1. This is a petition by the learned Public Prosecutor, Indore for cancellation of bail. The opponent Balwanta Singh was accused of causing the death of one Dhulji and put up before the Manawar Magistrate for enquiry into a charge Under Section 292, Tajirat Gwalior (302 of the Penal Code), but the learned Magistrate was of the opinion that there were not sufficient grounds to justify a commitment on that charge and in accordance with the local practice he referred the case to the District Sub-Judge. The learned SubJudge disagreeing with the Magistrate's view sent up the accused for trial on a charge of murder Under Section 292, Gwalior Tajirat. It appears that the accused who had been released on bail by the Magistrate was sent up in the custody by the learned Sub-Judge, to the Sessions Judge, , and he remained in custody until after the close of the ease foe the prosecution, the learned Sessions Judge released him on his executing a bond for appearance in a sum of Rs. 25OO with surety for a like amount. The accused, however, broke the bond on 22nd Febru- ary 1949, whereupon a warrant was ordered to be issued against him bailable by a bond foe Ea. 1600 with a surety for the like amount. On 2nd June 1949, the accused appeared before the Sessions Judge, Dhar (Manwar having been integrated into the Dhar District) and offered his bond. The learned Judge felt himself bound by the order of release passed by his predecessor but under the provisions of Section 5Ol, Criminal P.C., he enhanced the amount of the bond to R9.10,000.
2. The proceedings in the case show an utter lack in the learned Judges who were seized of the case at Ujjaio of the sense of responsibility which is essential for the creation and maintenance of public confidence in the administration of justice; and, it ia in my view deplorable that a case should take two years in the Sessions Court and yet remain unfinished. The case was taken up by Mr. Raj Bbadur Asfchana on 16th July 1947 Twelve witnesses for the prosecution were examined piecemeal and the case for the prosecution closed by 7th November 1947 and three witnesses for the defence were also examined. Mr. Aathana was then transferred and an application was made by the accused before his successor Mr. Datar for a trial denovo. Such an application need not have been made under the Criminal Procedure Code, (which has now been adopted mutatis mutandis in Madbya Bharat), since 8, 350 of the Code applies to trial by Magistrates and there is a consensus of judicial decisions that a Sessions Judge cannot act on evidence recorded or partly recorded by his predecessor in a Sessions trial; Queen v. Bamdayal 21 w. R. Cr 47; Tarada v. Queen 3 Mad. 112; Badri Prasad v. Emperor 35 All 63 : 13 Cr. L.J. 861; King Emperor v. Sakharam 26 Bom. 60 : 3 Bom. L. R. 558. Section 390, Clause (3) of the Majmua Jabta Fauzdari however contemplates and provides for the application of Clause (1) of the section which corresponds to Section 3co, Criminal P.C. to the trial of sessions cases and it was open to the learned Sessions Judge to continue the proceedings unless a prayer for a de nova trial was made. The accused made the prayer but the learned Judge adjourned the case on an oral application by the Public Prosecutor that he wanted to move the authorities for a transfer of the case to the file of Mr. Asthana. Two months later the accused asked for extrication of only two witnesses and his prayer was allowed. The record does not show what efforts were made to that end and whether it was even expedient to obtain a transfer, and I must observe with regret that the adjournments were a sheer waste of time.
3. The subsequent proceedings indicate an apathy on the part of all concerned. It took the prosecution over three months to produce one of two witnesses summoned de novo by the accused; and three months more for the court to examine him the reason being that the other witness was not available. The second witness was examined a month and a half later and the case was fixed for arguments on 21st October 1948. It then came to the notice of the learned Judge that the record of the medical evidence was illegible and Dr. Surendra Prasad and Mr. Nal-wade (who had recorded the statement of Dr. Surendra Praead) were summoned. These wit nesses appeared on 22nd March 1919 but the accused was then absent. In the first place the statement (p. 14) of the Sessions record does not appear illegible and a little application of the mind would in any case have made it easily decipherable and then it passes understanding that the Magistrate should be summoned with the medical witness. Delay defeats justice and here there is just cause for grievance on both sides; for, on the one hand oral evidence losses weight by length of time on the other hand it is unjust and I would say inhuman to keep the Word of a trial on a charge of murder hanging on the accused for nearly three years.
4. The order granting bail is also surprising. The provisions of the Jabta Faujdari (Gwalior) regarding bail in non-bailable cases are the same as those of Section 497, Criminal P.C. and the offence Under Section 293, Gwalior Tajirat, being punishable with death the accused could not have been released without good grounds The reason given by the learned Sessions Judge for the release of the accused on bail viz., that it would facilitate the defence is not sound. The accused was represented by counsel and the evidence of the prosecution, the cross-examination wherein must indicate the defence, was over. There was, therefore, no point in releasing the accused to facilitate bis defence unless it was intended that he may have the facility of creating evidence by his personal influence. The power granted to the Sessions Judge by Section 498, Criminal P.C., is not intended to be arbitrary but must always be guided by the provisions of Section 497 and the more bo when the Sessions Judge is trying the case himself and the exercise of the powers in this case even if it be considered to be under the provisions of the Jabta Faujdari of Gwalior anologoua to Section 493, Criminal P.C. ia clearly arbitrary and the order cannot be sustained. But the learned Sessions Judge transgressed the limit of reason and propriety when on the absence of the accused on sand February 1949, in default of a bond and security for Bs. 2500 he issued a bailable warrant with a bond and security for BSection 1600. On the whole I find a deplorable lack of application of the mind in the
5. I allow the petition. The accused-opponent Balwantsingh shall surrender to his bail on the date fixed at the last bearing for his appearance in the Court of the Sessions Judge, Dhar and on such surrender the bail bonds shall stand cancelled. It will be necessary under the Criminal Procedure Code in force now to begin the trial afresh. I trust that efforts will not be spared to keep the witnesses in attendance on the date fixed for the commencement of the trial and the case be heard from day and not piecemeal. Witnesses should be bound over to appear on the dates fixed and default severely dealt with.