BHAG SINGH Vs. STATE OF RAJASTHAN
HIGH COURT OF RAJASTHAN
STATE OF RAJASTHAN
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TYAGI, J. -
(1.) THIS bail application has been filed under sec. 498 Criminal Procedure Code by Bhag Singh, Bood Singh and Jagga Singh who have been cha-llaned in the Court of the Munsiff Magistrate, Tijara under sec. 307 Indian Penal Code along with five other persons out of whom four have been released on bail.
(2.) THE main ground, which has been pressed before this Court by learned counsel for the petitioners, is that the challan was put up before the court on 1st June, 1967, but the prosecution did not produce the witnesses to complete the enquiry in the committing court. It is urged that the prosecution witnesses in this case are all accused persons in a cross case and they have been enlarged on bail, two out of them are absconding and they are interested in delaying the completion of the enquiry in the committing court and therefore inspite of the undertaking given by the Public Prosecutor to produce all the witnesses on 11th November, 1967, only two witnesses could be examined by now. In these circumstances, it is urged that the petitioners should also be enlarged on bail and should not be kept behind the bar.
It is not denied by the learned Deputy Government Advocate that an undertaking was given by the Public Prosecutor to produce all the witnesses on 11th November, 67i. Thereafter two dates were fixed by the court but on those dates also, prosecution could not examine any witness except the two. There are 12 eye witnesses in this case. It is not disclosed by any of the learned counsel for the parties as to how many eye witnesses are proposed to be examined at the committing stage but looking to the proceedings in this case, it is obvious that unnecessary delay has been caused by the prosecution by not procuring the attendance of the eye witnesses before the committing court.
Learned Deputy Government Advocate submits that one more opportunity be given to the prosecution to produce the witnesses in the committing court, and if by that time the prosecution fails to produce the witnesses, then the bail application of the petitioners may be considered by this Court.
Learned counsel for the petitioners in support of his arguments that if in spite of undertaking given by the Public Prosecutor he fails to produce the witnesses, the petitioners should not be allowed to remain behind the bars unnecessarily for the fault of the prosecution, has relied on a Supreme Court authority in Ratilal Bhanji Mithani vs. Asstt. Collector of Customs, Bombay (1 ). In that case, the learned Judges of the Supreme Court took a very serious view of not complying with the undertaking given by the prosecution before court and in that background the learned Judges observed that whether or not the prosecution witnesses were examined by the time that was fixed by the court below, the petitioners shall be enlarged on bail. Looking to the circumstances of this case, I am inclined to hold that one opportunity may be given to the prosecution to produce the witnesses in the committing court.
It is, therefore, ordered that by the end of the second week of January, 1968, the prosecution may produce the witnesses which it proposes to examine at the committing stage, and if it fails to do so then the petitioners shall be enlarged on bail provided each one of them executes a personal bond for the amount of Rs. 5,000/- and furnishes a surety in the like amount to the satisfaction of the learned Munsiff-Magistrate, Tijara. In case the prosecution witnesses are examined by the Public Prosecutor by that time, it will be open for the learned Magistrate, after considering the prosecution evidence, whether bail should be granted or not. .
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