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Case diary is available.

This second application under Section 439 of Cr.P.C. 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.

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 IPC.

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.

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.

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.

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

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idol 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.

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.

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 CrPC in a blindfolded manner, ought

to have examined as to how the oral evidence of

PW 18 which did not tally with Ext. 8, the author

of whom was PW 18 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

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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 CrPC in such

peculiar situations and ensured that the trial

proceeded in the right direction.

19.

In crimi