Pramod Kumar vs State
2009 Latest Caselaw 4592 Del

                HIGH COURT OF DELHI: NEW DELHI
+              BAIL APPLICATION NO. 1988/2009
%              Judgment reserved on: 9th November, 2009
               Judgment delivered on: 11th November, 2009

PRAMOD KUMAR                                        ..... Petitioner
                            Through: Mr. R.N. Mittal, Sr. Adv. with
                                     Mr. Manoj Kumar, Adv.
                            Versus

STATE                                             .....Respondent
                            Through: Mr. Lovkesh Sawhney, APP
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?             No

       2. To be referred to Reporter or not?             No

       3. Whether the judgment should be
          reported in the Digest?                         No



A.K. PATHAK, J.

1. By this application under Section 439 of Code of

Criminal Procedure, 1973 petitioner seeks his release on bail

in the case arising out of FIR No. 113/2002 registered at

Police Station, New Usmanpur under Sections 302/201 IPC.

2. As per the prosecution, petitioner had murdered his

wife and while he was disposing of the dead body, by

burying the same in the jungle on 4th May, 2002 at about

12:45 pm, PW2 Satbir Singh, PW3 Satbir and PW4 Satpal saw

him doing so when they confronted him he started running

away from there.

3. Trial is in progress. Fifteen witnesses out of twenty

nine witnesses have already been examined. Earlier also,

petitioner had filed a Bail Application No. 83/2009, which was

dismissed as withdrawn on 28th January, 2009. While

dismissing the aforesaid bail application, this Court directed

the trial court to complete trial, as expeditiously as possible,

preferably within a period of eight months.

4. Learned senior counsel for the petitioner has

vehemently contended that PWs, namely, Satbir Singh,

Satbir and Satpal have already been examined as PW2 to

PW4 respectively. They have not supported the prosecution

case, therefore, petitioner is entitled to be enlarged on bail.

I am of the view that testimonies of PW2 to PW4 cannot be

scrutinized by this Court at this stage in order to find the

veracity of their version. It is well settled that even

testimony of a hostile witness can be read against an

accused with regard to portion which supports the

prosecution case. It is for the trial court to scrutinize the

testimonies of the witnesses to render a finding in this

regard, at the time of final disposal of the case. Merely on

this ground petitioner is not entitled to bail more so, when

other material witnesses also have to be examined.

5. Learned senior counsel has vehemently contended that

in spite of the directions for expeditious trial, not much

progress has been made. The completion of trial may take a

long time. Petitioner is in judicial custody for about seven

years. He cannot remain incarcerated pending trial for an

indefinite period and is entitled to bail. Reliance has been

placed on following judgements:

i) Virsa Singh vs. State through CBI reported in

1991 JCC 169

ii) Ajay & Anr. vs. State of NCT of Delhi reported

in 133 (2006) DLT 315 (DB)

iii) Hussainara Khatoon vs. Home Secretary,

State of Bihar reported in AIR 1979 SC 1369

and

iv) Mohinder Singh Oberoi & anr. vs. State

(Delhi) reported in 1988(2), Delhi High Court,

6. Learned counsel for the respondent has contended that

efforts are being made by the learned trial court to expedite

the trial. However, on few dates trial could not take place on

account of the absence of the Presiding Officer, being on

leave or having gone on deputation. Adjournments were

also taken by the learned counsel for the accused on 12th

March, 2009 and 6th July, 2009. In nutshell, he has

contended that petitioner cannot be released on bail, merely

because trial could not be concluded, for the reasons beyond

the control of trial court.

7. I have considered the rival contentions of both the

parties on this point. I am of the view that petitioner is not

entitled to concession of bail merely on the ground that he

has remained in judicial custody for about seven years and

completion of trial may take some time. Judgments relied

upon by the learned senior counsel for the petitioner are in

different facts and are distinguishable. In Virsa Singh's case

(supra), even the charge could not be framed by the trial

court during a period of seven years while the accused

continued to remain in judicial custody. One of the accused

in the said case was lodged in Central Jail, Amritsar and was

ordered not to be released from the said jail, by an order

passed by the President of India. Hundred witnesses were to

be examined by the prosecution and it was not known as to

when the trial in said case would commence. In these facts

accused in the said case was enlarged on bail.

8. In Mohinder Singh Oberoi's case (supra) also, accused

was released on bail keeping in mind the facts involved in

the said case more particularly that the charge had not been

framed during the period of incarceration of the accused

while he was in the jail for a period of three years.

9. In Hussainara Khatton 's case (supra) it had been

observed that under-trial prisoners had remained in jail for

periods longer than the maximum period for which they

could have been sentenced, if convicted. In these

circumstances, it was observed that their detention in jail

would be totally unjustifiable and in violation of the

fundamental right of personal liberty as enshrined under

Article 21 of the Constitution. In this case, petitioner is

facing trial, for one of the offences, which attracts life

imprisonment.

10. Keeping in mind the gravity of offence, I am not inclined

to enlarge the petitioner on bail. It is hoped that learned

trial court will make an endeavour to conclude the trial

expeditiously in terms of the order passed earlier in the bail

application.

11. Dismissed.

A.K. PATHAK, J.

November 11, 2009 ga