Allabaksh vs State of Karnataka

K.N. Phaneendra, J.—The petitioner who is arrayed as accused No. 6 in S.C. No. 49/2008 on the file of the 1st Additional District and Sessions Judge sitting at Hubli for the offences punishable under Sections 120(B), 121, 121(A), 122, 124(A), 153(A), 153(B), 379, 116, 465, 468, 471, 201, 511 of I.P.C. and Section 3, 10 and 13 of Prevention of Unlawful Activities Act, 1967 and Section 3, 4 and 5 of Explosive Substance Act, 1908 has filed this petition seeking enlarging him on bail. Even at the earlier stages this petitioner approached this Court for grant of bail in Crl. P. No. 7204/2008. This Court by means of a very detailed order has dismissed the said petition on merits considering all the pros and cons of the circumstances after finding a strong prima facie case against the petitioner. Subsequently, some other accused persons have also approached this Court for grant of bail in connection with the above said case. In Crl. P. Nos. 10958/2011 and 10959/2011 one Yahya Iyash Kamakutti and another by name Syed Sadiq have approached this Court. While dismissing the said bail petitions vide orders dated 12th December 2011 this Court has directed the Trial Court to expedite the trial by means of taking the matter on day-to-day basis. Again, this petitioner has approached this Court for grant of bail in Crl. P. No. 10744/2012 and the said petition once again came to be dismissed vide orders dated 08.08.2012. In the said order, this Court had not touched upon the merits of the case because of the simple reason, earlier bail petition of the petitioner was dismissed on merits. However, this Court has directed the Trial Court to expedite the trial and dispose it of as early as possible. Being aggrieved by the orders of this Court the petitioner approached the Hon''ble Supreme Court in Special Leave to Appeal in No. 9173/2012. Vide orders the Hon''ble Supreme Court on 30.11.2012 observed that:

However, we direct the learned District and Sessions Judge, Hubli to dispose of the Sessions Case No. 49/2012 as expeditiously as possible without unnecessarily granting any adjournments to both the sides.

If, for any reason, the Trial is not completed within an year''s time, the petitioner is at liberty to file an appropriate application before the Trial Judge for grant of bail. It is for the learned Judge to consider the said application in accordance with law.

By virtue of the above said-order of the Hon''ble Supreme Court, the petitioner again approached the Trial Court for grant of bail on the ground that within the span of one year time as directed by the Hon''ble Supreme Court, the Trial Court has not disposed of the matter. The learned Sessions Judge vide his order dated 07.01.2014 dismissed the application writing a detailed order referring as to why the trial could not be concluded within a year''s time. The order of the learned Sessions Judge wherein he has categorically in detail stated as to why expeditiously the case could not be disposed of. However, it is stated that unnecessary adjournments have not been granted and the trial Court has made all its endeavours to dispose of the matter within a time span specified by the Hon''ble Supreme Court. In this background, the petitioner approached this Court for grant of bail.

The learned Counsel for the petitioner strenuously contended admitting the factual aspect that there are as many as more than 316 witnesses have been cited. Out of them 213 witnesses have already been examined. It is also contended by the learned Additional State Public Prosecutor that for various reasons the trial could not be concluded, still nearly 120 witnesses have to be examined by the prosecution, it may take another 3 to 4 months for the purpose of concluding the trial even it is taken up as expeditiously on the day-to-day basis.

Looking to the Trial Court records, I have carefully examined the trial Court records as per the directions being issued by the Hon''ble Supreme Court, it is seen that the Trial Court has fixed the trial on weekly basis from 14.12.2012. It appears upto 12.08.2013 the trial was adjourned on the ground that the video camera was not working. It is also an admitted fact, that some of the accused persons are in Ahmedabad jail and they have to be produced before the trial Court by means of video conference system and on such basis the Trial Court has to conduct the trial. Nearly for a period of nine months the trial was not conducted by the Trial Court on the ground that video camera was not working. The order sheet also disclose that the Trial Court has made certain efforts in order to get the said video camera repaired. The trial virtually begin only in the month of August 2013. Even otherwise, the Trial Court examined 3 or 4 witnesses per day considering their lengthy statements. The learned Additional State Public Prosecutor brings it to my notice since August 2013 upto this day 35 witnesses have been examined. But in my opinion, the nature in which the trial is conducted by the Trial Court is not as expected, I am not happy with the same because of the simple reason when such a serious matter is before the Court and it went upto the Hon''ble Supreme Court and there is a direction by this Court and as well as Hon''ble Supreme Court to take up the matter on day-to-day basis only on the ground of video camera was not working whether the trial could be deferred for such a long time. It is observed by the trial Court that because the video camera was not working the trial was delayed for a period of more than nine months. It was the duty of the learned Sessions Judge to see that the video camera is repaired within two or three days or the said video system itself could have been replaced for the purpose of conducting the said trial. Such steps appears to have not been taken by the Trial Court. Though some efforts made but not expected. The learned Sessions Judge should have brought to the notice of Registrar General about his difficulties and sought for solutions. As could be seen from the records, subsequently after getting the video camera repaired the witnesses have been regularly summoned and on regular basis the witnesses have been examined by the Court. I am told by learned Additional State Public Prosecutor that the video conferencing system being operating by the Jail authorities they should have promptly assisted the Court. It is to be borne in mind all the other wings like Police, Jail authorities who have to assist the Court must have seriousness about the case and assist the Court for speedy disposal.

The learned Counsel for the petitioner seriously contends that the petitioner is not responsible for the delay in conducting the trial. The learned Counsel draws my attention to a decision of the Hon''ble Supreme Court, which is reported in Surinder Singh @ Shingara Singh Vs. State of Punjab, . The relevant portion is at paragraph 11, which reads thus:

Counsel for the parties submitted before us that though it has been so understood by Courts in Punjab, the decision of the Punjab and Haryana High Court in Dharampal''s case only lays down guidelines and not any invariable rule. Unfortunately, the decision has been misunderstood by the Court in view of the manner in which the principles have been couched in the aforesaid judgment. After considering the various decisions of this Court and the difficulties faced by the Courts, the High Court in Dharampal''s case observed:

We therefore, direct that life convicts, who have undergone at least five years of imprisonment of which at least three years should be after conviction, should be released on bail pending the hearing of their appeals should they make an application for this purpose. We are also of the opinion that the same principles ought to apply to those convicted by the Courts Martial and such prisoners should also be entitled to release after seeking a suspension of their sentences. We further direct that the period of five years would be reduced to four for females and minors, with at least two years imprisonment after conviction. We however, clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law.

In the same decision at paragraph 8, the Hon''ble Supreme Court also dealt with Article 21 of the Constitution of India. It is observed that in Kashmira Singh Vs. The State of Punjab, the Court held that:

The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person should be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person: "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?" What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused.

The learned Counsel strenuously contends that same principle has to be applied so far as the under-trial prisoners are concerned. On meaningful understanding of the above said Ruling, it is not an absolute rule to release the accused persons on bail. There is a rider put by the Hon''ble Supreme Court that unless there are cogent grounds for acting otherwise the Court has to release the accused persons on bail.

(emphasis supplied)

Looking to the circumstances of this Court, on coming back to the facts the learned Sessions Judge has culminated in his orders the difficulties faced by him in disposing of the matter. It is quite acceptable point that in the Indian Courts are overloaded with criminal cases, civil cases. The Trial court has mentioned the huge number of cases pending on its file and in spite of that this Court making all its efforts to dispose of the matter. After direction issued by the Hon''ble Supreme Court as could be seen the Trial Court has taken up the matter in speedy manner by endeavouring to dispose of the matter within a span of one year. But the extraneous circumstances available in this particular case is large and huge number of witnesses to be examined before the Court. Lack of fullest co-operation from other wings, technical difficulties in getting the witnesses over video conference, witnesses are from different far away places, non-production of witnesses on time must have delayed the trial.

Apart from the difficulties Court also should bear in mind the nature of allegations made against the accused persons on several law including the Prevention of Unlawful Activities (Prevention) Act and Explosive Substances Act and also the Indian Penal Code, the said offences have been alleged against the accused persons in this particular case. In fact, the Trial Court has also observed and from the charge sheet it would be made out that, National-Integrity of India has also been at this stake at the hands of the accused. Therefore, the learned Sessions Judge though I am not happily with the delay occurred in conducting the case for a period of nine months for want of repairs of the video camera. But, thereafter he took up the matter day-to-day basis and trying to dispose of the matter and he has already made his endeavour to examine 232 witnesses, another 120 witnesses are remained to be examined. I do understand that keeping the accused persons for a long time in jail, causes humiliation and further added to that, their right of liberty is curtailed. But, by considering the extraneous circumstances in this particular case and also seriousness of the allegations made against the accused persons. I am of the opinion that there are sufficient and cogent grounds to act otherwise to refuse grant of bail.

The second point that remains for consideration is that, the learned Additional State Public Prosecutor brought to my notice that in spite of considering the seriousness of the allegations, the learned Public Prosecutor attached to the District Court at Dharwad is only visiting three days to Hubli and he works three days at Dharwad. This is most unreasonable when the full time Sessions Court is established at Hubli, it is the bounden duty of the State to provide a full time Public Prosecutor. This is also in my opinion hampers the trial if the case. The learned Sessions Judge has also mentioned that there are huge number of civil and criminal cases where the accused persons are in custody. This particular case consumes lot of time for examination of the witnesses, very lengthy evidence has to be recorded. Therefore, the learned Sessions Judge is also facing certain problems, this has to be taken care of by the Registrar General to appraise the Hon''ble High Court, whether any need of any Fast Track Court at Hubli. The Director of Prosecution shall provide full time Public Prosecutor to that particular Court in order to expedite the matter and to dispose of the matter as early as possible.

Further added to that, the nature of summoning of the witnesses and production of the witnesses before the Court also not totally satisfactory. On several occasions though summons, warrants have been issued against the witnesses they were not promptly produced before the Court. This also cause a heavy draw back to the progress of the trial. This has to be very seriously taken note of by the Police Department and appoint in important and serious cases the State Special Officers to monitor the cases wherein the directions are issued by the High Court and as well as the Hon''ble Supreme Court of India. This is one of such nature of case wherein, in my opinion the Government has to appoint a Special Officer to monitor the trial so that the said Officer can take care of all the difficulties to ensure speedy trial. The Trial Court in fact also observed that the Court has prevailed upon the Jail Authorities to repair the video system, on such positive action taken by the Court the video system was repaired with effect from August 2013, that shows that from the date i.e. from 14.02.2013 to August 2013 the video conference system was not repaired by the Jail Authorities or the concerned Officials. Why this has not been done is a serious question to be delved into by the competent authority to pull out those officials or otherwise find out who are responsible in not repairing the said video conference system so as to enable the Court to conclude the trial within a time span specified by the Hon''ble Supreme Court. I also direct the Director General of Police, Prisons to look into this matter why such a delay has been caused in repairing the video camera and who are the persons responsible for that and to take appropriate action against those persons.

In view of the above said circumstances and considering the nature of allegations, facts of the case and the nature of the witnesses who are examined, nature of the witnesses and huge number of witnesses to be examined in this case, I am of the opinion, when the Trial Court is in the helm of affairs in conducting trial, at this Stage, this Court cannot come to any conclusion that the evidence recorded by the Trial Court is sufficient to draw inference against or in favour of the accused or what evidence that the prosecution may produce before the Court in order to inculpate this accused. Moreover, all the other accused are also in Jail in this case. If this petitioner absconds himself in any event that will again hamper the speedy trial. Hence, it is not proper to release this petitioner on bail.

Under the above circumstances, I am of the opinion, the delay in disposing of the case alone may not be sufficient to enlarge the petitioner on bail. In view of the above said Hon''ble Supreme Court Judgment itself, there are certain extraneous circumstances in this case in order to refuse the bail. Hence, with following directions to the concerned authorities, I dismiss the bail petition.

a) The Registrar General is hereby directed to take account of the pendency of cases on the file of Ist Additional District Judge, Dharwad sitting at Hubli and upraise Hon''ble High Court for establishing a Fast Track Court at Hubli if necessary so as to shoulder the burden of the pendency of cases.

b) The Principal District and Sessions Judge, Dharwad is hereby directed to monitor the case and the learned Sessions Judge sitting at Hubli has to consult the Principal District Judge explaining his difficulties if any and the learned Sessions Judge by using his good offices ensure that all the proper facilities are properly provided to the said Court in order to dispose of the matter at the earliest.

c) The Secretary to the Home Department and Director General and Inspector General of Police have to take serious note of the directions of the Hon''ble Supreme Court and the High Court noted supra in this order so far as this case is concerned and issue directions to the concerned Head of the Police Department in order to make all their endeavour to assist the Court in securing and producing the witnesses before the Court so as to enable the Court in order to dispose of the case as per the directions of the Court, by appointing an efficient Special Officer in this regard.

d) The Director of Prosecution is hereby directed to take immediate steps to post a Full-time Public Prosecutor to the Additional District and Sessions Judge sitting at Hubli so as to enable the Public Prosecutor to assist the Court in conducting the matter on day-to-day basis and to dispose of the matter at the earliest.

e) The Director General of Prisons and Jail Authorities is also hereby directed to take all appropriate steps in consultation with his counter part in Ahmedabad with regard to the production of some of the accused persons lodged in Ahmedabad Jail by producing them through video conference, without fail on all the future hearing dates so as to enable the Court to dispose of the case as early as possible and also in keeping the video conferencing system problem less on all the future hearing dates of this case.

Lastly, before concluding I direct the learned Additional District and Sessions Judge, Hubli hereinafter to take all appropriate measures to take up the matter on day-to-day basis and dispose of the matter at the earliest not exceeding FOUR MONTHS from the date of receipt of this order, no further time will be extended. Accordingly, with these observations the petition is dismissed.

Note: The Additional Registrar General is hereby directed to send copies of this order forthwith to the following:

1) The Registrar General, High Court of Karnataka, Bangalore.

2) The Principal District and Sessions Judge, Dharwad.

3) The Principal Secretary to the Home Department, Vidhana Soudha, Bangalore.

4) The Director General and Inspector General of Police, Nrupathunga Road, Bangalore.

5) The Director of Prosecution, 6th Floor, K.H.B. Complex, Cauvery Bhavan, K.G. Road, Bangalore-09.

6) The Director General and Inspector General of Prisons, No. 4, Sheshadri Road, Bangalore-09.