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2004 DIGILAW 1136 (PAT)

Birendra Sahani v. State Of Bihar

2004-11-10

R.S.GARG

body2004
Judgment 1. Call for legible copy of the case diary of Uda-Kishunganj P.S. Case No. 94/99 pending in the Court of the Chief Judicial Magistrate, Madhepura. 2. Let a letter be also sent to the Superintendent of Police, Madhepura to see that the case diary is produced in the Court. 3. On the last date it was reported to the Court that the accused, who is in jail for more than 2 years has not been committed for trial to the Court of Sessions, on this statement this Court called for a report from the learned Chief Judicial Magistrate and also from the learned Sessions Judge. The Chief Judicial Magistrate has submitted his report dated 28.10.2004 alongwith a list of 125 cases wherein the accused persons are in jail and their cases have not been committed. It appears from the said list that either the accused persons are not being produced in the Court or copies of the charge-sheet have not been supplied to them, therefore, the Chief Judicial Magis-trate is finding it difficult to commit the cases. 4. When this Court asked Mr. Surya Deo Yadav, learned Government Advocate as to why the copies of the charge-sheet are not being supplied to the accused right in time, referring to Section 207 of the Code of Criminal Procedure he submits that it is the duty of the Court to supply copy of the charge-sheet. I am shocked to hear this argument. He also said that this is the practice followed in the courts of Bihar. I am again shocked to hear this argument. 5. Section 207 Cr.P.C. on which a strong reliance is placed does not cast any duty upon the Magistrate to prepare a copy and serve upon the accused. Section 207 Cr.P.C, in the opening words, says"In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following....". From this language it cannot be presumed nor it can be read in the provision of law that either it is the duty of the Magistrate to prepare the copies of the charge-sheet and serve upon the accused or the prosecution agency after filing of the charge-sheet is relieved of its duty to serve copies of the charge-sheet upon the accused. Sri Yadav, learned counsel submitted that when summons are issued from the Court to the witnesses, everything is prepared by the Court. I am again at a loss to understand as to how issuance of the summons can be equated with supply of the copy of the charge-sheet; summons are issued in the proceedings of a court while the charge-sheets are filed by the prosecution agency before the court, to proceed further in the matter. I must observe here that in a case of private complaint when summons are issued by Magistrate, the requisites including copies of the complaint and the documents are to be supplied by the private complainant for being served upon the accused alongwith copy of the summons. 6. It is too much to say that the Magistrate is required to prepare the copies and serve upon the accused. In fact, it is the duty of the prosecutor i.e. State Government to prepare as many copies equal to the number of the accused and produce the same in the Court so that on Day-1 or immediately after filing of the charge-sheet the copies are supplied either personally to the accused persons or to their respective counsel to avoid unnecessary delay. It also goes without saying that the documents which are referred in Section 207 Cr.P.C. are required to be served by the prosecution agency upon the accused. 7. It also appears from the reports of the Chief Judicial Magistrate and Sessions Judge that number of cases are being adjourned for production of the accused. In cases where the accused are lodged in jail, it is the pious or sacrosanct duty of the prosecution agency including the Superintendent of Police and the Jail Superintendent/Jailer to produce the accused in the Court, if he is in police or judicial custody. A Jail Superintendent cannot be allowed to say that for want of force or conveyance he is unable to produce the accused in the Court. It may be accepted as a valid excuse for one date of the absence but it cannot go on ad infinitum. The list shows that cases of 1999, 2001, 2003 & 2004 are pending committal either because the accused have not been produced in the Court or copies of the charge-sheet have not been supplied. 8. The practice, as submitted by Mr. Yadav, if is being followed in the Courts then this is illegal. The list shows that cases of 1999, 2001, 2003 & 2004 are pending committal either because the accused have not been produced in the Court or copies of the charge-sheet have not been supplied. 8. The practice, as submitted by Mr. Yadav, if is being followed in the Courts then this is illegal. It is the duty of the prosecution agency to serve as many copies in the Court, of the documents which are referred in Section 207 Cr.P.C. so that the copies are supplied immediately. When the prosecution agency is preparing a charge-sheet then nothing stops it from making the copies on the very same day and submit the same in the Court alongwith the charge-sheet. 9. It also goes without saying that non-production of the accused in the Court tantamounts to non-obedience of the orders of the Court. When a person is in the police custody, he is required to be produced in the Court within 24 hours excluding the time required for travelling and non-production of the accused within the period fixed by law would make his custody illegal and, when the accused is in judicial custody then any person, who holds the custody for and on behalf of the Court is obliged to observe the orders of the Court and he cannot be allowed to say that for one reason or the other he would not produce the accused in the Court. 10. I hereby direct that let all the Superintendent of Police, the Jail Superintendent and the District Magistrate observe the following orders: (I) As and when a production warrant is issued, a copy of the same be sent to the concerned Superintendent of Police so that he may monitor the matter and the Jail Superintendent shall always be obliged to produce the accused before the Courts unless he seeks exemption from the concerned Court giving special reasons. Non-availability of the force or non-availability of the conveyance/vehicle would not provide a legitimate ground for non-production of the accused. (II) If the accused persons are not produced in the Courts then said Courts would be entitled to draw proceedings against the erring officers including the Superintendent of Police and they may refer the matter to this Court for drawing contempt proceedings against the said erring Officers. 11. (II) If the accused persons are not produced in the Courts then said Courts would be entitled to draw proceedings against the erring officers including the Superintendent of Police and they may refer the matter to this Court for drawing contempt proceedings against the said erring Officers. 11. Let a copy of this order be sent to the Director General of Police, Bihar and the I.G. (Prisons) for its wide circulation amongst their staff and Subordinate Officers. A copy of this order be also sent to the Home Secretary. 12. Let a copy of this order be also sent to all the Chief Judicial Magistrate and the Sessions Judge to observe this order in its true spirit. 13. Put up with the case diary. Order dt. 20.12.2004 14. After hearing the learned counsel for the parties and going through the reports submitted by different Courts, I am of the considered opinion that the applicant does not deserve bail at this stage. The application is rejected. 15. The trial court is hereby directed to conclude the trial at its eariiest, preferably within eight months from the date of submission of a copy of this order. While taking steps to dispose of the trial at its earliest, the trial court shall issue summonses to the witnesses. Summonses shall be sent to the concerned Superintendent of Police for their proper service. Despite service of the summonses, if witnesses official/private do not appear then bailable warrant shall be issued and despite warrants, if the witnesses do not appear then non-bailable warrant be issued to secure their attendance.