Himachal Pradesh High Court
Tejender Singh vs State Of Himachal Pradesh on 14 December, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. : 2628 of 2023
Reserved on : 29.11.2023
Decided on : 14.12.2023
Tejender Singh ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the applicant : Mr. Ritesh Bhardwaj, Advocate.
For the respondent : Mr. Tejasvi Sharma, Additional
Advocate General, with Ms. Leena
Guleria, Deputy Advocate General.
Virender Singh, Judge.
Applicant-Tejender Singh has filed the present
application, under Section 439 of the Code of Criminal
Procedure (hereinafter referred to as 'CrPC'), for releasing
him on bail, during the pendency of trial, in case FIR No.
260 of 2019, dated 10th September, 2019, registered under
Section 302 of the Indian Penal Code (hereinafter referred
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
2
to as 'IPC'), with Police Station Nalagarh, District Solan,
H.P.
2. According to the applicant, he has falsely been
implicated, in this case and he has nothing to do with the
alleged offence, for which, he has been arrested by the
police.
3. As per the applicant, he is a young man of 24
years and is in custody since 10 th September, 2019. The
investigation, according to him, is complete.
4. The applicant has asserted the fact that the
prosecution has cited 43 witnesses, in this case, out of
which, till date, only three formal witnesses have been
examined.
5. In nut shell, the applicant has sought the relief
of bail, on the ground of delayed trial.
6. On the basis of the above facts, Mr. Ritesh
Bhardwaj, learned counsel appearing for the applicant, has
stated that the long incarceration is nothing, but, the
violation of his fundamental right, as provided under
Article 21 of the Constitution of India.
3
7. Apart from this, the learned counsel appearing
for the applicant, has given certain undertakings, on behalf
of the applicant, for which, the applicant is ready to abide
by, in case, released on bail, during the pendency of the
trial.
8. On the basis of the above facts, a prayer has
been made to allow the bail application.
9. When put to notice, the police has filed the
status report, disclosing therein, that on 10 th September,
2019, a telephonic information was received in Police
Station through 108 Control Room from mobile No. 78076
29889, to the effect that a quarrel had taken place at
Lakhanpur, whereby a request has been made to send
police, upon which, SI Dilbag Singh, alongwith other police
official, had proceeded towards the spot. When, they
reached at the spot, SI Dilbag Singh has informed the
Incharge/Inspector, Police Station Nalagarh, qua the fact,
that one Bhupender Singh, s/o Joginder Singh, r/o
Lakhanpur, was lying dead in the pool of blood, upon
which, Inspector/SHO Raj Kumar, alongwith other police
official, reached at the spot.
4
9.1. On the spot, complainant Prem Singh, s/o
Joginder Singh got recorded his statement, under Section
154 CrPC, disclosing therein that they are three brothers
and four sisters and all are married. His brother
Bhupender Singh is elder to him, who has constructed his
house near the house of the complainant. The
complainant, as well as, his elder brothers, Bhupender
Singh and Avtar Singh are residing separately.
9.2. As per the complainant, on 9th September,
2019, after taking the meals, complainant and his family
members had gone to sleep. On 10 th September, 2019, at
about 02.30 a.m., the complainant and his brother
Bhupender Singh had gone to work on the tractor of one
Kala, r/o Dherowal. They had gone there on the
motorcycle of his brother Bhupender Singh. However, said
Kala had refused to to load sand in the tractor, on the
pretext that he was not well. Upon this, complainant and
his brother Bhupender Singh had returned back at about
03.30 p.m. The complainant had gone to his home,
whereas, Bhupender Singh had gone to his house. As soon
as the complainant had gone to sleep, he heard the voice of
5
his brother Bhupender Singh, stating that he has been
killed by Roda, upon which, the complainant had rushed
towards the house of Bhupender Singh. There, he noticed
injury on the neck and back of his brother Bhupender
Singh. Blood was oozing out of the said injury.
Bhupender Singh, while talking to him, had fallen down
and became unconscious.
9.3. It is the further case of the complainant that
Roda @ Tejender Singh, s/o Baljeet Singh, r/o Lakhanpur
(applicant) had killed his brother Bhupender Singh, with a
sharp edged weapon and thereafter, fled away. According
to the complainant, Roda @ Tejender Singh (applicant) was
having illicit relations with Pushpa Devi, wife of Bhupender
Singh.
9.4. According to the complainant, when, his
brother Bhupender Singh, came back at about 03.30 a.m.,
then, he found Roda @ Tejender Singh (applicant),
alongwith Pushpa Devi, at his home, upon which, Roda @
Tejender Singh (applicant) has killed his brother, with a
sharp edged weapon. Thereafter, his elder brother Avtar
Singh has called ambulance, however, before the
6
ambulance could reach, his brother Bhupender Singh died.
As such, he has prayed that action be taken against said
Roda @ Tejender Singh (applicant).
9.5. On the basis of the above facts, police registered
a case under Section 302 IPC. After completion of the
investigation, the police filed the report, under Section 173
(2) CrPC, on 6th December, 2019, whereas, supplementary
challans were filed on 14th December, 2021 and 9th
January, 2023, in the Court of learned Additional Sessions
Judge, Nalagarh.
9.6. As per the status report, the prosecution has
cited 43 witnesses, out of which four have been examined
and 39 witnesses are yet to be examined. The case is now
stated to have been fixed for 19th December, 2023, for
which date, two witnesses have been ordered to be
summoned for recording their statements.
10. As stated above, the main ground, upon which,
the applicant has sought the relief of bail, is the delayed
trial. The snail pace of the trial has been put forward as a
ground to demonstrate that his fundamental right of
7
speedy trial has been violated, which has been provided to
him, under Article 21 of the Constitution of India.
11. 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 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
8
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
infringed, the first question to be put and
answered is -- who is responsible for the
9
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 10 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 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 11 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 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)
12. A three Judges' 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 12 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 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 13 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] ."
13. In a case, titled as Dharmendra Kirthal versus State of Uttar Pradesh and another, reported in (2013) 8 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.
14Relevant 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 15 commission of the offence till it consummates into a finality, can 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 16 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) 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)
14. 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 17 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) "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 18 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 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 19 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)
15. A three Judges' 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 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, 20 (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 inKartar 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."
*** *** ***
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 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 21 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)
16. Judging the facts and circumstances of the present case, in the light of the decisions of the Hon'ble Supreme Court, now, this Court would proceed to determine the fact as to whether the applicant is entitled for the relief of bail, as claimed, in the application, or not.
17. The prosecution, in the present case, has cited 43 witnesses, out of which, till date, only four witnesses have been examined. The challan, in this case, has been filed on 6th December, 2019.
18. Perusal of the record shows that the matter was committed to the learned trial Court by Additional Chief Judicial Magistrate, Nalagarh, on 27th January, 2020.
19. Thereafter, the learned trial Court has framed the charge against the accused (applicant) on 2 nd March, 2021, i.e. after a gap of about one year, from the date of fixing the case for consideration on charge. Thereafter, on 22 2nd March, 2021, the following orders were passed by the learned trial Court:
" Heard.
Upon consideration of the report of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, I consider that there are sufficient grounds for presuming that the accused has committed the offences punishable under Section 302 IPC. He is liable to be charged for the said offences. Ordered accordingly.
Charge for the aforesaid offences framed to which the accused pleaded not guilty and claimed trial.
Let PWs at Sr. No. 18, 19, 25 & 26 be summoned for 29.04.2021. Accused be produced through V.C."
20. Perusal of order, dated 2nd March, 2021, shows that the learned trial Court has not adhered to the provisions of Section 309 CrPC, which reads as under:
"309. Power to postpone or adjourn proceedings. - (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Provided that when the inquiry or trial relates to an offence under sections 376 to 376D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses.23
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.
Provided also that -
(a) no adjournment shall be granted at th requst of a party, ecept where the circumtances are beyond the conrol of that party;
(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though presnet in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the wintess ad pass such orders, as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.
Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused 24 may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."
21. The relevancy of the provisions of Section 309 CrPC has been held to be mandatory, by the Hon'ble Supreme Court, in case, titled as State of U.P. versus Shambhu Nath Singh and others, reported in (2001) 4 Supreme Court Cases 667. Relevant paragraphs 10 to 14 of the said judgment, are reproduced, hereinbelow:
"10. Section 309 of the Code of Criminal Procedure (for short "the Code") is the only provision which confers power on the trial court for granting adjournments in criminal proceedings. The conditions laid down by the legislature for granting such adjournments have been clearly incorporated in the section. It reads thus:
"309. Power to postpone or adjourn proceedings.--(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.25
(2) If the court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him."
11. The first sub-section mandates on the trial courts that the proceedings shall be held expeditiously but the words "as expeditiously as possible" have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub-section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of the witnesses begins. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub-
section by using the words "as expeditiously as possible" has chosen to make the requirement for the next stage (when examination of the witnesses has started) to be quite stern. Once the case reaches that stage the statutory command is that such examination "shall be continued from day to day until all the 26 witnesses in attendance have been examined". The solitary exception to the said stringent rule is, if the court finds that adjournment "beyond the following day to be necessary" the same can be granted for which a condition is imposed on the court that reasons for the same should be recorded. Even this dilution has been taken away when witnesses are in attendance before the court. In such situation the court is not given any power to adjourn the case except in the extreme contingency for which the second proviso to sub-section (2) has imposed another condition, "provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing".
(emphasis supplied)
12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.
13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the 27 convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a "special reason" for bypassing the mandate of Section 309 of the Code.
14. If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case)."
(self emphasis supplied)
22. The Hon'ble Supreme Court, in another case, titled as Akil alias Javed versus State (NCT of Delhi), reported in (2013) 7 Supreme Court Cases 125, has reiterated the law laid down in Shambhu Nath Singh's case (supra). Relevant paragraphs 43 and 44 of the judgment, are reproduced, as under:
"43. It is unfortunate that in spite of the specific directions issued by this Court and reminded once again in State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 : 2001 SCC (Cri) 798 28 such recalcitrant approach was being made by the trial court unmindful of the adverse serious consequences flowing therefrom affecting the society at large. Therefore, even while disposing of this appeal by confirming the conviction and sentence imposed on the appellant by the learned trial Judge, as confirmed by the impugned judgment [Abdul Murasalin v. State, (2005) 84 DRJ 430 : ILR (2005) 2 Del 507] of the High Court, we direct the Registry to forward a copy of this decision to all the High Courts to specifically follow the instructions issued by this Court in the decision in Raj Deo Sharma [(1998) 7 SCC 507 : 1998 SCC (Cri) 1692 : 1998 Cri LJ 4596] and reiterated in Shambhu Nath [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 :
2001 SCC (Cri) 798] by issuing appropriate circular, if already not issued. If such circular has already been issued, as directed, ensure that such directions are scrupulously followed by the trial courts without providing scope for any deviation in following the procedure prescribed in the matter of a trial of sessions cases as well as other cases as provided under Section 309 CrPC. In this respect, the High Courts will also be well advised to use their machinery in the respective State Judicial Academy to achieve the desired result. We hope and trust that the respective High Courts would take serious note of the above directions issued in the decision in Raj Deo Sharma [(1998) 7 SCC 507 : 1998 SCC (Cri) 1692 : 1998 Cri LJ 4596] which has been extensively quoted and reiterated in the subsequent decision of this Court in Shambhu Nath [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 :
2001 SCC (Cri) 798] and comply with the directions at least in the future years.
44. In the result, while we uphold the conviction and sentence imposed on the appellant, we issue directions in the light of the provisions contained in Section 231 read along with Section 309 CrPC for the trial court to strictly adhere to the procedure prescribed therein in order to ensure speedy trial of cases and also 29 rule out the possibility of any manoeuvring taking place by granting undue long adjournment for mere asking. The appeal stands dismissed."
23. The Hon'ble Supreme Court, in case, titled as Rabi Prakash versus State of Odisha, reported in 2023 SCC OnLine SC 1109, has held that prolonged imprisonment violates the constitutional right guaranteed under Article 21 of the Constitution of India. The relevant paragraph-4 of the judgment, is reproduced, as under:
"4. As regards the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)
(ii) of the NDPS Act."
24. In this case, as per order, dated 2 nd March, 2021, the learned trial Court, after framing the charge, under Section 302 IPC, has ordered to summon PWs, in a piecemeal manner. Such type of practice has been deprecated by the Hon'ble Supreme Court, in a case, titled as Gurnaib Singh versus State of Punjab, reported in 30 (2013) 7 Supreme Court Cases 108. Relevant paragraph-
35 of the judgment, reproduced, as under:
"26. In spite of our modifying the conviction, we are compelled to proceed to reiterate the law and express our anguish pertaining to the manner in which the trial was conducted as it depicts a very disturbing scenario. As is demonstrable from the record, the trial was conducted in an extremely haphazard and piecemeal manner. Adjournments were granted on a mere asking. The cross-examination of the witnesses were deferred without recording any special reason and dates were given after a long gap. The mandate of the law and the views expressed by this Court from time to time appears to have been totally kept at bay. The learned trial Judge, as is perceptible, seems to have ostracised from his memory that a criminal trial has its own gravity and sanctity. In this regard, we may refer with profit to the pronouncement in Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376 : 1958 Cri LJ 701, wherein it has been stated that an accused person by his conduct cannot put a fair trial into jeopardy, for it is the primary and paramount duty of the criminal courts to ensure that the risk to fair trial is removed and trials are allowed to proceed smoothly without any interruption or obstruction.
27. In Krishnan v. Krishnaveni [(1997) 4 SCC 241 : 1997 SCC (Cri) 544 : AIR 1997 SC 987] , it has been observed that the object behind the criminal law is to maintain law, public order, stability as also peace and progress in the society. The object of the criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The Court further proceeded to state that the recent trend is to delay the trial and threaten the witness or to win over the witness by promise or 31 inducement and these malpractices need to be curbed.
28. In Swaran Singh v. State of Punjab [(2000) 5 SCC 668 : 2001 SCC (Cri) 190 : AIR 2000 SC 2017] Wadhwa, J., in his concurring opinion, expressed his anguish pertaining to the adjournments sought in a criminal case which is built on the edifice of evidence that is admissible in law and the plight of the witnesses in a criminal trial in the following manner: (SCC p. 678, para 36)
36. ... It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice."
*** *** ***
35. We have expressed our anguish, agony and concern about the manner in which the trial has been conducted. We hope and trust that the trial courts shall keep in mind the statutory provisions and the interpretation placed by this Court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties. They have their roles to perform. They are required to monitor. They cannot abandon their responsibility. It should be borne in mind that the whole dispensation of criminal justice at the ground level rests on how a trial is conducted. It needs no special emphasis to state that dispensation of criminal justice is not only a concern of the Bench but has to be the concern of the Bar. The 32 administration of justice reflects its purity when the Bench and the Bar perform their duties with utmost sincerity. An advocate cannot afford to bring any kind of disrespect to fairness of trial by taking recourse to subterfuges for procrastinating the same."
(self emphasis supplied)
25. In the said judgment, the Hon'ble Supreme Court has again reiterated the legislative intent of Section 309 CrPC. In this regard, it is apt to reproduce para 32 of the judgment, herein:
"32. In Shambhu Nath case [(2001) 4 SCC 667 :
2001 SCC (Cri) 798] , the Court referred to the conditions laid down by the legislature under Section 309 of the Code of Criminal Procedure which deals with the power to postpone or adjourn proceedings and proceeded to state that the first sub-section of Section 309 of the Code mandates on the trial courts that the proceedings shall be held expeditiously but the words "as expeditiously as possible" have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the second limb of the sub- section warrants for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when the examination of the witnesses begins. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub- section by using the words "as expeditiously as possible" has chosen to make the requirement for the next stage (when examination of the witnesses has started) to be quite stern. Once the case reaches that stage, the statutory command is that such examination "shall be continued from day to day until all the witnesses in attendance have been examined".
The solitary exception to the said stringent rule is, if the court finds that adjournment "beyond 33 the following day to be necessary" the same can be granted for which a condition is imposed on the court that reasons for the same should be recorded. Even this dilution has been taken away when the witnesses are in attendance before the court. After so stating, the Court held that in such situations, the court is not given any power to adjourn the case except in extreme contingency for which the second proviso to sub- section (2) has imposed another condition by providing further that when the witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. It is apt to note here that this Court expressed its distress that it has become a common practice and regular occurrence that the trial courts flout the legislative command with impunity."
26. The judgment in Gurnaib Singh's case (supra), has again been relied upon by the Hon'ble Supreme Court, in case, titled as Doongar Singh and others versus State of Rajasthan, reported in (2018) 13 Supreme Court Cases 741. Relevant paragraphs-3 to 12 of the judgment, are reproduced, as under:
"3. Before parting with this matter, we must record a disturbing feature in the conduct of the trial of the present case. After recording examination-in-chief of the star witness, PW 14 Prabhu Singh, on 13-4-2010, the matter was adjourned on the request of the defence counsel to 25-8-2010 i.e. for about more than four months. After that, part evidence of the witnesses was recorded on 24-9-2010 and the matter was again adjourned to 11-10-2010. Before that, four witnesses of the same family in 34 their statements recorded on 10-4-2010 had become hostile.
4. In a criminal case of this nature, the trial court has to be mindful that for the protection of witness and also in the interest of justice the mandate of Section 309 CrPC has to be complied with and evidence should be recorded on continuous basis. If this is not done, there is every chance of witnesses succumbing to the pressure or threat of the accused.
5. This aspect of the matter has received the attention of this Court on a number of occasions earlier. In State of U.P. v. Shambhu Nath Singh [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 : 2001 SCC (Cri) 798] this Court observed it was a pity that the Sessions Court adjourned the matter for a long interval after commencement of evidence, contrary to the mandate of Section 309 CrPC. Once examination of witnesses begins, the same has to be continued from day to day unless evidence of the available witnesses is recorded, except when adjournment beyond the following day has to be granted for reasons recorded. This Court observed: (SCC pp. 673-75, paras 12-15, 17 & 19) "12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course.
Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.
3513. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a "special reason" for bypassing the mandate of Section 309 of the Code.
14. If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case).
15. The time-frame suggested by a three- Judge Bench of this Court in Raj Deo Sharma v. State of Bihar [Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507 : 1998 SCC (Cri) 1692] is partly in consideration of the legislative mandate contained in Section 309(1) of the Code.
36This is what the Bench said on that score:
(SCC p. 516, para 16) '16. The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. Section 309(1) CrPC supports the above view as it enjoins expeditious holding of the proceedings and continuous examination of witnesses from day to day. The section also provides for recording reasons for adjourning the case beyond the following day.' * * *
17. We believe, hopefully, that the High Courts would have issued the circular desired [Raj Deo Sharma (2) v. State of Bihar, (1999) 7 SCC 604 at p. 614, para 14 : 1999 SCC (Cri) 1324] by the Supreme Court as per the said judgment. If the insistence made by Parliament through Section 309 of the Code can be adhered to by the trial courts there is every chance of the parties cooperating with the courts for achieving the desired objects and it would relieve the agony which witnesses summoned are now suffering on account of their non-examination for days.
* * *
19. In some States a system is evolved for framing a schedule of consecutive working days for examination of witnesses in each sessions trial to be followed. Such schedule is fixed by the court well in advance after ascertaining the convenience of the counsel on both sides. Summons or process would then be handed over to the Public Prosecutor in charge of the case to cause them to be served on the witnesses. Once the schedule is so fixed and witnesses are summoned the trial invariably proceeds from day to day.37
This is one method of complying with the mandates of the law. It is for the presiding officer of each court to chalk out any other methods, if any, found better for complying with the legal provisions contained in Section 309 of the Code. Of course, the High Court can monitor, supervise and give directions, on the administration side, regarding measures to conform to the legislative insistence contained in the above section."
6. The above decision has been repeatedly followed. In Mohd. Khalid v. State of W.B. [Mohd. Khalid v. State of W.B., (2002) 7 SCC 334 : 2002 SCC (Cri) 1734] , this Court noted how adjournment can result in witnesses being won over. It was observed: (SCC p. 366, para 54) "54. Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons are there, the trial court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 : 2001 SCC (Cri) 798] and N.G. Dastane v. Shrikant S. Shivde [N.G. Dastane v. Shrikant S. Shivde, (2001) 6 SCC 135] . ..."
7. Again in Vinod Kumar v. State of Punjab [Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712] this Court noted how unwarranted adjournments during the trial 38 jeopardise the administration of justice. It was observed: (SCC p. 227, paras 3-4) "3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question: Is it justified for any conscientious trial Judge to ignore the statutory command, not recognise "the felt necessities of time" and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracising the concept that a civilised and orderly society thrives on the rule of law which includes "fair trial" for the accused as well as the prosecution?
4. In the aforesaid context, we may recapitulate a passage from Gurnaib Singh v. State of Punjab [Gurnaib Singh v. State of Punjab, (2013) 7 SCC 108 : (2013) 3 SCC (Cri) 49] : (SCC p. 121, para 26) '26. ... we are compelled to proceed to reiterate the law and express our anguish pertaining to the manner in which the trial was conducted as it depicts a very disturbing scenario. As is demonstrable from the record, the trial was conducted in an extremely haphazard and piecemeal manner. Adjournments were granted on a mere asking. The cross-examination of the witnesses were deferred without recording any special reason and dates were given after a long gap. The mandate of the law and the views expressed by this Court from time to time appears to have been totally kept at bay. The learned trial Judge, as is perceptible, seems to have ostracised from his memory that a criminal trial has its own gravity and sanctity. In this regard, we may refer with profit to the pronouncement in Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376 : 1958 Cri LJ 701 wherein it has been stated that an accused person by his conduct cannot put 39 a fair trial into jeopardy, for it is the primary and paramount duty of the criminal courts to ensure that the risk to fair trial is removed and trials are allowed to proceed smoothly without any interruption or obstruction.'"
8. In spite of repeated directions of this Court, the situation appears to have remained unremedied. We hope that the Presiding Officers of the trial courts conducting criminal trials will be mindful of not giving such adjournments after commencement of the evidence in serious criminal cases. We are also of the view that it is necessary in the interest of justice that the eyewitnesses are examined by the prosecution at the earliest.
9. It is also necessary that the statements of eyewitnesses are got recorded during investigation itself under Section 164 CrPC. In view of amendment to Section 164 CrPC by Act 5 of 2009, such statement of witnesses should be got recorded by audio-video electronic means.
10. To conclude:
10.1. The trial courts must carry out the mandate of Section 309 CrPC as reiterated in judgments of this Court, inter alia, in State of U.P. v. Shambhu Nath Singh [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 :
2001 SCC (Cri) 798] , Mohd. Khalid v. State of W.B. [Mohd. Khalid v. State of W.B., (2002) 7 SCC 334 : 2002 SCC (Cri) 1734] and Vinod Kumar v. State of Punjab [Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712] .
10.2. The eyewitnesses must be examined by the prosecution as soon as possible. 10.3. Statements of eyewinesses should invariably be recorded under Section 164 CrPC as per procedure prescribed thereunder.
11. The High Courts may issue appropriate directions to the trial courts for compliance of the above.40
12. A copy of this order be sent by the Secretary General to the Registrar of all the High Courts for being forwarded to all the presiding officers in their respective jurisdiction."
27. In view of the mandate of the Hon'ble Supreme Court, now, this Court would proceed to analyze as to whether the said mandate has been complied with, in this case, or not.
28. As stated above, the charge was framed, in this case, on 2nd March, 2021. After framing the charge, only four witnesses were ordered to be summoned for 29 th April, 2021. Despite the fact that the accused was in custody, no efforts have been made by the prosecution to produce those witnesses.
29. As per the provisions of Section 230 CrPC, it is the duty of the prosecution to produce the witnesses. The bare provisions of Sections 230 and 231 CrPC, are reproduced, as under:
"230. Date for prosecution evidence. - If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under section 229, the Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.41
231. Evidence for prosecution. - (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-
examination.
30. On 29th April, 2021, the learned trial Court, has passed the following order:
"No PWs are present. Let PWs at Sr. No. 18, 19, 25 & 26 be summoned for 09.06.2021. Accused be produced through V.C."
31. Interestingly, no report has been made by the concerned Criminal Ahlmad, with regard to the fate of summons issued against the said PWs, which is mandatory, enabling the learned Presiding Officer to pass appropriate order, regarding the summoning of the prosecution witnesses.
32. At the cost of repetition, the Sessions Trial is a serious matter, which, requires utmost attention of the Presiding Officer.
33. On 9th June, 2021, the matter could not be taken up due to the restrictions imposed on account of 42 COVID 19 pandemic, however, the matter was taken up on 27th July, 2021.
34. On 27th July, 2021, the matter was adjourned for 7th September, 2021. However, the matter was taken up on 6th September, 2021, instead of 7 th September, 2021 and the following orders came to be passed:
"Now to come up for fixation of evidence on 21.10.2021."
35. Thereafter, the matter was taken up on 30th November, 2021, from proper orders and thereafter, the matter was adjourned for 22nd December, 2021, for fixing the date for PWs. On 22 nd December, 2021, two PWs at serial No. 18 and 19 were ordered to be summoned for 5 th March, 2022.
36. As per the report made on the order sheet, both the PWs were served for that date, but, interestingly, statement of one PW was recorded and no order has been passed with regard to the other witnesses, who, as per the report made by the concerned Criminal Ahlmad, was served.
37. In such situation, if the witness has not been given up, then, it was incumbent upon the learned 43 Presiding Officer to secure the presence of the said witness by taking the coercive steps, i.e. by issuing bailable warrants/non-bailable warrants. On 5th March, 2022, the matter was adjourned for 21st May, 2022, for recording the statements of PWs at serial No. 10 and 11.
38. On 21st May, 2022, two witnesses were present and their statements were recorded. The matter was thereafter adjourned for 11th July, 2022, and PWs at serial No. 25 and 26 were ordered to be summoned for the date fixed. As per the report, summons issued against both the witnesses were received back after due service but, again, the learned trial Court has not taken any appropriate steps, on the default of the said witnesses to appear and the matter was, thereafter, adjourned for 24th September, 2022.
39. On 24th September, 2022, the learned Presiding Officer was on leave, as such, the matter was taken up on 7th November, 2022. On that date, PWs at serial No. 25 and 26 were ordered to be summoned for 11 th January, 2023. The summons issued against both these witnesses, as per the report of the Criminal Ahlmad, were received 44 back after due service. However, on 11 th January, 2023, only one PW was present, whose statement was recorded, but, no order, with regard to the other served witness has been passed. The order passed by the learned trial Court, on 11th January, 2023, reads as under:
"Copy of supplementary challan supplied to accused free of cost. Statement to this effect recorded and placed on record.
Statement of one PW namely Ct. Lukey Kumar present and examined. No other PW present. Let file be listed for PWs at Sr. No. 13, 14 and 26 for 28.03.2023. Accused be produced in person before this court at 10.00 AM sharp in safe custody."
40. On the said date, the matter was adjourned for 28th March, 2023, for recording the statements of PWs at serial No. 13, 14 and 26, however, as per the report of the Criminal Ahlmad, PW at serial No. 26 was duly served for 11th January, 2023.
41. On 28th March, 2023, PW at serial No. 26 was duly served, but, he was not present, as such, he was ordered to be served through bailable warrants, alongwith PWs at serial No. 13 and 14 and the matter was adjourned for 1st June, 2023.
4542. For 1st June, 2023, PW at serial No. 26 was again served, whereas PWs at serial No. 13 and 14 were served through e-mail. No order with regard to their default in appearance has been passed by the learned Presiding Officer and the matter has simply been adjourned for 8th August, 2023.
43. Again on 8th August, 2023, PW at serial No. 26 was served, but, no order with regard to his default, which, apparently, is willful default, has been passed by the learned trial Court.
44. When a witness has been served for about five dates, his non-appearance, in all probabilities, falls within the definition of 'willful default' and in such situation, it was expected from the learned trial Court to take appropriate steps to secure his presence and to maintain the sanctity of the process issued by the Court.
45. This Court is constrained to highlight all these points, in order to demonstrate the manner, in which, the trials are being conducted. This Court is aware about the fact that due to the heavy pendency of the cases, it is not possible for the Courts to decide the cases stricto sensu, as 46 per the provisions of Section 309 CrPC, but, the manner, in which, the date for recording the statements of PWs are being fixed, in the present case, depicts a very disturbing scenario.
46. In such situation, when the applicant (accused) is in judicial custody since his arrest, i.e. on 10 th September, 2019, and till date, only four witnesses have been examined, by the prosecution, the effect of the delay in the trial is a factor, which has to be taken into consideration, while deciding the question of bail.
47. Another fact, which has rightly been highlighted by the learned counsel for the applicant, is that the dates fixed for PWs are also not in consonance with the provisions of Section 309 CrPC. On most of the occasions, the learned trial Court has adjourned the matter for a period of more than two months.
48. In a recent decision, in the case, titled as Satender Kumar Antil versus Central Bureau of Investigation and another, reported in (2022) 10 Supreme Court Cases 51, the Hon'ble Supreme Court has 47 held that delay in trial would certainly violate Article 21 of the Constitution of India.
49. Keeping in view the number of witnesses, as mentioned in the list of witnesses, the chances of the conclusion of the trial, against the applicant, in near future, are not so bright. As such, no useful purpose would be served by keeping the applicant in judicial custody, for indefinite period.
50. In view of the above, the bail application deserves to be allowed and is accordingly allowed.
51. Consequently, the applicant is ordered to be released on bail in case FIR No. 260 of 2019, dated 10 th September, 2019, registered under Section 302 IPC, with Police Station Nalagarh, District Solan, H.P., on his furnishing personal bail bond, in the sum of ₹ 50,000/-, with two sureties of the like amount, to the satisfaction of the learned trial Court. This order, however, shall be subject to the following conditions:
a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;48
b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) He 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) He shall not leave the territory of India without the prior permission of the Court.
52. 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.
53. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant.
54. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Model Central Jail, Nahan, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.
55. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Model Central Jail, Nahan, is directed to inform this fact to the Secretary, DLSA, Sirmaur. The Superintendent of Jail, Model Central Jail, 49 Nahan, is further directed that if the 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.
56. Record be returned to the quarter concerned.
57. Before parting with the order, in order to achieve the goal of speedy trial, it is the high time for this Court to issue directions, in addition to the directions already issued by the Hon'ble Supreme Court in Raj Deo Sharma versus State of Bihar, reported in (1998) 7 Supreme Court Cases 507, and State of U.P. versus Shambhu Nath Singh and others, reported in (2001) 4 Supreme Court Cases 667:
(1) Whenever the charges are framed against the accused, then, on the application of the prosecution, the learned trial Court should fix the dates, as per Section 309 CrPC, i.e. fix the schedule for examination of all PWs.
While fixing the schedule, the piecemeal summoning of the witnesses, should be avoided.
(2) The schedule for examination of all PWs be fixed in the presence of the Public 50 Prosecutor, as well as, learned defence counsel, and if required, directions, with regard to the steps for summoning the witnesses be issued;
(3) The Secretary (Home) to the Government of Himachal Pradesh is directed to issue directions to all concerned, to the effect that once, the trial is commenced, the IO shall remain present before the learned trial Court, from the first date till the last date fixed for recording the statements of the prosecution witnesses. In case, the the presence of IO is not possible, then, any other responsible officer, acquainted with the facts of the case listed for PWs, should remain present.
(4) Whenever the witnesses are not present, despite their service, in that eventuality, coercive steps for securing their presence must be taken, by the learned trial Court, as, the casual approach with regard to the willful default of the witnesses is antithesis to the concept of fair trial and sanctity of the trial.
(5) Once, the trial has commenced, then, it has to proceed on day-to-day basis and in 51 case, adjournment is inevitable, then, the order adjourning the matter, must be supported by reasons, so that, the higher Courts could be in a position to assess the reasons for adjournment.
(6) Since, the information technology is an integral part of the judicial system, as such, in order to achieve the object of speedy trial, the trial Courts are at liberty to take the assistance of Video Conferencing facility, for recording the evidence, as per the Video Conferencing Rules.
58. The Registrar General of this Court is directed to circulate a copy of this judgment to all concerned.
( Virender Singh ) Judge December 14, 2023 ( rajni ) Digitally signed by RAJNI Date: 2023.12.14 17:38:41 IST