ORDER : – Case diary is available.

2. This second application under section 439 of Criminal Procedure Code has been filed for grant of bail. The first application was dismissed by order dated 5-5-2022 passed in M.Cr.C. No. 22080/2022.

3. The applicant has been arrested on 16-11-2021 in connection with Crime No. 204/2021 registered at Police Station Indar, District Shivpuri for offence under sections 302, 201, 147, 148, 149 of Indian Penal Code.

4. This application has been filed mainly on the ground that the witnesses who were cited as eyewitnesses are not being examined by the prosecution. Accordingly, by order dated 26-9-2022, the State Counsel was directed to verify as to why Rakesh Kevat is not being summoned as witness.

5. Today, a statement was made by the counsel for the State that the Public Prosecutor conducting the trial has informed him that since he was interested to get other witness examined first, therefore, he did not include the name of Shivendra and Rakesh Kevat in the list of witnesses. However, now the case is fixed for 13-10-2022 and on the said date he would include the names of above-mentioned two eyewitnesses in the list of witnesses.

6. In view of the statement made by the counsel for the State, the counsel for the applicant seeks permission of this Court to withdraw this application.

7. Before considering the prayer of the counsel for the applicant, this Court would like to observe that the role of the Court is not merely a mute spectator. Its duty is to seek truth. The Court should be alert during criminal trial. An offence is against the society and the Court cannot sit idle and cannot act merely at the pleasure of the Public Prosecutor. It is true that the Sessions Trial is to be conducted by the Public Prosecutor but the Court must be vigilant enough to issue instructions to the Public Prosecutor in case if it is found that the Public Prosecutor is not acting in accordance with law.

8. Eyewitnesses are the ears and eyes of the Court. Nowadays it is being observed that the examination of eyewitnesses are being delayed for certain reasons. The delay in examination of eyewitness is not in the interest of criminal justice dispensation system. This Court was unable to understand as to why the Public Prosecutor adopted the method of withholding eyewitnesses and why he gave preference to those witnesses whose evidence can at the most be said to be corroborative in nature.

9. The Supreme Court in the case of Mina Lalita Baruwa vs. State of Orissa and others, reported in (2013) 16 SCC 173 has held as under : 18. We are convinced that the grievances as projected by the appellant as a victim, who was a victim of an offence of such a grotesque nature, in our considered view, the trial Court as well as the High Court instead of rejecting the application of the appellant by simply making a reference to section 301, Criminal Procedure Code in a blindfolded manner, ought to have examined as to how the oral evidence of PW18 which did not tally with Ext. 8, the author of whom was PW18 himself, to be appropriately set right by either calling upon the Special Public Prosecutor himself to take necessary steps or for that matter there was nothing lacking in the Court to have remedied the situation by recalling the said witness and by putting appropriate Court question. It is well settled that any crime is against the society and, therefore, if any witness and in the case on hand a statutory witness happened to make a blatantly wrong statement not borne out from the records of his own, we fail to understand why at all the trial Court, as well as the High Court, should have hesitated or adopted a casual approach instead of taking appropriate measures to keep the record straight and clear any ambiguity insofar as the evidence part was concerned and also ensure that no prejudice was caused to anyone. In our considered view, the Courts below should have made an attempt to reconcile sections 301 and 311, Criminal Procedure C