Punjab-Haryana High Court
Rajinder Kumar vs State Of Punjab on 24 January, 2024
Neutral Citation No:=2024:PHHC:009649
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217 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-23264-2023 (O&M)
Date of Decision: 24.01.2024
Rajinder Kumar ...Petitioner
vs.
State of Punjab ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present : Mr. Keshav Partap Singh, Advocate with
Mr. Manvendra Singh Bishnoi, Advocate
for the petitioner.
Mr. I.P.S. Sabharwal, DAG, Punjab.
Mr. Rajat Dogra, Advocate for the complainant.
***
N.S.Shekhawat J. (Oral)
1. The petitioner, who is stated to be aged 75 years, has filed the
second petition under Section 439 of the Cr.P.C. with a prayer to grant regular
bail to him in case FIR No.128 dated 20.08.2020 registered under Sections 302,
307, 447, 511, 148, 149, 460, 120-B of IPC and Sections 25, 27 of Arms, Act, at
Police Station Bahawala, District Fazilka.
2. Learned counsel for the petitioner contends that the complainant is
also related to the present petitioner and other co-accused and a civil dispute is
pending between both the sides. He further contends that the investigation in
the present case was conducted by Bureau of Investigation and it was held that
the complainant party was the real aggressor in the present case. He further
contends that son of the petitioner had bought the land and dhani from the
complainant vide agreement to sell dated 23.03.2017 and the earnest money
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was paid to the complainant and his mother. Even the possession of the Dhani
and the land was handed over to the petitioner and his son. However, now the
accused side was being harassed illegally by the complainant side. He further
contends that even various representations were moved by the petitioner and his
family members, requesting the police to conduct fair and impartial
investigation in the present case. However, the petitioner was wrongly arrested
in the present case on 19.08.2020 and he is in custody since last 3 years and 5
months. Learned counsel further contends that son of the petitioner has already
been admitted to bail on 06.09.2022 and his co-accused, namely, Manoj Kumar
and Ajay Kumar have also been ordered to be released on bail. Learned
counsel further contends that till date, only one prosecution witness has been
examined and the trial is going at a very slow pace before the trial Court and the
trial has been unreasonably delayed by the prosecution, in the present case.
3. On the other hand, learned State counsel assisted by learned
counsel for the complainant have vehemently opposed the submissions made by
learned counsel for the petitioner on the ground that the petitioner had fired a
shot from 315 bore riffle, which hit on the cheek of Pramod Kumar and as a
consequence, Pramod Kumar succumbed to the injuries suffered by him.
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,
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because reasons for delay will vary. This Court held :
"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
in Article 21 and the law must ensure 'reasonable, just and
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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
relevant to the welfare objectives of society specified in the
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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 had also observed that there was no hard and fast rule and
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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
considered a punishment, unless it is required to ensure that an accused person
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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. The petitioner, who is a senior citizen, was arrested in the present
case on 19.08.020 and is in custody for the last more than 3 years and 5 months.
He was never involved in any other criminal activity and is the first offender.
Even his son was ordered to be released on bail on 06.09.2022 and there are no
allegations that he had tried to influence the witnesses of the prosecution in any
manner. Even in the present case, the prosecution has not been able to bring on
record any evidence to indicate that the petitioner is in a position to influence
the witnesses of the prosecution or there are chances of fleeing from the process
of justice. However, in spite of the fact that the petitioner is in custody for the
last about 3 and a half years, the prosecution has unreasonably delayed the trial
and only one witness has been examined so far. Consequently, the petitioner
cannot be ordered to be confined in jail in perpetuity and the petition is liable to
be allowed by this Court.
10. Without commenting on the merits of the case, 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
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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.
(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.
11. Pending application, if any, is also disposed of.
(N.S.SHEKHAWAT)
24.01.2024 JUDGE
hemlata
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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