Mohd.Bashir vs Saif Ali and Others

Arun kumar Goel, Judge.

This revision is filed by the complainant against the order passed by the learned Session Judge, Kathua on 18th May, 1998. By means of this

order respondents No. 1 to 4 were admitted to interim bail by the court below during pendency of the trial before it.

With a view to properly understand and appreciate respective submissions urged during the course of hearing few facts need to be noted.

Respondents are facing trial under sections 302, 341 read with section 34 RFC. This case is pending trial in the court of learned Session Judge,

Kathua. Parties were not at variance with respondents No. 1 to 3 were committed on 30/3/94, whereas against respondent No. 4 Ghami

proceedings under section 512 Cr. P. C. were initiated. Respondents No. 1 to 3 were charge sheeted on 4/7/94 under section 302 read with

sections 34/341 RPC and case was fixed for prosecution evidence from 21/9/94 to 24/9/94. It appears that on 23/9/94 Ghami respondent No. 4

was produced. Thereafter on 28/9/94 he was also charge sheeted. Since this date case has been going on for recording prosecution evidence.

Impugned order further indicates that there are 20 witnesses named in the challan by the prosecution. Till passing of the order granting bail on

18/5/98 11 witnesses had been examined. So much so even brother of the deceased had not been examined till that date. In this background it is

clear that respondents No.1 to 3 were in judicial lock up for about 4 years whereas respondents No. 4 was in judicial lock up for about 3 years.

This is one aspect of the case. Other aspect of the case is that whether any case for cancellation of bail has been made out or not by the

complainant especially when State has not filed any revision. In this regard it may be worthwhile to notice that after the case has been made out,

court is not powerless to order cancellation of the bail granted to th e accused like respondents No. 1 to 4. Some of the illustrative grounds are

that :

a) accused after having been admitted to bail are either threatening orterrorising prosecution witnesses from giving evidence in the court.

b) they are hampering progress of the prosecution case resulting in delay in the conclusion of the trial.

c) there is apprehension of either accused persons fleeing from the jurisdiction of the court or committing criminal offence again. There is nothing

that could be pointed out by Shri Gandhi learned counsel appearing for cancellation of the bail.

Rather the thrust of submission urged on behalf of the complainant was that evidence recorded clearly shows the involvement of the respondents

No. 1 to 4 in the commission of offences for which they had been charged. Though this position was seriously contested by Shri Adarsh Sharma

learned counsel for respondents No. 1 to 4. He further urged that trial of the case is being protracted by prosecution to ensure that under the guise

of pendency of the case, respondents No. 1 to 4. He further urged that trial of the case is being protracted by prosecution to ensure that under the

guise of pendency of the case, respondents No. 1 to 4 should be made to languish in jail.

Learned Government Advocate was not in a position to give any cogent muchless justifiable reason as to why prosecution evidence could not

be concluded. In this context it may also be noted here that copy of the order sheet dated 23/11/98 is attached herewith with Cr. M. P. No.

256/98. It indicates that even on 23/11/98 prosecution had not been able to conclude its evidence and one more and last opportunity was granted

for the said purpose when case was adjourned on 30/9/98. What is the stage of proceedings none of the. counsel were able to explain. Only

information provided was that case is listed on 28/7/99 before the court below.

So far right to life and liberty of accused like respondents No. 1 to 4 is concerned it is of paramount importance in view of the constitutional

guarantee provided under article 21 of the Constitution of India. In this context it may also be clarified that such liberty even in case of an accused

cannot be curtailed beyond certain reasonable limits that too under lawful authority. Accused like respondents No. 1 to 4 when are being tried for

any offence have a constitutional right as well as guarantee for expeditious trial to ensure that this guarantee is not defeated. In such circumstances

duty is enjoined upon the court to ensure that accused person is not kept in custody beyond what is just as well as necessary with a view to

complete expeditious trial in a criminal case. By protracting trial as in the circumstances of the present case, accused person cannot be permitted to

be kept in custody and thus his liberty curtailed, therefore, it is obvious that keeping respondents No. 1 to 4 in further custody would be nothing

but giving licence to the prosecution to keep them in judicial lock up without concluding trial within a reasonable time.

In this context ft may be worthwhile to notice here that in a given situation prosecution can have a valid and genuine ground being unable to

examine its entire evidence within a reasonable time. In such a situation court after examining all the circumstances can take a contrary view. No

such ground has been pointed out by the learned Government Advocate in the present case explaining the cause of delay.

For taking this view I am supported by 1991 Criminal Law Journal P. 1176 Gyan Prakash V/s. State of Rajasthan and 1986 Vol. III Crimes,

429, Muna alias Kanta Parshad and Another Versus State of Madhya Pardesh. A already observed there is nothing on the record to suggest that

there exists any ground for cancellation of the interim bail granted by the trial court. Similarly when a reference is made to the impugned order, it

can't be said that it suffers from either any illegality or impropriety calling for interference in these proceedings. On this ground also this revision

petition merits dismissal. Evidence has not been dealt with, lest it might prejudice either of the parties during the course of trial in the court below.

In view of the aforesaid discussion there is no merit in this revision petition which is accordingly dismissed.