IMPORTANT POINT
The mandatory nature of Section 226 and Rule 35, emphasizing the need for the prosecution to submit a calendar and details of proposed evidence before the trial to ensure fairness and expeditious trial proceedings.

JUDGMENT :

AJAY BHANOT, J.

1. Heard Ms. Shivangi Singh, learned counsel for the applicant and Shri Paritosh Kumar Malviya, learned AGA-I for the State.

2. By means of this bail application the applicant has prayed to be enlarged on bail in Case Crime No. 34 of 2021 at Police Station Haldaur District Bijnor under Sections 147, 148, 149, 302, 506 IPC and Section 7 of Criminal Law Amendment Act. The applicant is in jail since 06.02.2021.

3. The bail application of the applicant was rejected by learned trial court on 29.06.2022.

4. The applicant has been identified as one of the principal offenders who discharged his firearm and shot dead the deceased. The deceased sustained multiple bullet injuries. Eye witnesses to the incident and the postmortem report corroborate the prosecution case. The trial is on foot. Enlarging the applicant on bail at this stage would not be conducive to a fair trial. The offence is grave. There is likelihood that the applicant committed the offence. At this stage, no case for bail is made out.

5. Without going into the merits of the case, at this stage the bail application is dismissed.

6. Before parting, some essential observations arising in the facts of this case are being made as regards the conduct of the trial.

7. This Court would like to express its dissatisfaction at the pace of the trial. The status report sent by the learned trial court records that as per the charge-sheet the prosecution proposes to examine 67 witnesses to bring home the charges. Till date only 7 prosecution witnesses have been examined.

8. Earlier this Court had directed the trial court to provide all relevant details regarding the status of the trial including the number of prosecution witnesses mentioned in the charge-sheet, and the prosecution witnesses depicted in the calendar.

9. The trial court in its status report only depicts the witnesses mentioned in the charge-sheet. The proposed prosecution witnesses depicted in the calendar given by the public prosecutor at the commencement of the trial has not been disclosed in the said status report. The State too has failed to furnish the calendar before this Court. Evidently the calendar has not been produced before the trial court by the prosecution.

10. The prosecution at the commencement of the trial is required to submit a calendar under Rule 35 of the General Rules (Criminal) read with Section 226 of the Criminal Procedure Code.

11. Section 226 Cr.P.C. being relevant to the discussion is extracted herein-under:

“226. Opening case for prosecution - When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.”

(Emphasis supplied)

12. The provision contains the conditions precedent required to be fulfilled by the prosecution prior to opening its case before the trial court. The public prosecutor is liable to describe the charge brought against the accused, and also the details by what evidence it proposes to prove the charges against the accused.

13. The word ‘shall’ has been employed by the legislature giving the provision a mandatory cast.

14. Rule 35 of the General Rules (Criminal) has a similar purpose and is extracted hereunder:

“35. Procedure on commitment - When an order of commitment for trial has been made, the Magistrate shall at once report the fact to the court to which the commitment is made by a letter in the prescribed form (Part IX, No. 2); shall notify the Public Prosecutor of the commitment of the case to the Court of Session and shall within eight days from making the said order, submit the entire record of the case and the documents and articles, if any, which are to be produced in evidence to the Court of Session or, when the commitment is made to the High Court, to the Clerk of the State together with a calendar in the prescribed form (Part IX, No. 3). T