Jugraj Singh and Ors. vs State of U.P.

G. D. Dubey, J.—This is the first bail application.

The prosecution story is that the applicants, Rajveer Singh and two unknown persons armed with firearms had fired at Jogendra Singh and Dharmendra Singh causing the death of Jogendra Singh at the spot. Dharmendra Singh was taken to S. N. Hospital, Agra, where he was" found dead. The occurrence is said to have taken place in the field of village Nagla Prem of Police Station Etmadpur, district Agra at 5.30 p.m. on 3171989 while Rajveer Singh and his son were returning from Chauli to their house in the aforesaid village. It has been alleged that the occurrence had been seen by Laxmi Raj, Ashok, Har Prasad, Rampal Singh and many others. The maker of the report Harish is said to have fired from his licensed gun towards the assilants and thereupon the applicants and his companions are said to have run away towards west,

A supplementary affidavit has been filed stating that two witnesses Mangal Singh and Har Prasad have filed affidavits in the Court of Judicial Magistrate, Agra completely disowning the prosecution story. It has also been urged that applicant Rajveer Singh has been granted bail by this Court. Therefore, on parity ground, the applicants should also be released because the role assigned to all of them is idetical to Rajveer Singh.

Learned counsel for the applicants has drawn my attention to the effect that uptil now the trial has yet not begun and the applicants should be released on bail.

This application has been opposed by the complainant and the State on the ground that the offence committed by the applicants Rajveer Singh and two unknown persons was quite serious. Learned counsel urged that in this matter the delay in commencement of trial was not on account of laxity of the prosecution. The case diary had been summoned in this case on 7121989. The bail application of Rajveer Singh was rejected on 2551990. The case diary was returned in July 1990. The complainant had moved an application before the Sessions Judge, Agra complaining that the Judicial Magistrate concerned was deliberately delaying the committal proceedings. Rajveer Singh, who has been granted bail by me on 20121990 has started misusing his bail by not presenting himself on the date fixed. In this way, the accused themselves are responsible for the delay. It was argued that it is not a .universal rule that where ever there is a delay in trial the accused should be released on bail. My attention has been drawn to several case laws by learned counsel for the complainant in support of his contention that the delay in commencement of trial cannot be a good ground for bail.

The first case cited is of Virendra Singh v. Awadhesh Kumar, 1983 All. Criminal Reports 435. In this case, Hon''ble R. B. Lal, J. of this Court hearing on a matter relating to compilation of bail had observed :

"In my opinion, the observation of the Supreme Court in Kadra Pehadiya''s case (supra) that "the reasonable period of time cannot and should not exceed one year for a sessions trial" should not be taken as laying down an absolute and invariable rule for conclusion of sessions trials without having regard to the nature of offence and other circumstances of each particular case; This observation provides a guideline about the period of time during which a sessions trial should ordinarily conclude. However, this does not mean that special circumstances of a case which prolonged the period of trial, are to be ignored while considering the question of inordinate delay. The question of inordinate delay in conclusion of trial of a case should be decided in the light of its own facts and circumstances."

In this case, the bail had been cancelled on the ground that the Second Additional Sessions Judge had granted bail even though bail had been refused by the High Court. It was stressed that judicial propriety and decorum require that the Sessions Court should be circumspect while dealing with subsequent bail applications when bail had been refused by the High Court previously. This case law, therefore, is not of much help to the complainant because in this case the bail was cancelled as the Sessions Judge had granted bail even though bail had been refused by the High Court.

The second case relied upon by learned counsel for the complainant is State v. Jaspal Singh All, AIR. 1984 SC 1503. In this case, the accused was charged of an offence under Section 3 of Official Secrets Act relating to Military affairs. It was held by the Supreme Court that considering the gravity of the offence and particularly the larger interest of the society bail should not have been granted by the High Court. On these observations, the bail had been cancelled by the Supreme Court. Thus, the ratio of this case does not apply to the present matter. In the present bail application, the case of enmity is said to be abduction of the daughter of Rajveer Singh coaccused by Laxmi Raj son of the deceased about one year before the incident. A case is said to have been pending regarding this abduction in a court of Agra. Hence on the facts of this case, this case law is not applicable to the present matter.

The third case, on which reliance has been placed, is Raghubir Singh v. State of Bihar, 1986 AWC 1134. In this case, the Supreme Court has laid down the law on the question whether an order for release on bail made under the proviso to Section 167 (2) of the Code of Criminal Procedure is defeated by lapse of time, the filing of the chargesheet or by remand to custody under Section 309 (2) of the Code. However, the Supreme Court had referred to in paragraph 9 of its judgment that the Constitutional provision is now well settled that the right to a speedy trial is one of the dimensions of the fundamental rights to life and liberty guaranteed by. Article 21 of the Constitution. The Supreme Court had referred to Hussainara Khatoon v. State of Bihar, 1979 (3) SCR 168, Kadra Pehadiya v. State of Bihar, AIR 1981 SC 939, Kadra Pehadiya v. State of Bihar, AIR 1982 SC 1167 and State of Maharashtra v. Champa Lal Punahji Shah, 1981 (3) SCC 610.

The fourth case is Shahjad Hasan Khan v. Ishtiyak Khan, 1987 (2) SCC 684. This case was based on its own peculiar facts. The bail had been granted by another Hon''ble Judge when previous two petitions had been rejected by another Hon''ble Judge of the High Court. In this case, there were serious allegations against the accused of tampering of evidence. On this ground, the Supreme Court had cancelled the bail granted by the High Court, Therefore, this case is also of no consequence to the complainant.

The next case on which reliance has been pieced on behalf of the complainant is Shamshad v. State of U.P., 1988 All Criminal Reports 206. In this case, Hon''ble Rajeshwar Singh, had held that there is no rule that if a trial is not concluded within a year, the bail must be granted. His lordship observed that, of course, liberty is to be secured to a citizen; but it should be secured through process of law, which is administered keeping in mind the interest 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 the society does not loose faith in institution of justice and indulge in private retribution. In this case, His Lordship has the cases of Virendra Singh, Jaspal Singh Gill, Raghubir Singh and Shahjad Hasan Khan cited above.

The last case relied upon is Janga Singh v. State of U. P., 1990 All. Crl. Reports 39. In this case, Hon''ble S. C. Mathur, J., had laid down the broad principle in the following words :

"The Code of Criminal Procedure also does not fix any such period. The matter of grant of bail has been left to the discretion of the court and in each case the court will have to exercise this discretion judicially and not arbitrarily. It would not be an arbitrary exercise of discretion to grant bail where the court finds that the trial is not making the desired progress. Similarly, it will also not be an arbitrary exercise of discretion if despites delay the court, taking other factors into consideration, refuse to enlarge the accused on bail. One such factor may be the assurance available to the court from bare allegations contained in the first information report that most probably the accused had committed a henious report that most probably the accused had committed a henious crime. The assurance may be further strengthened where through investigation which is apparently fair, the allegations contained in the first information report have been found to be correct. It would also not be an arbitrary exercise of discretion where, despite delay, bail is refused because the offence was committed in a most brutal manner and the involvement of the accused is highly probable, Again it will be a fair exercise of discretion to refuse bail, despite delay, where the court feels that on release of the accused there is likelihood of further criminal occurrences of serious nature taking place."

Thus the conspectus of the opinions expressed in various cases by the Supreme Court and this court is that delay alone cannot be a cause for granting bail to an accused. The court should examine whether the accused has committed a henious crime and whether it is in the fitness of the circumstances keeping in view the interest of the victim of the crime and the society whether it would be desirable to release the applicant on bail.

Jogendra Singh (deceased) had three gunshot wounds of entry. The other deceased Dharmendra Singh had four gunshot wounds'' of entry and two other injuries, one of which abraded contusion and the other of amputation of phallanx. The occurrence is said to have taken place at about 5.30 p.m. on 3171989. Annexures "S1 and" "S2" to the supplementary affidavit show that two witnesses Mangal Singh and Har Prasad have filed affidavits stating that they had not seen the occurrence. The facts on records show that the applicants surrendered in the court in last week of September, 1989. The Sessions Judge rejected the bail of the applicants on 17111989. The bail was moved in this Court on 18111989. The case diary was summoned on 7121989. The bail application of coaccused Rajveer Singh was rejected on 2551990. In July, 1990 the case diary was returned. Thereafter, the copies of the documents, as required under Section 207, Cr. P. C. were handed over to the accused persons. The case could be committed to the court of session only in December, 1990. From Annexure "6" to the affidavit filed in support of the application for cancellation of bail No. 1082 of 1911 moved by Harish Chandra against Rajveer Singh it transpires that upto 2511991 charges have not been framed in the Court of Session.

In this case, Rajveer Singh and Jugraj Singh are brothers. The applicants Dharam Singh and Ram Kumar are sons of Rajveer Singh. It therefore, transpires that four persons of one family are languistting in jail since September, 1989 and there appears to be no prospect of a speedy trial.

Learned counsel for the complainant has expressed a serious doubt that the applicants will not permit the case to proceed properly. Even Rajveer Singh, who was granted bail by me on 17121990, has stared absenting himself despite the direction of this Court that he shall appear before the Court on every date.

As regards the two persons, who had filed affidavits denying their presence at the spot, I have considered in my order dated 2651990 rejecting bail of Rajveer Singh. In this case, the occurrence is said to have taken place in a field. No doubt, two persons have lost their lives from the side of the victim. I feel that in this case, the applicants may be granted bail on imposition of certain conditions.

Let applicants Jugraj Singh, Dharma and Raj Kumar be released on bail in Crime No. 166 of 1989, under Sections 147/148/149/307/302, I. P. C., P. S. Etmadpur district Agra on their furnishing a personal bond in the sum of Rs. 7, 500/(rupees seven thousand five hundred) with two sureties each in the like amount to the satisfaction of C. J. M., Agra.

This bail is granted subject to this condition that they shall in no way threaten or terrorise the family of the deceased and shall also attend on every date before the lower court. The lower court shall be free to keep a watch over the conduct of the accused and if it feels that the accused are, in any way, hampering progress of the case or tampering with the evidence, then the matter may be reported to this Court with full particulars for necessary action.

Application granted.