BHARTI YADAV Vs. STATE OF UP

JUDGEMENT

(1.) ONE Nitish Katara has been murdered. FIR No. 192/2002 under Sections 302/201/364 read with Section 34 of the Indian Penal Code has been registered. Apart from the other accused persons, two main accused are Vikas Yadav and Vishal Yadav. Trial in the case also proceeded with good alacrity and testimony of all the witnesses, but one, were recorded by 30.6.2004. The left over witness, whose testimony remains to be recorded, is Ms. Bharti Yadav, the petitioner in this petition. Due to her non -availability, the matter is hanging fire. She is in United Kingdom (UK) and pursuing higher studies there. In spite of summons sent to her, she did not respond initially. Prosecution even gave up this witness. However, the complainant challenged this move of the prosecution by filing Criminal Revision Petition in this Court. Vide detailed judgment dated 3.10.2005, this Court held that she is an essential and important witness in the prosecution case and that to drop her at this stage would damage the case resulting in failure of justice. Order of the Trial Court permitting the prosecution to drop her as witness was labelled as one that does not justify the ends it seeks to achieve. Therefore, this Court gave direction that Ms. Bharti Yadav may be examined in accordance with law. While holding so, the Court, inter alia, recorded as under:

(2.) THEREFORE , necessity of examining Ms. Bharti Yadav as a material witness cannot be countenanced as it has already been established by the aforesaid judicial order. After the aforesaid order was passed by this Court, the learned ASJ again made attempts to ensure the presence of the petitioner. The petitioner has, however, eluded these attempts so far. When in spite of various orders passed by the learned trial court the petitioner's attendance could not be procured, the learned trial court passed order dated 29.7.2006 in which the Court gave detailed account of various hearings and the orders passed from time to time with an attempt to procure the attendance of the petitioner. In this order itself, it is recorded that on 11.5.2006 some time was taken to consider the suggestion of the court for producing the petitioner for her evidence making all necessary arrangements for her security. Thereafter, on 22.5.2006 father of the petitioner appeared before the trial court and was asked to disclose the address of his friend with whom the petitioner was staying. On 22.7.2006, an application was moved by Mr. Bharat Singh, maternal uncle of the petitioner, making a request that the petitioner be examined either by way of Video Conferencing or on Commission, which request was declined vide order dated 29.7.2006. It was noted in that order that since she has chosen to stay away from the court, thereby delaying the proceedings substantially, the court was satisfied that she had absconded by avoiding appearance before the court despite having sufficient knowledge of the proceedings pending in the court where her presence as a witness was required and in these circumstances the learned trial court issued proclamation under Section 82 of the Code of Criminal Procedure (for short, 'the Code'). In the meantime, the Government of India has also revoked her passport. Even otherwise, Visa on which she has gone to England is also expiring on 30.11.2006.

(3.) THEREAFTER , on an application filed by the petitioner, the Union of India through Secretary, Ministry of External Affairs, South Block, New Delhi as well as Secretary, Ministry of Home Affairs were impleaded as the respondent Nos. 2 & 3 respectively. This became necessary as Learned Counsel for the petitioner stated that the petitioner was ready and willing to come to India and depose in the case, but due to revocation of her passport her passage to India would not be possible.