Sobha Ram alias Jugunu vs State of U.P.

Surya Prasad, J.—This is the Second Bail application. The first bail application was rejected on merits vide order dated 24-1-91.

The learned Counsel Sri Dileep Kumar for the Applicant accused and the learned Counsel Sri Umesh Chandra Misra for the complainant have drawn the attention of the Court to what has happened in he State v. Sobha Ram Session Trial No. 173 of 1990 to which this bail application relates Therefore the relevant facts are briefly stated as under

The case was committed to the Court of Sessions Judge, Etawah by the learned Chief Judicial Magistrate, Etawah and the same was ordered to be registered in the court of the Sessions Judge vide order dated 6 7-90 On 17-7-90 the learned Sessions Judge transferred the Sessions Trial to the learned IV Addl. Sessions Judge, Etawah for disposal on 25-7-90 the date already fixed by the learned Sessions Judge vide order dated 17-7-90, the Applicant accused moved an application for adjournment. Consequently the case was adjourned to 10-8-90 for charge. On that date the Applicant accused moved an application for adjournments which was allowed and the case was adjourned to 18-8-90 on which date also it was adjourned to 25-8-90 at the instance of the Applicant accused. On that date the case was adjourned to 1-10-90 on the application of the Applicant accused. The Presiding Officer was on leave on 1-10-90 and, therefore 23-10-90 was fixed for charge. On that date the Applicant accused moved an application for adjournment. Consequenty the case was adjourned to 31-10-90 on which date the lawyers were on strike. Therefore 9-11-90 was fixed for charge On that date also the case was adjourned to 15-11-90 on the application of the Applicant accused. On 15-11-90 the case was adjourned to 23-11-90 on his application. On 23-11-90 the case was adjourned to 27-11-90 on his application On that date the case was adjourned to 5-12-90 on the application of the Applicant accused. on that date the case was adjurned to 20-12-90 on his application. The Applicant accused moved an application on 20-12-90 which was ordered to be put up for disposal on 4-1-91.

It is clear from a copy of the order-sheet dated 14-1-91 that a false affidavit was filed on behalf of the Applicant accused. The charge was however framed on that date and 8-2-91 was fixed for prosecution evidence. On that date the Presiding Officer was on leave. On 14-2 91 the application for parole was rejected. On 8-3-91 it was found that the summons was not served on the complainant/informant Consequently 29-3-91 was fixed for evidence. The Presiding Officer was busy within the inspection on that date and, therefore 25-4-91 was fixed for evidence on that date none of the prosecution witnesses was present and, thereforc 16 5-91 was fixed for evidence. The lawyers were on strike on that date and, therefore 21-6-91 was fixed for evidence. On that date the witnesses were present. The case was however adjourned on 21-6-91 to 19-7-91 and 20-7 91 for evidence on the application of the learned Counsel for the Applicant accused. The Presiding Officer was also on leave upto 10-7-91 as is clear from the order dated 21-6-9l.

It is not out of place to mention that Hon''ble Court passed an order on 12-7-91 on the instant II Bail application directing the learned Addl. Sessions Judge to examine the eye witnesses on 19 and 20 July 1991 and to continue to examine other witnesses on day today basis unless and until the evidence was concluded. On 19-7-91 the prosecution started examining a witness named Pradeep Dubey (PW 1) and in the course of examinstion-in-- chief itself the case was adjourned to 7-8-91 for further examination-in-chief and cross examination. On that date his cross examination was not concluded and therefore 8-8-91 was fixed for the same. On that date the case was adjourned to 16-8-91 on the application of the Applicant accused.

It is on 17-8-91 that the learned IV Addl. Sessions Judge, Etawah wrote a letter to the learned Sessions Judge, Etawah expressing therein his doubt about his jurisdiction to decide the above Session trial and, therefore he requested him to transfer the same from his court to the court of Special Judge (Dacoity Affected Area) Etawah or to forward his application to the Hon''ble High Court so as to enable the court to transfer the said Session trial to the court of Special Judge (Dacoity Affected Area). The learned Sessions Judge directed him vide his order dated 19-8-91 to pray direct to the Hon''ble High Court for transfer of the Session Trial particularly in view of the Hon''ble Court''s order dated 12-7-91 already referred to above. Consequently the learned IV Addl. Sessions Judge referred the matter to the Hon''ble Court vide his letter dated 19-8-91.

The learned Counsel Sri Dileep Kumar for the Applicant accused has vehemently argued that the Applicant accused had a right to speedy trial but the matter relating to jurisdiction has been referred to the Hon''ble Court and it is not certain when the reference will be decided by the Hon''ble Court and, therefore there is no likelihood of the Session trial being concluded by the trial court in the near future. He has for this purpose placed reliance upon Abdul Rehman Antulay v. R. S. Nayak 1991 4 SCR 59. In Para 54 of this judgment the Hon''ble Supreme Court has made the following propositions:--

In view of the above discussion, the following propositions emerge, meant to serve as guidelines We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are ;

Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

Right to speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.

The concerns underlying the right to speedy trial from the point of view of the accused are:

(a) The period of remand and pre conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly (sic) investigation, inquiry or trial should be minimal ; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non availability of witnesses or otherwise.

At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non availability of witnesses disappearance of evidence by lapse of time really work against the interest of the prosecution of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is who is responsible for the delay ? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that proceedings is not a frivolous. Very often these stays obtained on exparte representation.

While determining whether undue delay has occurred (resulting in violation of Right to Speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work- load of the court concerned, pevailing local conditions and so on what is called, the systemic delays, It is true that it is the obligation of the State to ensure a speedy trial and State, includes judiciary as well but a realistic and practical approach should be adopted in such matters instead of a pedantic one.

Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powall. L. in Barker "It cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate" The same ideal has been stated by White J. in U.S. v. Ell 15 LE 627, in the following words:

The sixth amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderely expedition, rather than mere speed, as its essential ingredients, and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.

However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.

We cannot recognize or give effect to what is called ''the demand'' rule. An accused cannot try himself ; he is tried by the court at the behest of the prosecution. Hence, an accused''s plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily it would be a plus point in his favour but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.

Ultimately, the court has to balance and weigh the several relevant factors-''balancing test'' or balancing process''-and determine in each case whether the right to speedy trial has been denied in a given case.

Ordinarily speaking, where the court comes to conclusion that Right to speedy trial of an accused has been infringed the charges or the conviction. as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded-as may be deemed just and equitable in the circumstances of the case.

It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case complaint of denial of Right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U.S.A. too has repeatedly refused to fix any such outer time limit inspite of the sixth Amendment. Nor do we think that no fixing any such outer limit ineffectuates the guarantee of Right to speedy trial.

An objection based on denial of Right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.

The learned Counsel Sri Umesh Chandra Misra for the complainant has, on the other hand, argued that the delay caused by the accused himself cannot be the sole ground for granting bail. He has, for this purpose, relied upon a Division Bench case Pappu alias Ashok Kumar Singh v. tate of U.P. 1991 AWC 1130. In para 25 of this case the following observations have been made:

The principle which can be called out from the provisions of the statute and the law laid down by the Supreme Court is that in serious offences like murder, dacoity etc. or those which are punishable with sentence of death or imprisonment of life, delay in committal or trial cannot be the sole ground for granting bail Besides delay of nine months or one year or so is not such a delay which may entitle an accused to claim bail on the ground of violation his fundamental right of speedy trial as enshrined by Article 21 of the constitution A court hearing a bail application has to take into consideration various matters like nature and seriousness of offence, the actual role played by the Applicant in the commission of crime. the nature and quality of prosecution evidence, the possibility of the accused tampering with the prosecution evidence or witnesses in the event of being released on bail, the antecedents of the Applicant, i.e. whether he is habitual or has a criminological history, chances of his absconding and not being available for trial, the age of the Applicant and some times even his health, the interest of the near and dear of the victim and the society at large too cannot be ignored altogether. In some type of offences enumerated in Chapter VI of penal code like Sections 121, 122, and 124A and under the official Secrets Act the interest of State will assume paramount consideration. It is neither possible nor desirable to lay down exhaustively the relevant factors which the court has to consider while deciding a bail application. The question of delay has to be taken into consideration along with other relevant material Therefore it will not be correct enunciation of law to hold that an accused is entitled to be released on bail on the ground of delay in trial.

The learned Counsel Sri U. C. Misra had further relied upon Mohammad Mian v. Sta.e of U.P. l991 AWC 1220. In para 6 of this cass the following observations has been made.

6 Sri Ravindra Sharma, learned Counsel for the Applicant, has argued that in the present case the Applicant Mohammad Mian is languishing in jail for more than two years and he should be released on bail as it is noe certain how much long the learned Sessions Judge will take to conclude that trial. When there is no statutory provision under which an accused can claim his release on bail for there being inordinate delay in his trial before the Sessions Judge, I am of the view that it would not be prudent to lay down that in every case the accused should be enlarged on bail if there has been a long and inordinate delay in his trial. The reason is very simple.If such a view is taken it will give a long handle to the accused and his pairokars and in some cases they may resort to delaying and dilatory tactics in order to bring their cases to a stage where it can be safely claimed that there has been long and inordinate delay in the trial of the case. The cases are rot unknown where trials before the Sessions Judges have been delayed due to the dilatory tactics adopted by the unscrupulous pairokars of the accused. There may also be cases where the delay may be caused due to other reasons for which the accused is not responsible. For example there can be a case where the delay has been caused due to inability on the part of the prosecution to bring its witnesses to the court. In such a case the court may, in appropriate cases, enlarge the accused on bail.

In para 7 it has been further mentioned that "the accused Mohammad Mian cannot be saddled with the responsibility of delaying the trial.

It is the Applicant accused who has actually caused undue and inordinate delay in the trial, until the reference was made by the learned IV Addl. Sessions Judge to the Hon''ble Court. Even false affidavit has been filed in the trial court on behalf of the Applicant accused. Affidavit and counter affidavit have been exchanged. The Applicant accused is a Central Government employee as is obvious from para 18 of the affidavit filed on his behalf And yet he has a criminological history. He is involved in certain cases relating to serious offences. Not to speak of the conclusion of the evidence of all the eye witnesses in particular the cross-examination of the first prosecution witness could not even be concluded. The Applicant accused is also involved in the murder case of the brother of the deceased in the instant case. The reference made by the learned IV Addl. Sessions Judge can be decided by the Hon''ble Court on a priority basis. Judiciary is also organ of the society. It has also its accountability for the welfare of the society. All these observations are however without prejudice to the merits of the case.

Taking into consideration all the facts and circumstances of the case and without expressing any opinion on what has been argued by the learned Counsel for the parties I am of the opinion that the Applicant accused does not deserve to be bailed out. This second bail application is therefore rejected.