Vishal Yadav vs State Of Delhi
2005 Latest Caselaw 15 Del

JUDGMENT

B.N. Chaturvedi, J.

1. The petitioner is facing trial in case FIR No. 192/2002 under Sections 302/201/364 IPC, registered at PS Kavi Nagar, Ghaziabad. He is, presently, facing trial at Delhi. He seeks his release on bail primarily in view of his confinement in jail for the last about 2-1/2 years. Earlier, the petitioner had unsuccessfully pleaded for bail, which was, declined by this Court by an order dated 14.10.2003.

2. The petitioner is being connected with the abduction and murder of one Nitish Katara on the basis of last seen evidence and recovery of a wrist watch from his possession belonging to the deceased. Till date, thirty eight witnesses have been examined. On earlier occasion when the first application was considered and disposed of by order dated 14.10.1003, thirty four witnesses and a court witness had been examined. It was noted that out of them, many had turned hostile and did not support the prosecution case. Ms.Bharti Yadav, cousin sister of accused-petitioner, is one of the material witnesses, who remains yet to be examined. While declining bail earlier vide order dated 14.10.2003, the petitioner was granted liberty to move for his release on regular or interim bail after the statement of Ms.Bharti Yadav is recorded.

3. The petitioner, however, did not wait for this to happen and applied to the learned trial court for being released on bail, which was, however, dismissed by the learned Additional Sessions Judge by his order dated 25.10.2004, particularly in view of this Court's order dated 14.10.2003 granting liberty for renewal of bail plea only on Ms.Bharti Yadav being examined.

4. The learned counsel for the petitioner argued that the order dated 14.10.2003 needs to be modified removing the aforesaid barrier on grant of regular or interim bail as the petitioner could not be kept confined in jail indefinitely, particularly whenthe prosecution fails to take any effective steps to procure the presence of Ms.Bharati Yadav for recording of her statement before the trial court.

5. On this account, perusal of trial court record, however, indicates that the prosecution is not to be blamed for delay in examination of Ms.Bharti Yadav before the trial court. She is stated to be pursuing her studies in University of Nautingham, UK.The record shows that it is, in fact, Ms.Bharti Yadav, who appears to be evading appearance to make her statement before the learned trial court in spite of being aware of pendency of proceedings and different dates being fixed requiring her attendance to record her statement.

6. It is noticed that the presence of Ms.Bharti Yadav was required way back on 8th of October, 2003 when she, acting through her maternal uncle, sought at least two months' time to be able to appear to make her statement. On a request on her behalf for another date, a summons in her name was given to her counsel for attending the court on 15th of November, 2003. She however, on 15th of November, 2003 failed to attend the court and instead a request for another date in January, 2004 was made on hr behalf. Also, an application for recording of her statement through video conferencing was moved which was, however, rejected on 23rd of December, 2003 and she was required to appear before the court on 27th of February, 2004 On 7th of January, 200, an application seeking recall of the order dated 23.12.2003 rejecting Ms.Bharti's application for recording of her evidence through video conferencing, was made. Learned trial court, however, declined the application on the ground that it had no powerto review that order. On 27th of February, 2004, Ms.Bharti again omitted to turn up before the trial court. The court was informed that she required permission from the concerned university for her absence. The trial court was informed that her holidays were to commence with effect from 5th of April, 2004 and, in the circumstances, Ms.Bharti's counsel sought some date during latter part of month of April, 2004 The learned trial court, accordingly, fixed 21st of April, 2004 for her appearance and recording of her statement. She, however, again failed to appear and trial court was rather told to approach the university concerned.

7. Finding that the witness was not appearing in spite of information about various dates fixed for the purpose, a bailable warrant of arrest was directed to be issued against her. Later, however, on maternal uncle of Ms.Bharti Yadav appearing and undertaking to produce her on 24th of May, 2004, issuance of bailable warrant of arrest was dropped. Ms.Bharti Yadav was, however, not to appear even on 24th of May, 2004 in spite of an undertaking by her maternal uncle. Consequently, a non-bailable warrant of arrest was directed to be issued in addition to initiating proceedings against the maternal uncle for acting in breach of undertaking furnished by him to produce Ms.Bharti Yadav on the date fixed. Against issuance of non-bailable warrant of arrest, M.Bharti Yadav moved this Court being CRL.M.C.2158/04. The same was, however, dismissed by an order dated 25.9.2004

8. Ms.Bharti Yadav had, earlier, on her request for recording of her evidence through video conferencing being declined by the learned trial court, filed a CRL.M.C.2159/04. That was also dismissed by this court by an order dated 25..2004

9. A number of dates have been fixed after 24th of May, 2004 for recording of statement of Ms.Bharti Yadav but till date her presence could not be procured as, in the meantime, she is stated to have suffered some injuries in her leg and back, for which she is under treatment. Now, the case is to come up on 18th of January, 2005 for recording of her statement and her presence is being enforced by issuance of a non-bailable warrant of arrest against her.

10. It is thus noticed that Ms.Bharti Yadav is evading her appearance to depose before the learned trial court on one pretext or the other though she could have very well been persuaded by the petitioner and his co-accused, Vikas Yadav, real brother of Ms.Bharti Yadav, to appear before the learned trial court voluntarily on any of the dates fixed for recording of her statement. The statement of Ms.Bharti Yadav would be very material from prosecution point of view, particularly when many material proscution witnesses examined so far have turned hostile and did not support the prosecution case. Apprehension of petitioner getting an opportunity to influence Ms. Bharti Yadav in the event of his release on bail, being not yet over, renewed pleaor bail is premature. On an overall view of the matter there appears no justification to vary the order dated 14.10.2003, as prayed for. But for examination of four more prosecution witnesses after rejection of earlier bail application, there is no material change in the circumstances justifying instant petition. Consequently the petition is dismissed.

11. Trial court record be sent back immediately.