RAJENDRA NIVRUTII BHOSALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) TWO accused are praying for bail after their bail has cancelled by this Court, Mr. Sachin Shetye with Mr. Purwant and Mr. Venegaonkar have been heard for the respective accused-applicants. So also Shri. Janardhanan has been heard for the prosecution.

(2.) DURING the course of the submissions advanced on behalf of the applicants-accused and the prosecution, following things have come to the notice of this Court. (a)That all accused have been now arrested and they are in the custody. (b)The trial is to begin but only half sitting a day has been reserved for trial by the learned Additional Sessions Judge, Satara who has to conduct the trial. (c)Copies of some photographs which are likely to be relied upon by the prosecution in support of its case have not been given to the accused. Therefore, they are not aware of the evidence which is likely to be adduced by the prosecution against them in context with those photographs. (d)Some video cassettes are with the investigating agency connected with the prosecution case but copies of that have not been given to the accused. (e)The charge sheet which has been submitted so far, does not embody any mentioning of those photographs and the video cassettes. Therefore, whether the prosecution would be entitled to use those photographs and video cassettes in support of its case against the accused when it comes for trial. (f)Whether in such situation the accused are entitled to claim for bail considering the case of each accused separately on merit, before the trial or after the trial.

(3.) THOUGH the case is ready to go for trial and charge has been framed, the Court has not fixed a trial programme. That means that the prosecution has not submitted the list of the witnesses whom they desire to be summoned for examining them as prosecution witnesses. There is no prayer from the side of prosecution and no order has been passed by the trial Court in that context which is against the provisions of Chapter 18 of Criminal Procedure Code, 1973 (hereinafter referred to as the Code for convenience ). Chapter 18 has chalked out systematic chanalisation of the course of sessions trial. These sections are arranged in a chronological way for securing a systematic course to be followed by the courts as well as by the prosecution as well as the defence while conducting the sessions trial. Chapter starts from Section No. 225 when it mentions that the sessions trial would be conducted by the public prosecutor. It goes further by providing that it shall be obligatory on the part of the prosecutor to open the case for the prosecution. It means that the prosecution has to make the submissions to the Court so as to allow the Court and defence to know before hand the substance of prosecution allegations, the way in which the prosecution is examining the witnesses, the order in which the prosecution witnesses are to be examined, and the day on which a particular witness is to be examined. It also enables the Court and the defence to know the points on which the prosecution would rely in proving its case against the accused. This provision has been made for ensuring that the Courts should know the system in which the prosecution is examining its witnesses and the defence should know the same before hand and it should not get caught surprisingly. It also ensures that the Court is at discretion to restrict the prosecution from deviating from the trial programme disclosed by opening of the case. It also grants a discretion to the Court not to permit the prosecution to examine any witness who has not been disclosed in the submissions made for opening of the case. The Court is at discretion to disallow the prosecution to adduce any evidence which has not been mentioned in opening the case for prosecution. After that the charge is to be framed which would follow by asking the accused to put up the plea and to inform the Court whether he is pleading guilty or is demanding a trial. The Code has taken the care of meeting the situation where the accused does not plead at all or refuses to plead by providing provisions of Section230. That also provides that the Judge shall fix a date for examination and witnesses and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other things. Here, the stage comes when it can be said that prosecution and Court is with trial programme. Surprisingly, neither the investigating agency nor the Court has taken care of this situation which has been indicated by Chapter 18, sections 225, 226, 227, 228, 229 and 230 of the Code. Therefore, this Court was anxious to know as to whether any trial programme has been fixed or no because that would enable this Court to consider the prayer made by the applicants-accused for bail because they are now in jail and speedy trial of their case is the fundamental right guaranteed by our Constitution.