Kerala High Court

Sanjay Oraon vs State Of Kerala on 6 February, 2024

Author: C.S.Dias

Bench: C.S.Dias

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
  TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
                   BAIL APPL. NO. 11291 OF 2023
 CRIME NO.1234/2019 OF AMBALAMEDU POLICE STATION, ERNAKULAM
    AGAINST THE ORDER/JUDGMENT SC 350/2023 OF ADDITIONAL
              DISTRICT & SESSIONS COURT,MUVATTUPUZHA
PETITIONER/ACCUSED:

         SANJAY ORAON,
         AGED 26 YEARS
         S/O JEMS ORAON,PURAB LINE, ATTIABARI TEA GARDEN,
         ATTIABARI PS LIMIT, KALCHINI, WEST BENGAL, PIN -
         735217

         BY ADV N.B.FATHIMA SULFATH


RESPONDENT/STATE:

    1    STATE OF KERALA,
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031

    2    THE DIRECTOR
         OF THE FORENSIC LABORATORY , THIRUVANANTHAPURAM IS
         SUO MOTU IMPLEADED AS THE ADDITIONAL 2ND
         RESPONDENT AS PER ORDER DATED 23-1-24

         BY ADVS.
         PUBLIC PROSECUTOR
         ADDL.DIRECTOR GENERAL OF PROSECUTION
         ADDL. STATE PUBLIC PROSECUTOR


OTHER PRESENT:

         ADGP SRI GRASHIOUS KURIAKOSE

         SR PUBLIC PROSECUTOR SRI. C K SURESH


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.02.2024,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 B.A. NO.11291 OF 2023             2




                                                      "CR"
                          C.S.DIAS,J.
      ====================
                 B.A No.11291 of 2023
     ------------------------------------ --
        Dated this the 6th day of February, 2024

                               ORDER

The petitioner, who is the accused in Crime

No.1234/2019 of the Ambalamedu Police Station,

Ernakulam, registered against him for allegedly

committing the offence under Section 302 of the Indian

Penal Code, has filed the application under Section 439 of

the Code of Criminal Procedure (in short, 'Code'). He is in

judicial custody since 23.10.2019.

2. The summary of the prosecution case is that, on

21.10.2019 at around 10.40 p.m., the accused, who hails

from the State of West Bengal, fatally stabbed Ajay

Uravo (deceased), a fellow native at house No.XIV/304 A

in Kunnathunadu Grama Panchayat and, thus,

committed the offence of murder.

3. Heard; Smt. Fathima Sulfath B., the learned

counsel appearing for the petitioner and Sri. Suresh C.K .,

the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner

emphatically argued that the petitioner is innocent of

the accusation levelled against him. There is no material

to substantiate that he has committed the crime. The

petitioner is a daily labourer and the sole breadwinner of

his family. The petitioner hails from a financially

backward family. He has been in judicial custody since

23.10.2019, which is now four years and three months.

Yet, the trial has not commenced. The reason for the

inordinate delay in commencing the trial is unknown to

the petitioner. Therefore, the petitioner may be enlarged

on bail.

5. Conversely, the learned Public Prosecutor

strenuously opposed the application. He argued that the

petitioner has committed the brutal murder of a person

from his native place. The petitioner is from the State of

West Bengal and has no roots in Kerala. If the petitioner is

enlarged on bail, he is likely to flee from justice. He relied

on the decision of the Honourable Supreme Court in

Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu

Yadav and Another, [(2004) 7 SCC 528] and contended

that the mere fact that the accused has undergone a

certain period of incarceration or that the trial is not likely

to be concluded shortly by itself would not entitle the

accused to be enlarged on bail. He, therefore, prayed that

the application be dismissed.

6. When the bail application came up for

consideration on 10.1.2024, this Court had called for a

report from the learned Additional Sessions Judge,

Muvattupuzha, to ascertain the status and estimated time

period required to dispose of S.C. No. 350/2020.

7. Pursuant to the above direction, the learned

Sessions Judge reported that, even though the case was

committed to the said court, the report and properties

were not received from the Forensic Science Laboratory

('FSL", for brevity). Therefore, the charge has not been

framed. As the prosecution has cited 39 witnesses, he

would require at least six months' time to dispose of the

case, that too after receipt of the report and properties

from the FSL.

8. Based on the above report, this Court directed the

Investigating Officer to file an affidavit clarifying why the

report and properties from the FSL were not submitted

before the court below.

9. Accordingly, the Investigating Officer filed an

affidavit stating that the final report was filed on 1.3.2020

before the Judicial First-Class Magistrate, Chottanikkara,

and the ten material objects were forwarded to the FSL,

Thiruvananthapuram on 28.10.2019. Although the case

was committed to the court below and numbered S.C.

No.350/2020, the charge has not been framed for the

want of the scientific report on the material objects. The

earlier Investigating Officer had sent a reminder to the

Director of the FSL on 1.2.2023 to expedite the analysis.

He asserted there were no laches on his part.

10. Considering the above report, this Court suo-

motu impleaded the Director of the FSL as an additional

respondent and directed him to file an affidavit explaining

the reason for the inordinate delay in submitting the

report on the material objects which were reportedly sent

to him on 28.10. 2019, viz., more than four years and two

months back.

11. In response to the above order, the Director has

filed an affidavit, inter-alia, stating that the material

objects were received on 5.11.2019 in ten packets. He

also received a reminder from the Judicial First-Class

Magistrate, Chottanikkara, on 9.8.2021, requesting an

urgent report. However, the analysis got delayed due to

the high volume of requisitions received for getting

reports on material objects in 3549 cases under the

POCSO Act and from several Fast Track and other Courts.

Due to the staff shortage, the laboratory was not in a

position to urgently conduct the scientific analysis of the

material objects. Nevertheless, the examination of the

material objects in case on hand are completed in the

serology and DNA divisions and are ready for dispatch.

The Investigating Officer has been informed to collect the

material objects and copies of the reports, which he has

agreed to collect on 29.1.2024. The report and remnants

of the material objects have been forwarded to the

jurisdictional Magistrate on 30.1.2024. There is no willful

disobedience on the part of the laboratory. Hence, the

explanation may be accepted.

12. Section 293 of the Code deals with reports of

Government Scientific experts which can be used as

evidence in an inquiry, trial or other proceedings under

the Code.

13. To streamline the procedure to be followed by

scientific experts in giving their opinion on the

examination and analysis of matters referred to them

under Section 293 of the Code, the Government of Kerala

has promulgated the Department Manual on Chemical

Examiners Laboratory Department, which has come into

effect from 30.01.2015.

14. According to Chapter IX of the Manual, chemical

analysis reports are admissible in evidence under Section

293 of the Code. Similarly, Chapter X mandates that

priority has to be given in cases where reminders are

received from the Court, Investigation Officer, Medical

Officer, etc.

15. The materials on record reveal that the alleged

murder took place on 21.10.2019, that the petitioner was

arrested and remanded to judicial custody on 23.10.2019,

that the ten material objects were forwarded to the FSL,

Thiruvananthapuram on 28.10.2019, that the

jurisdictional Magistrate had sent a reminder on 9.8.2021

and that the former Investigating Officer had sent a

reminder to the Director of the FSL on 1.2.2023 for urgent

analysis. Yet, the analysis was at a standstill for four

years.

16. This Court speaking through Raja Vijayaraghavan

V., J., in Aneeshkutty V. State of Kerala and Ors.

[2022 SCC Online 1804], has succinctly spelt out the

importance of forensic science in criminal cases in the

following lines:

"16. Forensic Science is an indispensable branch of jurisprudence and is considered one of the most deadly weapons in the armoury of the investigator. We cannot shut our eyes to the ways in which Forensic science is used for the detection of crime in other developed countries. As we have not invested our time and effort in establishing cutting edge labs and in employing skilled scientific officers to aid in all phases of the criminal investigation process, the acquittal rate is alarmingly high. The common refrain that we hear in Court is that Labs are working far beyond their capacity and thousands of samples forwarded much earlier are yet to be tested. It is common knowledge that thousands of samples are lying in labs and it would take years to analyse the same. The pendency in the labs is mind boggling. The less said the better. Obviously, a State like Kerala where the crime rate is high requires enough labs with highly skilled Scientific Officers and state-of-the-art equipment. The report from the

FSL and the Chemical Examiners Lab form the backbone of the prosecution case. Testing of samples must be swift, efficient and accurate and the report has to reach the Courts as expeditiously as possible. It has to be ensured that a sample forwarded to the Lab is analysed and a report forwarded to the Court within an outer limit of three weeks at the most. If reports are delayed as has happened in this case, the only conclusion that can be arrived at is that the system has

collapsed and needs resuscitation".

(emphasis given)

17. The situation in the case on hand is worse than

that of the case in Aneeshkutty's case. The trial has not

commenced on account of the delay on the part of the FSL

in submitting the report. The FSL in turn says that there

are several requests for urgent reports and there is a

dearth of staff.

18. The Manual or other laws make no distinction

among the accused, whether under the POSCO Act or the

IPC, their ethnicity, financial status or origin. An accused is

an accused, irrespective of the offence or their

background.

19. We have moved into the 75 th year of

independence. It is common knowledge that Investigation

Agencies now heavily depend on scientific evidence and

technology for the investigation of crimes. In these times,

we cannot put our hands in the air and cry about the

dearth of staff and lack of infrastructure. With the

alarming and exponential increase in crimes in recent

years, it is high time that we ensure that facilities for the

dispensation of justice are put in place, especially when

the entitlement of the accused to a speedy trial has been

emphasised by the Honourable Supreme in Hussainara

Khatoon (I) v. Home Secy., State of Bihar [(1980) 1

SCC 81] to be implicit in the spectrum of Article 21 of the

Constitution of India. If the scientific analysis is

inordinately delayed, like in the present case, the accused

may take it as a valuable defence, and the same will be

detrimental to the larger public interest.

20. In this context, it is worth recollecting the words

of P.N. Bhagwati.,J. (as he then was) in Hussainara

Khatoon (supra):

"2. ........ ............ ............ The information contained in these

newspaper cuttings is most distressing and it is sufficient to stir the conscience and disturb the equanimity of any socially motivated lawyer or judge. Some of the undertrial prisoners whose names are given in the newspaper cuttings have been in jail for as many as 5, 7 or 9 years and a few of them, even more than 10 years, without their trial having begun. What faith can these lost souls have in the judicial system which denies them a bare trial for so many years and keeps them behind bars, not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them. It is a travesty of justice that many poor accused, "little Indians, are forced into long cellular servitude for little offences" because the bail procedure is beyond their meagre means and trials don't commence and even if they do, they never conclude....................."

21. In P. Ramachandra Rao v. State of

Karnataka, (2002) 4 SCC 578, the Honourable Supreme

Court has held that it is the constitutional obligation of the

State to dispense speedy justice, more so in the field of

criminal law, and paucity of funds or resources is no

defence to denial of right to justice emanating from

Articles 21, 19, and 14 and the Preamble of the

Constitution as also from the Directive Principles of State

Policy. It is also observed that the goal of speedy justice

can be achieved by a combined and research-oriented

collective thinking an action on the part of the legislature,

the Judiciary, the Executive, and representative bodies of

the members of the Bar.

22. It is also contextual to reminiscence the words of

P. N Bhagawati., J. in Kadra Pehadiya and Others v.

State of Bihar [(1981) 3 SCC 671]: " How can a civilised

society tolerate a legal and judicial system, which keeps a

person in jail for three years without commencing his trial,

but the atrocity does not end here; more is yet to come."

23. The law has thus crystalised that the right of a

speedy and fair trial to an accused is an integral part of

Article 21 of the Constitution of India. It is the

constitutional duty of all the organs of the State to ensure

speedy justice.

24. In the above conspectus, the explanation put

forth by the Director of the FSL, that the inordinate delay

of four years was due to the massive influx of cases under

the POSCO Act and the lack of staff, is not appealing to

this Court as it does not align with the mandate of the

doctrine of speedy and fair trial proclaimed by the

Honourable Supreme Court.

25. It is true that the petitioner has been in judicial

custody since 23.10.2019. But undoubtedly, he hails from

the State of West Bengal. I find sufficient force and

significance in the submission of the learned Public

Prosecutor that there is the likelihood of flight risk if the

petitioner is released, particularly since he has no roots in

the State of Kerala.

26. Again, in Hussainara Khatoon (supra), the

Honourable Supreme Court has observed as follows:

"4. ........ ....... ......... ......... If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. To determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

"1. The length of his residence in the community,

2. his employment status, history and his financial condition,

3. his family ties and relationships,

4. his reputation, character and monetary condition,

5. his prior criminal record including any record of prior release on recognizance or on bail,

6. the identity of responsible members of the community who would vouch for his reliability,

7. the nature of the offence charged and the apparent probability of

conviction and the likely sentence insofar as these factors are relevant to the risk of non-appearance, and

8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear...... .... ....."

27. Likewise, in Kalyan Chandra Sarkar (supra), it

is enunciated that the mere fact that the accused had

undergone a certain period of incarceration or that the

trial has not concluded by itself are not grounds to enlarge

the accused on bail.

28. After considering the factors such as the nature,

gravity and seriousness of the accusation levelled against

the petitioner, the potential severity of the punishment

that is likely to be inflicted on him, that he has no roots in

the State of Kerala and the anticipated risk of him fleeing

from justice, I am not inclined to order his release on bail,

but in the peculiar facts and circumstances of the case

especially since the FSL report has now been submitted

before the court below, I am inclined to direct the learned

Sessions Judge to expedite the trial in S.C.No350/2020 in

precedence to other pending matters, which will do

complete justice to both sides.

In the result:

     i     The bail application is dismissed;

     ii    The Court of the Additional Sessions Judge,

           Muvattupuzha,       is    ordered    to   consider      and

dispose of S.C.No.350/2020, in accordance with

law and as expeditiously as possible, at any rate,

within a period of four months from the date of

receipt of a certified copy of the order.

iii The additional second respondent/Director of the

FSL is directed to prioritise the analysis and

reporting of material objects submitted for

scientific reports, in precedence to other

matters, if a requisition is received from the

Courts and/or the Investigating Officer as

provided under Chapter X of the Manual.

iv The Registry is directed to forward a copy of this