Madhya Pradesh High Court

Hirdesh Sahu vs The State Of Madhya Pradesh on 24 June, 2021

Author: Subodh Abhyankar

                                              1
                                                                           MCRC No.29219/2021
             HIGH COURT OF MADHYA PRADESH, JABALPUR
                               BENCH AT INDORE
              S.B.: Hon'ble Shri Justice Subodh Abhyankar
           Miscellaneous Criminal Case No.29219/2021
                               (Hirdesh Sahu s/o Jagdish Sahu
                                           Versus
                                The State of Madhya Pradesh)

                              (Case was heard on 17th June, 2021)


Counsel for the Parties   :   Mr. P.K. Saxena, learned Senior Counsel along with Shri
                              Yogesh Bajad, learned counsel for the applicant.
                              Ms. Poorva Mahajan, learned Panel Lawyer for the respon-
                              dent / State of Madhya Pradesh.
Whether approved          :   Yes
for reporting

Law laid down             :         The examination of the witness shall be held as expeditiously as
                                    possible; and the same shall be continued on day to day basis till
                                    its conclusion.
                                    The Judge ought to have seen the sensitivity of the matter and
                                    should not have given such long date for the purposes of cross-
                                    examination which has led to the material witness turning
                                    hostile, seriously jeopardizing and undermining the efforts made
                                    by the police officers to bring home the charges against the
                                    accused persons, and to say the least, of the cost involve in the
                                    rescue operation which is always borne by the State.
                                    Lest it is again forgotten, it is hereby directed to all the judges of
                                    the trial court, to ensure the compliance of Section 309 of Cr.P.C.
                                    and specially in sensitive cases like murder, abduction and rape,
                                    provisions of s.309 of Cr.P.C. should be observed religiously,
                                    without fail and cases should not be adjourned on the drop of a
                                    hat.
                                    Relied on Section 309 of the Code of Criminal Procedure, 1973.

Significant paragraph :       10 to 14
numbers


                                     ORDER

Post for

24.06.2021

(Subodh Abhyankar) Judge

MCRC No.29219/2021

High Court of Madhya Pradesh, Jabalpur Bench at Indore Miscellaneous Criminal Case No.29219/2021 (Hirdesh Sahu s/o Jagdish Sahu Versus The State of Madhya Pradesh)

***** Mr. P.K. Saxena, learned Senior Counsel along with Shri Yogesh Bajad, learned counsel for the applicant.

Ms. Poorva Mahajan, learned Panel Lawyer for the respondent / State of Madhya Pradesh.

***** ORDER (Passed on this 24th day of June, 2021)

This is the applicant's fourth bail application under Section 439

of Criminal Procedure Code, 1973. He is implicated in connection with

Crime No.80/2019 registered at Police Station Heera Nagar, Indore

District Indore (MP) for offence punishable under Sections 364-A and

120-B read with Section 34 of the Indian Penal Code, 1860. His first

bail application Miscellaneous Criminal Case No.26253/2019 was dis-

missed on merits by this Court on 24.07.2019 whereas second bail ap-

plication Miscellaneous Criminal Case No.17429/2020 was dismissed

as withdrawn on 11.06.2020 with liberty to file fresh application along

with Court statement the witnesses examined before the trial Court and

third bail application, Miscellaneous Criminal Case No.20960/2020

was dismissed as withdrawn on 13.07.2020.

The applicant is in jail since 14.02.2019.

2. The applicant is arrested in connection with the aforesaid offence

whereby a boy aged seven years was kidnapped for ransom.

MCRC No.29219/2021

3. Learned Senior Counsel for the applicant Shri P.K. Saxena has

vehemently argued before this Court that the victim himself has not

supported the case of the prosecution and has clearly deposed in his

cross-examination that he has identified the accused persons as he was

directed by the Police uncle and earlier also, he had deposed as per the

dictates of the Police uncle, as he is afraid of Police.

4. Counsel has further submitted that even the independent witness

PW-6 Jai Prakash has not supported the case of the prosecution.

5. Counsel for the respondent State, on the other hand has opposed

the prayer.

6. Heard.

7. On due consideration of the submissions and on perusal of the

case diary as also the deposition of the victim, this Court finds that so

far as the examination-in-chief of PW-2 victim is concerned, he has

clearly identified the accused persons, as the persons who had abducted

him. However, after his examination-in-chief on 04.10.2019, his cross-

examination was conducted after more than two months i.e. on

18.12.2019 and this time, he has not supported the case of the prosecu-

tion, denying his earlier statement on the ground that he is afraid of Po-

lice personnel and they had asked him to depose in a particular manner

supporting the case of the prosecution.

8. It is also found that the other eye witness PW/6 Jaiprakash who

was examined on 04.03.2021 and other independent witnesses have

also not supported the case of the prosecution.

MCRC No.29219/2021

9. After careful examination of the material available on record, this

Court is not inclined to accept the contention of the learned Senior

Counsel and is not inclined to allow the bail application.

10. So far as the deposition of the victim in his cross-examination is

concerned, apparently he has not supported the case of the prosecution

however, he has affirmed his kidnapping by the accused persons by

identifying them in his examination-in-chief, thus, in the considered

opinion of this court, it is for the trial Court to examine the aforesaid

aspect of the matter while passing the final judgment; as this Court can-

not venture into appreciating the evidence at this stage.

11. This court had also called for the proceedings of the Trial court

to see as to why after the victim child witness's examination-in-chief on

04.10.2019, he was cross examined only on 18.12.2019 i.e. after more

than two months, and it was found that on 04.10.2019 the examination

could not be completed due to end of court hours and the case was

fixed on 13.11.2019 i.e. after more than 39 days and there after on

13.11.2019 and 28.11.2019, the child witness remained absent and fi-

nally on 18.12.2019 he was cross-examined and took a somersault from

his earlier story by denying everything. It is apparent that in the mean-

time, he was won over by the accused persons. At this juncture it

would be necessary to refer to sub-section (1) of s.309 of Cr.P.C. which

reads as under:-

"Section "S. 309 (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses

MCRC No.29219/2021 has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded."

(emphasis supplied)

12. This court is well aware of the time constrains of the trial courts

for myriad of reasons but it appears that the aforesaid provision of law

has been given a complete go-by by the learned judge of the trial court

while fixing the date for cross-examination. The relevant excerpts of

the order dated 04.10.2019 read as under:-

04.10.2019 **..................................................

izdj.k vfHk;kstu lk{; gsrq fu;r gSA vfHk;kstu lk{kh jksfgr tSu ,oa v{kr tSu mifLFkrA vfHk;kstu lk{kh jksfgr tSu v-lk-&1 dks 'ks"k izfrijh{k.k mijkar mUeqDr fd;k x;k rFkk vfHk;kstu cky lk{kh v{kr tSu ls iz'u iwNs x;s mlds }kjk fn;s x;s mRrj dks n`f"Vxr j[krs gqos lk{kh iz'uksa dks le>dj mudk mRrj nsus esa l{ke izrhr gksus ds dkj.k mldk eq[; ijh{k.k izkjaaHk fd;k x;k rFkk U;k;ky;hu le; lekIr gksus ds dkj.k lk{kh dk izfrijh{k.k Lfkfxr fd;k tkdj vkxkeh is'kh rkjh[k dh lwpuk nsdj mUeqDr fd;k x;kA izdj.k vfHk;kstu lk{kh v{kr tSu ds izfrijh{k.k gsrq fnukad [email protected]@2019 dks is'k gksA**"

13. This court is at pains to see the casual manner in which the next

date is fixed in this case. In the considered opinion of this court the

learned judge ought to have seen the sensitivity of the matter and

should not have given such long date for no apparent reasons for the

purposes of cross-examination which has led to the material witness

turning hostile, seriously jeopardizing and undermining the efforts

made by the police officers to bring home the charges against the ac-

cused persons, and to say the least, of the cost involve in the rescue op-

eration which is always borne by the State.

MCRC No.29219/2021

14. In such circumstances, lest it is again forgotten, it is hereby di-

rected to all the judges of the trial court, to ensure the compliance of

Section 309 of Cr.P.C. and specially in sensitive cases like murder, ab-

duction and rape, it should be observed religiously, without fail and

cases should not be adjourned on the drop of a hat.

15. Let a copy of this order be forwarded to the Registrar General for

its proper compliance.

16. Resultantly, Miscellaneous Criminal Case No.29219/2021 being

devoid of merits is hereby dismissed with the aforesaid observations.