Rajasthan High Court - Jodhpur
Hoshiyarsingh @ Sonu @ Fauji vs State on 4 April, 2022
Author: Devendra Kachhawaha
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 3488/2022
Hoshiyarsingh @ Sonu @ Fauji S/o Sh. Ishwar Singh, Aged
About 38 Years, R/o Aalpathi Kellaram, Police Station Kalayat,
District Kaithal (Hariyana).
(At Present Lodged in Central Jail, Bikaner).
----Petitioner
Versus
State of Rajasthan through PP
----Respondent
For Petitioner(s) : Mr. Ajay Kumar Vyas
For Respondent(s) : Mr. Laxman Solanki, PP
Mr. Vasu Deo Charan, for the
complainant
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Order 04/04/2022 The present bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in judicial custody in connection with F.I.R. No.661/2014 at Police Station Kotwali, District Pali, registered for the offences punishable under Sections 341, 302, 307, 394, 397/34 of IPC and Section 3/25 of Arms Act.
Heard learned counsel appearing for the petitioner and learned counsel for the complainant as well as learned Public Prosecutor. Perused the material available on record.
Learned counsel appearing for the petitioner stated that the petitioner was arrested on 28.01.2015 and since that day he is (Downloaded on 05/04/2022 at 08:40:31 PM) (2 of 7) [CRLMB-3488/2022] facing incarceration; thus, petitioner remained in custody for more than 7 years. Learned counsel for the petitioner stated that Hon'ble Apex Court has held that if trial is not completed for a long span of time and further is not likely to be concluded anytime soon and the accused has already suffered incarceration for more than fifty percent of the period which is the sentence prescribed for the offence, then, accused is entitled for benefit of bail and in support of his arguments, learned counsel for the petitioner has submitted following judgments passed by the Hon'ble the Apex Court in the cases of Union of India Vs. K.A. Najeeb reported in AIR 2021 SC 712; Angela Harish Sontakke Vs. State of Maharashtra arising out of Special Leave Petition (Criminal) No.6888/2015, decided on 04.05.2016; Paras Ram Vishnoi Vs. The Director, Central Bureau of Investigation arising out of SLP (Crl.) 3610/2020, decided on 27.07.2021 and so also the orders passed by the Co-ordinate Bench of this Court in the cases of Dalpat Singh Vs State of Rajasthan (S.B. Criminal Misc. Bail Application No.1257/2021, decided on 25.01.2022) and Kapil Puri Goswami Vs. State of Rajasthan & Anr. (S.B. Criminal Appeal No.70/2022, decided on 07.02.2022).
It is further stated by learned counsel for the petitioner that in the present case, benefit of bail has already been granted by this Court to the co-accused Shiv Kumar @ Kala (S. B. Criminal Misc. II Bail Application No.504/2022, decided on 25.02.2022) and Mandip @ Menda (S.B. Criminal Misc. Bail Application No.7520/2021, decided on 25.02.2022); out of total listed 63 witnesses, statements of only 11 witnesses have been recorded till date; looking to the custody period of the petitioner and facts of (Downloaded on 05/04/2022 at 08:40:31 PM) (3 of 7) [CRLMB-3488/2022] present case, learned counsel for the petitioner prayed that benefit of bail may be granted to the petitioner.
Per contra, learned Public Prosecutor and learned counsel appearing for the complainant vehemently and fervently opposed the bail application of the accused-petitioner. Learned counsel for the complainant postulated that life imprisonment means 20 years of incarceration and not of 14 years, therefore, in the present case, out of 20 years of life imprisonment which is prescribed punishment for the offence under Section 302 IPC, petitioner remained in custody only for 7 years and in support of his arguments he relied upon one overruled judgment of Hon'ble the Apex Court in the case of Sangeet & Anr. Vs. State of Haryana reported in (2013) AIR (SC) 447; Gopal Vinayak Godse Vs. The State of Maharashtra & Ors. reported in (1961) AIR (SC) 600 and so also the judgments passed by the different High Courts in the cases of Ravi Patil Vs. State of Goa, through Chief Secretary, Secretariat, Porvorim, Goa reported in (2020) ALLMR (Cri) 808; Chacko Vs. State of Kerala reported in (2004) 2 AICLR 49. It is further argued by learned counsel for the complainant that specific allegation has been levelled against him. It is also stated that requisite custody certificate is not produced by learned Public Prosecutor. Lastly, learned counsel for the complainant urges that benefit of bail may not be granted to the accused-petitioner in the present case.
Having regard to the facts and circumstances of this case, particularly to the fact that this Court has already granted benefit of bail to the co-accused persons in the present case to Shiv Kumar @ Kala (supra) and Mandip @ Menda (supra) by observing thus:
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(4 of 7) [CRLMB-3488/2022] "I have considered the submissions made at the Bar and gone through the requisite documents placed before this Court. The fact that the petitioner has suffered incarceration for more than 7 years is not disputed. The Hon'ble Supreme Court in the case of Union of India V/s K. A. Najeeb(Supra) held as under :-
"14. We may also refer to the orders enlarging similarly-situated accused under the UAPA passed by this Court in Angela Harish Sontakke V. State of Maharashtra. That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe V. State of Maharashtra, an accused under the UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined.
19. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondents are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. 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."
Learned counsel has also relied upon other judgments on the point which can be gainfully taken note of are :-
(1). Paras Ram Vishnoi V/s. The Director, Central Bureau of Investigation (Criminal Appeal No.693/2021 [Arising out of S.L.P. (Crl.)No.3610/2020] decided on 27.07.2021) and (Downloaded on 05/04/2022 at 08:40:31 PM) (5 of 7) [CRLMB-3488/2022] (2) Angela Harish Sontakke V/s State of Maharashtra (Criminal Appeal No.440/2016 [Arising out of Special Leave Petition (Criminal)No.6888/2015] decided on 04.05.2016]).
In view of the detailed discussions made above, this Court is of the considered view that the petitioner has suffered incarceration for more than 7 years and and benefit of bail has been granted in identical cases by co- ordinate Bench of this Court, the trial is not likely to be concluded shortly, this Court deems it just and proper to release the petitioner on bail."
This Court also observed that as per the date of arrest, petitioner is behind the bars since 28.01.2015 i.e. 7 years 2 months and 08 days, hence, he has already undergone the judicial custody for more than 7 years; so far as the judgments, as cited by learned counsel for the complainant is concerned, in all cases, in which it is held that there is no indefeasible right will be accrued to the accused even if he has been in custody for 14 years or 20 years, it is subject to remission under Section 432 Cr.P.C. and these are the cases in which judgment has already been passed by the learned court below and accused is requesting/praying for pre mature release from the sentence which has already been awarded to him; wherein, in the present case, indisputably, the trial is pending since last more than 7 years and the statements of only 11 witnesses have been recorded in this case out of the total 63 listed witnesses; that the ratio in the cases cited by learned counsel for the complainant are not applicable in the present case; that speedy trial and access to justice is fully covered and guaranteed by Article 21 of Part III of Constitution of India and an accused person cannot be kept in custody for indefinite period pending trial even when the nature of offences are serious; that benefit of bail has been granted by Hon'ble the Apex Court in cases cited by learned counsel for the petitioner and in numerous (Downloaded on 05/04/2022 at 08:40:31 PM) (6 of 7) [CRLMB-3488/2022] other judgments where it has been observed that life imprisonment should be treated as 14 years of incarceration and in the cases where trial is taking a very long time, accused is entitled for benefit of bail and in the present case also, on the basis of the above cited judgments, benefit of bail has already been granted to the abovementioned co-accused in the present case.
Recently, in the case decided by Hon'ble the Apex Court titled as Pawandeepsingh Mahendrasingh Kohli Vs. State of Maharashtra arising out of SLP (Crl.) No.3831 of 2021, decided on 18.05.2021, it is held that if benefit of bail was granted to the co-accused persons and the allegation against the petitioner cannot be said to be standing on a higher pedestal than the allegation against various other co-accused persons, petitioner is also entitled for grant of benefit of bail.
So far as, non production of requisite custody certificate is concerned, this case was earlier listed on 29.03.2022 and then on 01.04.2022, despite of that, the same was not produced by learned Public Prosecutor and also not demanded by learned counsel for the complainant, hence, at this stage, when prima facie it is proved that the accused-petitioner is behind the bars since more than 7 years.
In view of the discussion foregoing, without expressing any opinion on the merits/demerits of the case, this Court is of the opinion that the bail application filed by the petitioner deserves to be accepted and the accused-petitioner deserves to be enlarged on bail.
Consequently, the bail application is allowed. It is ordered that the accused-petitioner - Hoshiyarsingh @ Sonu @ Fauji (Downloaded on 05/04/2022 at 08:40:31 PM) (7 of 7) [CRLMB-3488/2022] S/o Sh. Ishwar Singh, arrested in connection with F.I.R. No.661/2014 at Police Station Kotwali, District Pali, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of ₹1,00,000/- (Rupees One lakh) and two sound and solvent sureties (out of which one shall be a local surety and one surety shall be a blood relative/close relative) of ₹50,000/- (Rupees Fifty Thousand) each to the satisfaction of the learned trial Court for his appearance before that Court on each and every date of hearing and whenever called upon to do so till the completion of the trial.
It is further directed that as requested by learned counsel for the complainant, learned Public Prosecutor is directed to calculate the custody period of the accused-petitioner and if the same is found less than 7 years', the prosecution shall be free to file the application for cancellation of bail being granted to the accused under this order.
(DEVENDRA KACHHAWAHA),J 109-Arvind/Ravi Kh.-
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