Rakesh Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely, Rakesh Kumar, who is behind the bars since 10.10.2023, has approached this Court in the instant proceedings filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, for grant of regular bail in case FIR No. 159 of 2023, dated 9.10.2023, registered at Police Station Jogindernagar, District Mandi, Himachal Pradesh under Ss. 201, 302, 376-D, 34 of IPC.

Respondent-State has filed status report and Investigating Officer has come present with record. Record perused and returned.

Perusal of the status report as well as record reveals that on 09.10.2023, police, upon receiving telephonic information from one Sanjay Kumar, son of Sh. Raju Ram, resident of Upper Aarthi, Tehsil Jogindernagar, District Mandi, Himachal Pradesh, to the effect that a woman was lying dead in the rain shelter near the approach road, immediately reached the spot and recorded the statement of the complainant, as named hereinabove, wherein he alleged that on 09.10.2023, while he was proceeding on foot to his shop at around 6:35/6:40 AM, he noticed a woman lying on the floor of the rain shelter in a naked condition. He further alleged that one scarf (dupatta) was found tied around the neck of the woman and she was dead. He also alleged that subsequently he came to know the name of deceased woman was Satya Devi, wife of Khem Singh. On the basis of the aforesaid complaint, an FIR under Section 302 IPC was registered against unknown persons. During the course of investigation, police checked CCTV footage from a camera installed outside a departmental/vegetable store owned by one Sh. Karan Singh and found that on 08.10.2023 at 11:34 PM, a pickup vehicle coming from Jogindernagar side had halted/stopped near the rain shelter at the approach road. It also revealed from the CCTV footage that four individuals alighted from the pickup and laid their bedding on the floor of the rain shelter. While the four persons were laying down their bedding on the floor of rain shelter, one lady i.e. deceased woman could also be seen standing nearby.

Deceased lady, after having crossed the road went inside the rain shelter. At around 11:53 PM, one SUV, came from Jogindernagar side, which after having crossed the rain shelter, turned back and asked the peoples sitting in the rain shelter that everything was fine or not. One people sitting in the rain shelter confirmed that there is nothing wrong, the SUV left the spot. Police contacted owner of the SUV, whose name came to be revealed as Parveen Kumar. Aforesaid Parveen Kumar in his statement recorded under Section 161 Cr.P.C., disclosed that on 08.10.2023, while he was going from Palampur to Harabag at around 11:50 PM, he noticed 2-3 persons sitting on the floor of rain shelter near the approach road. He alleged that three boys were lying on bedding, whereas one person was talking to deceased, while sitting. He also disclosed that when he had come back to rain shelter, he saw one pickup vehicle bearing the words “MAA BHADRAKALI” prominently written on its body. During the investigation, on 10.10.2023, police found pickup vehicle bearing registration No. HP-29-B-8911 at a place called Jimjima. The police summoned/called the owner of the vehicle along with his son for investigation. During the course of investigation, it transpired that said vehicle was being driven by Rakesh Kumar, present bail petitioner, who, on the previous night, had gone to Sarkaghat for collecting wood along with his friends, namely Shivam Kumar alias Sunny, Raj alias Gandhu, Akashay alias Isue, and Praveen Kumar. Though all the aforesaid persons were to go to Sarkaghat on 06.10.2023, but on that day, they did not go. On 07.10.2023 at around 5:00 PM, all the persons, as named hereinabove, along with the present bail petitioner, went towards Sarkaghat in pickup bearing registration No. HP-29-B-8911, which was being driven by present bail petitioner Rakesh Kumar. On 07.10.2023 and 08.10.2023, during the day time, persons sitting in the vehicle did the work of cutting and loading of wood. While they were going back to Jogindernagar on 08.10.2023 at around 7:00 PM, they purchased liquor from Jogindernagar, and when they reached near Bashidhar, Rakesh Kumar stopped his vehicle near the rain shelter, and they all consumed liquor there. At around 11:15 PM, the vehicle reached near the approach road, where co-accused Parveen Kumar alighted from the vehicle and went towards his house. Parveen Kumar told Rakesh Kumar that liquor had finished, whereafter Rakesh Kumar turned his vehicle towards Jogindernagar and purchased liquor. When vehicle being driven by the petitioner reached near the hospital, present bail petitioner made one girl sit in his car, and thereafter, they all reached near the approach road at around 11:35 PM. The persons sitting in the vehicle carried one mat and 3–4 blankets and proceeded towards the rain shelter, where they made their bedding. However, present bail petitioner Rakesh Kumar, along with the girl, who had boarded the vehicle near Jogindernagar went about 50 meters ahead towards some nalla. The deceased, who was already present near the rain shelter, also came into the rain shelter and started talking to a person namely Sunny Kumar alias Biju. The deceased, who had already consumed liquor, informed that she was a resident of Neri Langana and would board some truck. Accused Sunny Kumar alias Biju gave her one peg of liquor, and after consuming the same, she started crying. After a few minutes, bail petitioner came to the spot and told his friends that he had seen this lady before and she was an alcoholic. He further advised them to not stop her for long and after finishing the work send her. After the departure of the present bail petitioner from the spot, co-accused Sunny alias Biju pulled the said lady on the bedding made by him for himself and attempted to sexually assault her. The other persons also got excited, but when deceased raised an alarm, co-accused Shivam gagged her mouth with her dupatta. Another co-accused, Gandu, caught hold of the deceased, and when she resisted, co-accused gave one blow with his fist on her face. Thereafter, co-accused Sunny alias Biju forcibly attempted to sexually assault the deceased lady, but while doing the unlawful act, the head of the deceased struck the floor, as a result of which blood started oozing out of the same. Co-accused Sunny alias Biju and others, realizing that they may be in difficulty, wrapped a duptta around the neck of the deceased. Though accused present in the rain shelter firstly planned to throw the body of the deceased in nearby jungle, but since they were under the influence of liquor, could not lift the body of the lady and, as such, left the same in the rain shelter and fled away from the spot. After some time, Rakesh Kumar, who had gone approximately 50 meters ahead, came back and saw that one lady was lying on the floor of the rain shelter in a naked condition, but yet failed to inform the police. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the present bail petitioner as well as the other co-accused named above under Sections 201, 302, 376-D, and 34 of the Indian Penal Code. Since the day of lodging of the FIR, all the accused, including the present bail petitioner, are behind bars. Though the challan in the case stands filed before the competent court of law, charge is yet to be framed, and for that purpose, the court below has fixed the matter for 13.08.2025, petitioner herein has approached this Court for grant of regular bail on the ground of inordinate delay in conclusion of the trial.

Learned counsel representing the bail petitioner, while making this Court peruse the FIR as well as the charge sheet, vehemently argued that by no stretch of imagination petitioner can be said to be an accused for the offence punishable under Section 302 of the IPC, especially when it is an admitted case of the prosecution that at the time of the alleged incident petitioner was not present at the spot, rather he alongwith another girl had gone about 50 meters ahead near a nallah. He further submitted that it is not the case of the prosecution that at any stage, injury, if any, was caused by the petitioner or he made any attempt to sexually assault the deceased against her wishes, rather entire unfortunate incident was committed by other co-accused under intoxication. He further submitted that there is nothing on record to suggest that the petitioner and other co-accused had made any plan to rape the deceased, rather, it happened at spur of moment. He submitted that when bail petitioner Rakesh Kumar left other co-accused near the rain shelter, deceased was not present there, rather she came in the rain shelter after departure of Rakesh Kumar and as such, it cannot be said that there was common intention , if any, inter se all co-accused, especially present bail petitioner. Lastly, learned counsel for the petitioner submitted that since Court has not been able to frame charges for the last two years, there is every possibility of inordinate delay in conclusion of the trial, especially when the prosecution proposes to examine 55 witnesses.

While fairly admitting the factum with regard to filing of the challan in the competent Court of law, Mr. Rajan Kahol, learned Additional Advocate General, states that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by him, he does not deserve any leniency. While making this Court peruse the material adduced on record by the prosecution, learned Additional Advocate General contends that petitioner was also involved in the gruesome murder of the deceased lady, who had actually come to the rain shelter to take refuge during night hours. He submitted that since petitioner and other co-accused had consumed liquor at Jogindernagar and thereafter came towards the approach road, and the bail petitioner herein had dropped all co-accused near the rain shelter where the deceased lady was already present, it cannot be said that the petitioner had no knowledge with regard to the intention of the co-accused. He further submitted that though, at the first instance, bail petitioner had no occasion to see the deceased lady in the rain shelter, but when after some time he came back, he specifically told other co-accused that this lady is alcoholic and, as such, they may free her after doing their work, meaning thereby petitioner was also party to the gruesome murder of the deceased lady. Learned Additional Advocate General states that since petitioner is accused of a heinous crime punishable under Section 302 IPC, coupled with the fact that Section 34 IPC has also been incorporated, the prayer made on behalf of the petitioner for grant of bail deserves outright rejection. He further submitted that very intention of the petitioner to conceal/hide the crime can be well gauged and inferred from the fact that petitioner had seen the body of the deceased lying on the floor of rain shelter next morning, but yet he failed to inform the police, rather he called other co-accused, who subsequently after having noticed that police were verifying the record of CCTV camera installed near the approach road had planned to hide themselves in the nearby jungle.

Having heard learned counsel for the parties and perused material available on record, this Court finds that there is no dispute that at the time of alleged incident of rape and murder petitioner was not present in the rain shelter, rather he alongwith one girl had gone 50 meters ahead of site of the alleged incident and remained there whole night. Though, investigation reveals that petitioner had come back on the spot in the night and he had warned co-accused that this lady is alcoholic and as such, they should free her after doing their work, but such statement, if any, of him may not be sufficient to conclude common intention, especially on the part of the petitioner. As per own case of the prosecution, petitioner alongwith co-accused consumed liquor in Jogindernagar and thereafter, they all went to approach road. While going towards approach road, petitioner made one girl sit in his pickup, who at relevant time was standing near Jogindernagar hospital. All co-accused, save and except, present bail petitioner alighted near rain shelter whereas present bail petitioner alongwith girl, who had boarded the vehicle near Jogindernagar Hospital went towards nearby Nallah. There is nothing to suggest that bail petitioner had asked other co-accused to rape deceased lady, rather he had warned them by saying that this lady is alcoholic and they should free her after doing their work.

Factum with regard to rape and murder though came to the knowledge of the petitioner next morning, which he admittedly failed to inform nearby police, but that may not be sufficient to prove guilt of the petitioner under Section 302 IPC. Though, learned Additional Advocate General vehemently argued that petitioner was main conspirator and as such, he was booked under Section 34 of IPC, but once presence of the petitioner on the spot of incident is not admitted, rather as per own case of the prosecution petitioner was not present throughout night on the spot of incident and alleged incident of rape and murder was done by other co-accused, named hereinabove, it is not understood that how Section 34 IPC could have been invoked in the case of the petitioner.

Section 34 of IPC provides that when a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. No doubt, in the case at hand, criminal act has been done by several persons, but whether in furtherance of common intention of all, is a question to be decided by the competent court of law in totality of evidence led on record by the prosecution. There is no material, worth credence, led on record to suggests that prior to alleged incident there was meeting of mind of the accused, named in the FIR, with regard to alleged incident, rather as per own case of the prosecution deceased lady was standing near rain shelter when co-accused, named hereinabove, alighted from the vehicle being driven by present bail petitioner. Even person namely Parveen, who had stopped his SUV after seeing few persons sitting in rain shelter only mentioned about four people i.e. four boys and one lady. Since prior to reaching near rain shelter petitioner as well as other co-accused had no knowledge, if any, with regard to presence of deceased on the spot, it is not understood that how it can be concluded that there was a common intention of co-accused to do some criminal act, rather criminal act appears to have been happened at the spur of moment, while deceased lady also joined the company of co-accused in the rain shelter. Deceased lady firstly consumed liquor with the co-accused and then kept on sitting there till the time she was allegedly raped or given beatings by the co-accused.

By now, it is well settled that if a common intention is proved but no overt act is attributed to the individual accused, Section 34 of IPC will be attracted, as essentially it involves vicarious liability, but if participation of the accused in the crime is proved and a common intention is absent, Section 34 of IPC cannot be invoked. In other words, it requires a pre-arranged plan and presupposes prior consent, therefore, there must be a prior meeting of mind. Reliance in this regard is placed upon the judgment passed by the Hon'ble Apex Court in case titled Suresh Sakharam Nagare vs. The State of Maharashtra, JT 2012 (9) SCC 116. The common intention means a pre-orientated plan and acting in pursuance to the plan. The common intention must exist prior to the commission of the act in a point of time.The Hon'ble Apex Court in case titled Shyamal Ghosh vs. State of West Bengal, (2012) 7 SCC 646 held that burden lies on the prosecution to prove that the actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concept (See:-Mrinal Das & Ors vs. State of Tripura, AIR 2011 Supreme Court 3753).

In the case at hand, there is nothing to suggests that there was prior meeting of mind interse all co-accused including the present bail petitioner with regard to alleged criminal act, rather bail petitioner after having dropped other co-accused near rain shelter went towards Nallah, which was 50 meters ahead of the spot of incident with some girl. He only returned next morning by which time other co-accused had allegedly raped the deceased lady and murdered her. Since petitioner was not present on the spot and no evidence, worth credence, has been led on record to prove prior meeting of mind interse petitioner and other co-accused with regard to alleged incident, Section 34 of IPC could not have been invoked.

At this stage, learned Additional Advocate General invited attention of this Court to judgment dated 1.12.2023 passed by Hon'ble Apex Court Ram Naresh vs. State of UP¸ Criminal Appeal No. 3577 of 2023, to state that to attract Section 34 IPC, it is not necessary that there must be a prior conspiracy or premeditated mind, rather common intention can be formed even in the course of the incident i.e. during the occurrence of the crime. There cannot be any quarrel with the aforesaid proposition of law laid down by the Hon'ble Apex Court, but since in the case at hand very absence of the accused from the spot of the incident has been admitted by the petitioner, there is no question of forming common intention on the spot by the petitioner alongwith other co-accused. He also placed reliance upon the judgment passed by Hon'ble Apex Court in case titled Subed Ali and others vs. State of Assam, (2020) 10 SCC 517, to state that the foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility, by which, a person is held to be answerable for the acts of others with whom he shared the common intention. This Court does not find any reason to differ with aforesaid law laid down by the Hon'ble Apex Court, rather the same being correct interpretation of Section 34 IPC, is required to be followed scrupulously.

No doubt, while invoking principle of vicariously responsibility, person can be held answerable for the acts of others with whom he shared the common intention, but in the instant case, there is nothing to suggest that accused, named in the FIR, had common intention to rape the victim/prosecutrix and murder her, rather everything happened on spur of moment. Once petitioner herein was not present on the spot at the time of alleged incident, rather he had left the spot after dropping his friends and at that time deceased lady was not present there, formation of common intention at the spur of moment that too interse co-accused and the present bail petitioner cannot be inferred.

Recently, Hon'ble Apex Court in case titled Constable 907 Surendra Singh and another vs. State of Uttarakhand alongwith connected matter, Criminal Appeal No.355 of 2013, decided on 28.01.2025, held as under:-

“18. By now it is a settled principle of law that for convicting the accused with the aid of Section 34 of the IPC the prosecution must establish prior meetings of minds. It must be established that all the accused had preplanned and shared a common intention to commit the crime with the accused who has actually committed the crime. It must be established that the criminal act has been done in furtherance of the common intention of all the accused. Reliance in support of the aforesaid proposition could be placed on the following judgments of this Court in the cases of:

(i) Ezajhussain Sabdarhussain and another v.State of Gujarat (2019)14 SCC 339.

(ii) Jasdeep Singh alias Jassu v. State of Punjab (2002)2 SCC 545;

(iii) Gadadhar Chandra v. State of West Bengal (supra); and

(iv) Madhusudan and others v. State of Madhya Pradesh,2024 SCC online SC 4035.

It has been ruled in the aforesaid judgment that for convicting the accused with the aid of Section 34 of IPC, prosecution must establish prior meetings of minds. Most importantly, in the judgment referred hereinabove, it has been held that all the accused had preplanned and shared a common intention to commit the crime with the accused, who had actually committed the crime.

Reliance is also placed upon the judgment passed by Hon'ble Apex Court in Jasdeep Singh alias Jassu vs. State of Punjab (2022) 2 Supreme Court Cases 545, wherein it has been held as under:-

“24. Normally, in an offence committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offence consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.

The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.

There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offence. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.”

In the aforesaid judgment Hon'ble Apex Court has held that presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offence consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis. While interpreting word “furtherance” Hon'ble Apex Court has held that existence of aid or assistance in producing an effect in future is to be construed as “furtherance”.

It is also profitable to take note of judgment passed by Hon'ble Apex Court in Shreekantiah Ramayya Munipalli and others vs. State of Bombay, AIR 1955 S.C.287,wherein it has been held as under:-

“23.The section was expounded at length in paras 15 and 16 of the charge and though some of the illustrations given are on the right lines, there is much there that is wrong and which, if acted on, would cause a miscarriage of justice. The essence of the misdirection consists in his direction to the jury that even though a person “may not be present when the offence is actually committed” and even if he remains “behind the screen” he can be convicted under Section 34 provided it is proved that the offence was committed in furtherance of the common intention. This is wrong, for it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed. The antithesis is between the preliminary stages, the agreement, the preparation, the planning, which is covered by Section 109, and the stage of commission when the plans are put into effect and carried out. Section 34 is concerned with the latter.

It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act.”

In the aforesaid judgment Hon'ble Apex Court held that essence of Section 34 IPC is that the person was physically present at the actual commission of the crime. He may not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed.

For the discussion made hereinabove as well as law taken into consideration, this Court is not persuaded to agree with learned Additional Advocate General that on account of invocation of Section 34 IPC against petitioner, prayer made on his behalf for grant of bail in peculiar facts and circumstances, as detailed hereinabove, deserves to be rejected.

No doubt, petitioner is accused of heinous crime punishable under Sections 201, 302, 376-D, 34 of IPC, but guilty, if any, of him is yet to be established on record by leading cogent and convincing evidence.

In this regard, reliance is placed upon the judgment passed by this Court in Jeet Ram versus State of H.P., Latest HLJ 2003(HP) 23, wherein it has been held as under:-

“7. As is the case of the prosecution, the only role attributed to the accused persons is that they caught hold of the deceased and their co-accused Savitri and Bimla pelted stones at him and thereafter Bhupender gave him the fatal blow with a 'Draft'. Prima facie it is difficult to believe that when a person is caught hold of by three persons two other persons are pelting stones at him, then such person and those persons who have caught hold of him will not sustain any injury. Therefore, the version regarding pelt ing of stones and holding of the deceased is prima facie clouded by suspicion as none of the accused persons who are alleged to have caught hold of the deceased while co- accused Savitri and Bimla were pelting stones at the deceased did not receive any injury whatsoever and no injury caused by the pelting of stones was found on the per son of the deceased. Mere catching hold of the deceased by the accused persons may not necessarily lead to the conclusion that they haw the common object of killing the deceased as the applicability of Section 149, IPC, In the facts of the ease, is a debatable question.

In Thakar Singh v. State of Punjab, 1969 Cur LJ 810 (relied upon by the learned Counsel for the accused persons to substantiate his contention) wherein the case of the prosecution was that accused Niranjan Singh 10 caught hold of the deceased and fell him down and accused Thakar Singh throttled his neck, the Punjab and Haryana High Court held as under :

"........ It is not a case in which it can be legitimately contended on behalf of the prosecution that there was any pre-planned common intention on the part of both Niranjan Singh and his father Thakar Singh in throttling the deceased. There could be no such intention on the part of Niranjan Singh even in executing his act of catching hold of the boy by the arms and throwing him down on the ground. The act of throttling by Thakar Singh followed per se and was independent of the act of throwing the boy down by Niranjan Singh. Thus, there is no community of intention in the act performed by Niranjan Singh and that executed by Thakar Singh. The two are distinct ones and one has nothing to do with the other. No intention on the part of Niranjan Singh from his act could be inferred in common with the intention of throttling by Thakar Singh, which followed later on. It is not a case in which it could be held that throwing down was committed by Niranjan Singh in furtherance of the common intention of throttling by Thakar Singh. Thus, the applicability of Section 34 of the Indian Penal Code is uncalled for. Niranjan Singh appellant could not be held vicariously liable by virtue of that Section. This is additional ground of his being entitled to acquittal."

In Jaspal Singh v. State of Haryana, 1986 (2) Recent CR 582 (2) wherein one of the accused caught hold of the deceased while armed with a stick but did not cause any injury to the deceased whereas his co-accused caused injuries to the deceased which resulted in his death, the Punjab and Haryana High Court granted bail to the accused who had only caught hold of the deceased while on the following premise :

"Though the motive was with the petitioner and he caught hold of the deceased while armed with a stick, he did, not cause any injury to the deceased. Rather his co-accused did cause injuries to the deceased which resulted in his death. In this situation, applicability of Section 34 Indian Penal Code is a moot point. It would thus be apt that the petitioner gets the concession of bail."

In Kuldip Singh v. State of Punjab, 1994 (3) Rec Cri R 137 : (1994 Cri LJ 2201) (SC) where one of the accused inflicted the injury on the head of the injured with sharp edged weapon and the second accused gave 'Lathi' blow on his shoulder causing simple injury allegedly with the common intention of accused in an attempt to commit the murder of the injured, the Hon'ble Supreme Court held that the injury on the head of the injured was serious one and proved to be grievous, therefore, the offence under Section 307, I.P.C. is made out against Kuldip Singh who caused 11 such injury but in so far as the other co-accused is concerned, he inflicted only one blow on the shoulder with the 'Lathi' causing swelling, therefore, it could not be said that he shared the common intention along with the Kuldip Singh in attempt to commit the murder of the injured.”

“12.There is no doubt that offence punishable under Section 302, I.P.C. is a grave offence for which the extreme penalty of death has been provided in law. However, the mere gravity of the offence and the severity of punishment is no ground for rejection of bail, while deciding the question of grant or refusal of the bail, other factors such as the nature of evidence, the part played by the accused in the commission of the 6f-fence and the likelihood of the accused absconding or, tampering with prosecution evidence has also to be taken into account”.

Recently, Hon’ble Apex Court in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another, Criminal Appeal No.2787 of 2024, decided on 03.07.2024, adversely commented upon the approach of trial Court as well as High Court while considering the prayer for grant of bail. In the aforesaid judgment, Hon’ble Supreme Court having taken note of the fact that appellant in that case was in jail for last four years and Court till that date was not able to frame charges, proceeded to enlarge accused on bail in a case registered under the provisions of Unlawful Activities (Prevention) Act, 1967. In no uncertain terms, Hon’ble Apex Court in aforesaid judgment held that, however serious a crime may be, an accused has right to speedy trial, as enshrined in Article 21 of the Constitution of India. Relevant Paras of aforesaid judgment are reproduced herein below, which read as under:

“7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects:

(i) The appellant is in jail as an under-trial prisoner past four years;

(ii) Till this date, the trial court has not been able to even proceed to frame charge; and

(iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.

Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.

Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.

In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:

“What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."

The same principle has been reiterated by this Court in Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment.

Long back, in Hussainara Khatoon v. Home Secy., State of Bihar reported in (1980) 1 SCC 81, this court had declared that the right to speedy trial of offenders facing criminal charges is “implicit in the broad sweep and content of Article 21 as interpreted by this Court”. Remarking that a valid procedure under Article 21 is one which contains a procedure that is “reasonable, fair and just” it was held that:

“Now obviously procedure prescribed by law for depriving a person of liberty cannot be “reasonable, fair or just”unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of along delayed trial in violation of his fundamental right under Article 21.”

The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter the court re-emphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option:

“The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case maybe, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one,may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial.”

In  Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in 2023INSC 311, this Court observed as under:

“21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail,may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31stDecember 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the KeralaHigh Court in A Convict Prisoner v. State reported in 1993Cri LJ 3242, as “a radical transformation” whereby the prisoner:

“loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom,status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.”

There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal”(also see Donald Clemmer’s ‘The Prison Community’ published in 1940). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore,have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”

The requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008 (hereinafter being referred to as “the 2008 Act”) mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.

A three-Judge Bench of this Court in Union of India v. K.A. Najeeb reported in (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under : (SCC p. 722, para 17)

“17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed,both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings,the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safe-guard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

In the recent decision, Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973would apply:

“We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.”

Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents,juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, maybe, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article

21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.”

Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.

Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.

Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.

In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing personal bonds in the sum of Rs.2,00,000/- with two local sureties in the like amount to the satisfaction of the learned trial Court, besides the following conditions:

(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

(d) He shall not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.

A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.