Sri Babu Ram vs State of Uttarakhand

Tarun Agarwala, J.—Heard Mrs. Neetu Singh, the learned Counsel for the applicant and Shri B.S. Parihar, the learned Brief Holder for the State.

The 1st Bail Application was rejected on merit by an order dated 16th April, 2009. The 2nd Bail Application was rejected by an order dated 11th August, 2009. Now, the 3rd Bail Application has been moved.

After hearing the learned Counsel for the parties, the Court is not satisfied that any new grounds have come up which requires reconsideration of the bail application.

The learned Counsel for the applicant has pointed out that the incident is of 5th December, 2008 and more than 2-1/2 years have passed and the applicant is in jail. The learned Counsel for the applicant vehemently contended the Investigating Officer is not appearing before the trial court on account of which the evidence is not being led.

The court has perused the order sheet and finds that non-bailable warrants were issued against the Investigating Officer, PW11, Sri K.P. Tamta by orders dated 24th July, 2010, 28th July, 2010, 31st July, 2010, 5th August, 2010, 9th August, 2010 and 24th September, 2010. Inspite of the issuance of non-bailable warrants, the warrants were not executed and the Investigating Officer did not appear before the trial court for reasons which can be best explained by the State Govt. However, the Investigating Officer appeared on 15th October, 2010 and his examination-in-chief was conducted and, since then, various dates have been fixed by the trial court for his cross examination, inspite of which, the Investigating Officer is avoiding cross examination.

This Court had directed the opposite party to file the counter affidavit explaining the justification of the Investigating Officer for not appearing before the trial court. The Investigating Officer was also directed to appear before the Court. Today the Investigating Officer is present.

Upon consideration of the affidavit filed by the Investigating Officer, the Court finds that reasons indicated for non-appearing before the trial court is patently an afterthought. It is clear that the Investigating Officer is avoiding appearance before the trial court for reasons best known to him. Such conduct is deprecated by the Court and invites disciplinary action against him.

The Court finds that the trial court is vacant since 27th January, 2011.

Accordingly, the bail application is rejected with the following directions:

A certified copy of this order shall be sent to the District Judge by the Registry within three days by a Special Messenger so as to reach the D.J. on or before 23rd May, 2011.

The District Judge will transfer the case to a Court where the matter would be taken up on a priority basis.

The Investigating Officer will appear before the District Judge on 23rd May, 2011 in whose presence the case would be transferred.

The transferee court would fix a date in the presence of the Investigating Officer on the same date for his cross examination. The transferee court will conduct the case on a priority basis and, if possible, on day-to-day basis.

It is made clear that in the event, the Investigating Officer is not present before the trial court on any of the dates, the trial court concerned will immediately intimate the Director General of Police, Dehradun to take disciplinary action against the Investigating Officer for dereliction of duty.

A copy of this order shall also be sent to the Director General of Police, Dehradun for information and necessary action by the Registry within three days.