Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 288 (MP)

Rajju v. State of M. P.

2013-03-05

R.C.MISHRA

body2013
JUDGMENT : Arguments heard. 2. This is a repeat application for grant of bail inter alia on the ground of delay in trial, pending as Special Case No. 36/12 before Special Judge (under Narcotic Drugs and Psychotropic Substances Act, 1985), Jabalpur. Previous one was dismissed on merits vide order dated 5-9-2012 passed in M.Cri.C. No. 6544/2012. 3. After being arrested in connection with Crime No. 256/12, registered at P.S. Garha, Distt. Jabalpur, in respect of the offence punishable under Section 8 read with Section 21 of the Act, the applicant is in judicial custody since 17-3-2012. Allegation against him, in short, is that he was found in an illegal possession of 10 gms. of smack. 4. In pursuance of the order dated 21-2-2013, learned Sessions Judge, after examining the record of the case, has forwarded the report indicating that not a single witness has been examined so far, despite the fact that charge was framed on 30-5-2012. Reasons for such unsatisfactory state of affairs are :- (i) Non-submission of trial programme by the Public Prosecutor immediately after framing of charge. (ii) Non-execution of summons on panch witnesses namely Sonu @ Kamal Singh and Colonel @ Jai Prakash. 5. This is nothing but a sad reflection of the callous attitude of all the authorities concerned including the Trial Judge, Public Prosecutor and the SHO of Police Station, Garha. Needless to say that as per the mandate of Section 225 of the Code of Criminal Procedure read with Section 36-C of the Act, a Public Prosecutor alone can conduct the prosecution in the trial. However, the fact that the prosecution is conducted by a Public Prosecutor does not absolve the Presiding Judge from his primary duty regarding ascertainment of the facts. For this, reference may be made to the guideline contained in Rule 118 of the Rules and Orders (Criminal), which were framed nearly six decades ago. 6. In the year 1979, the Apex Court explained in the case of Hussainara Khotoon Vs. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1360 , that right to speedy trial, though not specifically mentioned as fundamental right, is implicit in the broad sweep and content of Article 21 of the Constitution of India. Accordingly, any procedure, which keeps a person behind bars without trial, cannot be regarded as just, fair or reasonable. Thereafter, as re-affirmed in Zahira Habibulla H. Sheikh Vs. Accordingly, any procedure, which keeps a person behind bars without trial, cannot be regarded as just, fair or reasonable. Thereafter, as re-affirmed in Zahira Habibulla H. Sheikh Vs. State of Gujarat, AIR 2004 SC 3114 , the Presiding Judge should not be a spectator and a mere recording machine but must ensure that the trial is fair. 7. Whenever the Public Prosecutor causes delay in trial by seeking adjournment even for filing or by not filing the trial programme/application for issuance of process, the Trial Judge can issue process for compelling attendance of any witness or production of any document particularly in the cases of undertrial prisoners, which are required to be decided at the earliest. Further, instances of non-return of summons, served or unserved/non-execution of summons, reflecting negligence or indifference on the part of the SHO or Serving Officer in such cases are required to be seriously viewed by the Trial Court. 8. Principles governing grant of regular bail are well settled. Accordingly, a balance has to be struck between liberty of individual and the interests of the society at large and the Court has also to ensure that under the garb of order rejecting bail application, the accused is not detained unnecessarily for an indefinite point of time. 9. Taking into consideration the nature of allegation and other facts and circumstances of the case, the repeat bail application stands dismissed with the observation that if the trial is not concluded within a period of three months from the date of receipt or production of the certified copy of this order and the delay is not attributable to the applicant, he shall be at liberty to re-agitate his prayer for grant of bail before this Court. 10. Needless to emphasise that learned Trial Judge shall make all possible efforts to secure presence of the prosecution witnesses and if so required, even by issuance of coercive process. 11. A copy of this order be forwarded to the Sessions Judge for information and necessary action.