MP HC | Judge ought to have seen the sensitivity of the matter; Strict compliance of S. 309 of CrPC directed to Trial Courts

Madhya Pradesh High Court: Subodh Abhyankar, J., dismissed the fourth bail application which was filed by the petitioner under Section 439 of Criminal Procedure Code, 1973.

The applicant was implicated for offence punishable under Sections 364-A and 120-B read with Section 34 of the Penal Code, 1860. He was arrested in connection with the aforesaid offence whereby a boy aged seven years was kidnapped for ransom and has been in jail since 14-02-2019.

Senior Counsel for the applicant, Mr P.K. Saxena had vehemently argued before this Court that the victim himself had not supported the case of the prosecution and had clearly deposed in his cross-examination that he had 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 was afraid of Police and even the independent witness had not supported the case of the prosecution.

The Court found that as the examination-in-chief of victim was concerned, he had 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 that time, he had not supported the case of the prosecution, denying his earlier statement on the ground that he was afraid of Police personnel and they had asked him to depose in a particular manner supporting the case of the prosecution.

After careful examination of the material available on record the Court was of the opinion that it was not inclined to allow the bail application. The Court further held that the victim had affirmed his kidnapping by the accused persons by identifying them in his examination-in-chief, thus, it is for the trial Court to examine the aforesaid aspect of the matter while passing the final judgment; as this Court cannot venture into appreciating the evidence at this stage.

The Court further 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 thereafter on 13-11-2019 and 28-11-2019, the child witness remained absent and finally on 18-12-2019 he was cross-examined and took a somersault from his earlier story by denying everything. It was apparent that in the meantime, he was won over by the accused persons. The Court was at pains to see the casual manner in which the next date was fixed in this case.

The Court referred and explained sub-section (1) of Section 309 of CrPC and opined that 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 accused persons, and to say the least, of the cost involve in the rescue operation which is always borne by the State.

The Court 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, it should be observed religiously, without fail and cases should not be adjourned on the drop of a hat.[Hirdesh Sahu v. State of M.P., 2021 SCC OnLine MP 1210, decided on 24-06-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

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