Paramjeet Singh & Ors vs Ut Of J&K

Sanjay Dhar, J

1) The petitioners sought bail in a case arising out of FIR No. 70/2009 for offences under Section 302, 452 and 34 of RPC read with section 4/25 Arms Act registered with Police Station,Vijaypur, Samba

2) As per the case of the prosecution,on 10.08.2009 at about 7:30 pm while deceased Sat Pal Singh was standing in the shop of one Rinku S/o Janak Singh, the accused/petitioners, who were having previous enmity with the deceased, came over there and started abusing him. When the deceased objected to it, the accused/petitioners gave a beating to him, whereafter at about 10:30 pm, they entered the residential room of deceased Sat Pal Singh. He was beaten up by accused/petitioners with fists and blows whereas the petitioner-Ram Singh inflicted blows of Kirch (sharp edged weapon) in his stomach and chest, as a result of which the deceased received fatal injuries. The police registered the aforesaid FIR and conducted investigation of the case, whereafter charge sheet against the petitioners/accused was laid before the Court on 26.10.2009. Vide order dated 06.05.2011, the trial court framed charges for offences under section 302, 452, 34 of RPC and 4/25 Arms Act against the accused/petitioners and they were put to trial.

3) The accused/petitioners have sought bail only on the ground of their long incarceration by contending that their right to speedy trial stands violated. According to the petitioners, they are in custody for the last more than thirteen and a half years but the trial against them has not concluded as yet. It has been submitted that there is no likelihood of completion of trial in near future, as such, the petitioners deserve the concession of bail.

4) The respondent-State has resisted the bail application by filing a reply thereto. According to the respondent, the petitioners are involved in serious offences and there is enough material on record in the shape of evidence led before the trial court to connect them with the alleged crime. It has been further submitted that there is likelihood of the petitioners interfering with the prosecution witnesses. The respondent has also produced nominal roll of the petitioners.

5) I have heard learned counsel for the parties and perused the record of the case including the trial court record.

6) Mr. R. K Kotwal, learned counsel appearing for the petitioners, has contended that speedy trial is a fundamental right of an accused and once this right is violated, the accused is entitled to concession of bail. In this regard, the learned counsel has relied upon the judgment of the Supreme Court in the cases of Sonadhar vs. Stateof Chhattisgarh. 2002 LiveLaw (SC) 788 as also the judgment of this Court in Manzoor Ahmad Mir vs. UT of J&K (Bail App No.109/2022 decided on 30.12.2022). Reliance has also been placed on order dated 30.11.2021 passed by the Supreme Court in the case of Baljinder Singh @ Gogi vs State of Punjab (Special Leave to Appeal (Crl.) No.7322/2021).

7) Learned counsel appearing for the respondent-State has contended that the petitioners are involved in a heinous offence and there is enough evidence on record to prima facie show their involvement in the alleged crime, as such, rigour of Proviso (1) to Section 437 of the Criminal Procedure Code is attracted to the instant case because the offences alleged to have been committed by the petitioners carry maximum punishment of death sentence.

8) A perusal of the record shows that the petitioners have been arrested in the instant case in August, 2009 and they continue to be in custody till date. However, in between they have been enlarged on temporary bail for a few days ranging from five to twenty eight days. The record further reveals that 22 witnesses have been cited in the challan and at the time of filing of the instant bail application, one witness, Investigating Officer of the case was yet to be examined.

However, during the pendency of the instant bail application, the statement of the Investigating Officer has also been recorded and, as such, the evidence of the prosecution has been completed. The case has now been set down for recording the statements of the accused/petitioners under Section 342 of J&K Cr. P. C.

9) As already noted, the petitioners are facing trial in a murder case which carries maximum punishment of death sentence, therefore, rigour of Proviso (1) to Section 437 of J&K Cr. P. C is attracted to the instant case. The said rigour is applicable even to a case where the Court is considering an application for grant of bail in terms of Section 439 of the Cr. P. C. However, this should not detain us because in the instant case, the petitioners are not seeking bail on merits. Therefore, this Court has not to analyze the evidence on record for the limited purpose of determining the prima facie involvement of the petitioners in the alleged crime. The only question which is required to be decided is as to whether in a case which carries maximum punishment of death sentence, long incarceration of an accused during trial would offer him a ground for grant of bail.

10) The aforesaid question has been a matter of discussion before the Supreme Court in a number of judgments including Hussainara Khatoon vs. Home Secretary, State of Bihar, (1980) 1 SCC 81, Supreme Court Legal Aid Committee vs. Union of India, (1994) SCC 731,Umarmia vs. State of Gujarat, (2017) 2 SCC 731, Union of India vs. K. A. Najeeb, (2021) 3 SCC 713,Ashim alias Asim Kumar Haranth Bhattacharya vs. National Investigation Agency, (2022) 1 SCC 695 and Jagjeet Singh & Ors. Vs. Ashish Mishra @ Monu & anr. 2021 LiveLaw (SC) 376.

11) The ratio laid down in all he aforesaid judgment of the Supreme Court has been analyzed by this Court in the case of Manzoor Ahmad Mir (supra). Para 15 of the said judgment is relevant to the context and the same is reproduced as under:

“15. From the foregoing enunciation of the law laid down by the Supreme Court, it becomes clear that long incarceration of an undertail without any likelihood of conclusion of trial in near future infringes upon the right of speedy trial of such undertrial. While the Supreme Court has, in some cases, gone to the extent of quashing the trial itself but consistent view of the Supreme Court has been that in case the delay in conclusion of the trial amounts to oppression or harassment, the Court can interfere in such situations and grant bail to an accused in a heinous crime like murder also. While doing so, the Court has to take into consideration several factors like, length of delay, the justification for the delay, the accused's assertion of his right to speedy trial, and prejudice caused to the accused by such delay. It is also clear that the Criminal Courts are not obliged to terminate the trial or criminal proceedings only on account of lapse of time and acquit the accused but in appropriate cases, the Court can grant appropriate relief or suitable directions in favour of the accused. Thus, in deciding bail applications, one of the important factors which should be taken into account is the delay in concluding the trial. If an accused is denied bail but is ultimately acquitted, nobody is going to compensate him for the period he has spent in custody. Therefore, long incarceration of an accused may not be by itself a ground for grant of bail but it certainly becomes a ground for grant of bail to an accused, if the delay in conclusion of trial is attributable to the prosecution.”

12) In the light of foregoing legal position, let us now analyse the facts of the instant case that are emanating from the trial court record. As already noted, the challan in the instant case has been filed on 08.10.2009 and the charges were framed on 06.0.2011. Thus, trial of the case is pending for the last about 12 years and the petitioners are in custody for about thirteen and a half years. The trial court record further reveals that the delay in conclusion of the trial is attributable to the acts of omission and commission of the prosecution and not due to the conduct of the defence. This is clearly reflected in the observations made by the trial court in its various interim orders. Some of these orders, which are relevant to the context, are reproduced as under:

02.03.2018:

Special PP is not present today and on his behalf Sh. Rahul Parihar Advocate is present. He has stated that Ld. SPP is busy in Hon’ble High Court.

Accused are present in custody. Ld. Defence Counsel is also present. No prosecution evidence is present today. The accused are facing trial in this case since October 2009 and previously the case was being tried before the Court of pr. Sessions Judge Samba where after it has been transferred to this Court in 2015. Prosecution has listed 22 witnesses in total but in these years these witnesses could not be produced and the evidence has not been concluded during these 09 years.

31 05 2018

Spl PP for the state

Accused present in custody

Ld Counsel for the accused

No prosecution witness is present. Since the fresh particulars of PW-2 have not been provided by the prosecution despite directions, as such, said witness shall be produced by the prosecution at their own. No reason has been shown by the prosecution for non-production of the witnesses. Delay in the trial is because of the conduct of the prosecution who are not producing the witnesses in this case regularly. Prosecution seeks further opportunity to produce the witnesses They shall produce witnesses positively on the next date of hearing. ln case of the failure of the prosecution to produce the witnesses or to show any reasonable ground for non-production of witnesses appropriate order shall be followed.

31.10.2018

Spl. PP is not present. Accused are present in custody. Ld. Defence counsel is also present. No PW is present today. Notices were sent to PWs 16 & 17 for recording their statements. Notices have been received back unserved on the ground that the said witnesses could not be served.

Perusal of the record reveals that statement of PW-17 has already been recorded on 14.09.2018. Total number of witnesses listed in this case are 22, out of which only 15 witnesses have been examined so far, though number of opportunities have been given to the Spl. PP to produce the witnesses. Assistance was also provided by issuing notices but same have not been executed. This case is pending trial since October 2009 and during these years the prosecution has totally failed to produce all these witnesses. The conduct of the prosecution makes it clear that they are interested in delaying the trial of this case and they are not interested in the conclusion of the trial. Witnesses who have not been examined so far are PW-12,L6,18,2O, 2! and 22. SSP Jammu is directed to produce all these witnesses. He shall also direct the investigating officer to be present on the next date. CPO is directed to serve copy of this order upon the SSP Jammu. ln case of failure of production of these witnesses by him appropriate order shall follow. Accused are remanded back to Judicial Custody. Matter to come up on 06.11.2018.

11.09.2019

Ld. PP for the State. Accused present in custody. No PW is present. This case is pending since October, 2009. This case was previously tried by the Ld. Principal Sessions Judge, Samba and has been transferred to this Court in August, 2015. Statement of PW Vikram Singh and that of I.O is to be recorded in this case. Prosecution was directed to produce I.O and PW Vikram Singh but prosecution has failed to produce witnesses and no reason has been shown for non-production of these witnesses by the prosecution. It appears that the I.O is intentionally avoiding appearance in the Court. Let bailable warrant be issued for securing his presence. Warrant be sent to the DIG Jammu, who shall execute the same. The I.O shall appear in person on the next date of hearing and he shall also produce PW Vikram Singh. Accused are remanded back to judicial custody and shall be produced on the next date of hearing. Put up on 27.09.2019.

13) The afore-quoted interim orders passed by the trial court clearly exhibit callous and non-cooperative attitude of the prosecution in conclusion of the trial. The interim orders passed by the trial court reveal that the trial court had to struggle even to secure the presence of police witnesses and the Investigating Officer. In a scenario where even the officials of the police department who are under an obligation to extend cooperation in achieving the object of speedy trial, fail to discharge their obligation, it is almost impossible for a Criminal Court to achieve the said objective. In such circumstances the only option available with the Court is to enlarge the accused on bail, though a constitutional Court may in deserving cases even go to the extent of quashing the trial itself.

14) Instant case is a classic example of protraction of trial by the prosecuting agency, thereby defeating the fundamental right to speedy trial of the accused/petitioners. This entitles them to grant of bail, even though they are implicated in an offence which carries maximum punishment of death sentence. This is so because not only the accused/ petitioners have undergone custody of about thirteen and a half years during the trial of this Court but having regard to the conduct of the prosecution, it may not be possible for the trial court to conclude the trial court which includes recording of the defense evidence, in near future.

15) For the foregoing reasons, I find this a fit case where the petitioners have carved out a case for grant of bail on account of their long incarceration of about thirteen and a half years and the delay in completion of trial, which is attributable to the prosecution.

16) Accordingly, the petitioners are directed to be released on bail subject to the following conditions:

(I) That they shall furnish personal bonds along with two local sureties in the amount of Rs.1,00,000 (rupees one lac) each to the satisfaction of the trial court;

(II) That, in case they have passports, they shall surrender the same before the trial court and they shall not travel out of the Union Territory of Jammu and Kashmir without permission of the trial court;

(III) That they shall not indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial;

(IV) That they shall appear before the trial Court on each and every date of hearing;

17) The application stands disposed of in above terms.