1 S.B.CRIMINAL MISC. BAIL APPLICATION NO.5335/2009 (Hajari Ram Vs. State of Rajasthan) Date of Order : 10th November 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Sandeep Mehta for the petitioner Mr.M.A.Bhurat, Public Prosecutor. Mr.A.R.Niyaji, Superintendent, Central Jail, Jodhpur The petitioner is the accused in FIR No.86/2009 Police Station, Lohawat wherein after investigation charge-sheet has been filed against the petitioner for the offences under Sections 498A, 304B IPC and against some other co-accused persons for the offence under Section 201 IPC. This bail application as filed on 08.10.2009 came up for consideration before the Court on 12.10.2009 and the Public Prosecutor was granted time to procure the case diary; and on 22.10.2009, upon the counsel for the petitioner submitting that challan has been filed in the matter, the case was adjourned to 29.10.2009. On 29.10.2009, when the counsel for the petitioner gave out that the matter was fixed in the Trial Court for framing of charges on 04.11.2009, consideration of this bail application was deferred to 09.11.2009. However, on 09.11.2009 i.e., yesterday, a submission came from the counsel for the petitioner that though the matter was fixed for framing of charges on that date but the accused-petitioner was not likely to be produced before the Court probably for want of availability of guards. Expressing serious reservations on the facts so stated, the Public Prosecutor was posed the 2 questions to which the Public Prosecutor prayed for time until second round of call to complete his instructions. In the second round of call, it was given out that the matter was required to be adjourned by the Trial Court for the accused- petitioner having not been produced and only warrant in his relation having been produced. While expressing reservations on the approach on the part of the jail authorities in detaining a person unnecessarily on the strange suggestion that requisite number of guards were not available, this matter was ordered to be posted today. Today, Mr.A.R.Niyaji, the Superintendent, Central Jail, Jodhpur appeared before the Court and submitted that for want of requisite number of guards, the accused-petitioner could not be presented before the Court yesterday; and the warrant was sent to the Court whereupon next date has been given. Upon this Court expressing serious reservations and deep anguish for the proposition on the part of the jail authorities that a person remanded to judicial custody was not even produced before the Court in the name of non- availability of guards, Mr.A.R.Niyaji, Superintendent, Central Jail, Jodhpur has given an assurance that in future, such a flaw would not occur and appropriate alternative arrangements would be made. During the course of consideration, this Court also wondered as to why the video linkage supposedly available with the jail authorities could not have been used particularly 3 when any peculiar circumstance existed or at least a request was made to the Court concerned to present the accused before the camera? The Superintendent, Central Jail, submitted that video conferencing is being put to use for evidence purpose to which learned counsel Mr.Sandeep Mehta appearing for the petitioner raised the question that the video conferencing, to his knowledge, is not being used for recording of evidence. It is rather disheartening to notice that even the available technology has not been put to proper and effective use. However, as the matter is being considered on the prayer for bail, it does not appear appropriate to make much comments herein but it would be expected of the authorities to ensure that an accused is definitely produced before the Court when so required and in case of any default in such production, if a bail application is moved on behalf of such a deprived accused, the Trial Court would be justified in considering his bail plea, of course, in accordance with law. So far the present case is concerned, it is contended that the FIR itself was lodged after 2 months of the demise of the wife of the petitioner and even the contents of FIR give out the facts that the marriage relation had been the one brought about on the proposition of exchanged relations (commonly referred as Ata-Sata) and it is submitted that likelihood of any demand of dowry in such relations is basically ruled out. It is also submitted that if there was any doubt or dispute, nothing 4 prevented the complainant to file an FIR at the relevant time or at least within reasonable time and, on the contrary, it is but apparent that the complainant and his family were equally the participants in burial of the corpus. It is submitted that the possibility of deliberation and exaggeration in this matter, with filing of FIR after about 2 months, is very much apparent. It is further submitted that eye-witnesses suggested on behalf of the prosecution, on the allegations of assault on or beating of the deceased, do not make out a specific case and the statement of one Ghewar Ram has been referred. It has also been submitted with reference to the other statements that the matter was definitely accepted to be that of suicidal death of wife of the petitioner and not that of dowry death or homicide. The learned Public Prosecutor has opposed the bail application with reference to the statement of the complainant and other witnesses and has particularly referred to the statement of Smt.Shanti wife of Sohanram to submit that she had been the eyewitness to the acts of assault. With reference to such statements of Smt.Shanti, the learned counsel for the petitioner pointed out that if that be taken on face value, the accusation therein had essentially been against Chatra Ram of giving the beating but then, Chatra Ram has not even been named as an accused in this case. 5 As aforesaid, this matter was earlier deferred to be considered after framing of charge; but such framing of charge qua the petitioner could not take place on 09.11.2009 as scheduled for the fault on the part of the authorities concerned in not producing him before the Court. The matter has, therefore, being examined with reference to the challan papers and the submissions of the learned counsel for the petitioner and the learned Public Prosecutor. In the totality of facts and circumstances, without comments on the merits, it appears just and proper to enlarge the petitioner on bail. Accordingly, this bail application under Sec. 439 Cr.P.C. is allowed and it is directed that the petitioner Hajari Ram s/o Bhajana Ram be released on bail in relation to FIR No. 86/2009 Police Station, Lohawat District Jodhpur provided he executes a personal bond in the sum of Rs.10,000/- (Rupees ten thousand) with two sound and solvent sureties in the sum of Rs.5,000/- (Rupees five thousand) each to the satisfaction of learned trial court for his appearance before that court on each and every date of hearing and whenever and wherever called upon to do so till the completion of trial. MK (DINESH MAHESHWARI),J.