Punjab-Haryana High Court
Kuldeep Singh @ Sima vs State Of Punjab on 13 December, 2023
Neutral Citation No:=2023:PHHC:159667
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228 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-51207-2023
Date of decision: 13.12.2023
Kuldeep Singh @ Sima ...Petitioner
vs.
State of Punjab ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present : Mr. Anterpreet Singh, Advocate,
for the petitioner.
Mr. Mohit Chaudhary, AAG, Punjab.
***
N.S.Shekhawat J.
1. The petitioner has filed the instant petition under Section 439 of the
Cr.P.C. with a prayer to grant regular bail to him in case FIR No.173 dated
11.11.2020 registered under Sections 302, 34 of IPC, at Police Station
Machhiwara Sahib, Police District Khanna, District Ludhiana.
2. Learned counsel for the petitioner contends that the petitioner has
been falsely involved in the present case. From a perusal of the FIR (Annexure
P-1), it is evident that the petitioner was not named in the FIR nor there is any
averment in the FIR, which could even remotely connect the petitioner with the
commission of the crime. As per him, the FIR was initially registered against
unknown persons on 11.11.2020, with regard to occurrence dated 09.11.2020.
Learned counsel further contends that as per story of the prosecution, on
16.11.2020, Gurpreet Singh, brother of the deceased was allegedly present in
the street and he heard the petitioner talking to his co-accused Gurinder Singh
@ Bawa and Pawanpreet Singh @ Pawani and on the strength of the said
statement, the petitioner has been falsely involved in the present case. He
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further contends that the petitioner had no reason to talk about the alleged
occurrence in the presence of brother of the deceased and the story projected by
the prosecution is highly unbelievable. He further contends that to show his
bonafide, the petitioner will not enter the area of Sub-Division Chamkaur Sahib,
District Rupnagar, till the conclusion of the trial and will not tamper with the
prosecution evidence in any manner. He next contends that the petitioner was
arrested in the present case on 16.11.2020 and is in custody for the last more
than 03 years. As per him, only three witnesses, out of total 16 witnesses have
been examined so far and the custody of the petitioner will not serve any
meaningful purpose.
3. On the other hand, learned State counsel has vehemently opposed
the prayer made by learned counsel for the petitioner on the ground that the
rope, which was allegedly used in the commission of crime, was recovered
from the present petitioner and the petitioner with the help of his co-accused
had strangulated the deceased. Thus, the petitioner does not deserve the
concession of bail by this Court.
4. I have heard the learned counsel for the parties and perused the
record.
5. It has been held by the Hon'ble Supreme Court in the matter of
"Ranjan Dwivedi Vs. CBI, through the Director General, 2012(8) SCC 495;
2012 (4) RCR (Criminal) 880" as follows:-
"14. In Kartar Singh v. State of Punjab, (supra), another
Constitution Bench considered the right to speedy trial and opined
that the delay is dependent on the circumstances of each case,
because reasons for delay will vary. This Court held :
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"84. The right to a speedy trial is a derivation from a
provision of Magna Carta. This principle has also been
incorporated into the Virginia Declaration of Rights of 1776
and from there into the Sixth Amendment of the Constitution
of United States of America which reads, "In all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial...". It may be pointed out, in this connection,
that there is a Federal Act of 1974 called 'Speedy Trial Act'
establishing a set of time-limits for carrying out the major
events, e.g., information, indictment, arraignment, in the
prosecution of criminal cases. [See Black's Law Dictionary,
6th Edn. page 1400].
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
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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.
87. This Court in Hussainara Khatoon v. Home Secretary,
AIR 1979 Supreme Court 1360, State of Bihar while dealing
with Article 21 of the Constitution of India has observed
thus: (SCC p. 89, para 5)
"No procedure which does not ensure a reasonably quick
trial can be regarded as 'reasonable, fair or just' and it would
fall foul of Article 21. There can, therefore, be no doubt that
speedy trial, and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article 21.
The question which would, however, arise is as to what
would be the consequence if a person accused of an offence
is denied speedy trial and is sought to be deprived of his
liberty by imprisonment as a result of a long delayed trial in
violation of his fundamental right under Article 21. Would
he be entitled to be released unconditionally freed from the
charge levelled against him on the ground that trying him
after an unduly long period of time and convicting him after
such trial would constitute violation of his fundamental right
under Article 21."
See also (1) Sunil Batra v. Delhi Administration (I), (2)
Hussainara Khatoon (I) v. Home Secretary, State of Bihar,
(3) Hussainara Khatoon (IV) v. Home Secretary, State of
Bihar, Patna, (4) Hussainara Khatoon (VI) v. Home
Secretary, State of Bihar, Govt. of Bihar, Patna, (5) Kadra
Pahadia v. State of Bihar (II), (6) T.V. Vatheeswaran v. State
of T.N., and (7) Abdul Rehman Antulay v. R.S. Nayak.
88. Thus this Court by a line of judicial pronouncements has
emphasised and re-emphasised that speedy trial is one of the
facets of the fundamental right to life and liberty enshrined
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in Article 21 and the law must ensure 'reasonable, just and
fair' procedure which has a creative connotation after the
decision of this Court in Maneka Gandhi."
The Court further observed :
"92. Of course, no length of time is per se too long to pass
scrutiny under this principle nor the accused is called upon
the show the actual prejudice by delay of disposal of cases.
On the other hand, the court has to adopt a balancing
approach by taking note of the possible prejudices and
disadvantages to be suffered by the accused by avoidable
delay and to determine whether the accused in a criminal
proceeding has been deprived of his right of having speedy
trial with unreasonable delay which could be identified by
the factors - (1) length of delay, (2) the justification for the
delay, (3) the accused's assertion of his right to speedy trial,
and (4) prejudice caused to the accused by such delay.
However, the fact of delay is dependent on the
circumstances of each case because reasons for delay will
vary, such as delay in investigation on account of the
widespread ramification of crimes and its designed network
either nationally or internationally, the deliberate absence of
witness or witnesses, crowded dockets on the file of the
court etc."
6. Hon'ble the Supreme Court in Gudikanti Narasimhulu and
others v. Public Prosecutor, AIR 1978 SC 429 has held as under:-
"Bail or Jail"- at the pre-trial or post-conviction stage - largely
hinged on judicial discretion. The learned Judge held that
personal liberty was too precious a value of our constitutional
system recognised under Article 21 that the crucial power to
negate it was a great trust exercisable not casually but judicially,
with lively concern for the cost to the individual and the
community. It was further held that deprivation of personal
freedom must be founded on the most serious considerations
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relevant to the welfare objectives of society specified in the
Constitution. The learned Judge quoted Lord Russel who had said
that bail was not to be withheld as a punishment and that the
requirements as to bail were merely to secure the attendance of the
prisoner at trial. According to V.R. Krishna Iyer, J., the principal
rule to guide release on bail should be to secure the presence of
the applicant to take judgment and serve sentence in the event of
the Court punishing him with imprisonment. After holding that it
makes sense to assume that a man on bail has a better chance to
prepare and present his case than one remanded in custody the
learned Judge observed that if public justice is to be promoted
mechanical detention should be demoted.
7. In Gurbaksh Singh Sibbia etc Vs The State of Punjab, AIR
1980 SC 1632, Hon'ble the Supreme Court has observed as under:-
"Judges have to decide cases as they come before them, mindful of
the need to keep passions and prejudices out of their decisions.
The Court has also observed that in which case bail should be
granted and in which case it should be refused is a matter of
discretion. The court found it interesting to note that as long back
as in 1924 it was held by the High Court of Calcutta in Nagendra
Vs. King Emperor, AIR 1924 Calcutta 476, that the object of bail
was to secure the attendance of the accused at the trial, that the
proper test to be applied in the solution of the question whether
bail should be granted or refused was whether it was probable that
the party would appear to take his trial and that it was
indisputable that bail was not to be withheld as a punishment. The
Supreme Court also referred to the observation of the Allahabad
High Court in K.N. Joglekar Vs. Emperor, AIR 1931 Allahabad
504, that Section 498 of the Old Code which corresponds to
Section 439 of the New Code, conferred upon the Sessions Judge
or the High Court wide powers to grant bail which were not
handicapped by the restrictions in the preceding Section 497 which
corresponds to the present Section 437. The Allahabad High Court
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had also observed that there was no hard and fast rule and no
inflexible principle governing the exercise of the discretion
conferred by Section 498 and that the only principle which was
established was that the discretion should be exercised judiciously.
The Supreme Court referred also the decision of the Allahabad
High Court in Emperor Vs. H.L. Hutchinson, AIR 1931
Allahabad 356, wherein it was held that the principle to be
deduced from the various sections in the Cr.P.C. was that grant of
bail is the rule and refusal is the exception, that as a presumably
innocent person, the accused person is entitled to freedom and
every opportunity to look after his own case and to establish his
innocence and that an accused person who enjoys freedom is in a
much better position to look after his case and to properly defend
himself than if he were in custody. The High Court had also held
that it would be very unwise to make an attempt to lay down any
particular rules which would bind the High Court, having regard
to the fact that the legislature itself left the discretion of the Court
unfettered. According to the High Court, the variety of cases that
may arise from time to time cannot be safely classified and it is
dangerous to make an attempt to classify the cases and to say that
in particular classes bail may be granted but not in other classes.
The Supreme Court apparently approved the above views and
observations and held (vide paragraph 30) as follows :
"It is thus clear that the question whether to grant bail or
not depends for its answer upon a variety of circumstances,
the cumulative effect of which must enter into the judicial
verdict. Any one single circumstance cannot be treated as of
universal validity or as necessarily justifying the grant or
refusal of bail."
8. At this stage, it is observed that the object of the bail is to secure
the presence of the accused at the trial only. It is also observed that the object of
bail is neither punitive nor preventive and deprivation of liberty must be
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considered a punishment, unless it is required to ensure that an accused person
will stand his trial when called upon. Hon'ble the Supreme Court has observed
in catena of judgments that when a person is punished by denial of bail in
respect of any matter upon which he has not been convicted it would be
contrary to the concept of personal liberty enshrined in the Constitution except
in cases where there is reason to believe that he may influence the witnesses. It
is appropriate to say that pre-conviction detention should not be resorted to,
except in cases of necessity to secure attendance at the trial or upon material
that the accused will tamper with the witnesses if left at liberty.
9. Apart from that, the petitioner was arrested on 16.11.2020 and is in
custody for the last more than 03 years and conclusion of the trial may take
quite a long time.
10. In view of the above discussion and the law laid down by the
Hon'ble Supreme Court in the matter of Ranjan Dwivedi's case (Supra),
Gudikanti Narasimhulu's case (Supra) and Gurbaksh Singh Sibbia's case
(Supra), the present petition is allowed and the petitioner is ordered to be
released on bail subject to his furnishing bail bonds/surety bonds to the
satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate,
concerned subject to the following conditions:-
(i) The petitioner shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case, so as to dissuade him to disclose such
facts to the Court or to any other authority.
(ii) The petitioner shall remain present before the Court on the
dates fixed for hearing of the case.
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(iii) The petitioner shall not absent himself from the Court
proceedings except on the prior permission of the Court
concerned.
(iv) The petitioner shall surrender his passport, if any, (if
already not surrendered), and in case he is not holder of the
same, he shall swear an affidavit to that effect.
(v) The petitioner shall also file his affidavit before the
concerned Court, mentioning his ordinary place of residence
and number of mobile phone, which shall be used by him
during the pendency of the trial. In case of change of place
of residence/mobile number, he shall share the details with
the concerned Court/learned Trial Court.
(vi) In case, the petitioner involves in any other criminal activity,
during the pendency of the trial, it shall be viewed seriously
and the prosecution shall be at liberty to move a petition for
cancellation of bail granted to him.
(vii) The concerned Court may insist on two heavy local sureties
and may also impose any other condition, in accordance
with law, while accepting the bail bonds and surety bonds of
the petitioner.
(viii) The petitioner shall not enter the jurisdiction of Sub-
Division Chamkaur Sahib, District Rupnagar till the
conclusion of the trial. In case, he enters the Sub-Division
Chamkaur Sahib, District Rupnagar, before the conclusion
of the trial, the concession of bail granted to him shall liable
to be cancelled.
(ix) The petitioner shall report every 1st Monday on English
calander month before the concerned SHO, Police Station
Machhiwara Sahib, District Ludhiana till the conclusion of
the trial and SHO shall mark his presence by making an
entry in the rojnamcha. In case, he does not report on every
1st Monday before the concerned SHO, it shall be viewed
seriously and the concession granted to him shall be liable
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to be cancelled and the State of Punjab shall be at liberty to
move an appropriate application in this regard.
(N.S.SHEKHAWAT)
13.12.2023 JUDGE
hemlata
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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