Rajasthan High Court - Jodhpur

Babita vs State Of Rajasthan (2024:Rj-Jd:39804) on 24 September, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:39804]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                          JODHPUR
  S.B. Criminal Miscellaneous 3rd Bail Application No. 11932/2024

Babita S/o Late Shri Pokar Ram, Aged About 28 Years, R/o
Danga Ki Dhani, Borunda, Tehsil Pipar, Dist. Jodhpur (Presently
Lodged In Central Jail, Jodhpur)
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Vijay Choudhary
For Respondent(s)           :     Mr. N.K. Gurjar AAG assisted by
                                  Mr. Rajesh Bhati, AGA



                  HON'BLE MR. JUSTICE FARJAND ALI

Order

24/09/2024

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

filing the instant third 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                  Banar
     3.     District                                  Jodhpur City East
     4.     Offences alleged in the FIR               Sections 302 & 201         of
                                                      the IPC
     5.     Offences added, if any                    Section 120-B of the IPC

6. Date of passing of impugned 21.05.2024 order

2. His first and second bail applications being SBCRLMB

Nos.5010/2022 & 2430/2024 were dismissed by this Court vide

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orders dated 12.12.2023 & 05.04.2024. Hence, the instant bail

application.

3. Briefly stated the facts of the case are that on 11.08.2020,

Sub Inspector Govardhanram, P.S. Banar submitted a report to

the effect that upon receiving an information that a dead body of

unknown person was lying at the STF Plant, behind the Nandi

Gaushala, he along with his team reached at the place of incident

whereupon Poonamchnad Valmiki, Supervisor, Sewerage Plant

and Pappu Mandal, Operator told that in the morning at the time

of cleaning water channel, a cloth bag wherein both legs and

hands of unknown person was found, it was reflected that the

same were cut through a cutter machine. On the basis of which a

case got registered under Sections 302, 201 and 120-B of the IPC

and investigation commenced. After usual investigation, a

chargesheet came to be filed in the Court concerned against

accused Bhiyaram, Seema, Priyanka, Babita and Rajesh.

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

case for the alleged offences is made out against her and her

incarceration is not warranted. He submits that the petitioner is

behind bars since 13.08.2020 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 she

has been made an accused based on conjectures and surmises.

5. 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.

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6. I have heard and considered the submissions made by both

the parties and have perused the material available on record.

7. Perusal of the record revealing that three sisters are booked

in a murder case of Sushil Choudhary, who happens to be the

husband of Smt. Seema. The story set up in the charge sheet is

that the wife of the deceased took him with her by luring at a

place where he was administered medicinal drug as a

consequence of which, he fell unconscious whereafter at first,

large vessel of his hand was cut down and after his death, his

body was chopped into pieces and picked them in the packets and

then threw in the sewerage line. The eye-witnesses account of

the incident is not available on the record and the entire case of

the prosecution hinges upon circumstantial evidence, however,

there is a strong submission of the defence to the effect that

neither of the circumstances put forth against the petitioner is

definite in tendency or conclusive in nature. Motive play an

important role in the cases based upon circumstantial evidence

and the above preposition time and again are propounded

through a plethora of judicial pronouncements by Hon'ble the

Supreme Court.

8. After minutely gone the report under Section 173 Cr.P.C.

and the annexed material, I don't find any concrete and plausible

material on the basis of which an inference can be drawn so as to

know the reason, cause and motive of the wife and her sisters to

kill the deceased. The evidence that medicine administered to the

deceased was procured from a veterinary Compounder and the

fact that the cutter purchased for chopping body parts of the

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deceased are on record but from nowhere the piece of evidence

can be traced regarding motive of the accused females to kill the

deceased. Although, this Court feels that in every case there is

no need to establish the factor of motive. However, in cases where

there is no quarrel and a pious relationship exists between the

couple baffles this Court as to what may be the reason for wife to

kill her husband with the aid of her two young sisters. Whether

the circumstances put-forth against the petitioner is sufficient

enough to bring home the guilt of the accused or whether the

circumstances available on the record are unerringly pointing

towards the guilt of the accused or whether the chain of

circumstance is so complete and making a spider's web, leaving

no room for exit to the accused or whether all the facts if taken

together are constraint only with the guilt of the accused are some

mixed and serious questions of law which are neither supposed to

be adjudicated at this stage nor the same is desirable. Since it

would be a task to be undertaken by the learned trial Judge after

taking on record the entire material and after hearing the parties.

9. Here, the question is that the accused is a female, who

happens to be sister-in-law of the deceased and what kind of

acrimony she was having with him is not on record. What role

actually she played in commission of crime is not clear. More or

less, the case of the prosecution is based on disclosure statements

made by the accused to a police officer while in custody for which

it can be said that the above is nothing but a confession which is

not judicial and, therefore, hit by Sections 24, 25 & 26 of the

Indian Evidence Act. This Court would refrain from making any

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final opinion in this regard but at the same time, the fact cannot

be ignored that a lady is behind the bars for long four years in a

case which is lacking direct evidence.

10. While keeping an accused detained, the opportunity to the

prosecutor to lead evidence can only be given for a reasonable

period. The wider connotation of the phrase 'reasonable period' be

understood to be one year because the case is classified as a

sessions case which would mean that the like cases should

commence and conclude within a session, that is, one year. Even if

an elastic interpretation of the expression 'reasonable period' is

taken on the pretext of certain unavoidable circumstances, then it

can only be doubled and even in that situation, trial has to be

completed within two years while keeping an accused in custody.

Suffice it would to say that for the purpose of determination as to

whether the accused is guilty or not, only a reasonable period can

be awarded to the prosecutor if the accused is behind the bars.

The cases which are classified as session case are purposefully

directed to be heard by senior officer of District Judge Cadre

looking to his experience and rank/grade/post. In criminal

jurisprudence prevalent in India, there is a presumption of

innocence working in favour of the accused until he is proven

guilty in the trial. The trial is conducted for the purpose of

affording an opportunity to the prosecutor to prove the charges

and only for the purpose of proving guilt or adducing evidence on

record, an unreasonable period of time cannot be granted as the

same infringes the fundamental rights of an accused which are

otherwise guaranteed by the Constitution of India. While

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entertaining a bail plea the court of law is required to take into

account the above-mentioned aspect of the matter as well beside

the gravity of offence and quantum of sentence.

11. Dealing with the identical issue where the trial had been

protracted for unreasonable period, an elaborate discussion has

been made by this Court while deciding the S.B. Criminal Misc.

Bail Application No.5916/2023 in the matter of Lichhman Ram @

Laxman Ram Vs. State the relevant part of which would be apt

to reproduce here which read 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

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of movement, freedom of practising a profession or carrying on any occupation, business or trade and freedom to dignity are also hampered.

9. Life without liberty is like a body without soul.

Freedom is the open window through which pours the sunlight of the human spirit and human dignity. Personal liberty of the accused is sacrosanct and quintessential to the very spirit and structure of a civilisation. Jeremy Bentham, the great English jurist, postulated that the greatest happiness of the greatest number is the end of law. The concept of civil liberty is embedded in individualism. This simply means that the purpose of the state is to help every individual in reaching their highest development and evolving into the best personality, thereby reaching a point where law and state are not required by the society. Thus, when personal liberty of an individual is threatened, his development is in peril which is a matter of great concern. Sir Wiiliam Blackstone has deftly observed on page 134 of the first volume of his book, 'Commentaries on the Laws of England' that, "Personal liberty consists in the power of locomotion, of changing situation or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint unless by due process of law".

Justice cannot be presumed to have been administered merely on passing of a judgment of conviction and order of sentence or a judgment of acquittal; rather administration of justice shall be deemed to have been completed when the trial is concluded within a reasonable period of time and the accused as well as the complainant/victim are not made to wait for years on end to know the result of the trial.

10. One of the founding fathers and the Third President of them United States of America, Thomas Jefferson,

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has rightly said that, "Rightful liberty is unobstructed action, according to our will, within limits drawn around us by the equal rights of others." Though the victim/complainant party has the right to seek justice against an accused person but that does not mean that the right of the accused to a fair trial can get hampered. A fair trial is one which is concluded within a reasonable period of time.

11. It is not just a fundamental right but also a human right of every accused as incarceration for an indefinite period pending trial is in contravention of the universal rights that are imperative for us all sans any kind of discrimination. Justice P.N. Bhagwati has embodied the spirit of the afore-mentioned observation in Maneka Gandhi Vs. Union of India (UOI) and Ors. reported in AIR 1978 SC 597 in the following words:

"The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19."

12. No one is unaware of the fact that justice delayed is justice denied. On one hand, if a victim has to wait for years to see the perpetrator get his due and on the other hand, if the accused is innocent and it is so decided that he was not guilty for the crime as alleged by the prosecution, then there is no justifiable answer that can put out the fire that has been burning in the minds of the parties since the very inception of the criminal proceedings.

13. A petition for issuance of a writ of habeas corpus was filed in Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, Govt. of Bihar, Patna reported in 1979 SCR (3) 169, praying for the release of a large number of men, women and children that

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were languishing in jails in Bihar for offences which if found guilty, were punishable by a sentence of not more than few months. Following the creative deliverance passed in the case of Maneka Gandhi (supra) which expanded the scope of interpretation under Article 21 of the Constitution of India, the right to a speedy trial was interpreted as being implied in the broad gamut of rights that are borne out of right to life and personal liberty enshrined under Article 21. Justice Bhagwati further expressed his anguish over the fact that the bail system of India works on the rusty assumption that monetary loss will deter an accused from fleeing from justice and thus, it operates harshly against the poor and indigent persons of the society. The burden of the period of detention falls on the innocent people who are the members of the family of the accused. A set of guidelines were issued by the Apex Court in this case to ensure that the courts subordinate to each of the High Courts take lesser time to reach a legitimate conclusion in a trial and that there should be greater access to bail along with humane living standards for the under-trials.

14. Subsequent to Hussainara Khatoon (supra), Hon'ble the Supreme Court held that the right to speedy trial is available at all the stages, be it the stage of investigation or inquiry, trial, appeal, revision and even retrial, in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Ors., reported in AIR 1992 SC 1701. In addition to the above, it was also held that a time limit cannot be set for the conclusion of trial as there are many factors that impact the right to speedy trial and the facts and circumstances of each case need, to be considered separately. An order for conclusion of trial within a fixed time is possible in specific cases where the circumstances and nature of

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offence demand it but a fixed time limit for all the trials cannot be imposed.

15. In the case of Sanjay Chandra v. CBI, reported in AIR 2012 SC 830, Hon'ble the Supreme Court had observed that as the investigation is complete and charge sheet has already been filed by the investigating agency, there remains no necessity to keep the accused in custody for further investigation. Being cognizant of the fact that the alleged offences were such that if proved, they could cause peril to the Indian economy, still Hon'ble the Supreme Court upheld the right of an under-trial prisoner to be released on bail. In S.B. Criminal Miscellaneous IV Bail Application No.14677/2021 titled as Banwari Meena v. State of Rajasthan, this Court has passed an elaborate order in similar context holding that it is a well-established canon of criminal law 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 trial and to receive the sentence that may be passed. This detention is not supposed to be punitive or preventive in nature. In another case titled Savanta v. State of Rajasthan (S.B. Criminal Miscellaneous VII Bail Application No. 3701/2022), this Court has held that over-incarceration of undertrial prisoners, beyond reasonable period of time, is violative of their fundamental right to a fair and speedy trial. Any trial that is deemed fair should conclude in a reasonable period of time.

16. While keeping an accused detained, the opportunity to the prosecutor to lead evidence can only be given for a reasonable period. The wider connotation of the phrase 'reasonable period' be understood to be one year because the case is classified as a sessions case which would mean that the like cases should commence and conclude within a

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session, that is, one year. Even if an elastic interpretation of the expression 'reasonable period' is taken on the pretext of certain unavoidable circumstances, then it can only be doubled and even in that situation, trial has to be completed within two years while keeping an accused in custody. Suffice it would to say that for the purpose of determination as to whether the accused is guilty or not, only a reasonable period can be awarded to the prosecutor if the accused is behind the bars. The cases which are classified as session case are purposefully directed to be heard by senior officer of District Judge Cadre looking to his experience and rank/grade/post. In criminal jurisprudence prevalent in India, there is a presumption of innocence working in favour of the accused until he is proven guilty in the trial. The trial is conducted for the purpose ofm affording an opportunity to the prosecutor to prove the charge and only for the purpose of proving guilt or adducing evidence on record, an unreasonable period of time cannot be granted as the same infringes the fundamental rights of an accused which are otherwise guaranteed by the Constitution of India. While entertaining a bail plea, the court of law is required to take into account the above- mentioned aspect of the matter as well besides the gravity of offence and quantum of sentence. 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 is 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

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condition that on the stipulated date of the hearing of the case, he will willfully attend the court proceeding or he is such a person that even in the pending trial, he should be detained, 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)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 the only thing which is to be thought over and to be ascertained while entertaining a bail plea. The main object of keeping a person behind the bars pending trial is nothing more but to ensure a smooth, unhindered, fair and speedy trial and that he may be present to receive the sentence as may be passed.

17. 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.

18. The Hon'ble Supreme Court has recently passed a judgment in Criminal Appeal No(s). 1525 of 2021 titled as Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya v. National Investigation Agency vide order dated 01.12.2021 wherein looking to the

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aspect that the fundamental right of the undertrial prisoner to have a timely trial was getting violated due to long and, indefinite period of incarceration, the trial court was directed to grant the benefit of post-arrest bail in favour of the appellant.

19. In Union of India (UOI) Vs. K.A. Najeeb, reported in AIR 2021 SC 712, Hon'ble the Supreme Court upheld the order of the High Court of Kerala granting bail to an accused and observed that had it been a case at the threshold, the Hon'ble Court would not have paid heed to the respondent's prayer but looking to the length of time that the accused has already spent in jail and the likelihood of the trial taking still more time to conclude, they agreed that the High Court was not left with any other option but to release the accused on bail. The relevant portion of the judgment is reproduced as below:

"An attempt has been made to strike a balance between the Appellant'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 our Constitution have been well protected."

20. In another recent case of Satender Kumar Antil Vs. Central Bureau of Investigation & Ors., reported in AIR 2022 SC 3386, Hon'ble the Supreme Court took cognizance of the fact that the jails of the country are over-flowing with prisoners and that arrest, being a draconian measure that curtails the liberty of the arrested individual, should be used sparingly. It was also observed that accused can be considered for enlargement on bail on the basis of unreasonable delay being one of the grounds. The Apex Court classified offences into four broad categories and prescribed guidelines with respect to following statutory law as well as precedents laid down by the Apex Court with

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regard to Sections 41 & 41A, 87 & 88, 167, 170, 309(1) among others, with the expectation that it would help in unclogging the prisons and result in reduction of pendency of bail applications.

21. 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 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.

22. There have been repetitive pronouncements by this Court as well wherein considering the fact of long incarceration inter alia other aspects, bail has been granted to accused persons. Indisputably, the petitioner has been in custody since long and the protracted trial will violate his fundamental right to a timely trial. 23. In Writ Petition (Criminal) No 279 of

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2022, titled Mohammed Zubair Vs. State of NCT of Delhi & Ors, while granting bail to the accused vide order dated 20.07.2022, the Apex Court observed that the accused was trapped in a vicious cycle of the criminal process where the process had itself become the punishment.

24. 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 to re-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 ruckus in the society

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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.

25. While hearing a bail plea, if there appears the slightest possibility of acquittal of the accused based on any of the submissions made by counsel for the parties, then there is no harm in inclining towards extending the benefit of bail in favour of the accused so far as it is limited to the justifiable disposal of the bail. It is a settled principle of law that the defence is not required to prove its case beyond reasonable doubt and it can rely on the principle of preponderance of probability. In juxtaposition, the burden to prove its case beyond reasonable doubt always lies upon the prosecution except in exceptions prescribed by law. Thus, whenever a doubt is raised against the story of the prosecution, it needs to be considered objectively but needless to say, it is to be considered only for the limited purpose of deciding the bail application and should not influence the trial court so as to adversely affect the interests of either of the parties in any manner.

26. While adjudicating a bail plea, the Court should never assume that the case put forth by the prosecution is sacrosanct and true and the accused is

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guilty; however, the same does not mean that the case of the prosecution should be approached with an initial presumption of doubt. Suffice it to say that if a substantial plea is raised at the time of praying for bail, it can be considered tentatively for the purpose of granting bail at that stage, without deeply speculating the result of the trial as a dead end. In addition, if material is placed on record, it needs to be considered.

27. Coming back to the point of protracted trial and consequent expansion of period of incarceration, this Court is of the firm view that the accused should be released on bail if he has been incarcerated pending trial for more than a reasonable period of time unless extraordinary and overwhelming circumstances prevent the Court from doing so.

28. The procedure of law is that the exact date of imprisonment would commence from the judgment of conviction and the date of order of sentence. The further provision of law is that the period already undergone would be set off against the period of sentence. The purpose of keeping the accused behind bars is to ensure that the accused would not flee from justice and to avoid the apprehension that he may hamper the witnesses or tamper with the prosecution evidence. True it is that the gravity of offences and severity of punishment attached with the crime form vital parts of consideration while adjudicating a bail plea but the period of incarceration pending trial must be a reasonable period. It is the duty of the prosecutor as wells as of the Court to ensure that the prosecution evidence is produced within a reasonable period which must not be an unfair and unjust. In order to justify period of incarceration pending trial, the aid of provision for setting off period of incarceration suffered pending trial with the term of imprisonment decided by the convicting Court in the order of sentence cannot be

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taken in cases where the trial went on for a long period of time and ultimately resulted into acquittal.

29. The right to be freed from detention and get a fast culmination of trial are liberties that every accused should be able to enjoy and in cases where the delay is not caused at the hands of the accused, he bears the brunt of the follies of the criminal justice system.

30. The right to speedy trial has developed to become an inalienable fundamental right guaranteed under Article 21 of the Constitution of India by way of a slew of judgments passed by Hon'ble the Supreme Court, however, it has been prevalent since times immemorial and finds mention even in the Magna Carta Libertatum commonly called Magna Carta, the royal charter of rights agreed to by King John of England in around 1215 A.D. Among other conventions and precedents, the text of Magna Carta was one of the major inspirations that laid the basis for English Common Law and the pre-eminent English luminaries like Lord Macaulay and Sir James Stephen drafted our criminal legislation and statutes. Clause 40 of the Magna Carta which reads as "To no one will We sell, to no one will We deny or delay, right or justice", paved the way for right to habeas corpus as well as the idea of adjudication by the jury or the equals of the accused. The idea that no accused person can be detained indefinitely during the pendency of trial also sprang up from this clause.

31. The matter needs to be looked at from a humanitarian lens also. The accused is spending his time as an under-trial in prison where the living conditions are depressing and pitiable. The bellies of prisons all across the country are bloated due to the humongous influx of prisoners in India. The prisons are overcrowded to an unimaginable extent. Nelson Mandela was the torch-bearer of the movement against

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apartheid in South Africa and he had the following words to say about his fabled incarceration at the Robben Island Prison from 1964 to 1982:

"No one truly knows a nation until one has been inside its jail. A nation should not be judged by how it treats its highest citizens, but its lowest ones."

Any prison that was built with the infrastructure to hold a certain number of prisoners would be overpopulated and congested if it would be required to house a percentage of prisoners which is way beyond its capacity. Prisoners in India sleep in turns as there is no space for all of them to sleep at the same time. They are packed like sardines in the cells and are deprived of basic needs like balanced diet, sanitation, sewage, hygiene etc. From food and ration to commodities like soap, detergent, toothpaste etc., everything is provided by the state in measured quantities for the number of prisoners that the prison is designated to hold and not for the number of prisoners that it actually holds in reality. In such cases, an under-trial prisoner cannot be subjected to such harsh and inhuman conditions for eons.

32. The Amnesty International India's Report titled Justice Undertrial: A Study of Pre-trial Detention in India reveals that as of 2019, 69% of the prisoners in Indian prisons are undertrials which means that the under-trial prisoners are more than twice in number than the convicted prisoners. As per the report, the average occupancy rate of Indian jails is 114%. There are very few prisons that are equipped and able to decide which under-trial prisoners are eligible for release under Section 436A of the CrPC. As per the Prison Statistics India 2020 published by the National Crime Records Bureau (Ministry of Home Affairs), Government of India, 76.12% of the total prisoners

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across the country are under trial prisoners. Nothing can be assumed about the life expectancy of an accused, rather if an accused is made to stay in prisons in such miserable conditions, it would lead to more health problems and impair the health of the accused person. While sharing his thoughts about his experience in jail, Mahatma Gandhi had once said, "Men in prison are 'civilly dead' and have no claim to any say in policy." Ours is not a despotic nation rather it is a democratic nation which proudly upholds the liberties of its citizens. Despite Supreme Court guidelines, legal and executive reforms, there is no significant improvement in the state of the under-trials.

33. Law and society go hand in hand. A lawless society is no better than a jungle. Right to life is not a bare right; it means right to a dignified life and personal liberty and includes in its ambit all aspects that help a person lead a life of dignity. Any law which does not accommodate or adapt to the evolution of the society seizes to serve its purpose. When a person is detached from the society and put in jail, he goes through a big change of social environment. The present petitioner has spent seven long years in prison while he awaits the verdict of his ongoing trial. Though he has not yet been proved to be guilty but he has spent all the seasons of last seven years in the jail precinct; he has not been a part of any social gathering, major family events, festivals and like occasions for seven years and if he is finally acquitted after culmination of trial then no court can give him back the time and reputation that he has lost. There is no way to recompense the accused who has spent a prolonged period pending trial in case there is an acquittal waiting for him at the end of a seemingly endless journey. No concept of solatium to an under trial prisoner in case of acquittal exists in the statutes of our country. Moreover, it is pertinent to

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note that if under trial prisoners are released looking to the facts and circumstances of the case, then there can be more space for the inmates and better living standards in the jails. For instance, if a jail is built to house 100 inmates only but it is overcrowded to the extent of housing 200 inmates, then release of under trial prisoners post consideration of relevant factors would result in improved living conditions for all prison mates.

34. Considering the above observations, specially the right to speedy trial being a fundamental right, the over- crowdedness and a skewed prison-prisoner ratio and the rightful object of detaining an arrestee and in light of the guiding pronouncements of the Apex Court on this issue; this Court feels persuaded to take a liberal approach to grant bail to the accused without deeply diving into the niceties of the matter as well into the nature and gravity of the offence. The long period of detention spent by the accused in custody awaiting trial without any hope of conclusion of trial in the near future has shaken the conscience of this Court and thus, ends of justice would meet in releasing him on bail. Needless to say, the above observations are limited to the justifiable disposal of the present bail application and shall not influence the trial judge in any manner so as to adversely affect the rights of either of the parties.

In view of the enunciation made regarding provisions for

granting bail and looking to the fact that the petitioner is a female

and there is a special provision for the female accused under

Section 437 Cr.P.C. for leniency in granting bail to her and she is

behind the bar for more than four years and that out of total 69

witnesses projected by the prosecution only 13 witnesses could

have been examined. Now four years have lapsed, however, only

few of the witnesses have been examined till now and from the

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snail's pace progress of the trial it can easily be speculated that a

further long time shall be consumed in future in conclusion of the

trial. Further noticing that culmination of trial in a near future is