Rajasthan High Court - Jodhpur

Jogendra @ Joga Ram vs State Of Rajasthan (2024:Rj-Jd:42592) on 17 October, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:42592]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous 5th Bail Application No. 9478/2024

Jogendra @ Joga Ram S/o Lumba Ram, Aged About 24 Years, R/
o Pachpadra P.s. Pachpadra Dist. Balotra (At Present Lodged In
Sub Jail, Balotra)
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. C.S. Rajpurohit
For Respondent(s)           :     Mr. N.K. Gujar AAG assisted by
                                  Mr. Rajesh Bhati, AGA
                                  Mr. Ravindra Bhati, AGA



                 HON'BLE MR. JUSTICE FARJAND ALI

Order

17/10/2024

1. The jurisdiction of this court has been invoked by way of

filing the fifth bail 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                  Pachpadra
     3.     District                                  Barmer
     4.     Offences alleged in the FIR               Sections 384, 363, 366-A
                                                      & 376(3) of the IPC &
                                                      Section 3/4 of the POCSO
                                                      Act
     5.     Offences added, if any                    Section 3/4(2)       of   the
                                                      POCSO Act

6. Date of passing of impugned 12.07.2024 order

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2. The first, second, third and fourth bail applications of the

petitioner being SBCRLMB Nos.655/2021, 3781/2021,

17282/20021, 861/2023 dismissed on 10.02.2021, 26.03.2021,

19.01.2021 & 22.02.2024. While dismissing the earlier bail

application, this Court directed the trial Court to complete the trial

within a period of four months but till date trial has not been

concluded. Hence, the instant bail application.

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

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. Perusal of the record revealing that the petitioner is behind

the bars 25.12.2020. The victim and her parents have been

examined in the trial thus, the possibility of hampering or

tampering evidence has been negated.The grounds raised with

regard to age of the victim seems to be worth considerable and

this Court feels that the actual determination of her age could only

be done by the trial Court after considering all the material. As on

date looking to the fact that out of total 20 witnesses only seven

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witnesses could have been examined and there is high probability

that the trial may take long time to conclude.

6. This Court has made an elaborate discussion with regard to

bail of an under trial accused on the ground of delay in

culmination of the trial. This Court feels that if the accused is

under detention, it is obligatory for the prosecution to complete

the trial within a reasonable period. This Court has passed an

elaborated order dated 08.02.2024 in the case of Lichhaman

Ram @ Laxman Ram Vs. State of Rajasthan (S.B. Criminal

Misc. Bail Application No.5916/2023); the relevant part of the

said order is being reproduced as under:-

7. This Court feels that the nature and gravity of offence and availability of material in support thereof are not the only factors to be taken into account while considering a bail application. The fact that trial is to be concluded within a reasonable period of time is imperative while considering grant of bail to an accused. It is settled principle of criminal jurisprudence that there is presumption of innocence at the pre-conviction stage and the objective for keeping a person in jail is to ensure his presence to face the trial and to receive the sentence that may be passed. This detention is not supposed to be punitive or preventive in nature. An accused is considered to be innocent until he or she or they are proven guilty in the court of law.

8. As per the fundamental rights granted to every citizen/person by the Constitution of India, the accused cannot be expected to languish in custody for an indefinite period if the trial is taking unreasonably long time to reach the stage of conclusion. 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 a speedy 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.

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7. The Hon'ble Supreme Court vide judgment dated 26.09.2024

passed in V. Senthil Balaji Vs. The Deputy Director,

Directorate of Enforcement [Criminal Appeal

No.4011/2024] has also granted bail to an accused of an

offence under the penal provision of Prevention of Money

Laundering Act. The relevant paras of the said judgment is

reproduced hereunder :-

"24. There are a few penal statutes that make a departure from the provisions of Sections 437, 438, and 439 of the Code of Criminal Procedure, 1973. A higher threshold is provided in these statutes for the grant of bail. By way of illustration, we may refer to Section 45(1)(ii) of PMLA, proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). The provisions regarding bail in some of such statutes start with a non obstante clause for overriding the provisions of Sections 437 to 439 of the CrPC. The legislature has done so to secure the object of making the penal provisions in such enactments. For example, the PMLA provides for Section 45(1)(ii) as money laundering poses a serious threat not only to the country's financial system but also to its integrity and sovereignty.

25. Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a wellsettled principle of our criminal jurisprudence that "bail is the rule, and jail is the exception."

These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time."

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8. In an another case titled as Javed Gulam Nabi Shaikh Vs.

State of Maharashtra & Anr. (Criminal Appeal

No.2787/2024), the Hon'ble Supreme Court vide its order dated

03.07.2024 has made enunciation of the law in this regard and it

would be very apt to reproduce the relevant paras of the said

order hereunder :-

"7 Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects:

(i) The appellant is in jail as an under-trial prisoner past four years;

(ii) Till this date, the trial court has not been able to even proceed to frame charge; and

(iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.

8 Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.

9 Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment. 10 In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by

this Court in Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:

"What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of

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the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."

11 The same principle has been reiterated by this Court in Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the object of bail is 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 is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment.

12 Long back, in Hussainara Khatoon v. Home Secy., State of Bihar reported in (1980) 1 SCC 81, this court had declared that the right to speedy trial of offenders facing criminal charges is "implicit in the broad sweep and content of Article 21 as interpreted by this Court". Remarking that a valid procedure under Article 21 is one which contains a procedure that is "reasonable, fair and just" it was held that:

"Now obviously procedure prescribed by law for depriving a person of liberty cannot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. 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."

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 re-

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emphasized 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."

9. Similar is the circumstances of the case, thus, looking to the

factual aspect of the matter and looking to the fact that there is

high probability that the trial may take long time to conclude, it is

deemed suitable to grant the benefit of bail to the petitioner.

10. 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

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 37-Mamta/-