Rajasthan High Court

Sarfaraz Mohammad S/O Late Shri Ishaq ... vs The State Of Rajasthan ... on 19 January, 2024

Author: Farjand Ali

Bench: Farjand Ali

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           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

 S.B. Criminal Miscellaneous 2nd Bail Application No. 14494/2023

Sarfaraz Mohammad S/o Late Shri Ishaq Mohammad, Aged
About 50 Years, R/o Village Dahikhera, Police Station Iklera,
District Jhalawar (Raj.) (At Present Under Judicial Custody Since
26/04/2017 And Confined At Central Jail, Jaipur)
                                                                      ----Petitioner
                                      Versus
1.          The State Of Rajasthan, Through Pp
2.          Shivratan Godara S/o Shri Mohan Ram, The Then S.h.o.
            Police Station Sanganer, Jaipur (Raj.)
                                                                   ----Respondents


For Petitioner(s)           :     Mr. Ved Prakash Sogarwal
For Respondent(s)           :     Mr. S. S. Mahla, PP



                  HON'BLE MR. JUSTICE FARJAND ALI

                                       Order

19/01/2024
1.        The jurisdiction of this court has been invoked by way of

filing an instant application under Section 439 CrPC at the

instance of accused-petitioner. The requisite details of the matter

are tabulated herein below:

S.No.                           Particulars of the Case
     1.     FIR Number                                325/2017
     2.     Concerned Police Station                  Sanganer
     3.     District                                  Jaipur City East
     4.     Offences alleged in the FIR               Sections 8/20,        21    of
                                                      NDPS Act.
     5.     Offences added, if any                    --
     6.     Date of passing of impugned 13.07.2021
            order




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2.    The first bail application of petitioner came to be dismissed

by this Court vide order dated 19.04.2022 while directing the trial

Court to conclude the trial as expeditiously as possible.

3.    It is contended on behalf of the accused-petitioner that no

case for the alleged offences is made out against him and his

incarceration is not warranted. There are several flaws and laches

in the case of the prosecution. The petitioner has been behind

bars for a very long period and the trial is progressing at a very

slow pace. There are no factors at play in the case at hand that

may work against grant of bail to the accused-petitioner and he

has been made an accused based on conjectures and surmises.

4.    Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor opposes the bail application

and submits that the present case is not fit for enlargement of

accused on bail.

5.    Have considered the submissions made by both the parties

and have perused the material available on record. It is

manifesting from the record that only seven witnesses have been

examined out of the long list of prosecution witnesses who are yet

to be examined. The learned court below was asked to expedite

the process of recording of statements as the accused was

languishing in jail since a considerably long period even then, till

now, there were no significant updates. Vide order dated

19.04.2022, this Court had dismissed the first bail application of

the petitioner and despite the direction to expedite the trial, not

even a single witness has been examined in the approximate

period of one year and nine months from the date of passing of

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the order uptill today. Now, it has been six years and nine months

since the accused was sent to jail and his rights and liberties are

getting stifled as he is being kept incarcerated without any

progress in the trial. An accused cannot be kept behind bars as an

under trial for an indefinite period. A detailed order dated

27.08.2022 has been passed in this regard by this Court in S.B.

Criminal Miscellaneous II Bail Application No. 12906/2022 titled

Suraj Vs. State of Rajasthan wherein it has been emphasized

that the right of the accused to get a speedy trial is an inalienable

fundamental right under Article 21 of Constitution of India. The

relevant paragraphs of the aforesaid judgment are reproduced

below:-

      '"7. ....An under trial prisoner, who is waiting for the
      trial to complete and reach a conclusion about his
      guilt for the alleged crime, is not only deprived of his
      right to as peedy trial but his other fundamental
      rights like right to liberty, freedom of movement,
      freedom of practising a profession or carrying on any
      occupation, business or trade and freedom to dignity
      are also hampered.
      8. .....
      9. .....
      Courts should not lose sight of the fact that pre-
      conviction detention has some punitive implications
      and the purpose of detention before conviction is to
      secure their presence at the trial and ensure their
      personal attendance in cases where necessity
      dictates their arrest and jail is the exception not the
      rule
      .......

The inmates who have spent years on end to see what has been decided in their case have probably resigned to their ill fate and become used to the confines of the four walls of the prison. It reminds this Court of the reference made to Dr. Manette's predicament in the Charles Dickens' novel 'A Tale of Two Cities' by Hon'ble the Supreme Court in State

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of Kerala Vs. Raneef, reported in AIR 2011 SC 340 while dismissing the appeal filed against grant of bail to the accused who was a doctor and had already spent 66 days in custody. In the book, Dr. Manette had spent such a long time of eighteen years as an inmate that he forgot his name, profession and other details about his life that existed prior to him becoming a prisoner at La Bastille. This Court is anxious over the fact that jails debilitate the under- trial prisoners and if after the long wait, the accused is ultimately acquitted, then how would the long years spent by the under-trial in custody be restored to him/her/them. The fact that the imprisonment of a family member affects the whole family cannot be overlooked and if long incarceration pending trial is considered to be harsh on the accused, then it should also be considered to be equally harsh on the family members of the accused. The rule is that pre- conviction detention is not warranted by law .......

Similarly, in cases where under-trial prisoners are made to wait and the trial is prolonged, the procedure of criminal proceedings itself becomes a punishment for such detainees. If the provisions laid down in the Code of Criminal Procedure are followed to the letter and not just in spirit, there will be lesser room for grievance related to speedy trial. Having noted the significance and development of the right to speedy trial, it is also important to consider the following factors while adjudicating a bail application against the backdrop of the right to a speedy trial:

i) The delay should not have been a defence tactic.

Who has caused the delay is also to be seen. Every delay does not necessarily prejudice the accused.

ii) The aim is not to interpret the right to speedy trial in a manner so as to disregard the nature of offence, gravity of punishment, number of accused and witnesses, prevailing local conditions and other systemic delays.

iii) If there is a strong reason to believe that the accused will surely flee from justice if released on bail and it will be a hard task for the investigating agency tore-apprehend him, then the benefit of bail should not be extended in his favour.

iv) If it is shown by placing compelling material on record that the release of the accused may create a

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ruckus in the society or that he will create such a situation wherein the prosecution witnesses will not come forward to depose against him or that he may otherwise hamper the evidence of prosecution in any other manner, then utmost caution needs to be exercised in such cases before granting bail to the accused.

The (iii) and (iv) points are to be considered only when strong and cogent evidence is placed on record or a compelling reason in support has come to light but surely not just on the basis of a simple, blanket submission made by the counsel appearing on behalf of the prosecution/complainant/victim.

10.......

11.......

12.......

13.......

14.......

15.......

16.....While striking a balance between the statutory bar contained under Section 37 of the NDPS Act and the fundamental right of the accused to get a speedy trial, this Court is of the firm view that an accused person cannot be kept in custody for an indefinite period till the trial is concluded and the presumption of innocence, a well-established principle of criminal jurisprudence, i.e. an accused is innocent until proven guilty, operates in the favour of the petitioner.

17.......

18.Considering the above observations, specially the right to speedy trial being a fundamental right, the over-crowdedness and a skewed prison-prisoner ratio, the rightful object of detaining an arrestee and being cognizant of the rigour of Section 37 of the NDPS Act, and in light of the guiding pronouncements of the Apex Court on this issue, this Court deems it just and proper to enlarge the petitioner on bail."

6. This Court is cognizant of the provisions contained in Section

37 of the NDPS Act but considering the submissions made by

learned counsel for the accused-petitioner regarding long

incarceration pending trial, this court is of the opinion that it is a

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fit case for grant of bail to the accused petitioner. Be that as it

may, no final observations and comments can be made at this

stage, as the same may influence the course of trial.

7. Accordingly, the second bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner

shall be enlarged on bail provided he furnishes a personal bond in

the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to