Punjab-Haryana High Court
Gurlal Singh vs State Of Punjab on 18 September, 2024
Author: Anupinder Singh Grewal
Bench: Anupinder Singh Grewal
Neutral Citation No:=2024:PHHC:123671-DB
CRA-D-421-2023 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
242 CRA-D-421-2023 (O&M).
Date of Decision: 18.09.2024.
Gurlal Singh (wrongly named in the FIR as alias Lali Pehalwan)
....Petitioner.
VERSUS
State of Punjab ....Respondent.
***
CORAM : HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
HON'BLE MS. JUSTICE LAPITA BANERJI
---
Present: Mr. Amit Agnihotri, Advocate,
Ms. Manvi Makkar, Advocate,
Mr. Abhishek Jindal, Advocate,
Ms. Jaskaran Kaur Gill, Advocate and
Mr. Shubham Garg, Advocate for the petitioner.
Mr. H.S. Sullar, Senior Deputy Advocate General, Punjab.
****
ANUPINDER SINGH GREWAL, J. (Oral)
The appellant has challenged the order dated 09.02.2023 passed
by the Addl. Sessions Judge, Tarn Taran whereby his bail application in FIR
No.142 dated 07.09.2022, registered under Section 389 IPC, Sections 25(6),
25(7)(i) of the Arms Act, Sections 4 &5 of the Explosive Substance Act and
Sections 21, 29 of the NDPS Act (Section 120-B IPC, Sections 13, 16, 17, 18,
18-B, 20 of the UAPA, 1967 were added later on. Section 389 IPC and
Sections 21/29/61/85 of the NDPS Act were deleted later on) and Section 387
IPC added later on vide DDR No.15 dated 03.12.2022 at Police Station
Sirhali, District Tarn Taran, has been dismissed.
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2. Learned counsel for the appellant submits that although it is
alleged that the appellant was involved in anti-national activities but there is
no material which would connect the appellant with the commission of the
offence. No recovery has been effected from the appellant. The appellant was
26 years of age at the time of registration of the FIR and has undergone actual
custody of 01 year and 09 months. Similarly situated co-accused
Gurjashanpreet Singh has already been extended the concession of bail by this
Court, vide order dated 06.08.2024 passed in CRA-D-1369-2023. He has
relied upon the judgments of the Supreme Court in the cases of Union of
India versus K.A. Najeeb, (2021) 3 SCC 713 and Shoma Kanti Sen versus
State of Maharashtra and another, 2024 SCCOnline SC 498, wherein it
has been held that long custody by itself would entitle the accused under
UAPA to grant of bail by invoking Article 21 of the Constitution of India. He
has also relied upon the judgments of the Supreme Court in the cases of
Vernon vs. State of Maharashtra and another, 2023 SCCOnline 885,
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari versus State of
Uttar Pradesh, bearing Criminal Appeal No.2790 of 2024, decided on
18.07.2024 and Javed Gulam Nabi Shaikh versus State of Maharashtra,
another, bearing Criminal Appeal No.2787 of 2024, decided on 03.07.2024.
3. Learned State counsel while referring to the short reply dated
02.05.2023 by way of affidavit of Deputy Superintendent of Police, Detective,
Tarn Taran, submits that the appellant was actively involved in anti-national
activities and had been collecting ransom by threatening the inhabitants of the
area. He was in touch with Lakhbir Singh @ Landa resident of Italy, who is
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the main accused and was managing supply of arms, ammunition and
explosive material through Pakistan. He, upon instructions from ASI Gurdeep
Singh, P.S. Sirhali, submits that none out of 25 prosecution witnesses has
been examined.
4. Heard.
5. The allegations against the appellant are that he along with co-
accused was involved in anti-national activities. He was alleged to be in touch
with Lakhbir Singh @ Landa, who is based in Italy and wanted in several
cases. It is also apt to notice that no recovery of firearms etc. or any
incriminating material has been effected from the appellant. He is alleged to
be in touch with main accused Lakhbir Singh @ Landa but nothing in the
form of Call Detail Record has been brought to the notice of this Court to
indicate that the appellant was in contact with co-accused. We are conscious
of the fact that the conditions for granting bail to an accused under UAPA are
stringent. However, at the same time, it is the duty of the Court to carefully
scrutinize the material against the appellant. We do not find any adequate
material against the appellant which would justify his further incarceration.
The appellant was 26 years of age at the time of registration of the FIR and
has been in custody for 01 year and 09 months.
6. Article 21 of the Constitution of India enshrines the fundamental
right to protection of life and liberty which also includes the right to speedy
trial, which is sacrosanct. It has been held by the Supreme Court in a catena of
judgments that long custody by itself would entitle the accused under UAPA
to the grant of bail by invoking Article 21 of the Constitution of India. In the
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instant case, none of the 25 prosecution witnesses has been examined. It
would be difficult to hazard a guess about the conclusion of trial, when all the
25 prosecution witnesses are yet to be examined. The appellant is in custody
for 01 year and 09 months. The Constitutional Court would like to prevent a
situation where the lengthy and arduous process of trial, becomes a
punishment in itself. Reference can be made to the judgment of the Supreme
Court in the case of Union of India versus K.A. Najeeb (supra) wherein it
has been held that long custody would be an essential factor while granting
bail under UAPA. Article 21 of the Constitution of India provides right to
speedy trial and long period of incarceration would be a good ground to grant
bail to an under-trial for an offence punishable under UAPA. It has also been
held that the embargo under Section 43-D of UAPA would not negate the
powers of the Court to give effect to Article 21 of the Constitution of India.
The relevant extract of the judgement is reproduced hereunder:-
"It is thus clear to us that the presence of statutory restrictions
like Section 43-D(5) of UAPA per se does not oust the ability of
Constitutional Courts to grant bail on grounds of violation of Part
III of the Constitution. Whereas at commencement of
proceedings, the Courts are expected to appreciate the legislative
policy against grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being completed
within a reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against the
possibility of provisions like Section 43-D(5) of UAPA being
used as the sole metric for denial of bail or for wholesale breach
of constitutional right to speedy trial.
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Instead, Section 43-D(5) of UAPA merely provides another
possible ground for the competent Court to refuse bail, in
addition to the well settled considerations like gravity of the
offence, possibility of tampering with evidence, influencing the
witnesses or chance of the accused evading the trial by
absconsion etc."
7. In the case of Shoma Kanti Sen (supra), the Supreme Court has
held that generally pre-conviction detention at the investigation stage is
necessary to maintain purity in the course of trial and also to prevent an
accused from being a fugitive from justice or to prevent further commission
of an offence. Once it is apparent that a timely trial is not possible and the
accused has suffered incarceration for a significant period of time, the Court
would ordinarily be obligated to enlarge them on bail as any form of deprival
of liberty must be proportionate to the facts of the case and also follow a just
and fair procedure. A balance must be made between the prosecution's right
to lead evidence of its choice and establish the charges beyond any doubt and
simultaneously, the respondent's rights guaranteed under Part-III of the
Constitution. The relevant extract thereof is reproduced hereunder:-
"This Court has already accepted right of an accused under the
said offences of the 1967 Act to be enlarged on bail founding
such right on Article 21 of the Constitution of India. This was in
the case of Najeeb (supra), and in that judgment, long period of
incarceration was held to be a valid ground to enlarge an accused
on bail in spite of the bail restricting provision of Section 43D (5)
of the 1967 Act. Pre conviction detention is necessary to collect
evidence (at the investigation stage), to maintain purity in the
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course of trial and also to prevent an accused from being fugitive
from justice. Such detention is also necessary to prevent further
commission of offence by the same accused. Depending on
gravity and seriousness of the offence alleged to have been
committed by an accused, detention before conclusion of trial at
the investigation and post-chargesheet stage has the sanction of
law broadly on these reasonings. But any form of deprival of
liberty results in breach of Article 21 of the Constitution of India
and must be justified on the ground of being reasonable,
following a just and fair procedure and such deprival must be
proportionate in the facts of a given case. These would be the
overarching principles which the law Courts would have to apply
while testing prosecution's plea of pre-trial detention, both at
investigation and post-charge-sheet stage."
8. The Supreme Court in the case of Vernon versus The State of
Maharashtra and another (supra) has held that serious allegations against
accused by itself cannot be a reason to deny bail to the accused. The relevant
extract thereof is reproduced hereunder:-
"In the case of Zahoor Ahmad Shah Watali (supra) reference was
made to the judgment of Jayendra Saraswathi Swamigal -vs-
State of Tamil Nadu [(2005) 2 SCC 13) in which, citing two
earlier decisions of this court in the cases of State -vs- Jagjit
Singh (AIR 1962 SC 253) and Gurcharan Singh -vs- State of (UT
of Delhi) [(1978) 1 SCC 118), the factors for granting bail under
normal circumstances were discussed. It was held that the nature
and seriousness of the offences, the character of the evidence,
circumstances which are peculiar to the accused, a reasonable
possibility of the presence of the accused not being secured at the
trial; reasonable apprehension of witnesses being tempered with;
the larger interest of the public or the State would be relevant
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factors for granting or rejecting bail. Juxtaposing the
appellants' case founded on Articles 14 and 21 of the
Constitution of India with the aforesaid allegations and
considering the fact that almost five years have lapsed since
they were taken into custody, we are satisfied that the
appellants have made out a case for granting bail. Allegations
against them no doubt are serious, but for that reason alone
bail cannot be denied to them. While dealing with the
offences under Chapters IV and VI of the 1967 Act, we have
referred to the materials available against them at this stage.
These materials cannot justify continued detention of the
appellants, pending final outcome of the case under the others
provisions of the 1860 Code and the 1967 Act."
9. In the case of Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed
Ansari versus State of Uttar Pradesh (supra), it has been held that right to
life and personal liberty enshrined under Article 21 of the Constitution of
India is overarching and sacrosanct. A Constitutional Court cannot be
restrained from granting bail to an accused on account of restrictive statutory
provisions in a penal statute if it finds that the right of the accused-undertrial
under Article 21 of the Constitution of India has been infringed. In that event,
such statutory restrictions would not come in the way. Even in the case of
interpretation of a penal statute, howsoever stringent it may be, a
constitutional court has to lean in favour of constitutionalism and the rule of
law, of which liberty is an intrinsic part. The relevant extract thereof is
reproduced hereunder:-
"In Gurwinder Singh (supra) on which reliance has been placed
by the respondent, a two Judge Bench of this Court distinguished
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K.A. Najeeb (supra) holding that the appellant in K.A. Najeeb
(supra) was in custody for five years and that the trial 25 of the
appellant in that case was severed from the other co-accused
whose trial had concluded whereupon they were sentenced to
imprisonment of eight years; but in Gurwinder Singh, the trial
was already underway and that twenty two witnesses including
the protected witnesses have been examined. It was in that
context, the two Judge Bench of this Court in Gurwinder Singh
observed that mere delay in trial pertaining to grave offences
cannot be used as a ground to grant bail.
This Court has, time and again, emphasized that right to life and
personal liberty enshrined under Article 21 of the Constitution of
India is overarching and sacrosanct. A constitutional court cannot
be restrained from granting bail to an accused on account of
restrictive statutory provisions in a penal statute if it finds that the
right of the accused-undertrial under Article 21 of the
Constitution of India has been infringed. In that event, such
statutory restrictions would not come in the way. Even in the case
of interpretation of a penal statute, howsoever stringent it may be,
a constitutional court has to lean in favour of constitutionalism
and the rule of law of which liberty is an intrinsic part. In the
given facts of a particular case, a constitutional court may decline
to grant bail. But it would be very wrong to say that under a
particular statute, bail cannot be granted. It would run counter to
the very grain of our constitutional jurisprudence. In any view of
the matter, K.A. Najeeb (supra) being rendered by a three Judge
Bench is binding on a Bench of two Judges like us.
Xxxxxx
continued incarceration of the appellant cannot be justified. "
10. In the case of Javed Gulam Nabi Shaikh versus State of
Maharashtra, another (supra), the Supreme Court has observed that
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criminals are not born but made. Howsoever serious a crime may be, an
accused has a right to speedy trial as enshrined under the Constitution of
India. Moreover, the purpose of bail is only to secure the attendance of the
accused at the trial and bail is not to be withheld as a form of punishment. The
relevant extract thereof is reproduced hereunder:-
"13. The aforesaid observations have resonated, time and again,
in several judgments, such as Kadra Pahadiya & Ors. v. State of
Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay
v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter the
court reemphasized the right to speedy trial, and further held that
an accused, facing prolonged trial, has no option:
"The State or complainant prosecutes him. It is, thus, the
obligation of the State or the complainant, as the case may
be, to proceed with the case with reasonable promptitude.
Particularly, in this country, where the large majority of
accused come from poorer and weaker sections of the
society, not versed in the ways of law, where they do not
often get competent legal advice, the application of the
said rule is wholly inadvisable. Of course, in a given case,
if an accused demands speedy trial and yet he is not given
one, may be a relevant factor in his favour. But we cannot
disentitle an accused from complaining of infringement of
his right to speedy trial on the ground that he did not ask
for or insist upon a speedy trial."
14. In Mohd Muslim @ Hussain v. State (NCT of Delhi)
reported in 2023 INSC 311, this Court observed 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
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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 31st
December 2021, over 5,54,034 prisoners were lodged in
jails against total capacity of 4,25,069 lakhs in the country.
Of these 122,852 were convicts; the rest 4,27,165 were
undertrials.
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. State reported in 1993
Cri LJ 3242, 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.
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"
(also see Donald Clemmer's 'The Prison Community'
published in 1940). 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
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stringent provisions, are taken up and concluded speedily."
xxxxxxx
18. Criminals are not born but made. The human potential in
everyone is good and so, never write off any criminal as beyond
redemption. This humanist fundamental is often missed when
dealing with delinquents, juvenile and adult. Indeed, every saint
has a past and every sinner a future. When a crime is committed,
a variety of factors is responsible for making the offender commit
the crime. Those factors may be social and economic, may be,
the result of value erosion or parental neglect; may be, because of
the stress of circumstances, or the manifestation of temptations in
a milieu of affluence contrasted with indigence or other
privations."
11. In view of the above especially when the appellant is in custody
for 01 year and 09 months and the end of the trial is not in sight, the appeal is
allowed and the impugned order is set aside. The appellant is ordered to be
released on regular bail subject to following conditions besides furnishing of
requisite bail bonds to the satisfaction of the trial Court/Duty Magistrate
concerned:-
i) He shall furnish bond of ₹10 lakh with two sureties of ₹10
lakh each;
ii) He shall surrender his passport, if any, in the Trial Court, if
he is holding the same and is still with him;
iii) He shall appear before Trial Court on each and every date
unless exempted by Court;
iv) He shall appear before the Investigating Officer as and
when summoned;
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v) He shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts of the
case or who is cited as witness;
vi) He shall not involve in any criminal activity and if during
the pendency of trial, he is found involved in commission of any
offence punishable under UAPA, the prosecuting agency would
be free to approach this court for recalling this order and
cancellation of his bail;
vii) He shall not sell, transfer or in any other manner create
third party right over his immovable property;
viii) He shall furnish an undertaking to the effect that in case of
their absence, Trial Court may proceed with trial and he shall not
claim re-examination of any witness.
ix) At the time of release of the appellant, the SHO, Police
Station Bathal Bhaike, District Tarn Taran shall be informed. He
shall appear before the SHO on every alternate Monday till the
conclusion of the trial.
12. In the event there is a breach of any of the above-mentioned
conditions, or of the conditions to be imposed by the Trial Court
independently, it would be open to the prosecution to seek cancellation of the
bail of the defaulting appellant without any further reference to this Court.
Similarly, if the appellant seeks to threaten or otherwise influence any of the
witnesses, whether directly or indirectly, then also the prosecution shall be at
liberty to seek cancellation of bail of the concerned appellant by making
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appropriate application before the Trial Court.
13. Needless to mention that the observations made hereinabove are
only for the determination of appeal seeking bail and shall have no bearing on
the merits of the trial.
(ANUPINDER SINGH GREWAL)
JUDGE
(LAPITA BANERJI)
JUDGE
18.09.2024
jitender
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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