Himachal Pradesh High Court
Reserved On: 10.06.2024 vs State Of H.P on 14 June, 2024
Author: Virender Singh
Bench: Virender Singh
1 2024:HHC:3417 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.M.P(M) No.1103 of 2024
Reserved on: 10.06.2024
Decided on: 14.06.2024
Akhil Kaushal .......Applicant
Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant: Mr. Parikshit Rathour, Advocate.
For the respondent: Mr. H.S. Rawat, Additional
Advocate General, assisted by
ASI Rajeev Kumar, PS
Barotiwala, District Solan, H.P.
Virender Singh, Judge
By way of the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC'), applicant-Akhil Kaushal has sought his release, on bail, during the pendency of trial, in case FIR No.56 of 2018, dated 17th May, 2018, registered with Police Station Barotiwala, District Solan, H.P., under Sections 302, 307 and 506 of the Indian Penal Code (hereinafter referred to as 'IPC'). 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2
2024:HHC:3417
2. According to the applicant, he is an innocent person and has falsely been implicated, in the present case.
3. It is the case of the applicant that there is inordinate and unexplained delay in lodging the FIR. The FIR is stated to have been registered on the basis of concocted facts. The applicant has asserted that he has been arrested on 17.05.2018 and from the day of his arrest, he is in custody. According to him, after framing of charges against him, only 12 witnesses, out of 25, have been examined, as such, according to the applicant, the conclusion of trial will take sufficient long time.
4. The applicant has earlier tried his luck before the Court of learned Additional Sessions Judge, Nalagarh, District Solan, H.P., by filing bail application bearing No.37-NL/22 of 2021. However, the said application was dismissed by the Court of learned Additional Sessions Judge, vide order dated 28.01.2021.
4.1 Thereafter, the applicant has filed Cr.MP(M) No.1666 of 2021, before this Court, however, the same was dismissed, as not pressed, vide order dated 07.09.2021. Later, the applicant has also filed Cr.MP(M) No.2047 of 2023, 3 2024:HHC:3417 before this Court, which was also dismissed, vide order dated 08.12.2023.
5. Apart from this, number of undertakings have also been given, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial.
6. When put to notice, the police has filed the status report, disclosing therein, that on 17.05.2018, the Medical Officer, ESI Hospital, Kattha had informed the police that two girls have been admitted in the hospital and both were brought in injured condition. On receiving this information, ASI Narender Jeet Khatta, along with other police officials, had reached at ESI Hospital, Kattha, where, the Medical Officer had disclosed to him that after giving the first aid, injured Manisha Chandel and Asha Chauhan were referred to PGI Chandigarh for further management. Thereafter, the In- charge Police Station, Barotiwala reached at PGI Chandigarh, where, opinion of the Medical Officer was obtained. 6.1 Injured Manisha Chauhan has made a statement, under Section 154 Cr.P.C., disclosing therein, that she is resident of the address mentioned in her statement. According to her, in the year 2016, she has passed 10+2 4 2024:HHC:3417 examination in the Non-Medical stream from Dabhota School. Thereafter, in the year 2017, she has appeared in the entrance examination of Dr. Reddy's Laboratory, Bhud and thereafter, she has joined Dr. Reddy's Laboratory. She has undergone two months' induction course from Chitkara University and now, she is working in Dr. Reddy's Laboratory in packing department. She is also pursuing B.Sc Pharmaceuticals. As per her further version, to all the employees of Dr. Reddy's Laboratory, the company has provided the lodging and boarding in Hill View Apartment, Jharmajri, Tehsil Baddi.
6.2 The complainant, along with her three friends, namely, Anchal Chauhan, resident of Una, Richa, resident of Hamirpur and Anchal (II), resident of Una were residing in Flat No.304 B.9, in Hill View apartment. The duty timings of the complainant and Anchal Chauhan were stated to be from 01.00 pm till 10.00 p.m., whereas, the duty timings of Richa and Anchal (II) was from 4.50 a.m. to 2.00 p.m. She has further got recorded in her statement that Richa and Anchal had gone to attend their duties at 04.50 a.m. and the complainant was in her room. Anchal Chauhan was having affair with Akhil Kaushal (applicant), however, break up 5 2024:HHC:3417 between them had taken place in the month of August, 2017. After that, Akhil Kaushal (applicant) had tried to talk with Anchal forcibly and sometimes, he used to call her. On one occasion, Akhil Kaushal had also been caught with Anchal Chauhan in the Company.
6.3 As per the complainant, on 17.05.2018, Richa and Anchal had gone to attend their duties in the shift. At about 05.05 a.m., the complainant heard the noise of weeping of Anchal Chauhan from kitchen, but, the door of the kitchen was closed. When, she opened the door, she noticed that Akhil Kaushal (applicant), who was working with them, was beating Anchal Chauhan. He was having a knife in his right hand. Akhil Kaushal (applicant) has dragged the complainant inside and inflicted knife blows on the lower side of her neck and has given a push to her. Thereafter, Akhil has started cutting the neck of Anchal. Tape was applied on the mouth of Anchal, so that, she could not scream. She has requested Akhil to leave Anchal, but, Akhil was threatening her to keep mum, otherwise, he will kill the complainant also. Blood was oozing out from the neck of Anchal and she was harrowing in pain. The complainant had requested the applicant to go to his room as Anchal would die, upon which, Akhil Kaushal 6 2024:HHC:3417 (applicant) has told her that Anchal had ditched him and he will not leave until she will die. Akhil Kaushal (applicant) sat there for about five minutes and during that period, he has narrated the old incidents to her. He remained there till Anchal became unconscious. When, he left the room, the complainant has informed Kanchan on phone, who came to her room and thereafter she was taken to ESI Hospital for treatment.
6.4 Lastly, she has deposed that Akhil Kaushal (applicant) has killed Anchal with the help of knife and also inflicted knife blows in order to kill the complainant. The accused has also threatened to kill the complainant, in case, she will disclose this fact to the police. 6.5 On the basis of above facts, the police has registered the case, under Sections 302, 307 and 506 IPC. During investigation, the dead body of Anchal Chauhan was sent to CHC, Nalagarh for post-mortem examination. At Nalagarh, the Medical Officer inspected the dead body and referred the same for post-mortem examination to IGMC, Shimla.
6.6 After completion of the investigation, the police has filed the report, under Section 173(2) Cr.P.C, before the 7 2024:HHC:3417 Court of learned Additional Sessions Judge, Nalagarh, District Solan, H.P.
7. In the status report, filed on 10.06.2024, it has been stated that statements of twelve witnesses have been recorded and statements of 10 witnesses are yet to be recorded.
8. The applicant has sought the relief of bail, mainly on the ground of delayed trial, as such, it has been pleaded that despite directions, given by this Court, to conduct the trial on day-to-day basis, the prosecution could not complete the trial against him.
9. It is the case of the applicant that out of the 25 witnesses, only 12 witnesses have been examined and now, the date, before the learned trial Court, is fixed for 29.07.2024 and 30.07.2024 for recording the evidence of two prosecution witnesses, on each date.
10. All these facts have been highlighted to show that there is no possibility of conclusion of trial, against the applicant, in near future.
11. On the basis of above facts, it has been prayed that keeping the applicant in judicial custody, that too, for an 8 2024:HHC:3417 unlimited period, would amount to the violation of his right under Article 21 of the Constitution of India.
12. A perusal of record shows that while dismissing bail application bearing Cr.MP(M) No.1666 of 2021, this Court has directed that the trial against the applicant be disposed of as expeditiously as possible and on day-to-day basis. The said order has been passed way back on 07.09.2021 and thereafter, when, the applicant has filed Cr.MP(M) No.2047 of 2023, decided on 18.12.2023, again direction was issued to the learned trial Court to conclude the trial, as expeditiously as possible.
13. Learned counsel, appearing for the applicant, has placed on record, photocopies of the zimni orders, which have been passed by the learned trial Court, after 18.12.2023. Orders dated 10.01.2024, 02.03.2024, 30.04.2024 and 02.05.2024, passed by the learned trial Court, are reproduced as under:-
"10.01.2024 Present: Sh. Devinder Chandel, ld. PP for State.
Accused produced through VC in the custody of jail warden, P.L. Nahan.
Taken up today for effective hearing vide separate office order. Let file be listed for PWs at Sr. No. 6, 7 and 9 be summoned for 02.03.2024."9
2024:HHC:3417 "02.03.2024 Present: Sh. Devinder Chandel, ld. PP for State.
Accused produced in the custody of Ct.
Vikramjeet No.226 and Ct. Surjeet No.114 of P.L. Nahan.
Sh. Manoj Kumar, Adv. for accused.
Statement of one witness namely Gopal Krishan recorded and placed on record. Ld. PP vide his vide separate statement given up one witness namely Chain Singh. Let file be listed for PWs at Sr. No.10 and 13 be summoned for 30.04.2024 and PW at Sr. No.20 be summoned for 01.05.2024 and PWs at Sr. No. 19 & 21 be summoned for 02.05.2024."
"30.04.2024 Present: Sh. Devinder Chandel, ld. PP for State.
Accused produced in the custody of HHC Faquir Chand No.671 and HHC Anil Sharma No.466 of P.L. Nahan.
Examination-in-chief of PW namely Dr. Anil Arora recorded and placed on record. Statement of one PW namely Ashwani Kumar recorded and placed on record. Let file be listed for PWs as already fixed on 01.05.2024."
"02.05.2024 Present: Sh. Devinder Chandel, ld. PP for State.
Accused produced in the custody of HHC Ravinder Singh No.169 and HHC Jeevan Singh No. 555 of P.L. Nahan.
Mr. Manoj Kumar, Adv. for accused.
No PWs present. Let file be listed for PWs at Sr. No.11 & 12 be summoned for 29.07.2024 and PWs at Sr. No.14 & 19 be summoned for 30.07.2024.
PW 19 be served by way of bailable warrant in the sum of Rs.5000/- with one surety in the like amount on the date fixed above."
14. Perusal of above zimni orders, passed by the learned trial Court, shows that despite directions, the trial 10 2024:HHC:3417 against the applicant has not been concluded. Even, the above zimni orders demonstrate that the trial against the applicant is being conducted in violation of the directions, of this Court, on 07.09.2021, in Cr.MP(M) No.1666 of 2021, as well as, in violation of the order dated 18.12.2023, passed in Cr.MP(M) No.2047 of 2023.
15. It has rightly been argued by learned counsel, appearing for the applicant, that the fundamental right of the applicant for speedy trial, as envisaged, under Article 21 of the Constitution of India, has been violated.
16. Right to speedy trial has been held to be fundamental right by the Constitutional Bench of the Hon'ble Supreme Court, in a case titled as Abdul Rehman Antulay and others versus R.S. Nayak and another, reported in (1992) 1 Supreme Court Cases 225. In the said case, the Hon'ble Supreme Court has held that the accused has right to speedy trial, which flows from Article 21 of the Constitution of India. Relevant paragraph 86 of the said judgment, is reproduced, as under:
"86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor 11 2024:HHC:3417 is it possible to lay down any hard and fast rules. These propositions are:
(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.
(3) The concerns underlying the right to speedy trial from the point of view of the accused are:
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise. (4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been 12 2024:HHC:3417 infringed, the first question to be put and answered is -- who is responsible for the delay?
Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.
(5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on -- what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
(6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker [33 L Ed 2d 101] "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. v. Ewell [15 L Ed 2d 627] in the following words:
'... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a 13 2024:HHC:3417 relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker [33 L Ed 2d 101] and other succeeding cases.
(8) Ultimately, the court has to balance and weigh the several relevant factors -- 'balancing test' or 'balancing process' -- and determine in each case whether the right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order -- including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded -- as may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At 14 2024:HHC:3417 the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis."
(self emphasis supplied)
17. A three Judge Bench of the Hon'ble Supreme Court, in another case, titled as Raj Deo Sharma versus State of Bihar, reported in (1998) 7 Supreme Court Cases 507, has supplemented the decision of the Hon'ble Supreme Court in Abdul Rehman Antulay's case (supra), by issuing the additional directions. Relevant paragraph 13 of the judgment in Raj Deo Sharma's case (supra), is reproduced as under:
"17. After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution Bench in Antulay case [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] with the following directions:
(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused 15 2024:HHC:3417 on the charges framed whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case.
(ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one-half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit.
(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time-limit.
(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by clauses (i) to (iii).
(v) Where the trial has been stayed by orders of the court or by operation of law, such time during which the stay was in force shall be excluded from the aforesaid period for closing the prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in "Common Cause" A Registered Society v. Union of India [(1996) 4 SCC 33 : 1996 SCC (Cri) 589] as modified by the same Bench through the order reported in "Common Cause" A Registered Society v. Union of India [(1996) 6 SCC 775 : 1997 SCC (Cri) 42] ."
18. In a case, titled as Dharmendra Kirthal versus State of Uttar Pradesh and another, reported in (2013) 8 16 2024:HHC:3417 Supreme Court Cases 368, the Hon'ble Supreme Court has held the right to speedy and fair trial to be an integral part of very soul of Article 21 of the Constitution of India. Relevant paragraphs 30 to 33 of the judgment, is reproduced, as under:
"30. Keeping the aforesaid enunciation in view, we shall presently proceed to deal with the stand and stance of both the sides. The first submission which pertains to the denial of speedy trial has been interpreted to be a facet of Article 21 of the Constitution. In Kartar Singh [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , the majority, speaking through Pandian, J., has expressed thus: (SCC p. 638, paras 85-86) "85. The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge.
86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can 17 2024:HHC:3417 be averted. In this context, it may be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure."
31. Be it noted, the Court also referred to the pronouncements in Hussainara Khatoon (1) v. State of Bihar [(1980) 1 SCC 81 : 1980 SCC (Cri) 23] , Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] , Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC 98 : 1980 SCC (Cri) 40] , Hussainara Khatoon (6) v. State of Bihar [(1980) 1 SCC 115 : 1980 SCC (Cri) 57] , Kadra Pahadiya v. State of Bihar [(1983) 2 SCC 104 :
1983 SCC (Cri) 361] , T.V. Vatheeswaran v. State of T.N. [(1983) 2 SCC 68 : 1983 SCC (Cri) 342] and Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] .
32. The present provision is to be tested on the touchstone of the aforesaid constitutional principle. The provision clearly mandates that the trial under this Act of any offence by the Special Court shall have precedence and shall be concluded in preference to the trial in such other courts to achieve the said purpose. The legislature thought it appropriate to provide that the trial of such other case shall remain in abeyance. It is apt to note here that "any other case" against the accused in "any other court" does not include the Special Court. The emphasis is on speedy trial and not denial of it. The legislature has incorporated such a provision so that an accused does not face trial in two cases simultaneously and a case before the Special Court does not linger owing to clash of dates in trial. It is also worthy to note that the Special Court has been conferred jurisdiction under sub-section (1) of Section 8 of the Act to try any other offences with which the accused may, under any other law for the time being in force, have been charged and proceeded at the same trial.
33. As far as fair trial is concerned, needless to emphasise, it is an integral part of the very soul of Article 21 of the Constitution. Fair trial is the quintessentiality of apposite dispensation of criminal justice. In Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158 : 2004 SCC (Cri) 18 2024:HHC:3417 999] , it has been held as follows: (SCC p. 183, para 33) "33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation--peculiar at times and related to the nature of crime, persons involved-- directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system."
(self emphasis supplied)
19. Similar view has been taken by a two Judges' Bench of the Hon'ble Supreme Court, in case, titled as Hussain and another versus Union of India, reported in (2017) 5 Supreme Court Cases 702. Relevant paragraphs 9 to 12 of the judgment, are reproduced, as under:
"9. As already noticed, speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. This constitutional right cannot be denied even on the plea of non-availability of financial resources. The court is entitled to issue directions to augment and strengthen the investigating machinery, setting up of new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional Judges and other measures as are necessary for speedy trial [Hussainara Khatoon (4) v. State of Bihar, (1980) 1 SCC 98, para 10 : 1980 SCC (Cri) 40].
10. Directions given by this Court in Hussainara Khatoon (7) v. State of Bihar, (1995) 5 SCC 326 :
1995 SCC (Cri) 913, to this effect which were left to be implemented by the High Courts are as follows: (SCC p. 328, para 2) 19 2024:HHC:3417 "2. Since this Court has already laid down the guidelines by orders passed from time to time in this writ petition and in subsequent orders passed in different cases since then, we do not consider it necessary to restate the guidelines periodically because the enforcement of the guidelines by the subordinate courts functioning in different States should now be the responsibility of the different High Courts to which they are subordinate. General orders for release of undertrials without reference to specific fact situations in different cases may prove to be hazardous. While there can be no doubt that undertrial prisoners should not languish in jails on account of refusal to enlarge them on bail for want of their capacity to furnish bail with monetary obligations, these are matters which have to be dealt with on case-to-case basis keeping in mind the guidelines laid down by this Court in the orders passed in this writ petition and in subsequent cases from time to time. Sympathy for the undertrials who are in jail for long terms on account of the pendency of cases has to be balanced having regard to the impact of crime, more particularly, serious crime, on society and these considerations have to be weighed having regard to the fact situations in pending cases. While there can be no doubt that trials of those accused of crimes should be disposed of as early as possible, general orders in regard to Judge-strength of subordinate judiciary in each State must be attended to, and its functioning overseen, by the High Court of the State concerned. We share the sympathetic concern of the learned counsel for the petitioners that undertrials should not languish in jails for long spells merely on account of their inability to meet monetary obligations. We are, however, of the view that such monitoring can be done more effectively by the High Courts since it would be easy for those Courts to collect and collate the statistical information in that behalf, apply the broad guidelines already issued and deal with the situation as it emerges from the status reports presented to it. The role of the High Court is to ensure that the guidelines issued by this 20 2024:HHC:3417 Court are implemented in letter and spirit. We think it would suffice if we request the Chief Justices of the High Courts to undertake a review of such cases in their States and give appropriate directions where needed to ensure proper and effective implementation of the guidelines. Instead of repeating the general directions already issued, it would be sufficient to remind the High Courts to ensure expeditious disposal of cases."
11. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article
21. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. This Court has held that while a person in custody for a grave offence may not be released if trial is delayed, trial has to be expedited or bail has to be granted in such cases [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39].
12. Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice. Directions of this Court in Noor Mohammed v. Jethanand, (2013) 5 SCC 202, are as follows: (SCC p. 217, para 34) "34. ... Therefore, we request the learned Chief Justice of the High Court of Rajasthan as well as the other learned Chief Justices to conceive and adopt a mechanism, regard being had to the priority of cases, to avoid such inordinate delays in matters which can really be dealt with in an expeditious manner. Putting a step forward is a step towards the destination. A sensible individual inspiration and a committed collective endeavour would indubitably help in this regard. Neither less, nor more."
(self emphasis supplied)
20. A three Judge Bench of the Hon'ble Supreme Court, in case, titled as Union of India versus K.A. Najeeb, reported in (2021) 3 Supreme Court Cases 713, has held 21 2024:HHC:3417 that when a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge accused on bail. Relevant paragraphs 11 and 15 of the judgment, are reproduced, as under:
"11. The High Court's view draws support from a batch of decisions of this Court, including in Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 : 1996 SCC (Cri) 366 , laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case: (SCC p. 622, para
10) "10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article
21."
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15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39] , it was held that undertrials cannot indefinitely be 22 2024:HHC:3417 detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail."
(self emphasis supplied)
21. It would be pertinent to record herein that this Court, while deciding Cr.MP(M) No.2628 of 2023, titled as 'Tejender Singh Vs. State of Himachal Pradesh', has issued specific directions to the trial Courts for conducting the trials, as per provisions of Section 309 of CrPC.
22. Despite these directions, in spite of concluding the trial, as expeditiously as possible, the learned trial Court has summoned the prosecution witnesses in a piecemeal manner. Even, for 29.07.2024 and 30.07.2024, only four witnesses have been ordered to be summoned.
23. In such situation, this Court is of the view that the chances of conclusion of trial, against the applicant, in near future, are not bright, as such, keeping the applicant in judicial custody, would be nothing, but, pre-trial punishment, which is prohibited under the law. Moreover, the applicant is 23 2024:HHC:3417 presumed to be innocent till his guilt is proved by the prosecution, during the trial.
24. So far as the apprehensions, which have been expressed, by the police, in the status report, qua the fact that in case, the applicant is ordered to be released on bail, he may coerce the witnesses and may not be available for the trial, are concerned, for those apprehensions, stringent conditions can be imposed, upon the applicant, in case, he is ordered to be released on bail.
25. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.
26. Consequently, the applicant is ordered to be released, on bail, in case, FIR No.56 of 2018 dated 17.05.2018, registered, under Sections 302, 307 and 506 of the IPC, with Police Station Barotiwala, District Solan, H.P., on his furnishing personal bail bond, in the sum of Rs.1,00,000/-, with two sureties, in the like amount, to the satisfaction of learned trial Court. This order, however, shall be subject to the following conditions:
a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every 24 2024:HHC:3417 date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and
d) The applicant shall not leave the territory of India without the prior permission of the Court.
27. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as, these observations, are confined, only, to the disposal of the present bail application.
28. It is made clear that respondent-State is at liberty to move appropriate application, in case, any of the bail conditions, is found to be violated, by the applicant.
29. Registry is directed to forward a soft copy of the bail order to the Superintendent of Model Central Jail, Nahan, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.
30. In case, applicant is not released, within a period of seven days, from the date of grant of bail, the Superintendent of Model Central Jail, Nahan, is directed to 25 2024:HHC:3417 inform this fact to the Secretary, DLSA, Sirmaur at Nahan. The Superintendent of Model Central Jail, Nahan is further directed that if applicant fails to furnish the bail bonds, as per the order, passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.
June 14, 2024 ( Virender Singh ) (Gaurav Thakur) Judge Digitally signed by RAJNI Date: 2024.06.14 13:07:08 IST