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Madan Roy vs Unknown on 28 March, 2017

08

pk
CRM No. 1975 of 2017

In Re:- An application for bail under Section 439 of the Code of Criminal
Procedure filed on 07.03.2017 in connection with Lilua P.S. Case No. 304/14
dated 24.07.14 under Sections 498A/302/34 of the Indian Penal Code.

                     And
In the matter of:- Madan Roy               petitioner
Mr. Deep Chaim Kabir,
Mr. Manish Kumar Singh                       for the petitioner

Mr. Saswata Gopal Mukherjee, Ld. P.P.,
Mr. Partha Pratim Das                        for the State


Heard the Learned Counsel appearing on behalf of the parties. Perused the

case diary.

The petitioner is the husband. Out of three charge sheeted accused
persons, two are on bail. This petitioner is in custody for two years and nine
months.

On 18th November 2016 in connection with CRM No. 9244 of 2016 we
rejected the petitioner’s prayer for bail. While rejecting the prayer for bail, we
observed that the last witness was examined in the month of July 2016 and then
directed on the next date fixed for hearing, the witnesses must be examined and
if they are found absent, then in that case, the court must utilize all coercive
measures and shall ensure their presence in the court and trial must not be
adjourned in any event beyond the period of fifteen days.
It is pointed out by the learned counsel for the petitioner that when this order
was produced on 10th of January 2017 the learned judge recorded our
observation and directed the order be kept with the record and fixed the trial on
the date already fixed, i.e. on 16th of March 2017. The learned counsel for the
petitioner tried to convince us that by our order we directed that the case to be
2

preponed i.e. on the date our order shall be produced before the court below, the
court below must fix a date within fifteen days for evidence.

On the plain reading of our order we do not agree with the contention of
the learned counsel for the petitioner nor we preponed the date already fixed but
we only directed if on the date fixed there is no trial, then the next date must not
be beyond the period of fifteen days.

We have been informed that the next date is fixed on 8th of May 2017. We
direct the trial court on that day the court must record the evidence of three
remaining witnesses, namely, the Autopsy Surgeon, the Police Officer, who
recorded the FIR, and the Investigating Officer of the case.

We also make it clear if on that day their examination is not completed
beyond the control of the court, their evidence must be completed by the end of
next week, i.e. 12th of May 2017.

It be noted further as we are informed the other day trial could not have been
progressed due to the absence of the Autopsy Surgeon, the Investigating Officer
of the case and the Officer, who recorded the FIR, we direct all three to be
personally present in court.

This is a criminal trial and man is in custody for sufficiently long time. We
caution these officers that if they are absent on the next date fixed before the trial
court, the trial court shall take appropriate legal action against them and if
necessary, they shall be taken into custody and until the recording of evidence is
over, they shall not be released.

We find the Autopsy Surgeon was absent on two occasions and according
to her that was due to the illness of her son and then of her father.

Be that as it may, she is a responsible officer and we may not be wrong in
desiring that this Autopsy Surgeon must be present in court whenever summon
is issued.

This Autopsy Surgeon is now posted at Department of Forensic Medicine,
Medical College and Hospital, Kolkata.

Let a copy of this order be communicated by the learned counsel for the
State to the Principal, Medical College and Hospital, Kolkata to ensure that the
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Autopsy Surgeon, who is now attached to the Department of Forensic Medicine at
Medical College and Hospital, Kolkata, must not disobey the summon.

The order is also to be communicated to the Director of Health Service for
taking appropriate action.

Personal appearance of all the three persons stands dispensed with.
Be that as it may, now going through the case diary and considering the
materials collected during investigation and the stage of trial, the prayer for bail
stands rejected.

Let a plain copy of this order duly counter-signed by the Assistant
Registrar (Court) be handed over to the learned counsel for the State to do the
needful.

(Ashim Kumar Roy, J.)

(Shivakant Prasad, J.)

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