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2007 DIGILAW 508 (CHH)

Kuldeep Tigga v. State Of Chhattisgarh

2007-08-24

S.K.SINHA

body2007
ORDER Sunil Kumar Sinha, J. 1. Heard. 2. This is the second bail application filed under Section 439 of the Code of Criminal Procedure. The earlier bail application was dismissed, as withdrawn vide order dated 21-3-2007 passed in M.Cr.C. No. 19/2007, therefore, this bail application is being considered on merits. 3. It relates to Crime No. 275/2006, registered at Police Station, Darri, District Korba (CG) for the offence punishable under Section 302/34 of IPC. 4. The case of the prosecution is that 3 friends namely Kuldeep Tigga (present applicant), Raju Nishad (since deceased) and Pramod Tirkey (co-accused, who has already been granted bail) were going to the house of deceased - Raju Nishad on a Rajdoot motorcycle. On the way, they stopped at a particular place. At what time, some telephonic calls was received on the mobile set of applicant-Kuldeep Tigga. On this, the deceased asked that from where the call is coming, and in reply, the applicant said that the call is coming from his girlfriend, on which, the deceased said something to the applicant, who in anger started beating the deceased alongwith the co-accused by hands and fists. It is alleged that during the course of quarrel, the applicant took one stone and gave a fatal blow on the head of the deceased. The deceased was admitted to Raipur Hospital, where he died on 25-10-2006 at about 10:25 p.m. 5. Learned Counsel for the applicant argues that three friends were quarrelling, in which, out of anger, the applicant had caused head injury to the deceased by stone, which proved to be fatal. He submits that there was no pre-meditation as all the friends were going together and all were unarmed. He also submits that the co-accused - Pramod Tirkey has been granted bail by this Court, therefore, looking to the over all scenario of the case and also looking to the fact that the applicant is in jail since 21-12-2006, he may also be admitted to regular bail. 6. On 20-7-2007, when this matter was taken up for hearing, learned Counsel for the applicant had argued that this applicant was taken into custody on 21-12-2006, but he was never produced before the Magistrate after his first remand and the charge-sheet was also filed in his absence on 19-3-2007 and even after filing of the charge-sheet, he was produced only two times before the Court. 7. 7. On such statement made by learned Counsel for the applicant, on 20-7-2007, this Court had called a report along with photocopies of the entire order sheets of the criminal case from the concerned Magistrate by sending the copy of the said order. 8. The report from the concerned Magistrate was received and it was stated in the report that this accused/applicant was produced before him for the first time on 21-12-2006 and thereafter, he was never produced before him and many dates were given to the prosecution to file charge-sheet. Ultimately, on 19-3-2007, the charge-sheet was filed and the copy was served upon the concerned Advocate. Thereafter many dates were fixed by the Magistrate, but only on 2 occasions, i.e., on 26-4-2007 and 9-5-2007, the accused was produced. The learned Magistrate has stated that several memos were issued from his Court for making production of the accused, but the accused was not produced before him. 9. After receipt of such report from the Magistrate, this Court directed the concerned Superintendent of Police as also the concerned Jailor to file their affidavits in relation to the facts contained in the report of the Magistrate. In pursuance of the said orders, affidavit of Himanshu Gupta, Superintendent of Police, Korba was filed on 2-8-2007 and affidavit of Pardesi Ram Dhruwe, Deputy Jailor was filed on 4-8-2007. 10. The Deputy Jailor has mentioned in his affidavit that on many occasions, he had demanded for Police Guards from the Reserve Inspector/ Station House Officer, Katghora, District Korba, but the guards were not made available to them. It is for this reason; the accused persons were not produced on many dates before the concerned Court. The gist of the affidavit of Superintendent of Police is that approximately 25% posts of Constable in whole of Korba District are lying vacant and in addition to the above, in the first half of the year 2007, two bye-Elections, one for the Parliamentary seat of Rajnandgaon and other for the seat of Legislative Assembly, Mahasamund were there, therefore, suitable number of Police Force was required and from Korba District also, some force was withdrawn and deployed in the Election duty. He has further stated that due to shortage of Police Constables in the District, every important work has suffered. He has further stated that due to shortage of Police Constables in the District, every important work has suffered. Apart from this, he has also stated that during the period in question, there were number of serious law and order problems, which were wholly unforeseen and it required service of number of police personnel resulting into further shortage of police staff in whole of the district. He has further stated about the preventive measures taker}, by him. He has assured that despite of shortage of police force, every efforts are being made to ensure appearance of under trial prisoners in the Court of concerned Judicial Magistrate as also Additional Sessions Judge. 11. So far as non-production of the accused before the Court is concerned, the problem is not of one district. I have come across the cases of Jashpur District, where also, under trial prisoners are not generally produced in Pathalgaon Court, from the jail at Jashpur and due to all this, the matters are not being heard. 12. Admittedly, when a person is taken into custody in connection with an offence, the question of his personal liberty immediately involves and if he is not granted bail, then, his case must be disposed of at the earliest by the Courts of law. In this background, if the accused persons are not produced before the Court, it would be difficult for a Court of law to proceed in accordance with the procedure for disposal of the case. This is all for the State Authorities to look into and do the needful so that the accused persons, who are in jail, are produced before the Court in time, enabling the Court to proceed to decide their matters at the earliest as per the law. The State is under constitutional and statutory obligation to make necessary arrangements for production of arrested accused persons/undertrials on each date of hearing before the Court of law to accelerate the dispensation of justice. Non-cooperation by the State in such a manner results into and amounts to denial of justice. 13. Be that as it may, for the time being, I am concerned with the matter of bail of the present applicant. Non-cooperation by the State in such a manner results into and amounts to denial of justice. 13. Be that as it may, for the time being, I am concerned with the matter of bail of the present applicant. In fact, when there is evidence of assaulting the deceased by the applicant, with the stone, particularly in a quarrel, which took place between 3 friends on account of telephonic call and also that the co-accused has been granted bail by this Court and further that he could not be produced before the Court for many times and even the charge-sheet was not served upon him in the Court and it was served upon his Counsel, which also has a legal consequence and the same has occurred mainly on the fault of the State, therefore, looking to the over all scenario of the case, I am of the opinion that present is a fit case in which this applicant should be enlarged on regular bail. 14. His application filed under Section 439 of the Code of Criminal Procedure is allowed. 15. It is directed that this applicant shall be released on bail on his furnishing a personal bond in sum of Rs. 25,000/- with one surety in the like sum to the satisfaction of the Trial Court for his appearance before the said Court on each date of hearing till the disposal of the trial. 16. Let a copy of this order be placed before the Secretary, Home Department and the Director General of Police, who may look into the matter, particularly with reference to the affidavits filed by the Deputy Jailor and Superintendent of Police and do the needful, so that the undertrials are regularly produced before the Courts.