Himachal Pradesh High Court

Reserved On 13.09.2024 vs State Of H.P on 20 September, 2024

1 ( 2024:HHC:8868

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.1979 of 2024 Reserved on 13.09.2024 Decided on: 20.09.2024 _________________________________________________________ Sunil Tegta .... Petitioner Versus State of H.P. .... Respondent Coram The Hon'ble Mr. Justice Satyen Vaidya, Judge. ____________________________________________________________ Whether approved for reporting ?. No For the Petitioner : Ms. Meera Devi, Advocate.

For the Respondent : Mr. Gobind Korla, Additional Advocate General.

SI/SHO Ghanshyam, P.S. Deha, Theog, District Shimla, present in person.

Satyen Vaidya, Judge

Petitioner is facing trial for offence under Section 302

read with Section 34 of IPC registered at Police Station, Deha,

District Shimla in case FIR No. 47 of 2021 dated 22.12.2021.

2. It is alleged that the petitioner committed the murder

of one Sh. Ramesh Gazta during the intervening night of

21/22.12.2021 near Village Kalgaon, Tehsil Theog, District

Shimla, H.P. As per prosecution case, petitioner was called by the 2 ( 2024:HHC:8868

deceased in the evening of 21.12.2021 for carriage of iron angle

bars from bus stop of Village Kalgaon to the house of the deceased.

The petitioner had reached the bus-stop of Village Kalgaon along

with his friend Narinder Singh. All of them carried the steel angular

bars till the house of deceased and thereafter started drinking

liquor. Under the influence of liquor, the deceased abused the

petitioner and his friend Narinder Singh and directed the petitioner

to bring another bottle of liquor. The petitioner brought a sickle

with him while fetching the liquor bottle. The deceased, petitioner

and Narinder Singh consumed more liquor. The petitioner, who

had hidden the sickle gave two blows with sickle on the neck of the

deceased in presence of Narinder Singh and thereafter both of them

absconded from the spot.

3. The petitioner was arrested on 22.12.2021 and

remained in police custody till 27.12.2021 whereafter he has

continuously been in judicial custody till date.

4. Learned counsel for the petitioner has contended that

the right of petitioner to speedy trial has been seriously violated in 3 ( 2024:HHC:8868

this case. It is submitted that the petitioner is continuously in

custody since 22.12.2021 and there is no possibility of conclusion

of trial in near future as out of 35 cited prosecution witnesses, only

one has been examined till date. It has also been submitted that the

petitioner had on two earlier occasions approached this Court for

grant of bail and both the times the petitions were withdrawn, the

latter of these withdrawals was on 15.3.2024. As per learned

counsel for the petitioner, more than six months have elapsed

thereafter and there is no progress in the trial.

5. Mr. Gobind Korla, learned Additional Advocate

General though did not dispute the factual position with respect to

the pace at which the trial is moving, has raised serious objection

to the grant of bail to the petitioner by asserting that the petitioner

has committed a heinous crime and does not deserve any leniency.

He has also expressed an apprehension that in case of release of

petitioner on bail, he may not be available for trial as there is every

likelihood of his absconding from the course of justice.

4 ( 2024:HHC:8868

6. I have heard learned counsel for the parties and have also

gone through the records of the case carefully.

7. The right to speedy trial is one of the cardinal

manifestations of Article 21 of the Constitution of India and has

repeatedly been held by the Hon'ble Supreme Court to be valuable right

available to a person or accused of an offence.

8. In Hussainara Khatoon vs. Home Secretary, State of

Bihar reported in (1980) 1 SCC 81 the right to speedy trial was held

implicit in the broad sweep and content of Article 21 of the

Constitution.

9. In Dr. Vinod Bhandari vs. State of M.P. 2015 (1) Criminal Court Case 294 (S.C.), Hon'ble Supreme Court has held as under:- .

"12. It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time."

5 ( 2024:HHC:8868

10. In Zahur Haider Zaidi vs. Central Bureau of

Investigation, (2019) 20 SCC 404, a three Judges Bench of Hon'ble

Supreme Court has granted bail to an accused of offence under Section

302 of the IPC in the following terms:-

"1. Leave granted. We would presently consider whether the accused- appellant Zahur Haider Zaidi is entitled to be released on bail. The issue of transfer of case would be considered on a subsequent date after hearing all the accused.

2. Our attention has been drawn to the allegations against the accused-appellant and that he is in custody for the last 19 months. Though the accused-appellant is facing charge under Section 302, we are told that the trial has not made substantial progress beyond the framing of the charge. Completion of trial will take some time.

3. The only apprehension expressed on behalf of the Central Bureau of Investigation is that the appellant being a highly placed police officer may intimidate and win over witnesses and influence them.

4. We are of the view that the bail ought not to be denied on the aforesaid ground and in the event of any such conduct, the prosecution can always approach the competent court for cancellation of bail.

5. Taking into account the allegations, the period of custody suffered and likely time that may be taken for completion of trial, we are of the view that the accused-appellant should be released on bail in connection with FIR No.RC SI 2017 S0009 CBI/SC-I/New Delhi, on satisfaction of the appropriate condition(s) as may be imposed by the learned trial court. The order of the High Court is set aside. The appeal is disposed of to the aforesaid extent."

6 ( 2024:HHC:8868

11. In Criminal Appeal No. 152 of 2020, Prabhakar Tewari v.

State of UP and Anr. (along with connected matter) and Criminal

Appeal No.98 of 2021, Union of India v. K.A. Najeeb, the Hon'ble

Supreme Court has emphasized the value of speedy trial for the accused

and in cases of delay in completion of trials, liberty of bail has been

granted.

12. In Criminal Appeal No. 943 of 2023 titled as Mohd

Muslim @ Hussain Vs. State (NCT of Delhi), Hon'ble Supreme

Court, vide its judgment dated 28.03.2023, has held as under: -

"21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31 st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were under-trials.

22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. State21 as"a radical transformation" whereby the prisoner:

"loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. 7 ( 2024:HHC:8868

Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self- perception changes."

23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal"22 (also see Donald Clemmer's 'The Prison Community' 20 National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/PSI- 2021/ Executive _ncrb_Summary-2021.pdf 21 1993 Cri LJ 3242 22 Working Papers - Group on Prisons & Borstals - 1966 U.K. published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata:

immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily."

13. Recently in Criminal Appeal No.2787 of 2024, titled as

Javed Gulam Nabi Shaikh vs. State of Maharashtra and Another,

Hon'ble Supreme Court has observed as under:-

"19. If the State or any prosecuting agency including the Court concerned has no wherewithal to provide or protect the fundamental right of an accused to have speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime 8 ( 2024:HHC:8868

committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."

14. Keeping in view the above noticed exposition of law, this

Court is of the view that the petitioner is entitled to seek bail only on

the ground that his trial has been delayed unreasonably and is not likely

to be concluded in near future.

15. The petitioner has already suffered pre-trial incarceration

for almost three years. Only 1 (one), out of 35 witnesses have been

examined, which means that there is no likelihood of conclusion of trial

in near future. It is more than settled that pre-trial incarceration cannot

be punitive or preventive. Petitioner carries the benefit of presumption

of innocence before the guilt is proved against him beyond all

reasonable doubts.

16. Petitioner is permanent resident of Village Kalgaon, Tehsil

Theog, District Shimla, H.P. and there is no likelihood of his

absconding from the course of justice. The apprehension expressed by

the respondent with respect to the possibility of petitioner tampering

with the prosecution evidence cannot be the sole criteria to deny the

right of bail to the petitioner. In order to secure fair trial, the petitioner

can be put to suitable conditions.

9 ( 2024:HHC:8868

17. Petitioner cannot be allowed to be kept in custody for

indefinite period before conviction. There is no criminal history

attributed to the petitioner.

18. In light of above discussion, the petition is allowed. The

petitioner is ordered to be released on bail in case registered vide FIR

No. 47 of 2021 dated 22.12.2021 under Section 302 read with

Section 34 of IPC, at Police Station, Deha, District Shimla, H.P. ,

on his furnishing personal bond in the sum of Rs.1,00,000/- with two

sureties each in the like amount to the satisfaction of the learned trial

Court. This order shall, however, be subject to following conditions:-

i) That the petitioner shall not delay the course of trial and shall regularly present himself before the trial Court on each and every date of hearing, except in circumstances beyond his control.

ii) That the petitioner shall not in any manner try to influence or over awe the prosecution witnesses or any other person acquainted with the facts of the case.

iii) That the petitioner shall not tamper with prosecution evidence in any manner whatsoever.

iv) That the petitioner shall not leave India without prior permission of the trial Court.

19. The observations made herein-above are only for the

purposes of disposal of this application and shall not be construed as 10 ( 2024:HHC:8868

opinion of this Court on the merits of the case. The petition is

accordingly disposed of.


                                                          ( Satyen Vaidya)
                                                                 Judge
20th September, 2024
    (GR)






 GANGA                     DN: C=IN, O=HIGH COURT OF
                           HIMACHAL PRADESH, OU=HIGH COURT
                           OF HIMACHAL PRADESH SHIMLA,
                           Phone=53d793b89e8f7ed22df51a99c485c


  RAM

30e69ef93029aa64cf7f7477f3ea023b5fe, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=8d8cfd67531d5f7cf98b9 8478b7c873db362a2c10726a8f44f89d8ea8 ad55e1d, CN=GANGA RAM SHARMA

SHARMA Reason: I am approving this document Location: