Himachal Pradesh High Court

Jasbir Singh vs State Of H.P on 4 November, 2023

Bench: Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.2618/2023 Decided on: 04.11.2023

     Jasbir Singh                             ......Petitioner





                                            Versus





     State of H.P.                         ......Respondent

.......................................................................................... Coram Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?1

For the petitioner : Mr. Sanjeev Kumar Suri, Advocate.


     For the respondent :                     Mr. Pranay Pratap Singh, Additional
                                              Advocate General with Mr. Arsh
                           r                  Rattan & Mr. Sidharth Jalta,

                                              Deputy Advocates General.

                                              ASI Ashok Kumar, present in
                                              person.



    Jyotsna Rewal Dua, J

Petitioner is facing accusation of murdering one

Lakhwinder Singh in FIR No.222 of 2020, dated 15.06.2020,

registered under Sections 302, 201 and 34 of the Indian Penal Code

(IPC) at Police Station Una. Petitioner was arrested on 17.06.2020.

By way of the instant petition, he prays for enlargement on regular

bail.

2. The case of the prosecution in nutshell is that:-

2(i). On 15.06.2020, the police received an information that

one Lakhwinder Singh had been declared brought dead in Post

Whether reporters of the local papers may be allowed to see the judgment? yes

Graduate Institute of Medical Education and Research, Chandigarh.

That there were many injury marks on the dead body. Upon receipt of

the information, investigations were carried out. Post-mortem was

also got conducted at Regional Hospital, Una.

2(ii). Investigations carried out by the respondent revealed

that on 14.06.2020, the petitioner was present in his house alongwith

his family members. At around 10:00 pm, Lakhwinder Singh came to

the gate adjoining the house of one Gurcharan Singh. He was in an

inebriated condition and was holding an iron rod, with which he first hit

the gate of Gurcharan's house. Soon thereafter, he entered the

'verandah' of the petitioner's house and started hurling abuses at

petitioner and his wife. Upon this, the petitioner came out from his

room holding an axe in his hand. Lakhwinder Singh attacked the

petitioner with iron rod, causing injuries to him. The petitioner also

attacked Lakhwinder Singh with the axe and inflicted serious injuries

on his face and neck.

2(iii). Investigations revealed that Lakhwinder Singh had illicit

relations with petitioner's wife. During COVID-19 period, while the

petitioner was carrying on his business in Delhi, Lakhwinder Singh

used to visit petitioner's home to meet his wife. These relations were

not acceptable to the petitioner, but this did not deter Lakhwinder

Singh from continuing to meet petitioner's wife. There used to be

regular altercations between the petitioner and Lakhwinder Singh for

this reason. It is the case of the prosecution that the petitioner had

murdered Lakhwinder Singh because of his having illicit relations with

petitioner's wife.

3. Learned counsel for the petitioner submitted that as per

the prosecution's own showing, deceased was under the influence of

liquor. He was creating nuisance by hitting the gate of Gurcharan

Singh's house with an iron rod. Thereafter, he entered the house of

the petitioner and hurled abuses, assassinating the character of

petitioner's wife. That the police has planted a false motive of extra-

marital relations between petitioner's wife (a co-accused who is on

bail) and the deceased. That there is no spot witness to the incident in

question. Learned counsel further submitted that witnesses already

examined by the prosecution, have not supported its case. There are

gaps in the story set-forth by the prosecution. That no case, much less

under Section 302 IPC, is made out against the petitioner. Learned

counsel further submitted that the petitioner was arrested on

17.06.2020. By now he has completed about three years and five

months in custody. The trial is no where near conclusion. The trial has

been delayed. On account of delay in trial, the petitioner is entitled to

be enlarged on bail as delay in trial amounts to violation of his right as

enshrined under Article 21 of the Constitution of India.

In support of his submissions that trial in the FIR has

been considerably delayed, learned counsel for the petitioner also

referred to some of the recent zimni orders passed by the learned

Trial Court more specifically the orders dated 12.06.2023, 13.06.2023,

02.09.2023 and 04.09.2023, when the trial was deferred on

subsequent dates on account of non-production of prosecution

witnesses.

Learned Deputy Advocate General opposed the grant of

bail. It was submitted that the petitioner is accused of very serious and

heinous offence under Section 302 of the Indian Penal Code. The

evidence with the prosecution demonstrates that the petitioner had a

motive for killing Lakhwinder Singh as he had continued to have illicit

relations with petitioner's wife. Iron rod used by Lakhwinder Singh and

the axe used by the petitioner in the incident in question were

recovered on the basis of statement of petitioner's wife (co-accused)

recorded under Section 27 of the Indian Evidence Act. It was

submitted that the trial is underway, therefore the petitioner does not

deserves to be enlarged on bail.

4. I have learned counsel for the parties and gone through

the status report as well as the record made available today by the

respondent.

5. Observations:-

5(i) Hon'ble Apex Court has repeatedly held that deprivation

of personal liberty without ensuring speedy trial is not consistent with

Article 21 of the Constitution of India. While deprivation of personal

liberty for some period may not be avoidable, but period of deprivation

of pending trial cannot be unduly long [2022 (3) SCC, 695, titled

Ashim & Asim Kumar Haranath Bhattacharya alias Asim Harinath

Bhattacharya alias Aseem Kumar Bhattacharya Versus National

Investigating Agency].

                  In   2021(3)     SCC,     713,    Union       of     India     Versus

    K.A.Najeeb,     Hon'ble     Apex     Court     considered        various      judicial

precedents where Article 21 of the Constitution of India was invoked in

case of gross delay in disposal of cases of under-trials and

consequential necessity to release them on bail. The earlier decisions

were reiterated that liberty granted by Part-III of the Constitution,

would cover within its protective ambit not only due procedure and

fairness, but also access to justice and speedy trial. It was held that

once it is obvious that a timely trial would not be possible and the

accused have suffered incarceration for a significant period of time,

the Courts would ordinarily be obligated to enlarge them on bail.

Some relevant paras from the judgments are extracted hereinafter:-

"10. It is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43D(5) of UAPA are alien to him. The High Court instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43D (5) of UAPA.

11. The High Court's view draws support from a batch of decisions of this Court, including in Shaheen Welfare Assn, laying down that gross delay in disposal of such cases would justify the invocation of

.

Article 21 of the Constitution and consequential necessity to

release the undertrial on bail. It would be useful to quote the following observations from the cited case:

"10. Bearing in mind the nature of the crime and the need to

protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case, on the

presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, rgiving rise to possible situations that may justify invocation of

Article 21." ...

(emphasis supplied)

12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the

Narcotic Drugs and Psychotropic Substances Act, 1985 (" the NDPS Act") which too have somewhat rigorous conditions for

grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), Babba v. State of Maharashtra and Umarmia alias

Mamumia v. State of Gujarat enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The

constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.

13. We may also refer to the orders enlarging similarly situated accused under the UAPA passed by this Court in Angela Harish Sontakke v. State of Maharashtra. That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with

the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to

.

be examined, and thus granted bail to the accused

notwithstanding Section 43D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra, an accused under the UAPA was enlarged for he had been in jail for four years

and there were over 147 witnesses still unexamined.

15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and

fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, it was held that

undertrials cannot indefinitely be detained pending trial.

Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to

society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual

ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has

suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.

17. It is thus clear to us that the presence of statutory

restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already

undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being

.

used as the sole metric for denial of bail or for wholesale

breach of constitutional right to speedy trial."

5(ii) SLP (Crl.) No.915 of 2023 (Mohd Muslim @ Hussain

Vs. State (NCT of Delhi) was decided on 28.03.2023. Petitioner

therein facing charge under Section 29 of the NDPS Act and suffering

incarceration for over seven years was granted bail on account of

delay in trial. Hon'ble Court, inter-alia, reiterated that when stringent

provisions are enacted, curtailing the provisions of bail and

restraining judicial discretion, it is on the basis that investigation and

trials would be concluded swiftly. Pronouncements in (2021) 3 SCC

713 (Union of India V. K.A. Najeeb) and (2022) 6 SLR 382 (Vijay

Madan Lal Chaudhary Vs Union of India) were also observed

wherein it was concluded that statutory restrictions like "section 43-

D(5) of UAPA cannot fetter a constitutional Court's ability to grant bail

on ground of violation of fundamental right" ..... "If the Parliament

provides for stringent provision of no bail unless the stringent

conditions are fulfilled, it is the bounden duty of the State to ensure

that such trials get precedence and are concluded within a

reasonable time at least before the accused undergoes detention for

a period extending up to one and half of the maximum period of

imprisonment specified for the concerned offence by law. (2022) 10

SCC 51 (Satender Kumar Antil Vs. CBI) was also considered,

where prolonged incarceration and inordinate delay engaged the

attention of Court vis-à-vis several enactments including Section 37

of NDPS Act.

5(iii) While deciding Special Leave to Appeal (Crl.) No(s).

4169/2023 vide judgment dated 13.07.2023 (Rabi Prakash Vs. The

State of Odisha), the Hon'ble Apex Court while considering a case

under the NDPS Act held that prolonged incarceration, generally

militates against the most precious fundamental right guaranteed

under Article 21 of the Constitution and in such a situation, the

conditional liberty must override the statutory embargo created under

Section 37(1)(b)(ii) of the NDPS Act.

5(iv). The petitioner is facing accusations of committing

murder of one Lakhwinder Singh in the FIR in question. The axe

statedly used by the petitioner for inflicting injuries upon Lakhwinder

Singh was recovered by the Investigating Agency on the basis of

statement of petitioner's wife (co-accused) recorded under Section

27 of the Indian Evidence Act. The iron rod statedly used by the

deceased against the petitioner was also recovered by the

Investigating Agency pursuant to this very statement. The post-

mortem report prepared by Dr. R.P. Government Medical College,

Kangra at Tanda, mentions following antimortem injuries suffered by

Lakhwinder Singh:-

.

"1. An incise-stab wound, of size 10x3 cm gaping, obliquely placed,

with relatively sharp upper angle; cavity deep is present over the left side of abdomen. Situated 4.6 cm leftward to umbilicus and 9.6 cm above anterior superior iliac spine and 106.5 cm above the left

heel level Part of small intestine along with omentum is coming out from his wound. On dissection, a blood stained track is established directed inwards, upwards and backwards, passing through wound,

through peritoneum, perforate omentum, loops of small large intestines and adjoining structure also associated with about 1 liter haemoperitonium and retroperitoncal hemorrhages.

2. A chop wound of size 8x2 cm x bone deep, obliquely placed, is

present over the right side of face extending from 2 cm below outer

canthus of right eye and going downwards up to the right side of upper lip. 1.7 cm lateral to midline, associated with underline fracture injury of right side of maxilla and fracture of right upper and

lower incisor teeth.

3. A reddish brown abrasion of size 3x2 cm is present over the right aspect of base of nose; underlying nasal bone is intact.

4. A reddish brown abrasion of size 5.2x2.6 cm is present over the left malar aspect of face.

5. A reddish brown abrasion of size 2.2.x1.2 cm is present over the middle part of scalp region, 15.5 cm behind anterior hair line.

Underlying structures are intact.

6. A reddish brown abrasion of size 1.6x1.2 cm is present over the front aspect of right knee, 1.2 cm above right tibial tubcrosity

7. Multiple old healed scars of sizes ranging from 3.2x0.6 cm to 5.2 x 0.6 cm are present in an area of 8.5x7.2 cm over the front aspect of left forearm."

According to the prosecution, there was blood on the

axe, but it was not sufficient to carry out further scientific analysis.

The prosecution has also set out a motive for petitioner's causing

fatal injuries to Lakhwinder Singh, the motive being his illicit relations

with petitioner's wife. Apart from arguing that the prosecution has not

been able to establish its case, it has also been urged on behalf of

the petitioner that the alleged act of the petitioner is at best in

exercise of his right of private defence without any intention to kill

Lakhwinder Singh. It will not be appropriate at this stage to comment

as to whether petitioner retaliated in self defence or attacked the

deceased. This is a matter to be deliberated during trial. However, at

this stage, for the purpose of adjudication of this bail petition, a fact

put-forth by the prosecution assumes significance that it was the

deceased, who had come to the house of the petitioner with an iron

road in an inebriated condition & started hurling abuses.

A previous bail petition bearing Cr.MP(M) No.1458/2022

instituted by the petitioner was dismissed on merit on 02.09.2022.

While deciding the aforesaid bail petition, considering the fact that

FIR in question pertained to the year 2020, it was hoped and

expected that the learned Trial Court would make endeavour to

expedite the trial. We are now at the fag end of 2023. In terms of the

status report filed by the respondent, the prosecution has examined

16 witnesses thus far. Statements of 23 prosecution witnesses still

remain to be recorded. The zimni orders placed on record reflect that

the trial has been deferred time and again for want of presence of

prosecution witnesses. Considering the fact that at this stage 23

witnesses remain to be recorded, it is apparent that the trial is not

going to be concluded in near future. The petitioner, who has already

spent about three years and five months in custody, in my considered

opinion has made out a case for his enlargement on regular bail at

this stage. There is no criminal history of the petitioner. The

apprehension expressed by the prosecution about the likelihood of

petitioner's tampering with the evidence or winning over remaining

witnesses, can be taken care of by imposing stringent conditions and

also granting liberty to the respondent/State to seek cancellation of

the bail in case the conditions are violated by the petitioner.

In view of all the aforesaid reasons and without

expressing any opinion on the merits of the case, the present petition

is allowed. Petitioner is ordered to be released on bail in the

aforesaid FIR on his furnishing personal bond in the sum of

Rs.1,00,000/- (Rupees One Lakh only) with one local surety in the

like amount to the satisfaction of the learned Trial Court having

jurisdiction over the Police Station concerned, subject to the following

conditions:-

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii). Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

(iii). Petitioner will not leave India without prior permission of the Court.

(iv). Petitioner shall attend the trial on every hearing,

.

unless exempted in accordance with law.

(v). Petitioner shall not leave territorial jurisdiction of State of Himachal Pradesh without informing the

concerned SHO.

(vi) Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating

Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(vii). Petitioner shall inform the Station House Officer of

the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter.