Himachal Pradesh High Court

Reserved On : 04.11.2024 vs State Of Himachal Pradesh on 8 November, 2024

Author: Virender Singh

Bench: Virender Singh

2024:HHC:10903

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CrMP(M) No. : 2212 of 2024 Reserved on : 04.11.2024 Decided on : 08.11.2024

Sanjay Sharma ...Applicant Versus

State of Himachal Pradesh ...Respondent

Coram The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1

For the applicant : Mr. Ritesh Bhardwaj, Advocate.

For the respondent : Mr. Anup Rattan, Advocate General, with Mr. Tejasvi Sharma, Mr. Mohinder Zharaick and Mr. H.S. Rawat, Additional Advocates General.

Virender Singh, Judge By way of the present application, filed under

Section 483 of the Bharatiya Nagarik Suraksha Sanhita,

2023 (hereinafter referred to as 'BNSS'), applicant-Sanjay

Sharma has sought his release, on bail, during the

pendency of trial, in case FIR No.57 of 2021, dated

22.02.2021, registered under Sections 302, 120B and 201

1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

2 2024:HHC:10903

of the Indian Penal Code (hereinafter referred to as 'IPC'),

with Police Station Nalagarh, District Solan, Himachal

Pradesh.

2. According to the applicant, he is resident of the

address, as mentioned in the application and is having

deep roots in the society.

3. As per the applicant, he has falsely been

implicated, by the police, in the present case, as, there is

no evidence, connecting him, with the crime, in question.

The applicant is stated to be in judicial custody since

22.02.2021.

4. As per applicant, he had earlier tried his luck

by moving similar bail application, before the learned

Additional Sessions Judge, Nalagarh, District Solan, H.P.

However, the same was rejected vide order dated

16.06.2022.

5. It is the case of the applicant that despite such

a long period in the judicial custody, trial against him has

not been concluded.

6. In order to buttress his contention, it has also

been pleaded in the application that there are total 51

prosecution witnesses, out of which, only 9 prosecution 3 2024:HHC:10903

witnesses have been examined and on the basis of above

fact, it has been pleaded that inordinate delay, in

conclusion of the trial, violates his precious right, under

Article 21 of the Constitution of India.

7. The applicant has put forward his young age of

23 years, as one of the grounds, seeking the relief of bail.

8. In addition to this, learned counsel, appearing

for the applicant, has also placed on record the statement

of PW-4 Amit Kumar and argued that the said witness,

when appeared in the witness-box, has turned hostile.

9. Apart from this, Mr. Ritesh Bhardwaj, Advocate,

appearing for the applicant, has given certain

undertakings, for which, the applicant is ready to abide by,

in case, ordered to be released on bail, during the

pendency of the trial.

10. On the basis of the above facts, a prayer has

been made to allow the bail application.

11. When put to notice, the police has filed the

status report, disclosing therein, that on 22.02.2021, an

information was given by Pradhan GP Saned, over

telephone, which has been entered as Rapat No.14, at

08:17am.

4 2024:HHC:10903

12. As per the said information, near Cow Shelter

at Bhagwania, dead body of a boy, aged about 12-13 years,

is lying there, upon which, SI Babu Ram, along with other

police officials, reached there. At the spot, they noticed that

the dead body was in a jute sack. Photography of the dead

body was done and efforts to get the said dead body

identified were made, but, no one could identify the same.

13. It is the further case of the prosecution that at

the spot, complainant-Mehar Chand got recorded his

statement to the police, under Section 154 Code of

Criminal Procedure (hereinafter referred to as the 'CrPC'),

disclosing therein that he is resident of Village Handa

Khundi, Nalagarh, District Solan and is a contractor. His

wife is Pradhan of Gram Panchayat, Saned.

14. As per the statement, on 22.02.2021, at about

8am, when, complainant was present at his house, some

unknown person had informed him that a dead body of a

boy, aged about 12-13 years, is found lying, upon which,

he has informed the police and also reached at the spot

and found that the dead body was lying in the bushes.

When, the dead body was inspected, then, the same was

found to be dead body of a person, aged between 20-25 5 2024:HHC:10903

years. There was a black coloured cloth around the neck

and other body wounds were also noticed. On the waist of

the dead body, there was amulet.

15. On the basis of above facts, police has

registered the FIR and criminal machinery swung into

motion.

16. Thereafter, dead body was sent to hospital for

post-mortem examination. However, a direction was given

to the Medical Officer to conduct the post-mortem after 72

hours, as, no one has identified the dead body. Physical

evidence from the spot was taken into possession.

Statements of the witnesses were recorded, under Section

161 of CrPC.

17. Subsequently, efforts were made to get the dead

body identified, including issuance of hue and cry notice.

The team of FSL, Junga also visited and inspected the

spot. On 23.02.2021, Naresh Kumar S/o Chanalu Ram

and Uttam Chand S/o Hans Raj, both residents of Village

Thisla, Tehsil Saluni, District Chamba, have identified the

dead body, as Narender Kumar @Vicky, aged about 21

years, S/o Viyaso, R/o Village Thisla Tehsil Saluni, District

Chamba, H.P. 6 2024:HHC:10903

18. It is the further case of the prosecution that

thereafter, a request was made on 24.02.2021 to SMO,

Civil Hospital, CHC Nalagarh, for conducting the post-

mortem examination of the dead body. CDR of mobile

No.78077-58732 was obtained, perusal of which shows

that deceased Narender Kumar had contacted from his

mobile No.78077-58732 to mobile No.62300-23455. The

said number was found to be issued in the name of

accused Homdei. Thereafter, request for Consumer

Application Form was made to the service provider and

accused were associated in the investigation.

19. It is the further case of the prosecution that

during investigation, it was found that deceased Narender

Kumar used to harass accused Homdei and also used to

make repeated telephone calls to her. On 07.02.2021,

when deceased has called accused Homdei, then, this fact

came to the knowledge of her husband-Sanjay Sharma

(applicant).

20. It is their further case that Sanjay Sharma

(applicant) abused the deceased and thereafter, he and

accused Homdei had decided to take revenge from

deceased. On 21.02.2021, deceased Narender Kumar had 7 2024:HHC:10903

come to the room of Sanjay Sharma (applicant) and this

information was given by accused Homdei to Sanjay

Sharma (applicant). However, Sanjay Sharma (applicant)

did not pick the phone. During daytime, Homdei and

Sanjay Sharma (applicant) remained in the residential

quarter of one Mandeep. There, accused/applicant Sanjay

Sharma has also shown his intention to Mandeep

regarding finishing a person. Thereafter, he has requested

one Amit to provide him his vehicle, upon which, Amit has

refused to do so.

21. It is the further case of the prosecution that

thereafter, Sanjay Sharma (applicant) had stolen a danda

from the vehicle of Amit and taken the same to the room of

Mandeep. Sanjay Sharma (applicant) and Mandeep, at

about 09:30pm, on that day, went to the room of Sanjay

Sharma (applicant), where, deceased Narender Kumar and

accused Homdei were found, upon which, Sanjay Sharma

(applicant) became furious and started beating the

deceased. All the three accused had thereafter killed

Narender Kumar and thrown away his dead body.

22. On the basis of above facts, on 25.02.2021,

accused persons were arrested. Subsequently, they were 8 2024:HHC:10903

medico legally examined. During investigation, accused

persons have made disclosure statement, under Section 27

of the Indian Evidence Act, upon which, weapon of offence

was recovered. When, the police found, in the investigation

that the Sanjay Sharma (applicant) has destroyed the

mobile phone and Aadhaar Card of the deceased, then,

Section 201 of IPC was added, in the present case. The

physical evidence, so collected from the spot, was sent to

FSL, Junga and after receipt of the report, police has filed

the final report (challan) on 25.05.2021 and the

supplementary challan was filed on 28.03.2023, before the

competent Court of law.

23. It is the further case of the police that out of the

total 51 prosecution witnesses, 9 prosecution witnesses

have been examined and now, the case has been fixed on

11.12.2024 for remaining evidence of the prosecution

witnesses.

24. On the basis of above facts, a prayer has been

made to dismiss the application.

25. So far as coming to the arguments of learned

counsel for the applicant that PW-4 Amit Kumar, when

appeared in the witness-box, has turned hostile, are 9 2024:HHC:10903

concerned, the evidence of hostile witness does not efface

from the record and it is the sole prerogative of the learned

trial Court to consider the statement of the witness, who

allegedly has turned hostile. No benefit can be given to the

applicant, merely on the fact that one witness, examined

by the prosecution, has turned hostile.

26. The accused (applicant), in the present case,

was arrested on 25.02.2021. Till date, out of the total 51

prosecution witnesses, 9 prosecution witnesses have been

examined. The applicant is in judicial custody for about 3

years and 8 months and in near future, chances of

conclusion of trial, against the applicant, are not so bright.

27. Considering the fact that the applicant is in

judicial custody, since long, this Court is of the view that

no useful purpose would be served by keeping the

applicant in the judicial custody, that too, for indefinite

period.

28. It has rightly been argued by learned counsel,

appearing for the applicant, that the fundamental right of

the applicant for speedy trial, as envisaged, under Article

21 of the Constitution of India, has been violated.

10 2024:HHC:10903

29. Right to speedy trial has been held to be

fundamental right by the Constitution Bench of the

Hon'ble Supreme Court, in a case titled as Abdul Rehman

Antulay and others versus R.S. Nayak and another,

reported in (1992) 1 Supreme Court Cases 225. In the

said case, the Hon'ble Supreme Court has held that the

accused has right to speedy trial, which flows from Article

21 of the Constitution of India. Relevant paragraph 86 of

the said judgment, is reproduced, as under:

"86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:

(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.

11 2024:HHC:10903

(3) The concerns underlying the right to speedy trial from the point of view of the accused are:

(a) the period of remand and pre-

conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.

(4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non- availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is -- who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as 12 2024:HHC:10903

proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.

(5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on -- what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker [33 L Ed 2d 101] "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. v. Ewell [15 L Ed 2d 627] in the following words:

'... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a

13 2024:HHC:10903

relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.

(7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker [33 L Ed 2d 101] and other succeeding cases.

(8) Ultimately, the court has to balance and weigh the several relevant factors -- 'balancing test' or 'balancing process' -- and determine in each case whether the right to speedy trial has been denied in a given case.

(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order -- including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded -- as may be deemed just and equitable in the circumstances of the case.

14 2024:HHC:10903

(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. (11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis."

(self emphasis supplied)

30. A three Judge Bench of the Hon'ble Supreme

Court, in another case, titled as Raj Deo Sharma versus

State of Bihar, reported in (1998) 7 Supreme Court

Cases 507, has supplemented the decision of the Hon'ble

Supreme Court in Abdul Rehman Antulay's case (supra),

by issuing the additional directions. Relevant paragraph 13 15 2024:HHC:10903

of the judgment in Raj Deo Sharma's case (supra), is

reproduced as under:

"17. After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution Bench in Antulay case [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] with the following directions:

(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case.

(ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one-half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit.

(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time-limit.

16 2024:HHC:10903

(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by clauses (i) to (iii).

(v) Where the trial has been stayed by orders of the court or by operation of law, such time during which the stay was in force shall be excluded from the aforesaid period for closing the prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in "Common Cause" A Registered Society v. Union of India [(1996) 4 SCC 33 : 1996 SCC (Cri) 589] as modified by the same Bench through the order reported in "Common Cause" A Registered Society v. Union of India [(1996) 6 SCC 775 : 1997 SCC (Cri) 42] ."

31. In case, titled as Dharmendra Kirthal versus

State of Uttar Pradesh and another, reported in (2013) 8

Supreme Court Cases 368, the Hon'ble Supreme Court

has held the right to speedy and fair trial to be an integral

part of very soul of Article 21 of the Constitution of India.

Relevant paragraphs 30 to 33 of the judgment, is

reproduced, as under:

"30. Keeping the aforesaid enunciation in view, we shall presently proceed to deal with the stand and stance of both the sides. The first submission which pertains to the denial of speedy trial has been interpreted to be a facet of Article 21 of the Constitution. In Kartar Singh [Kartar Singh v. State of Punjab, (1994) 3 17 2024:HHC:10903

SCC 569 : 1994 SCC (Cri) 899] , the majority, speaking through Pandian, J., has expressed thus: (SCC p. 638, paras 85-86) "85. The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge.

86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. In this context, it may be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure."

31. Be it noted, the Court also referred to the pronouncements in Hussainara Khatoon (1) v. State of Bihar [(1980) 1 SCC 81 : 1980 SCC (Cri) 23] , Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] , Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC 98 : 1980 18 2024:HHC:10903

SCC (Cri) 40] , Hussainara Khatoon (6) v. State of Bihar [(1980) 1 SCC 115 : 1980 SCC (Cri) 57] , Kadra Pahadiya v. State of Bihar [(1983) 2 SCC 104 : 1983 SCC (Cri) 361] , T.V. Vatheeswaran v. State of T.N. [(1983) 2 SCC 68 : 1983 SCC (Cri) 342] and Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] .

32. The present provision is to be tested on the touchstone of the aforesaid constitutional principle. The provision clearly mandates that the trial under this Act of any offence by the Special Court shall have precedence and shall be concluded in preference to the trial in such other courts to achieve the said purpose. The legislature thought it appropriate to provide that the trial of such other case shall remain in abeyance. It is apt to note here that "any other case"

against the accused in "any other court"

does not include the Special Court. The emphasis is on speedy trial and not denial of it. The legislature has incorporated such a provision so that an accused does not face trial in two cases simultaneously and a case before the Special Court does not linger owing to clash of dates in trial. It is also worthy to note that the Special Court has been conferred jurisdiction under sub-section (1) of Section 8 of the Act to try any other offences with which the accused may, under any other law for the time being in force, have been charged and proceeded at the same trial.

33. As far as fair trial is concerned, needless to emphasise, it is an integral part of the very soul of Article 21 of the Constitution. Fair trial is the quintessentiality of apposite dispensation of criminal justice. In Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158 : 2004 SCC (Cri) 999] , it has been held as follows: (SCC p. 183, para 33) "33. The principle of fair trial now informs and energises many areas of 19 2024:HHC:10903

the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation--peculiar at times and related to the nature of crime, persons involved-- directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system."

(self emphasis supplied)

32. Similar view has been taken by a two Judge

Bench of the Hon'ble Supreme Court, in case, titled as

Hussain and another versus Union of India, reported in

(2017) 5 Supreme Court Cases 702. Relevant paragraphs

9 to 12 of the judgment, are reproduced, as under:

"9. As already noticed, speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. This constitutional right cannot be denied even on the plea of non-availability of financial resources. The court is entitled to issue directions to augment and strengthen the investigating machinery, setting up of new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional Judges and other measures as are necessary for speedy trial [Hussainara Khatoon (4) v. State of Bihar, (1980) 1 SCC 98, para 10 : 1980 SCC (Cri) 40].

10. Directions given by this Court in Hussainara Khatoon (7) v. State of Bihar, (1995) 5 SCC 326 : 1995 SCC (Cri) 913, to this effect which were left to be 20 2024:HHC:10903

implemented by the High Courts are as follows: (SCC p. 328, para 2) "2. Since this Court has already laid down the guidelines by orders passed from time to time in this writ petition and in subsequent orders passed in different cases since then, we do not consider it necessary to restate the guidelines periodically because the enforcement of the guidelines by the subordinate courts functioning in different States should now be the responsibility of the different High Courts to which they are subordinate.

General orders for release of undertrials without reference to specific fact situations in different cases may prove to be hazardous. While there can be no doubt that undertrial prisoners should not languish in jails on account of refusal to enlarge them on bail for want of their capacity to furnish bail with monetary obligations, these are matters which have to be dealt with on case-to-case basis keeping in mind the guidelines laid down by this Court in the orders passed in this writ petition and in subsequent cases from time to time. Sympathy for the undertrials who are in jail for long terms on account of the pendency of cases has to be balanced having regard to the impact of crime, more particularly, serious crime, on society and these considerations have to be weighed having regard to the fact situations in pending cases.

While there can be no doubt that trials of those accused of crimes should be disposed of as early as possible, general orders in regard to Judge- strength of subordinate judiciary in each State must be attended to, and its functioning overseen, by the High Court of the State concerned. We share the sympathetic concern of the learned counsel for the petitioners that undertrials should not languish in jails 21 2024:HHC:10903

for long spells merely on account of their inability to meet monetary obligations. We are, however, of the view that such monitoring can be done more effectively by the High Courts since it would be easy for those Courts to collect and collate the statistical information in that behalf, apply the broad guidelines already issued and deal with the situation as it emerges from the status reports presented to it. The role of the High Court is to ensure that the guidelines issued by this Court are implemented in letter and spirit. We think it would suffice if we request the Chief Justices of the High Courts to undertake a review of such cases in their States and give appropriate directions where needed to ensure proper and effective implementation of the guidelines. Instead of repeating the general directions already issued, it would be sufficient to remind the High Courts to ensure expeditious disposal of cases."

11. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. This Court has held that while a person in custody for a grave offence may not be released if trial is delayed, trial has to be expedited or bail has to be granted in such cases [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39].

12. Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice. Directions of this Court in Noor Mohammed v. Jethanand, (2013) 5 SCC 202, are as follows: (SCC p. 217, para 34) 22 2024:HHC:10903

"34. ... Therefore, we request the learned Chief Justice of the High Court of Rajasthan as well as the other learned Chief Justices to conceive and adopt a mechanism, regard being had to the priority of cases, to avoid such inordinate delays in matters which can really be dealt with in an expeditious manner. Putting a step forward is a step towards the destination. A sensible individual inspiration and a committed collective endeavour would indubitably help in this regard. Neither less, nor more."

(self emphasis supplied)

33. A three Judge Bench of the Hon'ble Supreme

Court, in case, titled as Union of India versus K.A.

Najeeb, reported in (2021) 3 Supreme Court Cases 713,

has held that when a timely trial would not be possible and

the accused has suffered incarceration for a significant

period of time, the Courts would ordinarily be obligated to

enlarge accused on bail. Relevant paragraphs 11 and 15 of

the judgment, are reproduced, as under:

"11. The High Court's view draws support from a batch of decisions of this Court, including in Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 : 1996 SCC (Cri) 366 , 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: (SCC p. 622, para 10) "10. Bearing in mind the nature of the crime and the need to protect the 23 2024:HHC:10903

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 [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , 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, giving rise to possible situations that may justify invocation of Article 21."

              ***           ***
              ***

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 [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 :

1995 SCC (Cri) 39] , 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, the 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, the courts would ordinarily be obligated to enlarge them on bail."

(self-emphasis supplied) 24 2024:HHC:10903

34. Considering the facts of the case, in the light of

the above legal proposition of law, this Court is of the view

that the chances of conclusion of trial, against the

applicant, in near future, are not bright, as such, keeping

the applicant in judicial custody, would be nothing, but,

pre-trial punishment, which is prohibited under the law.

Moreover, the applicant is presumed to be innocent till his

guilt is proved by the prosecution, during the trial.

35. Since, applicant is the resident of District

Chamba, as such, it cannot be apprehended that in case,

he is ordered to be released on bail, he may not be

available for the trial. Even otherwise, stringent conditions

can be imposed, upon the applicant, in case, he is ordered

to be released on bail.

36. In view of the discussions, made hereinabove,

this Court is of the view that the applicant is able to make

out a case for his release on bail, during the pendency of

the trial. Hence, the present bail application is liable to be

allowed and is accordingly allowed.

37. Consequently, the applicant is ordered to be

released on bail in case FIR No.57 of 2021, dated

22.02.2021, registered under Sections 302, 120B and 201 25 2024:HHC:10903

of the IPC, with Police Station Nalagarh, District Solan,

Himachal Pradesh, on his furnishing bail bonds, in the

sum of ₹50,000/-, with two sureties of the like amount, to

the satisfaction of the learned trial Court. This order,

however, shall be subject to the following conditions:

a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and