Mohit Kumar vs Union Of India on 15 October, 2024

[Cites 30, Cited by 0]

Rajasthan High Court - Jodhpur

Mohit Kumar vs Union Of India on 15 October, 2024

1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

 S.                            Particulars of the Case
 No.
     1.     FIR Number                           VIII(10)16/NCB/JZU/2020.
     2.     Concerned Police Station             NCB Jodhpur.
     3.     District                             Jodhpur.
     4.     Offences alleged in the FIR          U/Sec. 8/21, 22, 27-A, 29 of
                                                 NDPS Act.
     5.     Offences added, if any               --
     6.     Date   of    passing             of 04.09.2024.
            impugned order

2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (2 of 22) [CRLMB-12334/2024] 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 Special Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

4. I have considered the submissions made by the parties and have perused the material available on record.

5. Though the second bail application of the petitioner was rejected by this Court vide order dated 22.05.2024 passed in SBCRLMB No.5364/2023 but the petitioner has filed instant third bail application because out of total 15 witnesses, 3 witnesses have been examined in the trial till date, thus, looking to the snail pace progress of the trial, he has again approach this Court for protecting his liberty.

6. Now it is not in dispute that the petitioner is behind the bar in this case since 09.09.2020. It is a case of the prosecution that upon apprehended in suspicious circumstances on 08.09.2020 by the Officer of NCB, total 29 carton of Tramadol Tablets/Capsules weighing 314.620 kgs. as well as total 338 bottles of Cough Syrups having narcotic substance Codeine Phosphate weighing 33.800 kgs. were found to be in the possession of the petitioner.

The charge-sheet has been filed way back and the trial has also been commenced long ago but no endeavours have been made to conclude it. All the relevant witnesses are the Officers of the (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (3 of 22) [CRLMB-12334/2024] respondent-NCB but they did not turn up diligently before the trial court so that culmination of trial can be done.

7. It is a firm view of this Court that an under trial prisoner cannot be incarcerated for an indefinite period. Only a reasonable time can be granted to the prosecution to prove its case and at the same time, the accused cannot be left languishing in jail for want of evidence against him as he required to be presumed innocent until the guilt is proven.

8. Normally, trial of a sessions case is completed within a period of one year from its commencement, however, for some unavoidable and inevitable circumstances, the period can be extended but keeping the accused detained in jail for around 4 years for the purpose of production of evidence is detrimental to the interest of accused detained in jail.

9. 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (4 of 22) [CRLMB-12334/2024] 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.

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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (5 of 22) [CRLMB-12334/2024] 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, 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 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (6 of 22) [CRLMB-12334/2024] 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 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (7 of 22) [CRLMB-12334/2024] 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 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (8 of 22) [CRLMB-12334/2024] 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 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 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (9 of 22) [CRLMB-12334/2024] 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 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (10 of 22) [CRLMB-12334/2024] 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 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.

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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 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 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (12 of 22) [CRLMB-12334/2024] 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 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (13 of 22) [CRLMB-12334/2024] 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 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (14 of 22) [CRLMB-12334/2024] 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 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 note that if under trial prisoners are (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (15 of 22) [CRLMB-12334/2024] 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.

10. 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (16 of 22) [CRLMB-12334/2024] 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."

11. 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (17 of 22) [CRLMB-12334/2024]

(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 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 (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (18 of 22) [CRLMB-12334/2024] 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-

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."

14 In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in 2023 INSC 311, this Court observed as under:

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[2024:RJ-JD:42198] (19 of 22) [CRLMB-12334/2024] "21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling.

According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31 st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. State reported in 1993 Cri LJ 3242, as "a radical transformation" whereby the prisoner:

"loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self- perception changes."

23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal" (also see Donald Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily."

15 The requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008 (hereinafter being referred to as "the 2008 Act") mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (20 of 22) [CRLMB-12334/2024] consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.

16 A three-Judge Bench of this Court in Union of India v.

K.A. Najeeb reported in (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under : (SCC p. 722, para 17) "17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safe-guard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."

17 In the recent decision, Satender Kumar Antil v.

Central Bureau of Investigation reported in (2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply:

"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For (Downloaded on 17/10/2024 at 09:36:37 PM) [2024:RJ-JD:42198] (21 of 22) [CRLMB-12334/2024] example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."

18 Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

19 If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

20 We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.

         21     We are convinced that the manner in which the
                prosecuting     agency      as    well    as   the    Court    have

proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution.

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[2024:RJ-JD:42198] (22 of 22) [CRLMB-12334/2024] 22 In view of the aforesaid, this appeal succeeds and is hereby allowed. The impugned order passed by the High Court is set aside."

12. 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 in the present matter.

13. Accordingly, the instant third 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 Abhishek Kumar S.No.224 (Downloaded on 17/10/2024 at 09:36:37 PM) Powered by TCPDF (www.tcpdf.org)

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Rajasthan High Court - Jodhpur