Madhya Pradesh High Court

Rajesh Kumar Sahu vs The State Of Madhya Pradesh on 7 July, 2009

MCrC No.2859/2009.
07.07.2009.
Shri Dilip Parihar, Advocate for the applicant.
Shri A.L. Patel, Govt. Advocate for the respondent-State.

Arguments heard.

This is the third application for grant of bail inter alia on the ground
of delay in trial. The earlier ones were dismissed as withdrawn with liberty
to file afresh in the light of subsequent events.

After being arrested in connection with Crime No.36/2008
registered at P.S. Waidhan, in respect of the offences punishable under
Sections 498A and 304B read with
S.34
of the IPC, the applicant is in
judicial custody since 16.01.2008. The corresponding trial is pending as
S.T. No.84/2008 before First ASJ, Waidhan Distt. Sidhi.

The applicant is the husband of Vimla (since deceased). Their
marriage was solemnized nearly 3 years prior to her death. The
allegations against him, in short, are that he was also involved in
subjecting Vimla to cruelty and harassment due to non-satisfaction of a
demand for motorcycle in dowry and ultimately, on 03.01.2008, Vimla was
found dead under suspicious circumstances and her viscera was found to
contain rat poison (zinc phosphide).

The progress report forwarded by learned Sessions Judge depicts a
sorry state of affairs. Some of the unusual features of the trial as
highlighted in the report may be enumerated as under -

(i) On 22.09.2008, the first date fixed for recording of
prosecution evidence, 4 witnesses could not be
examined due to non-production of applicant-accused
from the jail.

(ii) On 23.09.2008, as many as 6 out of 7 witnesses, who
appeared before the Court in obedience to the
summons, were given up by the public prosecutor.

(iii) On 25.09.2008, 3 witnesses including medical expert Dr.
R.B. Singh and Executive Magistrate B.L. Bahariya were
present but they had to return unexamined on account
of non-production of the applicant-accused.

It is true that normally the trial should be conducted in presence of
the accused. However, under certain circumstances as contemplated in

Section 317
of the Code of Criminal Procedure, trial can be held even in
absence of the accused. This section applies irrespective of whether the
accused is in jail or on bail.

In criminal cases, the State is the prosecutor but the interests of
State and the complainant are not always the same. The role of the
Prosecutor in any criminal trial, whether at the instance of the State or a
private party is to safeguard the interests of both the complainant and the
accused. As observed by a Division Bench of the Bombay High Court,
though in a different context -

"the duties of the Prosecutor and the requirements of
a fair trial do not vary from case to case. Besides, there is
always the Court to safeguard the interests of the accused
and the complainant, to control the proceedings and to check
omissions and commissions of the Prosecutor. The court is
not a silent spectator to the proceedings but an active
participant in it" (See.
Vijay v. State of Maharashtra
CRI.L.J. 2093).

The Court has to consider whether the progress of the trial is likely
to be hampered on account of non-production of the accused. It is the
duty of the prosecutor as well as the defence counsel to assist the Court
in reaching a proper conclusion as to whether the evidence of
uninterested persons like Doctor or the Executive Magistrate, who had not
witnessed the incident, can be recorded even in absence of the accused.
Moreover, the prosecutor is also expected to make a fair and honest
selection of witnesses so as to enable the Court to expedite the trial. For
example, initially, he may call only one of the 5 witnesses to the inquest
proceedings. Needless to say that summoning of witnesses who are
subsequently declared by him as unnecessary not only causes
inconvenience to them but also results in burden on the State Exchequer.

Ordinarily, a person shall be eligible to be appointed as a Public
Prosecutor in a District only if he has been an advocate of 7 years
standing but no such person can be appointed as a Public Prosecutor
unless his name appears in the panel prepared by District Magistrate in
consultation with District and Sessions Judge. Time and again, the Apex
Court has emphasized the need of ensuring that the prosecuting agency
discharges its duty and responsibility fairly and efficiently as the society
acting through the State and the Public Prosecutor is also entitled to
justice. In this view of the matter, it is for the State to ascertain that only
suitable persons, having requisite experience, are appointed to perform
duty of the Public Prosecutors/Additional Public Prosecutors for the
District.

Adverting to the merits of the case, it may be seen that death of
Vimla is shrouded with suspicion as poisoning has been ascertained as the
cause thereof. Further, it would not be desirable to enter into merits of
the defence that the demand for motorcycle was apparently improbable in
view of the admitted fact that it was a love marriage.

This apart, in a dowry death case, bail should not be granted solely
on the ground of delay in trial particularly when the defence was
contributorily responsible for it.

Taking into consideration the nature of allegations and other facts
and circumstances of the case attracting statutory presumption under

Section 113-B
of the Indian Evidence Act, the repeat bail application
stands dismissed with the observation that if the trial is not completed
within a period of three months from the date of receipt of certified copy
of this order and the delay is not attributable to the applicant, he shall be
at liberty to re-agitate the prayer for grant of bail before this Court.

Copy of this order be forwarded to the Principal Secretary,
Department of Law and Legislative Affairs, Bhopal, District & Sessions
Judge, Sidhi and District Magistrate, Sidhi for information and necessary
action.

C.C. as per rules.

(R.C. Mishra)
JUDGE