Karnataka High Court
Shivarame Gowda vs State Of Karnataka on 31 August, 1990
Equivalent citations: 1991CRILJ1008, ILR1990KAR3544
ORDER
1. (i) Whether pre-trial detention for years even in a murder case does not offend Art. 21 of the Constitution of India (COI) ?
(ii) If so, can an under-trial prisoner in a murder case claim to be automatically released on bail in spite of the restrictions imposed on such prisoners under section 437, Cr.P.C. if there is no reasonable chance of the commencement of his trial in the near future even after his incarceration in jail for more than one year and 3 months ?
(iii) Under what circumstances can an under-trial prisoner urge for his release on bail even in cases where he is accused of having committed heinous offence like murder which is punishable with death or imprisonment for life under section 302, IPC ?
(iv) Whether under such circumstances, an under-trial prisoner can invoke to his aid the bail provision under section 437 or 439, Cr.P.C. or the inherent powers of the High Court under section 482, Cr.P.C. or the writ jurisdiction under Art. 226 of the COI in order to come out of the precincts of jail pending his trial ?
These are the four focal points that are seriously canvassed by the learned counsel for the 22 under-trial prisoners out of a total number of 29 accused indicted for offences punishable under sections 143, 144, 147, 148, 341, 324, 326 and 302 IPC read with S. 149 IPC by Hunsur Rural Police in SC 87/89 on the file of the Principal Sessions Judge, Mysore in these three criminal petitions filed under section 439, Cr.P.C.
2. Two brothers by name Kenge Gowda and Govinde Gowda who were working as Mandal Panchayat Pradhan and President, Ksheerasagara respectively were residents of a village called Karimuddanahalli in Hunsur taluk, Mysore District. It is alleged that they were fatally assaulted by a group of persons belonging to the opposite camp inside Karimuddanahalli village at two separate places sometime between 5-30 and 6 p.m. on 2-5-89 and both of them succumbed to the injuries within a couple of hours of assault when they were being shifted to K. R. Hospital for treatment of the injuries they had sustained. The said assault incidents were promptly reported at Hunsur Police Station (for short 'the police station') alleging that the petitioners had assaulted them out of political vendatta. Thereupon, Crime No. 93/89 was registered at the Police station against 29 persons including 22 petitioners in these three Criminal Petitions for offences under sections 143, 144, 147, 148, 341, 324, 326 and 307 read with S. 149, IPC in the first instance. Later, S. 302 IPC was substituted in place of S. 307 IPC after the death reports of Kenge Gowda and Govinde Gowda were received. Some time after registration of Crime No. 93/89 these 22 petitioners and 7 others in all 29 persons were arrested on 2-5-89 itself and they were got remanded to judicial custody. Certain incriminating weapons which were said to have been used for assaulting the deceased were also said to have been recovered by the Police on the basis of voluntary statements said to have been made by some of the petitioners. All the 29 accused filed a joint petition under section 439, Cr.P.C. before the Sessions Judge, Mysore. It was contended before the learned Sessions Judge that a combined reading of 2 FIRs would go to show that the names of petitioners 23 to 29 were not at all mentioned and, therefore, they were entitled to be enlarged on bail at the outset. It was also alternatively argued that the statement of K. D. Nagaraju recorded at the time of inquest proceedings over the dead body of Kenge Gowda contains the names of petitioners 1 to 5, 8, 14 and 29 only as deceased Kenge Gowda appears to have mentioned their names on in the course of dying declaration said to have been made by him before K. D. Nagaraju and, therefore, the rest of the petitioners are entitled to be released on bail even if any reliance could be placed on the statement of K. D. Nagaraju. It was further contended that a reading of the statement of K. B. Nagaraju recorded at the time of inquest proceedings over the dead body of Govinde Gowda would eliminate most of the petitioners as K. B. Nagaraju has stated in the course of his statement that Govinde Gowda had mentioned before him the names of only those persons named by him. The learned Principal Sessions Judge having accepted the contention of the learned counsel for the petitioners that two FIRs do not contain the names of accused Nos. 23 to 29 thought that since the names of those 7 accused are mentioned by two eye-witnesses by name Kenche Gowda and Smt. Lakshmamma in the course of their statements recorded on the same day, it would not be proper to release even those 7 accused on bail at the preliminary stage and that the evidentiary value of the two dying declarations is a matter that has to be considered at the trial and not at the preliminary stage of considering the civil petition. In that view of the matter, he declined bail to all the 29 petitioners-accused. Therefore, all the 29 accused filed a fresh bail petition before this Court under section 439, Cr.P.C. in Criminal Petition No. 1098/89.
3. At the time of arguments, Sri. L. Srikantaiah, learned counsel for all the 29 petitioners in that case, submitted that he would not press bail petition in respect of petitioners 1 to 22 at that stage and he would confine it in respect of petitioners 23 to 29 only as their names are not found in any of the two FIRs and the possibility of their names being included at the stage of recording statements of so-called eye-witnesses cannot be ruled out in view of the admitted fact that Karimuddanahalli is a faction ridden village. Even that limited prayer was opposed by the respondent-State. However, by order dated 6-11-89, this Court allowed the petition in part in respect of petitioners 23 to 29 only and ordered their release on bail by imposing certain conditions on them in order to ensure their appearance at the time of further investigation and their eventual trial and also to deter them from tampering the prosecution-evidence in any manner. They were also directed not to go out of the jurisdiction of the Mysore District without the prior express permission of the Sessions Judge, Mysore before whom the case may be posted for trial till the Sessions case was decided. Pursuant to that order, the said 7 accused (Accused Nos. 23 to 29) are released on bail and the State has not made any complaint against them so far alleging that they had violated any of the bail conditions.
4. Subsequent to that order, investigation of Crime No. 93/89 was completed and charge-sheet was placed against all the 29 accused in the Court of the J.M.F.C. Hunsur and the case was also committed to the Sessions Court, Mysore for the trial of the accused for the above mentioned offences and it is registered as S.C. No. 87/89. Sometime thereafter, 22 petitioners-accused in these three Criminal Petitions filed separate bail petitions under section 439, Cr.P.C. praying for their release on bail. A-7 Shivanne Gowda, A-12 Eshwara Gowda alias Eshwara and A-13 Uyali Gowda filed separate bail petitions, I.A. Nos. 7, 6 and 9 respectively under section 439 Cr.P.C. before the Sessions Judge praying for their release on bail on medical grounds. All the 22 petitioners-accused (A-1 to A-22) filed a common bail petition I.A. 8 under section 438 Cr.P.C. before the Sessions Judge praying for fixing a date for their trial within a period of three months as according to them, there was no justification for keeping them in custody for an indefinitely long period. By common order dated 26-4-90 passed on all the four bail petitions I.As. 6 to 9, the learned Sessions Judge after getting medical reports in respect of accused Nos. 7, 12 and 13 came to the conclusion that each of them was suffering from serious illness of different nature and they were entitled to be released on bail for a limited period in order to enable them to get proper treatment outside the jail atmosphere. However, he did not accept the submission made on their behalf that they may be granted bail for six months. According to him, a period of 3 months would be sufficient for getting the required treatment. Therefore, he allowed I.A. Nos. 6, 7 and 9 and ordered release of accused Nos. 7, 12 and 13 for a period of three months from 26-4-90 subject to compliance of the four conditions mentioned in para 10 of his order. However, he rejected the contention raised on behalf of all the 22 accused in I.A. 8 to fix a date for trial within three months as according to him, no such rigid stand can be taken by the accused because of pendency of many older custody cases on his file and, therefore, priority has to be given to older cases and, as such, 22 accused-petitioners had to take their turn for their trial.
5. Feeling aggrieved by the said order, accused No. 16 has filed Criminal Petition No. 887/90 under section 439, Cr.P.C. praying for his release on bail. Accused Nos. 7, 12 and 13 have filed separate bail petition registered as Cr.P.No. 953/90 contending that the learned Sessions Judge has erred in releasing them for a period of three months only although he was satisfied that they were sick persons and further praying that they may be granted bail pending trial subject to such conditions and restrictions this Court may deem fit to impose on them. Accused Nos. 1 to 11, 14, 15 and 17 to 22 have filed a separate but common bail petition under section 439 Cr.P.C. in Criminal Petition No. 954/90 praying that they may be released on bail pending trial or to direct the learned Sessions Judge to take up their trial within about a year of filing of the charge-sheet without fail.
6. Respondent-State has filed separate objection-statements in all the three Criminal Petitions opposing grant of bail to any of the 22 petitioners by contending that accused Nos. 7, 12 and 13 who are granted bail for three months on medical grounds cannot contend that they are entitled to be released on bail pending trial on the ground of sickness as the ailments with which they are suffering from are not so serious. It is further contended that the remaining 19 accused are not entitled to be released on bail on the ground of delay in their trial as they are accused of having committed serious offences including the heinous offence of murder of two persons in broad day light and there is every likelihood of the petitioners-accused tampering with the prosecution evidence and even committing other offences and also absconding in the background of political animosity prevailing in their villages and having regard to the nature and gravity of the offences alleged against them.
7. In the light of the submission made by Sri L. Srikantaiah, learned counsel for 18 petitioners-accused in Cr.P.No. 954/90, that although one year and three months and 25 days have elapsed from the date of arrest of the petitioners (2-5-89), charges are not even framed by the learned Sessions Judge; that according to him about 127 cases are pending before the three Sessions Judges working in the Sessions Court, Mysore and in the normal course, the trial of the petitioners may not take place for a couple of years at least, Registry of this Court was directed on 27-8-90 to ascertain from the Principal Sessions Judge, Mysore, information regarding the number of custody cases pending before each of the three Sessions Judges including himself and also the probable period within which SC 87/89 can be taken up for trial. Accordingly, Additional Registrar (J) of this Court has submitted the following note on 27-8-90 :
"As per Criminal monthly statement for the month of July 1990 received in the High Court from the Sessions Court, Mysore, the total number of Sessions cases in which the accused are in custody are as follows :
1. The Prl. Sessons Judge, Mysore : 29 (including SC 87/88);
2. I Addl. Dist. and Sessions Judge, Mysore 19;
3. II Addl. Dist. and Sessions Judge, Mysore. 21 Total 69 As per information received on phone from Principal District and Sessions Judge, Mysore, it would take more than six months to take up SC 87/89 for trial. At present, SC 87/89 is stated to be posted for hearing before charge.
27-8-90 Sd/- Additional Registrar (J)."
8. Smt. G. S. Anasuya, learned counsel for the sole petitioner (A-16) in Cr.P No. 887/90 contended that accused No. 16 is a resident of Basavanahalli village situate at a distance of about 3 miles from Karimud danahally where Kenge Gowda is alleged to have been hatched to death and two miles from Gaddige where Govinde Gowda is alleged to have been fatally assaulted; that K. D. Nagaraju who had accompanied injured Kenge Gowda (since deceased) to K. R. Hospital has stated that when he asked Kenge Gowda as to who had assaulted him, he implicated accused Nos. 1 to 5, 8, 14 and 29 only and further K. B. Nagaraju has stated in the course of his statement that deceased Govinde Gowda had implicated accused Nos. 5, 8, 12, 13, 15 and 22 only and the name of A-16 is not mentioned in any of the two dying declarations said to have been made by the two deceased persons before K. D. Nagaraju and K. B. Nagaraju; that accused No. 16 does not belong to any party; that he is a poor agriculturist and no articles are recovered from or at the instance of A-16 and, therefore, he is entitled to be released on bail, especially when there is no possibility of tampering the prosecution witnesses of hampering investigation as investigation is already completed and the case is already committed to the Sessions Court.
9. Sri. B. T. Parthasarathy, learned counsel for the three petitioners-accused in Cr.P. No. 953/90, argued that the order of the learned Sessions Judge in ordering their release on bail for a period of three months although he was satisfied that they were seriously ill and subsequently extending their bail period for a further period of two months only is very unfair and that the health condition of all the three accused is very serious even now also and even otherwise, they are entitled to be released on bail pending their trial on the grounds urged by the other 18 accused in Criminal Petition No. 954/90.
10. Sri L. Srikantaiah, learned counsel for the 18 petitioners in Criminal Petition No. 954/90 wanted this Court to consider the above mentioned four points in the light of the observations made by the Supreme Court in the leading case of Hussainara Khatoon v. Home Secretary, State of Bihar, , and in the subsequent decisions rendered by the other High Courts in the light of the observations made by the Supreme Court in Hussainara Khatoon's case. Reference would be made shortly to the decisions relied on by him in the course of his arguments. He further submitted that 76 witnesses are cited in the charge-sheet in the case on hand and added that as even arguments are not heard on the point of framing of charges by the learned Sessions Judge and in view of the information furnished by him on 27-8-90 to this Court that it would take more than six months to take up SC 87/89 for trial, there is no possibility of the petitioners-accused being put on trial for at least a couple of years more and, therefore, they are entitled to be released on bail. He further submitted that all the petitioners-accused are poor agriculturists depending upon the agricultural income for the liveli-hood of themselves and their family members who are entirely depending on them as there are no other male members in most of their families. He further submitted who would compensate the petitioners-accused for the mental suffering and torture to which they are subjected to on account of their incarceration in jail for more than a year and three months and for the pecuniary loss and hardship to which they and their family members would be subjected to if they are tried after several years and eventually acquitted, as they hope to be acquitted having regard to the inconsistent and discrepant materials produced by the prosecution in order to bring home their guilt.
11. I am not impressed by the above mentioned grounds urged by Smt. G. S. Anasuya, on behalf of the sole petitioner in Cr.P. No. 887/90 as they relate to the merits of the prosecution case. Those points can very well be urged before the learned Sessions Judge at the time of arguments on the point of framing charges. Suffice it to say for the present that it would not be proper for this Court at the stage of considering the bail petitions to express any opinion on the merits or demerits of the prosecution case as well as the defence in view of the observations made by the Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 875 : 1980 Cri LJ 426 that "detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself". However, the case of the petitioner (A-16) for admitting him to bail pending trial deserves to be considered on other points urged by Sri. L. Srikantaiah, learned counsel for the petitioners in Cr.P. 954/90.
12. So far as the three petitioners (A-7, A-12 and A-13) in Cr.P.No. 953/90, they had sought bail before the learned Sessions Judge on the ground of sickness. On a perusal of the medical reports received in respect of the said accused, the learned Sessions Judge has observed that A-7 is having allergic dermatitis in the face and his health may improve if good nourishment and specialised treatment is given. Regarding A-12, the medical report revealed that he was undergoing treatment as an in-patient in the K. R. Hospital since February and he is suffering from serious illness, namely, Chronic Peptic Ulcer which in the absence of proper treatment may necessitate surgery. In respect of A-13, the latest medical report revealed that he was admitted to K. R. Hospital for treatment as in-patient on 21-4-89 with history of pain in the left leg due to old fracture of tibia for which he was operated and intramedullary nail was inserted and he had also suffered severe back pain. The Doctor who examined him has further found that he had acute disclesion of L5, S1 and clinically very severe pain for which he needed bed rest, analgesics and anti-inflamatory drugs and injections and that although his condition has improved he was advised to wear a Lumbosacral belt and to avoid strenuous work. On the basis of the said reports, the learned Sessions Judge has observed towards the end of para 8 of his order that considering the nature of the diseases and the fact that they are already under the treatment and some improvement is found in respect of A-13, it was not necessary to grant bail to them for six months as requested by their learned counsel at the time of arguments. Therefore, he has granted the bail for three months only. As already mentioned above, they are subsequently granted bail for a further period of two months which means that the said accused are entitled to be on bail till 26-9-90. I am sure that the learned Sessions Judge would extend the period of their bail if they are able to convince him that they needed expert treatment outside the jail for their present ailments for a further reasonable period. But, they have sought bail on other grounds urged by Sri. L. Srikantaiah, on behalf of the petitioners in Cr.P. No. 954/90.
13. The abovementioned first point strenuously urged by Sri L. Srikantiah is emphatically answered in the affirmative by the Supreme Court in the leading case of Hussainara Khatoon, mentioned above.
14. The second point also is covered by the observations made in the said decision. Their Lordships were considering in the said decision a petition for a writ of habeas corpus filed for the release of several under-trial prisoners detained in several prisons in the State of Bihar for periods ranging from three to ten years without even asmuch as their trial having commenced. In that context, his Lordship P. N. Bhagavati J. (as his Lordship then was speaking for himself and Koshal J. has observed at pages 177 and 178 (of SCR) in the case of Hussainara Khatoon as under :
"The new insight into the subject of pretrial release which has been developed in socially advanced countries and particularly the United States should now inform the decisions of our Courts in regard to pretrial release. If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. To determine whether the accused has his roots in the Community which would deter him from fleeing, the Court should take into account the following factors concerning the accused :
1. The length of his residence in the community;
2. his employment status, history and his financial condition;
3. his family ties and relationships;
4. his reputation, character and monetary condition;
5. his prior criminal record including any record or prior release on recognizance or on bail;
6. the identity of responsible members of the community who would vouch for his reliability;
7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and
8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear".
If the Court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused, his previous record and the nature and circumstances of the offence, there may be substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the Court may not release the accused on his personal bond and may insist on bail with sureties ............"
In the same judgment, his Lordship R. S. Pathak, J. (as his Lordship then was) has observed of pages 181 and 182 (of SCR) as under :
"The primary principle of criminal law is that imprisonment may follow a judgment of guilt. But should not precede it. But there is another principle which makes it desirable to ensure that the accused is present to receive his sentence in the event of being found guilty. Now, the Code of Criminal Procedure, both the old Code and the new, include provision for the release of a person on bail or on the execution of a bond without sureties for his appearance.
xx xx xx xx xx xx In regard to the exercise of the judicial power to release a prisoner awaiting trial on bail or on the execution of a personal bond without sureties for his appearance, I have to say this briefly. There is an amplitude of power in this regard within the existing provisions of the Code of Criminal Procedure, and it is for the Courts to fully acquaint themselves with the nature and extent of their discretion in exercising it. I think it is no longer possible to countenance a mechanical exercise of the power. What should be the amount of security required or the monetary obligation demanded in a bond is a matter calling for the careful consideration of several factors. The entire object being only to ensure that the undertrial does not flee or hide himself from the trial, all the relevant considerations which enter into the determination of the question must be taken into account."
15. It is clear from the observations made in the beginning of that decision that "the offences for which some of the under-trial prisoners were in custody were very trivial, which, even if proved, would not warrant punishment for more than a few months, perhaps for a year or two and those unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced." It is, therefore, observed that 'it is a crying shame' on the judicial system which permits incarceration of men and women for such long periods of time without trial. Some of the unfortunate under-trial prisoners in the State of Bihar were in jail for 5, 7 or 9 years and quite a few of them for even more than 10 years. It is in that context that their Lordships have made the above extracted and other general observations and not in the context and background of heinous offences committed in broad day light in a dare-devil manner as in the case on hand as alleged by the prosecution. That apart, their Lordships have not indicated in that decision the optimum period beyond which an under-trial prisoner cannot be justifiably kept behind the bars pending his trial. In this connection, it is necessary to notice that his Lordship Pathak, J. (as his Lordship then was) has observed at pages 182 and 183 that "I consider it desirable to refrain from making any final comment or observation on the legality and propriety of the continued detention of the under-trial prisoners whether on the ground of infringement of Art. 21 of the Constitution or on other grounds. That, I think, should await the final determination of the habeas corpus petition".
16. Important point decided by the Jammu & Kashmir High Court in Kuldeep Raj v. State of J&K, 1989 (3) Crimes, 535 : (1989 Cri LJ 1941) is that "expeditious trial is a fundamental right guaranteed under Art. 21 of the Constitution and this right is exercisable not only against actual proceedings in Court but also against police investigation." In that case, petitioner had filed a petition under section 561-A Cr.P.C. for quashing FIR 163/86 under sections 420, 467 and 468 IPC. Superintendent of Police, Crime Branch, Jammu (R-2) had not completed the investigation even after more than two years 8 months of the registration of the case. Therefore, petitioner complained that his unnecessary harassment deteriorated his health and caused mental agony and moved for anticipatory bail. Even in such a case, two more months time is allowed to the Investigating agency to complete investigation and to produce the challan in the Court of law. Therefore, the said decision is not of any assistance to the petitioners in the cases on hand.
17. The next decision to which reference was made by Sri. L. Srikantaiah is also a decision of a learned single Judge of Calcutta High Court in Mohir Kumar Ghosh v. State of West Bengal, 1989 (3) Crimes 436 : 1990 Cri LJ 36. In that case, a writ petition was filed to quash a criminal proceeding on the ground of inordinate delay of 15 years in framing charges and keeping the trial pending for such an unusually long time. Even the learned Advocate for the State submitted before the High Court very fairly that he cannot defend the action of the State for its delay and laches in conducting the criminal proceeding against the petitioner and further submitted that the Court should pass appropriate direction upon the concerned authorities. It is for that reason, that the writ petition is allowed and further proceedings are quashed.
18. One other decision of a learned single Judge of the Madhya Pradesh High Court in Munna alias Kamta Prasad v. State of Madhya Pradesh, 1986 (3) Crimes 429, appears to have escaped the attention of the learned counsel for the petitioners. It relates to a case of bail petition filed under section 439, Cr.P.C. The facts of that case are that the applicants in one case were arrested on 28-7-85 for the alleged offence under section 302 read with S. 34, IPC and their trial had not begun even though more than one year had elapsed. In another case, trial of the applicants for offence under section 302 read with S. 149, IPC and other offences had not been completed even after more than a year after their arrest on 12-9-85. In yet another case, trial of the applicant facing trial under section 302 IPC was not completed although more than two years had elapsed from the date of his arrest on 3-1-84. It is observed in the light of the said facts in para 17 at page 431 as under :
"17. A reading of the provisions of Sections 167, 209, 225 to 235, 309 and 317 of the Code, collectively or independently of each other, does spell out expressly about the speedy trial, avoiding undue delay, within a reasonable time."
Further, there was nothing to suggest in those three cases that the accused-applicants had created any hindrance in their respective case for prolonging their trial. Therefore, they are released on bail.
19. Sri. L. Srikantiah also placed reliance on two Full Bench decisions of the Patna High Court in the State v. Maksudan Singh (FP and Madheshwardhari Singh v. State Bihar, (FB). The facts in the former decision were that an appeal was filed by the State of Bihar against acquittal of 20 respondents-accused out of several accused after their trial for the capital offence of murder, conspiracy, unlawful assembly and some other minor offences in respect of an occurrence which took place on 26-4-71. After a protracted investigation and trial lasting beyond five years 20 accused were acquitted by the learned Sessions Judge by an exhaustive judgment on 31-8-76. BY the same judgment, some accused were convicted and sentenced to imprisonment for life. Appeal by convicted persons and the State appeal against acquittal order, did not come up for hearing before the Patna High Court for 8 years. When those appeals were taken up for hearing in September 1984 it was contended in the State Appeal against acquittal of 20 persons that the State Appeal was not maintainable as more than 14 years had elapsed from the date of occurrence. The Division Bench which heard the appeals in the first instance referred the matter to a larger Bench for an exhaustive adjudication. After referring to the decision of the Supreme Court in Hussainara Khatoon's case and several other decisions, it is held by majority of 2 : 1 in para 26(iv) at page 48 as under :
"that inordinately prolonged and callous delays of 10 years or more entirely because of the prosecution's default in the context of the reversal of a clean acquittal on a capital charge would be per se prejudicial to the accused."
P.S. Sahay J. has observed in his minority judgment that "no time limit can be fixed even in cases relating to the offences punishable with death".
20. In this context, I consider it useful to refer to the provision made under the proviso (a) to S. 167(2), Cr.P.C. to the effect that if the investigating agency fails to file charge-sheet before the expiry of 90/60 days as the case may be the accused in custody should be released on bail if he is prepared to and furnishes bail. In my opinion, a similar provision would have been made by the Legislature in the Criminal Procedure Code if it felt it desirable to fix an outer time limit either for framing charges after the charge-sheet is filed or for concluding trial in the Courts of the Magistrates or the Sessions Courts as the case may be.
21. In the latter Full Bench decision in Mahadheshwardhari Singh's case (FB) the 5th point that was formulated for consideration by the Full Bench of the Patna High Court was as under :
"(5) Whether an outer time limit to concretise the right to a speedy public trial is envisioned by principle of precedent ?"
The said point is answered by the Full Bench in paragraph 53(v) at page 343 as under :
"(v) That an outer limit to concretise the right to speedy public trial is envisioned both by principle and precedent. A callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones would plainly violate the constitutional guarantee of a speedy public trial under Art. 21 ".
22. Therefore, I do not find much force in the argument of Sri. L. Srikantaiah that the petitioners-accused in the instant cases are entitled to be released on bail as even charges are not framed muchless they are put on trial even after the expiry of more than one year and three months from the date of their arrest and even to grant the alternative prayer made by the petitioners in Cr.P. 954/90 that the Sessions Judge may be directed to commence their trial within about a year of filing of the charge-sheet.
23. It is no doubt true that the powers of the Sessions Court and the High Court under section 439, Cr.P.C. in the matter of granting bail are not circumscribed by the limitation imposed under section 437(1) Cr.P.C. Even then, it would not be proper for this Court to grant bail to the petitioners on collateral considerations that the petitioners are all poor agriculturists and their entire family members would be subjected to starvation inasmuch as accused Nos. 1 and 6 are brothers and members of a joint family and their father (A-23) aged about 70 years is the only male member left in their family; that accused Nos. 2 and 11 are brothers and they constitute a joint family and the only other male member in their family is their father aged about 60 years and his other two sons are young; that accused Nos. 3 and 12 are again brothers and members of a joint family and the only other male member is A-26 who is on bail; that A-4 and A-14 are son and father and they are members of a joint family and there is no male member in their family; that A-5 and A-10 are brothers and members of a joint family and the only other member in their family is another brother A-29 who is on bail; that A-7 and A-8 are son and father and they are members of a joint family without any other male member in their family; that there is no other male member in the family of A-9; that A-14, A-15 and A-18 are the sons of A-17 and they are members of a joint family in which there are no other male member; that A-16 is the only earning member in his family and A-19, A-21 and A-22 are the sons of A-20 and there is no other male member in their joint family (vide statement of particulars filed by Sri. L. Srikantaiah on 28-8-90).
24. In this connection, Sri C. H. Jadhav, learned High Court Government Pleader, invited my attention to a decision of the Supreme Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan, in support of his argument that it would be highly hazardous to release these petitioners on bail, as according to the prosecution version they have committed murder of two brothers in broad day light out of political vendatta. In the context of considering the order of the High Court in granting bail to first respondent Ishtiaq Hassan Khan, their Lordships have observed in paragraph 6 at page 1616 of the decision as under :
"No doubt liberty of a citizen must be zealously safeguarded by court, nonetheless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to place correct facts before the Court. Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution. Learned Judge was unduly influenced by the concept of liberty, disregarding the facts of the case".
Applying the said observations to the facts of the case on hand, I am of the view that the petitioners in these cases are not entitled to bail under section 439 Cr.P.C. pending trial even on the above mentioned grounds highlighted by Sri. L. Srikantaiah.
25. Sri. L. Srikantaiah also wanted this Court to grant bail to the petitioners in exercise of the inherent power under section 482 Cr.P.C. But, it is well settled that inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided in the statute and the inherent power being an extraordinary one has to be exercised sparingly, as has been observed by the Supreme Court in Madhu Limaye's case . On this point, the Supreme Court has recently observed in Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee, as under :
"5. S. 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the Court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction".
26. Regarding the argument of Sri. L. Srikantaiah whether the petitioners can invoke writ jurisdiction of this Court under Art. 226 of the COI; for getting themselves enlarged on bail, all that need be said is that writ jurisdiction is not normally exercised or enough provisions are made in the Code of Criminal Procedure for granting the relief of bail. Any how, it is open to the petitioners to invoke writ jurisdiction under Art. 226 of the COI if they are so advised.
27. For the foregoing reasons, I hold that all the three Criminal Petitions are liable to be dismissed.
28. However, it is impressed upon the learned principal Sessions Judge, Mysore to make earnest efforts having regard to other older custody cases on his file to hear arguments on the point of framing charges in SC 87/89 and pass appropriate orders as early as possible and in any event by the end of December, 1990 and then to post the case for trial, if he decides to frame charges, at the earliest point of time convenient to him. Liberty is also left open to the petitioners to approach the learned Sessions Judge for grant of bail if their trial is not commenced by the end of June, 1991 and if they can make out any special grounds for seeking bail.
29. In the result and subject to the observations made above, all the three Criminal Petitions are dismissed.
30. Petitions dismissed.