STATE Vs. D S BHATNAGAR

JUDGEMENT

(1.) This is an application by D. S. Bhatnagar, an under-trial 'B' class prisoner confined in the Central Jail, New Delhi, for his release on bail pending his trial under section 307, Indian Penal Code, and sections 25 and 26 of the Arms Act. The alleged offences are stated to have been committed on 23-8-1966. The petitioner claims to belong to arespectable family is a B. Sc. from the United States and a law Graduate from the Government Law College, Bombay, having passed the Bar Council Examination and also being on the rolls of the Bombay High Court. At the present moment, he claims to be an officer in the Council of Scientific & Industrial Research. He has averred in his application that the police have had four months' time for investigation and the challan has actually been filed in Court. But there has been practically no progress in the case since then from the record. I find that the evidence of Public Witness , 1 Uma Shanker and Public Witness .2 Daya Nath was recorded on 3-11-1966 by the learned Magistrate, Shri M.M. Oberoi Ore has to struggle to trace the progress of the case from the record of the Court below. The index of the record is not maintained in accordance with the relevant directions obtained in High Court Rules & Orders. The entries in column No. 4 are not in sufficient detail to allow the papers described therein to be identified. They are vague and unprecise and presumably not made in due course on the prescribed dates according to the rules. The first two leaves of printed index form are blank, though the heading of the case is filled in. Another such index form bearing page No. 1 has, in the space meant for heading, the column "name of Pargana" and "Goshwara number''.a number of dates, noted in the form of a column It is difficult to identify the papers on the record from Pages I and 2 of this form. A number of dates beginning with "28/10" and ending with "25/11" appear in a column. The evidence taken down on 3-11-1966 in Hindi is found at Pages 147 to 149 and the typed English record of this evidence at Pages 151 to 161. The English typed record of the testimony of Public Witness . I and Public Witness . 2 has not been properly tagged and I find that afterpage 151, the tagged record contains page 159, pages 153 to 158 being separately pinned. Page 153, I may point out, contains a part of the evidence of Public Witness . I and page 153, the whole of the testimony of Public Witness . 2. At page 157, one finds an unsigned duplicate carbon copy of the tesimony of Public Witness .I, the remaining testimony going on to page 159 and page 161 containing the unsigned duplicate carbon copy of the testimony of Public Witness . 2. At the conclusion of this evidence, I do not find any order in the handwriting of the Presiding Officer of the Court. It is a matter for surprise that the sheet of paper on which the evidence was recorded on 3-11-1966 should till today- after lapse of two months-have not been properly tagged at its proper place in the judicial record. This attitude of unconcern towards the maintenance of judicial record is difficult for this Court to appreciate and countence.

(2.) Reverting to the record of proceedings presumably in the handwriting of the Reader, on 3-11-1966, after noting the presence of the accused and of the P. I, it was recorded that two witnesses had been examined and the case was adjourned to 7-11-1966 for crossexamination by the accused. On 7-11-1966, it was noted that the accused was not prevent and the Presiding Officer was on special duty. The case was accordingly adjourned to 15-11-1966, for appropriate proceedings. On 15-11-1966, it was again recorded that the accused had not come from jail. The case was adjourned to 19-11-1966 for calling the accused. On 19-ll-1966,againit was noted that the accused had not come from jail and he was summoned for 25-11-1966. On that date again, it was noted that the accused had not come from jail and the Presiding Officer and the P. S. 1. were on special duty The accused was accordingly ordered to be called on 5-12-1966. On that date again, it was noted that the accused had not come and that he was to be summoned for 13.12 1966. On that date, the accused and the P.S.I, were both present but the case was adjourned to 14-12-1966 for appropriate orders. On 14-12-1966, the presence of the accused was noted and the case was adjourned to 21-12-1966 for the crops-examination of the witnesses already examined. The said witnesses were directed to be summoned for the next date. On 21- 12-1966 again it was noted that the accused had not come from jail. The P.S.I, was present and the accused was summoned for 26-12-1966 On that date again, the accused did not come from jail, though the P.S.I, was present. The accused was then summoned for 29-12-1966. On that date, the accused was present and the remaining witnesses were directed to be summoned for 4-1-1967. In the meantime on 2-1-1967, the present bail application was set down for hearing in this Court but no one appeared to oppose the petition. I was informed by the petitioner that 4-1-1967 had been fixed in the lower Court for the remaining evidence and that two prosecution witnesses were to be cross-examined by the accused. As there was no representation in this Court on behalf of the State, I considered it proper to send for the record to see for myself as to how far the averments made by the petitioner and supported by his affidavit were justified. I accordingly directed that the records be summoned immediatly from the Court of Shri M. M. Oberoi so that on the following day, namely 3-1-1967, I could see the record and return the same to the Court below in time for recording the evidence on 4-1-1967. A special messenger was directed to be sent for the purpose. Unfortunately, for certain reasons not quite clear on the record, on 3-1-1967, when the case was called in the early hours of the morning, the records had not arrived. I, thereupon made a specific order that the records should now be summoned for 6-1-1967. It appears that the records were sent by the Court below to this Court on 3-1-1967 late in the afternoon, with the unfortunate result that no proceedings took place on 1-1-1967. I can only express my disappointment as the way in which the purpose of this Court's order dated 2-1-1967 should have been defeated and no proceeding should have taken place on 4-1-1967. On 6-1-1967, I called for the order of the learned Magistrate dated 4-1-1967 and I find from this order that the presence of the accused, and the P.S.I. was noted and it was observed that since the file had gone to the High Court, the case be adjourned to 19-1-1967 to await the return of the file. On the peculiar facts and circumstances of this case, I do feel that it would have been better to have adjourned the case for a shorter duration than two weeks.

(3.) The accused has in his petition in this Court averred that since 3-11-1966 every morning, the petitioner used to get ready but was never informed whether or not he was to be taken to the Court and produced before the Magistrate. The lower Court, according to the averments in the application for bail, used to go on giving dates without the actual production of the petitioner. These averments have been supported by a sworn affidavit of the petitioner D.S. Bhatnagar. Before me, the learned counsel for the State has not controverted the averments made in this application. Indeed there is no explanation as to why the learned Magistrate did not take appropriate steps to see that the accused was produced in his Court on the dates of hearing. If the jail authorities were flouting his orders, then he was not helpless, and if his Court staff was not summoning the accused, even then the learned Magistrate had sufficient power, as in deed it was his duty, to enforce his orders. His helplessnes or his indifference in this matter, which ever be the position, reflects a most unsatisfactory state of affairs. The learned Magistrate seems to me to have clearly adopted an attitude of unjudicial indifference towards the judicial proceedings in his Court. I may at this stage also advert to the earlier applications by the petitioner for his release on bail presented in the Court of the learned Sessions Judge, Delhi. It appears that the first application for bail presented in the Court of the learned Sessions Judge was dismissed by that Court on 19-10-1966. Another application was apparently made which was disposed of by the learned Sessions Judge on 30-11-1966. In this later order, there is a clear reference to the earlier application and it has been observed in the order dated 30-11-1966 that after the disposal of the earlier bail application, no new developments had taken place which would justify the admission of the accused to bail. Apparently the learned Judge did not attach to the delay the importance it deserved The fact that the accused belongs to a respectable family and that there is no danger of his absconding were not considered by the learned Sessions Judge to be the only considerations for granting bail. After holding that this was not a fit case in which the petitioner should be released on bail pending trial, the learned Session's Judge proceeded to make the following observations:-