and they have not supported prosecution case. In that view of the matter, since in their statements under Section 161 Cr.P.C. they did not support prosecution case, under legal advice they have not been examined as witnesses. Learned Public Prosecutor and learned counsel for complainant opposed the bail application. After considering all the facts and circumstances of the case and without expressing any opinion on its merits and demerits, and considering the fact that petitioner is in jail for last more than six months, I deem it just and proper to release accused-petitioner, namely, Surender Singh @ Nikka Son of Lal Singh, Resident of Village Bhojpur, Police Station Gopalgarh, District Bharatpur (confined in Sub Jail Deeg) on bail under Section 439 Cr.P.C., in FIR No.39/2010, Police Station Gopalgarh, District Bharatpur, for offence under Section 306 IPC, provided he furnishes a personal bond in the sum of Rs.30,000/- with two sureties of Rs.15000/- each to the satisfaction of the trial court for his appearance on all subsequent dates of hearing and as and when CRLMB9434/2010 // 4 // called upon to do so. When this matter was listed on 19.11.2010 the court was not informed by the Public Prosecutor that compliance report had been filed on behalf of the Director General of Police but the same was placed on the file of decided Bail Application No.6302/2010 and not in present second bail application. In the first instance, therefore, the court had directed for summoning Director General of Police but subsequently when the court was informed about filing of compliance report in the Registry, that order was not passed, and matter was simply deferred to be listed on 22.11.2010 under the category of 'to be mentioned' after showing name of Shri Rajendra Yadav, Public Prosecutor. On 22.11.2010, the matter was adjourned to 26.11.2010 in presence of Shri Rajendra Yadav, Public Prosecutor. Shri Rajendra Yadav, learned Governmnet Advocate, in course of arguments, expressed number of difficulties which Office of Government Advocate has been facing in its working. Most of those difficulties, which this court can also take judicial note of, are faced by Public Prosecutors when they appear for pleading on behalf of prosecution in bail applications under Sections 438 and 439 Cr.P.C. and criminal miscellaneous petitions filed under Section 482 Cr.P.C. And it is mostly in those cases where case-diaries are summoned by the court and they are required to CRLMB9434/2010 // 5 // assist the court with help of case-diary as to what evidence has been collected against accused. Learned Government Advocate has invited attention of the court to number of letters which the Government Advocates have been from time to time writing to the Director General of Police and the Superintendent of Police (Headquarters), Jaipur, requesting that earlier arrangement according to which one Assistant Sub Inspector of Police, one Head Constable and three Constables were deputed in the office of Government Advocate for purpose of Case-diaries, keeping them in their custody, providing them to Public Prosecutors in different courts and once the matter is decided, sending them to concerned police stations, should be restored. Reference is made to such letters written by Government Advocate on 23.02.2007 and 29.07.2010. Earlier also certain such letters were written. That system was in force for a pretty long time, but was apparently withdrawn some time in 1999 or around that period, on the pretext that surplus police personnel are required in connection with duties of law and order and election. The letter of Deputy Secretary to Government, in its Department of Home (Police) No.P.2(27)Home-I/2007, Jaipur, dated 13.04.2007, addressed to Director General of Police, Rajasthan, Jaipur, has also been produced to show that Government also made inquiry as to why said system was not being restored. Circular dated 17.08.2004 issued by Additional Director General of CRLMB9434/2010 // 6 // Police, Re-organization and Technical), Rajasthan, Jaipur, has also been produced, wherein, he has taken notice of fact that sometimes important papers such as interrogation report, Panch-Nama, Postmortem-report etc. are misplaced or caused to disappear when case-diaries are sent to Office of Public Prosecutors. Although, it was stated that it may not be possible to depute police staff with every Public Prosecutor or Assistant Public Prosecutor but the Superintendent of Police of all Districts and their subordinate officers were required to ensure that case-diaries should be sent to office of Public Prosecutors/Assistant Public Prosecutors etc. through such police staff, who may at the time of arguments, effectively assist them by pointing out important documents and thereafter bring case-diaries back so that there is no possibility of their being lost and failure of prosecution. That indeed was a very well intentioned hope but experience, as far as this court is concerned, show otherwise. There has been occasions when lawyers appearing before Courts have been complaining that despite case-diary having been received, they are not produced in court and reports about antecedents of accused are caused to disappear from the case- diaries and in one such matter, this court itself ordered enquiry to be conducted. Despite dismissal of bail applications, invariably anticipatory bail applications, case-diaries are not timely returned CRLMB9434/2010 // 7 // to concerned police stations, with the result that investigation remains pending for considerable time period. Office of Government Advocate also on certain occasions lodged FIR with regard to loss of case-diaries. At several times, complaints are made by learned counsel that despite number of adjournments granted case-diaries are not received in time and when enquiry is made, it is discovered that even communication was not sent in time to concerned police station in compliance of the order passed on earlier date and by that time the matter would be listed again on the next date. In my view, restoration of old system would smoothen working of Government Advocate office because in that event responsibility of calling case-diaries by sending wireless messages on same date, receiving such case-diaries in time, and their safe custody and producing them in court and assisting the concerned P.P./A.P.P. with reference to relevant papers, would then be the responsibility of police staff so deputed in the office of Government Advocate. Although, suggestion of Additional Director General of Police in its Circular dated 17.08.2004, wherein he has advised Superintendent of Police in various Districts to depute police staff along-with case- diaries for assisting concerned Public Prosecutors, may be adopted for subordinate courts but in High Court, this system would be wholly impractical because hundreds of cases are listed before CRLMB9434/2010 // 8 // different benches in this court every day wherein case-diaries are required to be produced, and here old system was working successfully for a very long time. There can be no gainsaying the fact that only police personnels are conversant with the manner in which case-diaries are maintained and therefore the Public Prosecutors/Additional Public Prosecutors, particularly, when they are new in the office, find it difficult to assist the court. The bail applications and petitions under Section 482 Cr.P.C. that are filed in this court are thousands in number and they come from different districts. It may be true that number of police personnels may be required to be deputed at different places to ensure maintenance of law and order but then in absence of effective assistance to court in arguing cases, such orders may be passed, which could be avoided by prosecution if effective assistance is provided and true and correct facts are brought to the notice of courts, and this may lead to avoidance of failure of prosecution in several such important matters, which is desirable, and which in my view is also no less important. Although this court is conscious of fact that as to who should be deputed where to discharge duties lies in the administrative domain of the Government but having regard to facts situation noticed above, and which difficulty has been time and again expressed by the Government Advocates, in CRLMB9434/2010 // 9 // the facts of present case, in order to ensure effective working of the system, the Director General of Police is required to restore the police staff as per earlier arrangement, noticed above, within a period of one week from today. Shri Prahlad Singh, Additional Superintendent of Police, who is present in the court, on his behalf undertakes to convey this order to Director General of Police in the course of day today. A copy of this order be supplied to him today. The bail application stands disposed of. (Mohammad Rafiq) J. //Jaiman//