Rajasthan High Court - Jodhpur
Nitesh @ Raghu vs State Of Rajasthan (2024:Rj-Jd:11308) on 5 March, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:11308]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 12825/2023
Nitesh @ Raghu S/o Ramesh Chandra, Aged About 28 Years, R/o
Yadav Mohalla Nathdwara Dist. Rajsamand Raj. At Present
Lodged In Sub Jail Nathdwara
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Ratish Bhatnagar
For Respondent(s) : Mr. A.R. Choudhary, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
05/03/2024
1. The jurisdiction of this court has been invoked by way of
filing the second 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
2. Concerned Police Station Nathdwara
3. District Rajsamand
4. Offences alleged in the FIR Sections 302 & 201 of the
IPC
5. Offences added, if any Section 3/25 of the Arms
Act & Section 120-B of
the IPC
6. Date of passing of impugned 10.07.2023
order
2. 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 no factors at play in the
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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.
3. 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.
4. Have considered the submissions made by both the parties
and have perused the material available on record.
5. The petitioner is an accused of committing murder of
deceased Pradeep Kabra and making disappearance of the
evidence of the crime. He is behind the bars since 20.03.2019.
Around five years have elapsed but the trial is not seeming to be
reached on a legitimate conclusion. It is revealing that as many
as 29 witnesses have been projected by the prosecution out of
which till date only 17 witnesses have been examined and looking
to the current pace of trial, it can be presumed that still a further
long time will be consumed in completion of the trial.
6. While entertaining a bail plea of an accused, it is evident that
his/her/their case is pending and the trial is ongoing, thus,
presumption of innocence is there to support him. There are
certain provisions pertaining to presumption in the Indian
Evidence Act, 1872 such as Sections 111A, 113A, 113B, 114,
114A etc. and in some special statutes also, there are provisions
regarding presumption that can be drawn but nowhere in the
Evidence Act or any other penal statutes, the doctrine of
presumption of guilt has been advocated. All the presumption
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clauses referred above come into the picture when the prosecution
succeeds in discharging the burden laid upon it regarding
establishment of the basic features of the case, thus, the initial
burden always lies on the prosecution and only after discharge of
the initial burden, the theory of reverse burden comes into play.
Simply put, the theory of reverse burden or the reverse onus
theory means that once the fundamental facts/features/truth of a
case has/have been established which is substantial enough to
move the burden from the prosecution to the defence, then the
burden of proof shifts and lies on the defence/accused to disprove
the allegations leveled against him/her/them or to prove
his/her/their innocence. Having said this, suffice it is to say that
while considering a bail plea under Section 439 of CrPC which
relates to a bail pending trial, there is always a presumption of
innocence in favour of the accused. While taking into account
consideration of presumption of innocence, Court cannot lose sight
of the other parameters that are to be considered while
entertaining a bail plea which have been laid down and reiterated
innumerable times by Hon'ble the Supreme Court in plethora of
cases like nature and gravity of offences and availability of
material in support thereof; whether there are prima facie or
reasonable grounds to believe that the accused has committed the
offence; severity of punishment in case of finding of guilt of the
accused; possibility of abscondance of accused if released in bail;
possibility of hampering of or tampering with the evidence if
released on bail; character, conduct and social status of the
accused; antecedents of the accused; if the accused is an
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influential person, then whether he may put impact on the smooth
process of trial if released on bail; possibility of the prosecution
witnesses being influenced; likelihood of repetition of offence or
peril of infraction of justice if bail is granted.
7. There is not even a single provision in the Code of Criminal
Procedure which recognizes the power or grants the power to any
Court to allow a part of sentence to be suffered at pre-conviction
stage and the rest of the sentence to be served post his
conviction. The sentence cannot be divided and passed in such a
manner that some part of it is suffered before passing of judgment
of conviction and the rest is suffered after passing of judgment of
conviction. In fact, sentence shall begin from the date of passing
of order of sentence when the signature of the judicial officer is
appended on the same. Thus, an accused cannot be made to
undergo an indefinite period of detention pending trial particularly
in cases where a strong arguable case exists in favour of the
accused.
8. After pondering over the legal provisions made in the code of
Criminal Procedure, the law enunciated by Hon'ble the Supreme
Court through plethora of judicial pronouncements and upon
deliberation of bail jurisprudence, it is understood that the only
thing which a court of law has to ascertain while entertaining a
bail plea is whether the accused should be allowed to come to the
court to attend the judicial proceeding from his home and he may
be allowed to remain with his family and within the society on the
specific condition that on the stipulated date of the hearing of the
case, he will willfully attend the court proceeding or contrary to
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this, he is such a person that even in the pending trial, he should
be detained and should not be allowed to visit his family and
should be lodged at a specified place of detention so that on the
day of hearing, he may be brought to the court from the jail. In
other words, it is to be decided whether he may be allowed to eat,
sleep and live with his family like a man ordinarily does or he may
be allowed to eat, sleep and live in the jail. It all boils down to this
that whether the Court wishes to allow the accused to come to the
court to attend the proceedings from his home upon furnishing his
bonds and surety of independent person(s) or the court thinks
that he cannot be allowed to roam free and therefore, he should
be detained so that he may be brought before the court on the
day fixed for the hearing. This Court is of the considered view that
this is one of the prime concerns which is to be thought over and
to be ascertained while entertaining a bail plea. It is a judicially
noticeable fact in the present era that due to high volume of
pending cases, culmination of trial takes considerable time and in
my view, keeping the accused behind the bars during the
pendency of the case would serve no purpose except in
exceptional circumstances.
9. The entire gamut of bail jurisprudence revolves around the
conduct of the accused. Release of a person having bad conduct or
a history of bad conduct may be a peril to the society. It is his
conduct which brings into the mind of a judicial officer to make an
idea that if the accused is released on bail, he may commit the
offence again/ repeat the offence again and as such, the same will
not be in societal interest. Here, it is to be made clear that such
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kind of speculation should not be made on vague and bald pleas
and aspersions rather there must be some solid material to reach
on the above conclusion which means that the speculation should
not be vague but should be well-founded. Here, in this case,
neither the prosecution has placed any material nor any argument
has been raised in this regard.
10. The main object of keeping a person behind the bars pending
trial is nothing more than to ensure a smooth, unhindered, fair
and speedy trial and to ensure that he may be present to receive
the sentence as may be passed. No such apprehension has been
shown in this legal aspect of the matter and as such, there is no
legal impediment to release the accused on bail in view of the
discussion made herein above. There is high probability that the
trial may take long time to conclude. In light of these facts and
circumstances, it is deemed suitable to grant the benefit of bail to
the petitioner in the present matter.
11. It is nigh well settled law that at a pre-conviction stage; bail
is a rule and denial from the same should be an exception. The
purpose behind keeping an accused behind the bars during trial
would be to secure his presence on the day of conviction so that
he may receive the sentence as would be awarded to him.
Otherwise, it is the rule of Crimnal Jurisprudence that he shall be
presumed innocent until the guilt is proved.
12. Accordingly, the instant bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner as
named in the cause title shall be enlarged on bail provided he
furnishes a personal bond in the sum of Rs.50,000/- with two
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sureties of Rs.25,000/- each to the satisfaction of the learned trial
Judge for his appearance before the court concerned on all the
dates of hearing as and when called upon to do so.
(FARJAND ALI),J
9-Mamta/-
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