Rajasthan Marudhara Gramin Bank vs Kheem Singh Rathore

The instant third application for bail under Section 439 Cr.P.C. has been filed on behalf of the petitioner Pankaj Damor, who was arrested on

2.10.2016 in connection with FIR No.182/2016 P.S. Sadar, District Dungarpur for the offences under Sections 302, 364, 394, 397, 347, 201 and 120B

IPC.

The second bail application of the petitioner Pankaj Damor came to be rejected by this Court vide order dated 6.10.2018.

Brief facts relevant and essential for disposal of the instant third application for bail are noted hereinbelow.

One Pinkesh Suthar (hereinafter to be referred to as 'the deceased' for short) went missing on 6.9.2016 whereupon, his father Ramesh Chandra

lodged a Missing Report at the Police Station Sadar, Dungarpur on 8.9.2016. The dead body of Pinkesh was recovered from a river, lying in the

jurisdiction of the Police Station Rishabhdeo on 30.9.2016 whereupon, Shri Ramesh Chandra lodged a report at the Police Station Sadar, Dungarpur on

the basis whereof, F.I.R. No. 182/2016 came to be registered for the offences under Sections 364, 302, 392 and 201 IPC against unknown assailants.

During the course of the investigation, the Investigating Officer collected call details etc. by the strength whereof, finger of suspicion pointed towards

the petitioner Pankaj Damor, Sachinpuri Goswami, Sohan Padmat and Nilesh Suthar.

Accordingly, all these persons were arrested and were charge-sheeted after investigation. As per the charge-sheet, the entire case of prosecution is

based purely on circumstantial evidence.

While the accused petitioner was incarcerated at the sub-jail Dungarpur, he submitted an application to the Superintendent of Police, Dungarpur

stating therein that he was desirous of divulging the truth and turning State's witness. Upon this application, proceedings were taken under Section 306

Cr.P.C. and the petitioner herein was granted pardon and made an Approver in the case. Since his arrest on 2.10.2016, the petitioner continues to be

in custody. During the course of the trial, the petitioner was examined as P.W.5. He supported the prosecution story to the hilt and underwent

prolonged cross-examination conducted by the defence counsel without faltering.

While rejecting the second application for bail filed on behalf of the petitioner herein by order dated 6.10.2018, this Court requested the trial court to

try and decide the trial within a period of one year from the date of receipt of copy of the order. However, the proceedings seem to have stagnated at

the stage of defence evidence whereupon, the instant third application for bail has been moved on behalf of the petitioner Pankaj Damor.

Shri Umesh Shrimali Advocate representing the petitioner drew the Court's attention to the ordersheets of the trial court, which reflect that the

prosecution evidence was closed on 6.12.2019. Statements of the accused under Section 313 Cr.P.C. were recorded on 3.3.2020 and thereafter,

proceedings of the trial have stagnated because of the stalement created by the Covid pandemic. Mr. Umesh Shrimali placed reliance on a Full Bench

Judgment rendered by this Court in the case of Noor Taki @ Mammu Vs. State of Rajasthan reported in AIR 1987 Raj.52 and another judgment

dated 15.7.2020 rendered by High Court of Chhittisgarh, Bilaspur in Criminal Misc. Petition No.846/2020 ""Rajkumar Sahu Vs. State of Chhattisgarh

and urged that though an Approver 'stricto senso' is not an accused and thus, procedure of Section 439 Cr.P.C. cannot be availed so as to release him

on bail, but as per Mr.Shrimali, the inherent powers conferred upon this Court under Section 482 Cr.P.C. can very well be exercised to enlarge the

Approver i.e. the petitioner herein on bail.

He urged that the petitioner has honoured his part of the bargain, inasmuch as, after being pardoned, he has supported the case to the hilt when

examined on oath as a witness for the prosecution and thus, there is no reason justifying his further incarceration in prison. He further submitted that

the petitioner's life is at constant risk at the hands of the other accused persons because he has testified against them as an Approver. He thus, urged

that it is a fit case for enlarging the petitioner on bail during the remainder of the trial by taking recourse of this Court's inherent powers under Section

482 Cr.P.C.

Shri Farzand Ali, learned Addl. Advocate General assisted by Shri A.R. Choudhary, learned Public Prosecutor though fervently opposed the

submissions advanced by the petitioner's counsel but he too is not in a position to dispute the fact that the petitioner has honoured his part of the

bargain under Section 306 Cr.P.C. by testifying against the accused persons in form of an Approver.

I have given my thoughtful consideration to the arguments advanced at the bar and have gone through the material available on record.

The petitioner was arrested as an accused in this case on 2.10.2016 and is incarcerated in prison for the last 4 years and 2 months. Upon his

application to turn State's witness, he was granted pardon by the competent court under Section 306 Cr.P.C. and was made an Approver. The

petitioner has honoured his side of the bargain by testifying against the co-accused persons. On going through the statement of the petitioner, it is

explicit that he withstood exhaustive cross-examination undertaken by the defence. Needless to say that provisions of Section 439 Cr.P.C. would not

apply to the case of the petitioner because he is not an accused any longer after having been tendered pardon under Section 306 Cr.P.C. However,

the following observations made by the Full Bench of this Court in the case of Noor Taki @Mammu (supra) cover the controversy involved in the

case at hand on all fours:

Taking the second point first, there is no question of holding whether Section 306(4)(b) is directory or mandatory as there is no specific provision

in the entire Cr.P.C. which gives a right to the approver to apply for bail. As mentioned above Section 439, Cr.P.C. does not apply to an approver. It

applies only to 'a person accused of an offence'. An approver when once granted pardon, no more remains an accused unless he violates the

conditions of pardon and subsequently tried for the offence. Hence as an approver his status is that of witness and not that of the accused. That being

so; Section 439, Cr.P.C. would not apply and consequently the discussion on the point whether Section 306(4)(b) is directory or mandatory, is merely

an academic exercise and that too in futility. So far as the provision of Section 439, Cr.P.C. being violative of Article 21 of the Constitution, suffice it

to say that argument has been advanced only to be rejected. Approver, as a matter of right, cannot claim bail and as mentioned above there is no

provision granting him bail. We have already discussed above the reasons which appear to us persuaded the Legislature not to make a provision for

granting bail to an approver. But Article 21 of the Constitution can be looked into for seeking an aid to the contention that the scope of inherent

powers of this Court should be so explained so as to cover the cases of an approver for consideration of bail in proper cases. In Francis Coralis

Mullin's case (1981 Cri LJ 306) (SC) (supra), their Lordships of the Supreme Court defined the scope of Article 21 of the Constitution. In that case

the petitioner had challenged his detention under COFEPOSA Act and an argument was advanced challenging the constitutional validity of certain

clauses of the detention order. Their Lordships held, ""It is not enough to secure compliance with the prescription of Article 21 that there should be a

law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be

reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Article 21. This Court expanded the scope and ambit of

the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of

Fundamental Rights....

The position now is that Article 21 as interpreted in Maneka Gandhi's case (supra) required that no one shall be deprived of his life or personal liberty

except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the

Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by

procedure, which is reasonable, fair and just or it is otherwise.

In Kadra Pehadiya's case (1981 Cri LJ 481) (SC) (supra), Hon'ble Mr. P. N. Bhagwati, J. (as he then was) sitting with Hon'ble A. P. Sen, J.

considered a letter dt. Nov. 28, 1980 addressed by one Dr. Vasudha Dhagamwar, a researcher and Social Scientist working in the Santhal Parganas

of the State of Bihar. It represents one more instance of the utter callousness and indifference of our legal and judicial system to the undertrial

prisoners languishing in the jails. Their Lordships before issuing the notice passed a detailed order and considered the scope of Article 21 of the

Constitution and held ""We fail to understand why our justice system has become so dehumanised that lawyers and judges do not feel a sense of revolt

at caging people in jail for years without a trial. It is difficult to comprehend how the Sessions Judge could have forgotten that he had called the

petitioners to the Court for commencement of the trial on 30th Aug., 1977 and thereafter done nothing in the matter.

Their Lordships referred to Hussainara Khatoon's case (1979 Cri LJ 1036) (SC) (supra) wherein it has been held that speedy trial is a

fundamental right of an accused implicit in Article 21 of the Constitution. Hussainara Khatoon's case, which has been reported in AIR 1979 SC 1377 :

(1979 Cri LJ 1052) is a landmark in judicial history of this country. Cases of several undertrial prisoners, who are languishing in jail for years together,

were considered. Some of them were such where the undertrial prisoners had remained in jail without trial for periods which are longer than the

maximum term for which they would have been convicted. They were directed to be released even without obtaining a bail bond. His Lordship Mr.

Justice Bhagwati speaking for the Court, said :

We fail to see what moral or ethical justification could the State have to detain these unfortunate persons for such unreasonably long periods of time

without trial. We feel a sense of relief that they should once again be able to breathe the air of freedom. But we find that there are still many more

undertrial prisoners who fall within this category of persons who have been in detention for periods longer than the maximum term without their trial

having been commenced.

There are 59 undertrial prisoners whose names and particulars are set out in this chart and we direct that they should be released forthwith as their

continued detention is clearly illegal and in violation of Article 21 of the Constitution.

A perusal of the aforesaid cases coupled with that of many other cases, like that of Sunil Batra v. Delhi Administration: 1980 Cri LJ 1099 : (AIR

1980 SC 1579), and yet another case of Hussainara Khatoon reported in AIR 1979 SC 1360 : (1979 Cri LJ 1036), we have no hesitation in holding that

detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Article 21 of the

Constitution. Reasonable expeditious trial is warranted by the provisions of the Criminal Procedure Code and in case this is not done and an approver

is detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, this Court has always power

to declare his detention either illegal or enlarge him to bail while exercising its inherent powers. Section 482. Cr.P.C, gives wide power to this Court in

three circumstances. Firstly, where the jurisdiction is invoked to give effect to an order of the Court. Secondly if there is an abuse of the process of

the Court and thirdly, in order to secure the ends of justice. There may be occasions where a case of approver may fall within latter two categories.

For example in a case where there are large number of witnesses a long period is taken in trial where irregularities and illegalities have been

committed by the Court and a re-trial is ordered and while doing so, the accused persons are released on bail, the release of the approver will be

occasioned for securing the ends of justice. Similarly, there may be cases that there may be an abuse of the process of the Court and the accused

might be trying to delay the proceedings by absconding one after another, the approver may approach this Court for seeking indulgence. But this too

will depend upon the facts and circumstances of each case. Broadly, the parameters may be given but no hard and fast rule can be laid down. For

instance, an approver, who has already been examined and has supported the prosecution version, and has also not violated the terms of pardon

coupled with the fact that no early end of the trial is visible, then he may be released by invoking the powers under Section 482, Cr.P.C. Section 482,

Cr.P.C. gives only power to the High Court. Sessions Judge cannot invoke the provisions of the same. High Court therefore in suitable cases can

examine the expediency of the release of an approver. We are not inclined to accept the contention of the learned Public Prosecutor that since there

is a specific bar under Section 306(4)(b), Cr.P.C., Section 482, Cr.P.C., should nut be made applicable. Their Lordships of the Supreme Court have

said in limes without number, that there is nothing in the Code to fetter the powers of the High Court under Section 482, Cr.P.C. Even if there is a bar

in different provisions for the three purposes mentioned in Section 482, Cr.P.C., and one glaring example quoted is that though Section 397 gives a bar

for interference with interlocutory orders yet Section 482, Cr.P.C. has been made applicable in exceptional cases. Second revision by the same

petitioner is barred yet this Court in exceptional cases invokes the provisions of Section 482, Cr.P.C. Therefore. Section 482, Cr.P.C. gives ample

power to this Court. However, in exceptional cases to enlarge the approver on bail, we answer the question that according to Section 306(4)(b),

Cr.P.C. the approver should be detained in custody till the termination of trial, if he is not already on bail, at the same time, in exceptional and

reasonable cases the High Court has power under Section 482, Cr.P.C., to enlarge him on bail or in case there are circumstances to suggest that his

detention had been so much prolonged, which would otherwise outlive the period of sentence, if convicted, his detention can be declared to be illegal,

as violative of Article 21 of the Constitution.

In wake of the discussion made above, I am of the firm opinion that it is a fit case warranting exercise of inherent powers conferred upon this Court

by Section 482 Cr.P.C. so as to enlarge the petitioner on bail during the remainder of the trial.

Thus, while not considering the application of the petitioner for bail under Section 439 Cr.P.C. to be maintainable, I hereby exercise the inherent

powers conferred upon the High Court by virtue of provisions of Section 482 Cr.P.C. and direct that the petitioner Pankaj Damor, arrested in

connection with FIR No.182/2016 P.S. Sadar, District Dungarpur shall be released on bail upon furnishing a personal bond in the sum of Rs.80,000/-

and two sureties in the sum of Rs.40,000/- each to the satisfaction of the trial court with the stipulation to appear before that Court on all dates of

hearing and as and when called upon to do so.

Considering the fact that the petitioner has testified against the co-accused persons, the Superintendent of Police, Dungarpur is directed to ensure that

appropriate security is provided to the petitioner.

With the above directions, the instant third application for bail is disposed off.