Anil Kumar Sharma vs State of Haryana

V.K. Bali, J.

This order shall dispose of Crl. Misc. No. 4882M of 1995 as also Crl. Misc. No. 13136M of 1994 as the same are arising out of one F.I.R.

While dealing with this matter on 3.5.1995, I had passed the following orders :

"This case provides an interesting instance of the laxity indulged by the State in defending even important matters. This bail application was filed on 20.3.1995 and was ordered to be taken up along with Crl. Misc. No. 12781M of 1994 on 6.4.1995. It requires to be mentioned that in so far as Crl. Misc. No. 12781M of 1994 is concerned, the same is for cancellation of bail granted to the coaccused of the petitioner, namely, Ravi. The Court had taken suomoto notice in that case for cancelling the bail and concededly in the said case the State has been served. On the adjourned date i.e. 6.4.1995, the case was adjourned to 21.4.1995 on which date the counsel representing the State prayed for an adjournment enabling him to have complete instructions and therefore the matter was adjourned to 28.4.1995. On the adjourned date as well, even though the order recorded is that the matter is adjourned on the request of learned counsel for the parties, but as a matter of fact it was adjourned on the request of State counsel, who said before lunch that the file was not available and the matter may be taken up after lunch and after lunch she stated that the file was not traceable. The matter has come up for today in the circumstances, referred to above.

Even today, Mr. Dewan, learned A.A.G., Haryana, repeats the request for an adjournment, however, on the ground that besides the case file being not available, even the investigating officer has not come.

As per the prosecution version, it is a case of double murder. There is an exparte representation on behalf of the petitioner, which on the grounds stated and so argued by learned counsel for the petitioner, appears to be correct but such a case, in view of this Court, should not be decided without the assistance of the State. In such circumstances, the Court poses a question to itself as to whether the assistance of the State should be awaited indefinitely or till such period when the State might wish to assist the Court? The Court is also put to a question as to whether in such cases the prosecution agency is mixed up with the accused or not? On the other hand, if the grounds made out for grant of bail are correct, withholding the payer for a long time will also be doing injustice.

In totality of the circumstances of this case it is ordered that the Senior Superintendent of Police, Ambala would present himself before this Court on 8.5.1995 with complete information with regard to the facts of this case, failing which appropriate action under the law would be taken. A copy of this order be sent to the Chief Secretary, Government of Haryana so that corrective measures be taken in making the functioning of Advocate General''s office better. Adjourned to 8.5.1995."

However, before I could sign the order aforesaid, Mr. B.C. Setia, learned Addl. A.G., Haryana, met me in the Chambers and apprised me that no notice was issued to the State either in Crl. Misc. No. 4882M of 1995 or in Crl. Misc. No. 13136M of 1994, that being the situation, the following order was passed by this Court on 5.5.1995:

"Before the order dated 3.5.1995 could be signed, Mr. Setia, learned Addl. Advocate General, Haryana, met me in my chambers and apprised me that no notice was issued to the State either in Crl. Misc. No. 4882M of 1995 or in Crl. Misc. No. 13136M of 1994 and the appearance made on that behalf recorded in my order dated 3.5.1995 was on account of inadvertent mistake. That being so, this case was put up for rehearing for today. The records of the case do reveal that no notice was actually issued to the State. It is, however, true that on all dates of hearing there was representation by the State counsel and the State was well aware of the proceedings pending in this Court. Even if notice was not there, in the circumstances, referred to above, the State should have been properly equipped with all the informations required for the purpose. However, since technically the objection of the State is correct, I recall my order dated 3.5.1995. As mentioned above, the order was not signed but since it was dictated in the Court, it is necessary to recall the same.

The matter now to come up on 9.5.1995 and notice is issued to the Advocate General, Haryana, in both the cases, i.e. Crl. Misc. No. 4882M of 1994 and Crl Misc. No. 13136M of 1994. Mr. Dewan, learned A.A.G., Haryana, who is present in Court, accepts notice.

A direction is issued that the investigating officer with complete records would be present in Court on the date fixed."

On the adjourned date i.e. 9.5.1995, the case could not be taken up as I was on leave for two days and ultimately the matter came up for hearing on 12.5.1995. Mr. Dewan, learned A.A.G., Haryana, appeared on that date and reported to the Court that he was not prepared in the matter nor he had the brief as the matter was not shown in the list. That being the position, the case was adjourned for today. It may be mentioned here in passing that since it was reported to the Court that the matter was not listed no interim orders as such were passed on the file adjourning the matter for today but it is conceded between the parties that it was adjourned for today and it is for that reason that it has been shown in the urgent cause list for today.

Mr. Duhan, learned A.A.G., Haryana, who has been deputed to this Court today, informs me that there is no brief with him and even on his asking in the evening of 16.5.1995 the brief was not supplied to him and it is only after lunch today that he has been handedover the brief. He also reports that the investigating officer has not turned up. He is, however, unable to give the reason as to whether intimation to the investigating officer was sent or not.

The facts noted above, clearly depict a very sorry state of affairs in the functioning of the Advocate General, Haryana''s office. The Court would like to mention here that on account of nonassistance of the State in about 70% cases, where the prayer by the petitioner is either for parole or bail/anticipatory bail, either the counsel appearing for the State has been reporting no instruction or has been saying that the investigating officer has not come so that he may be able to lend proper assistance to the Court. Feeling totally inconvenienced and hampered in administering justice, the Court had personally called the Advocate General, Haryana, Mr. H.L. Sibal, Addl. A.G., Haryana, Mr. R.C. Setia and another Addl. A.G., Haryana, Mr. Sharma and apprised them of the situation. Each time the Advocate General or the Addl. Advocates General came and the Court was assured that proper arrangements shall be made in future so that the cases which need immediate attention are not unnecessarily adjourned. From the facts of this case, it appears that all attempts made by this Court to improve the functioning of Advocate General, Haryana''s office, have proved abortive with the obvious result that the Court is rendered with one sided assistance of counsel appearing for the petitioner alone. The Court views the situation very seriously and is pained to note with concern that the working in the A.G., Haryana''s office needs a complete over hauling. It is, however, not upto this Court to take corrective measures and, therefore, the Court is left with no choice but for to the direct the Government of Haryana through its Chief Secretary to set the office of A.G., Haryana in order so that the Court is in a position to administer justice. A copy of this order be sent to the Chief Secretary, Government of Haryana forthwith and corrective measures taken by him be reported to this Court within a month from today.

Coming now to the merits of the case, it is vehemently contended by Mr. Ghai that in this case there are six accused in all and it is only the petitionerAnil Kumar and one Ravi, who is on bail, who are attending the various dates given by the Magistrate for commitment purposes whereas other accused are not appearing. A year has gone by, to be precise it is from 8.5.1994 that the petitioner is in custody and so far the case has not even been committed for the sole reason that the other accused are not appearing nor are they made to appear by the investigating agency. It is, therefore, argued that if the matter continues unabated like this, it would take years that the case is committed and ultimately the trial is concluded. Mr. Duhan, learned A.A.G., Haryana, is obviously, unable to controvert this position for the reason that he was neither supplied the brief of the case in time nor any arrangement was made to send for the Investigating Officer, who could brief him, the Court constrained under the circumstances, as these are, is left with no choice but for to grant bail to the petitioner. Thus, he is allowed bail to the satisfaction of C.J.M., Ambala.

Once the Court is allowing bail to the petitionerAnil Kumar, no occasion arises to cancel the bail granted to coaccused Ravi regarding which suo moto notice was taken by the Court while dealing with the prayer for bail of the petitioner earlier.

Even though the matter with regard to grant or cancellation of bail is over, this case would come up for hearing to ensure compliance of the directions noted above.

To come up on 3.7.1995.