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Rajasthan High Court · body

1990 DIGILAW 120 (RAJ)

Banwari v. State of Rajasthan (48)

1990-02-08

MOHINI KAPUR

body1990
M. KAPUR, J.—This is a third bail application moved by the petitioner in FIR No. 571/88 registered at Police Station Kotwali Alwar for the offences under sections 302, 307, 148 and 149 IPC. First of all it is necessary to give the history of the applications moved by the petitioner and the decisions taken on them. First bail application is registered at No. 182 of 1989 and when this was presented before the Stamp Reporter, he directed the concerned clerk to report. The report which was to be submitted by the concerned clerk was already cyclo-styled on the form and to this he added a report by affixing a seal which says the following words : ^^vfHk;qDr }kjk bl U;k;ky; esa igys vihy isk ugha dh xbZ gSaA This bail application was rejected on 27th January 1989. 2. A second bail application was moved on 5.04.1989. In this bail application the Advocate gave a note that no such bail application had been filed previously. The concerned clerk also reported by affixing a prepared seal in the above mentioned word. This application was allowed by Justice N.C. Kochhar on 24.04.1989 and on the petitioners furnishing required bail and bonds, he was released on bail. 3. The complainant in the case moved an application for cancellation of the bail granted to the petitioner. It may be mentioned that the counsel for the complainant was present when the first bail application was dismissed on 27th Jan. 1989, but counsel for the complainant was not present when the bail application was allowed on 24.04.1989. On the application for cancellation of bail, which was placed before Justice N.C. Kochhar, the circumstances of the case were gone into and the bail granted was cancelled observing that no person can be allowed to take benefit of an order which he obtained by practicing fraud on the Court. Instead of surrendering after the cancellation of the bail, the petitioner moved an application under section 438 Cr. P.C. But this application was dismissed by me on 24th January 1990 and the petitioner was directed to surrender. Now he has moved this application, after surrendering, under Sec 439 Cr. P.C. as per the directions of the Court. 4. Before coming to the merits of the case, it is necessary for me to look into the Rules under which such applications are processed in the office. Now he has moved this application, after surrendering, under Sec 439 Cr. P.C. as per the directions of the Court. 4. Before coming to the merits of the case, it is necessary for me to look into the Rules under which such applications are processed in the office. It has become necessary to go into these details because this is not the first case before me in which the fact of dismissal of the first bail application was not disclosed by the counsel when the second bail application was moved and the office also did not point out that the note given by the counsel was incorrect and that an earlier bail application had been dismissed. 5. After presentation of application before the Stamp Reporter, it is sent to the concerned clerk for making his report. He has to check the stamps affixed on the application in order to find out whether the court fee paid is sufficient. He has to report whether it is to be laid before a Single Bench or Division Bench and besides this he has to give the particulars of the bail applications moved by the petitioner earlier. It is surprising that what the concerned clerk has reported in this case is that no such appeal was filed earlier. Such reports are not to be made in a stereo-type manner by affixing a seal which can be said to be in appropriate. This report is to be made after consulting the institution register, as well as the disposal register of such miscellaneous criminal cases. Rules 850 and 851 of the Rajasthan High Court Rules provide for the maintenance of institution registers and disposal registers in the prescribed forms and the proforma of the same can be found in the General Rules (Criminal) 1979. It is in these registers that the concerned clerk has to enter the particulars of the case along with the offence as well as the FIR number and the name of the Police Station so that he can actually check whether earlier a bail application had been moved or not. If he is to be guided solely by the note given by the counsel presenting the application then it can be said that there is no need of further report by the concerned clerk. If he is to be guided solely by the note given by the counsel presenting the application then it can be said that there is no need of further report by the concerned clerk. This report has been considered necessary in order to put a counter check on the declaration made by the counsel presenting the application. This report of the concerned clerk should be made by examining the register of institution from the date on which the FIR was registered and should not be made in a mechanical manner by affixing an inappropriate seal. It can be said that a wrong report by the office can lead to interference in the administration of justice and also mis-carriage of justice in some cases. 6. I called for the register of institution of miscellaneous criminal cases and I am sorry to say that this register does not contain any particulars of the case on the basis of which the concerned clerk could find out as to whether earlier a bail application had been moved or not. Maintaining incomplete registers cannot be of real assistance to any one. So long as there is no provision for separate institution registers for bail applications, these applications are to be entered into registers No. I Appendix P of the General Rules 1978 (Criminal) and in the column of particulars of the application, FIR number, name of the Police Station and the offences should be entered. A copy of this order be sent to the Registrar, Rajasthan High Court, Jodhpur and also to the Additional Registrar, Rajasthan High Court, Jaipur Bench, so that compliance is made and the . registers are maintained properly in the correct proforma with full particulars. If printed registers are not available then the proforma should not be allowed to be changed merely because some other printed register is being used for this purpose. He should also see to it that the clerk gives a report in correct words. When he is asked to submit whether any appeal has been preferred or not then he should submit report about the appeal. But when he is to report about the presentation and the decision on any other bail then he should refer to bail application. He should also see to it that the clerk gives a report in correct words. When he is asked to submit whether any appeal has been preferred or not then he should submit report about the appeal. But when he is to report about the presentation and the decision on any other bail then he should refer to bail application. The Additional Registrar Jaipur Bench is directed to submit a report to me within 15 days to the effect that a register in correct proforma has been started and that complete enteries in accordance with the above observations are made therein. 7. In this connection it may be mentioned that the Government Advocates or Public Prosecutors who appears in the case while arguing a bail application should invariably write down in the case diary as to what happened to the bail application of a particular accused or co-accused. This would be of help ful to the public Prosecutor at the time a second bail application is moved or a bail application is moved by a co-accused. It is not possible to remember the results of all applications and it is for this reason that upto date record is to be maintained by the courts and also by the counsel for the accused as well as for the State. The concerned clerk can be said to be lacking in the discharge of duties, if he does not maintain the registers properly and does not report the going through the registers, so also the Public Prosecutors would be failing in the duty, if he does not keep the records straight, the result would be either deliberate concealment from the Court or negligence, or omission to bring the full facts before the Court. 8. The counsel who appeared in the first bail application, was not the same, who appeared in the second bail application. No doubt the petitioner is the same, who is being represented by different counsel and the petitioner cannot be absolved of his responsibility of giving correct particulars. But as the counsel in the two applications are different I am not suggesting any action against the counsel, who moved the second bail application. 9. The Public Prosecutor, who appeared on 27.1.1989 when the first bail application was dismissed was Mr. S.H. Khan and the State was represented by the same Public Prosecutor when the application was allowed on 24.04.1989. 9. The Public Prosecutor, who appeared on 27.1.1989 when the first bail application was dismissed was Mr. S.H. Khan and the State was represented by the same Public Prosecutor when the application was allowed on 24.04.1989. It can be said that it is not possible to remember the decision in all applications, but at the same time it can be said that when an application is being heard, the Public Prosecutor should be able to recollect atleast that the bail application in the same case had been argued earlier and he can refer to his record in order to find out the result. The Courts which are sitting for doing justice have to work in such circumstances where the party, their counsel, the Public Prosecutor, the clerks* of the courts are all arrayed on one side. Copy of this order be sent to the Law Secretary also, who may see to it that appropriate directions are issued to the Public Prosecutors and the Government Advocates to maintain proper record so that they are able to give the correct information to the courts. 10. Coming to the merits of the case, it can be said that this Court had discussed the case and not considered proper to release the petitioner on bail. So far as the merits were concerned, it was observed that it was too early to express any opinion on the merits of the case. No reason for the incident had been given out in the FIR and it was not known as to what was the defence of the petitioner. This could be known only when the same was put to the witnesses when they appeared before the court. So far only one eye witness has appeared before the court and his cross-examination has also been reserved for reasons best known to the petitioner and so far the defence which the petitioner wants to set up has not been put to this witness. The petitioner remained in custody from 25.10.1988 to April, 1989 and thereafter he again surrendered on 29th Jan. 1990, it can be said that he has remained in custody for about 6 months only. He cannot be released on bail merely on ground of delay in his trial, because the period for which he remained in custody is only 6 months. On merits his application had already been rejected earlier. 11. 1990, it can be said that he has remained in custody for about 6 months only. He cannot be released on bail merely on ground of delay in his trial, because the period for which he remained in custody is only 6 months. On merits his application had already been rejected earlier. 11. The learned counsel for the complainant is present today and while rejecting the bail application of the petitioner he is directed that he should see to it that the witnesses of the prosecution do not remain absent on flemsy excuses. They should appear in the court on all dates when the case is fixed for the evidence of the prosecution, and assist the Sessions Judge in the disposal of the case at an early date. 12. This application is dismissed. As observed above, copy of this order be sent to the Registrar, Rajasthan High Court, Jodhpur, Additional Registrar Rajasthan High Court Jaipur Bench, Jaipur, and the Secretary to the Govern-ments Department of Law, Govt. Secretariat, Jaipur.