Smt. Mathura vs The State of Rajasthan

B.J. Shethna, J.—This is 4th bail application filed by the petitioner, who is a lady accused. It is stated at the bar by the learned Counsel Shri Vyas for the petitioner that petitioner is in jail since 19.12.1996 i.e. for almost two and a half years. The evidence of prosecution witness is already over. In this 4th bail application, bail is prayed for by the petitioner on the ground that she wants to examine the defence witnesses in support of her defence to show that she had not made extrajudicial confession before the members of the Gram Panchayat. Reliance was placed on a reported judgment of this Court (Hon''ble N.L. Tiberwal, J. (as he then was) in case of Ishab Khan v. State of Rajasthan reported in 1991 (2) R.L.R.758. That was also a case of murder u/s 302 IPC, where the petitioner accused was in jail since the registration of the offence and the accused alleged to have made extra judicial confession before the members of the Panchayat and to controvert that evidence the accused wanted to examine the defence witnesses in support of his case that he had not made any such confession as alleged by the prosecution.

In para 11 of that judgment, it has been observed by this Court that:

...There is no reason to disbelieve the contention of the learned Counsel for the petitioner that for the reasons stated by him, the petitioner is not in a position to give the names of those persons and examine them in defence until he is granted an opportunity to find out the names of those persons who had attended in the said Panchayat.

In para 12 of the judgment, it has been observed that:

Keeping in view the special circumstances of the case, I am of the view that the interest of the petitioner should be protected and he should be given full opportunity to lead his evidence in defence. The interest of the petitioner shall stand protected if he is granted an interim bail for a period of four weeks, to enable him to find out the names of those persons, who had attended in the said Panchayat and may, if he so choses, appear in defence.

With greatest respect to my learned brother, it is very difficult to agree with the view taken by him in Ishab Khan''s case (supra). It is true that every accused has right to examine the witnesses in support of his defence and controvert the evidence led by the prosecution. However, it is not necessary that the accused should be granted bail or temporary bail to find out the names of persons who are to be examined by him as a defence witnessed. Accused can always examine the defence witnesses by remaining in jail and for that he is not required to be released on bail.

Thus, in my humble opinion the view expressed by my learned brother Hon''ble N.L. Tibrewal (as he then was) in Ishab Khan''s case (supra) requires re-consideration by the larger bench.

In view of the above, office is directed to place this matter before the Hon''ble Chief Justice for placing it before the appropriate Bench for appropriate decision. The office may place it immediately before the Hon''ble Chief Justice for passing appropriate orders as the petitioner is a lady accused, who is in jail since 19.12.1996 and prosecution evidence is already over and she wanted to examine the defence witnesses while remaining on bail.