AKBAR ALIAS EGLE MESTRI v. STATE OF KARNATAKA — 1991 DIGILAW 383 (KAR)

M. M. MIRDHE, J. ( 1 ) THIS petition is filed by the petitioners who are accused nos. 4,6, 7, 8, 9, 12, 15,16, 17, 18, 19 and 20 in crime No. 172 of 1988 of sankeshwar police station which is registered for offences punishable under sections 143, 147, 148, 363, 302, 307, 201, 404 read with 149, IPC and read with Section 25 of the Indian arms act. ( 2 ) I have heard the learned senior counsel for the petitionerssri. B. v. acharya, and the learned government pleader for the state respondent, fully and perused the records of the case. ( 3 ) THE case of the prosecution is set up in paras 2, 3, 4 and 5of the objection filed by the state which are as follows:" (2) brief facts of the case of the prosecution are: that on 4-11-1988 the complainantprakash mahjan, bheemappa poojari and lakshman aigalihad been to belgaum in a car bearing registration No. Ctb 666 belonging to the deceased lakshman aigaliin the morning and they had stayed in belgaum that night. After completing their work on 5-11-1988 at about 6. 00 p. m. while all the four persons were returning to athani and when they were proceeding towards nidisosi cross, two jeeps followed the car of the deceased. When they reached near the cross, a lorry was going ahead of the car and in the meanwhile, a jeep from the opposite side also came, as a result, the deceased was made to slow-down his car. Immediately, thereafter, the jeeps which were following the car came and the accused persons started firing with sophisticated guns, sten guns, country pistols, revolvers and attacked with axes. As a result of the bullet hit, appanna aigali succumbed to the injuries and others sustained injuries, the tyres of the car were burst and the car was stopped. In the meanwhile, the complainant made good his escape although, he sustained an injury on the ankle of his leg, he hid himself in kalli bush. "" (3) one accused-parasappa cut the neck of bheemappa poojary with an axe. Later, lakshman aigali and prakash mahajan, eye-witness, were taken in a jeep bearing No. Ctb 1950 and ckk 8282. In the meanwhile, the complainant made good his escape although, he sustained an injury on the ankle of his leg, he hid himself in kalli bush. "" (3) one accused-parasappa cut the neck of bheemappa poojary with an axe. Later, lakshman aigali and prakash mahajan, eye-witness, were taken in a jeep bearing No. Ctb 1950 and ckk 8282. The dead bodies of the two deceased persons were also shifted in the jeep and were taken to kadapagatti gudda, where the deceased lakshman aigali was felled and at the direction of the accused, bheemashi jarkiholi, the accused taladappa cut the neck and accordingly, the neck was severed from the body. Later, the accused carried the bodies of the three persons in a lorry No. Cnl 4602 with sand. Prakash mahajan, the eye-witness, was threatened by the accused and was produced before the accused lakshman jharkhiholi. "" (4) it is thereafter the accused shifted the dead body of three persons in a lorry covered with sand to a place in voddu village limits in sandur taluk, wherein, they poured petrol and set fire to the dead bodies and left the place in their respective vehicles along with the weapons after removing valuable articles, found on the bodies of the deceased, like, chains, rings, watches etc. "" (5) the complainant who made good his escape, from the car, sustaining bullet injuries was hiding in the kalli bush and at about 3. 00 a. m. on 6-11-1988, he noticed a person by name shankar doddamani. Shankar badiger thereafter, went to the village and brought the complainant who narrated the incident. Later, shankar doddamani went to athani to intimate the incident to the relatives of the deceased laksman aigali. Since the telephone was not working, he went to sankeshwar, and informed about the incident. Thereafter, shankar doddamani took the complainant to a doctor by name sirage at sankeshwar before whom, he revealed the incident and got written a complaint by him and later on went to sankeshwar police station at about 9. 30 a. m. on 6-11-1988 and lodged the complaint. " ( 4 ) THE police completed the investigation of the case and filedcharge-sheet against the petitioners and other accused and jurisdictional magistrate committed the case to the court of sessions, belgaum and the case is pending at S. C. No. 83 of 1990 on the file of the sessions judge, belgaum for trial. " ( 4 ) THE police completed the investigation of the case and filedcharge-sheet against the petitioners and other accused and jurisdictional magistrate committed the case to the court of sessions, belgaum and the case is pending at S. C. No. 83 of 1990 on the file of the sessions judge, belgaum for trial. ( 5 ) THERE are in all 23 accused mentioned in the charge-sheet. seven accused are shown as absconding and out of twenty-three accused who have been arrested in this case, eleven accused persons are on bail granted to them by various courts. ( 6 ) THE petitioners had filed earlier criminal petition for bailunder Section 439, cr. P. c. at criminal petition No. 1325 of 1989. It came to be disposed of by the Hon'ble Justice d. p. hiremath on 16-1-1990. Thereafter the petitioners filed another bail petition at criminal petition No. 776 of 1990 which came before Hon'ble Justice p. k. shyamsundar as Justice d. p. hiremath was disabled to hear it. Thereafter it came before Hon'ble Justice ramakrishna and then it came before Hon'ble Justice k. Ramachandriah and then it came to be dismissed as withdrawn on 14-9-1990. When an accused files successive bail applications, the Supreme Court has held that it should be heard by the same judge who has rejected the earlier bail petition. In state of Maharashtra v captain buddhikota subha rao, the Supreme Court has held as follows:"in such cases it is necessary to act with restraint and circumspection so that the process of the court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him. In such a situation the proper course, we think, is to direct that the matter be placed before the same learned judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications, without change of circumstances. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications, without change of circumstances. Such a practice if adopted would be condusive to judicial discipline and would also save the court's time as a judge familiar with the facts would be able to dispose of the subsequent application with despatch. "similarly in, shahzad hasan khan v ishtiaq hasan khan and another, the same view is expressed by the Supreme Court that subsequent application should be placed before the same judge who rejected the earlier bail application. In the light of these rulings the ordinary course to be followed in this case would have been to place this petition before Justice d. p. hiremath who disposed of criminal petition No. 1325 of 1989 on 16-1-1990. But subsequent to that another criminal petition came to be filed i. e. , cr. P. No. 776 of 1990 and since Justice d. p. hiremath was disabled to hear that application, it came before other judges and ultimately when it came before Justice k. Ramachandriah it was dismissed as withdrawn on 14-9-1990. In view of these facts, justice d. p. hiremath who was disabled to hear criminal petition No. 776 of 1990 which came to be dismissed as withdrawn by Hon'ble Justice k. Ramachandriah will not be able to hear this petition. Hence, rulings of the Supreme Court will not be attracted to this case and this court can dispose of this petition. ( 7 ) THIS petition raises two important questions which are asfollows: (1) whether an accused in a criminal case will be entitled to bail on the ground of delay in trial? (2) if yes, whether what is the extent of delay which will entitle an accused to bail on account of delay in trial ? ( 8 ) ARTICLE 21 of the Constitution of India is as follows:"21. Protection of life and personal liberty: no person shall be deprived of his life or personal liberty except according to procedure established by law. ( 8 ) ARTICLE 21 of the Constitution of India is as follows:"21. Protection of life and personal liberty: no person shall be deprived of his life or personal liberty except according to procedure established by law. The question whether the delay in trial can violate the fundamental right guaranteed under article 21 of the Constitution of India has been considered by the Supreme Court in many cases. In hussainara khatoon and others v home secretary, state of bihar, patna,1 the Supreme Court has held as follows:"when article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be 'reasonable, fair and just. Xxx xxx xxx. It is absolutely essential that persons accused of offences should be speedily tried, so that in cases where bail, in proper exercises of discretion, is refused, the accused persons have not to remain in jail longer than is absolutely necessary. "the Supreme Court has further held as follows:"the state cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The state is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the state. It is also the constitutional obligation of the Supreme Court, as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the state which may include taking of positive action, such as augumenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial. "in babu singh and others v the state of Uttar Pradesh, the Supreme Court has observed as follows:"personal liberty deprived when bail is refused, is too precious a value of our constitutional system recognised under article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right, after all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. ' so deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the constitution. "this ruling lays down that the right to speedy trial is the fundamental right of an accused and if there is delay the delay under certain circumstance may amount to violation of fundamental rights guaranteed under article 21 of the Constitution of india. (emphasis supplied) ( 9 ) IN kashmira singh v the State of Punjab, it has been heldthat where the Supreme Court was not in a position to hear the appeal of an accused who was convicted of an offence punishable with imprisonment for life unless there are cogent grounds for acting otherwise, release of the accused on bail was just. ( 10 ) IN kadra pehadiya and others v state of bihar, thesupreme Court was dealing with a case where the accused persons were young persons between 18 and 22 years of age at the time of their trial languishing in jail for over eight years for a crime. The Supreme Court referring to hussainara khatoon's case in para 2 of its judgment has pointed out that speedy trial is a fundamental right of an accused implicit in article 21 of the constitution. Then it has further held as follows:"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. "then it has further observed as follows:"we pointed out in hussainara khatoon's case that speedy trial is a fundamental right of an accused implicit in article 21 of the constitution, but we notice that in the case of these four petitioners, this fundamental right has merely remained a paper promise and has been grossly violated. It is surprising why these four petitioners should not have been released on bail despite our observations in hussainara khatoon's case. It is surprising why these four petitioners should not have been released on bail despite our observations in hussainara khatoon's case. " ( 11 ) IN 1983 Madras law journal reports (criminal) 74 theruling of the High Court of Andhra Pradesh is reported and in that the lordships of Andhra Pradesh high court have held as follows:"speedy trial is the fundamental right of an accused implicit in article 21 of the constitution. No one should, therefore, be allowed to be confined in jail for more than a reasonable period of time. The magistrate is given the power under Section 167, Criminal Procedure Code, not to extend the judicial remand beyond 90 days in cases of offences punishable with imprisonment for life or for a term of not less than 10 years and to release the accused on bail if the investigation is not completed within 90 days and the magistrate can do so suo motu even if the accused does not file an application for bail. If the investigation is completed within 90 days and if the application filed by the accused before the commencement of the investigation or after the charge-sheet is filed is dismissed on the ground that the fatal injuries are attributable to the accused, who filed the bail application the accused can be detained in the sub-jail till the trial is taken up. But if the accused are confined in jail for more than a reasonable period of time, sessions courts, and the high courts can release such accused on bail subject to usual terms and conditions. "it is further held in that ruling as follows:"it is, thus, imperative on the part of the government to establish more additional sessions courts to facilitate speedy trials and to avoid the problems of the under-trial prisoners and to comply with the mandate given by the Supreme Court. If more session courts are not established where there is necessity, then the sessions judges have no other alternative than to release such under-trial prisoners, who are rotting in the sub-jails without trial for more than a reasonable period, which exceeds one year from the date of the receipt of the committal order. If more session courts are not established where there is necessity, then the sessions judges have no other alternative than to release such under-trial prisoners, who are rotting in the sub-jails without trial for more than a reasonable period, which exceeds one year from the date of the receipt of the committal order. "his lordship of Andhra Pradesh high court has relied upon the ruling of the Supreme Court in kadra pehadiya's case (supra) wherein it had been held that the right case to speedy trial is the fundamental right under article 21 of the Constitution of India and the detention of an accused for a period of more than one year will be a ground for an accused to claim the benefit of bail. ( 12 ) IN gyan prakash v state of rajasthan, the rajasthanhigh court has held as follows:"the right to life and liberty is guaranteed by article 21 of the Constitution of India and the liberty of the person who even may be an accused person, cannot be curtailed unless the circumstances so require. When a person is an accused of a criminal offence and is behind bars, the least that is expected from a judicial court is to see that the trial court proceeds at a reasonable pace so that the liberty of the accused person is not curtailed unnecessarily for a long time. Where the accused charged for murder was behind the bars since 25 months and the prosecution had examined only eleven witnesses out of 22 and approach of the trial court was very careless and casal and prosecution was wasting time and prolonging the trial, the accused should be granted bail on furnishing personal bond and sureties to the satisfaction of the trial court. " ( 13 ) IN anurag baitha v state of bihar, the full bench ofpatna high court has ruled as follows:"if article 21 and the right to speedy public trial is not merely a twinkling star in the high heavens to be worshipped and rendered vociferous lip-service only but indeed is an actually meaningful protective provision, then a fortiorari expeditious hearing of substantive appeals against convictions is fairly and squarely within the mandate of the said article. "the point before their lordships in that case was the delay in hearing of the appeals. "the point before their lordships in that case was the delay in hearing of the appeals. Their lordships have held as follows:"the issue of delay occasioned by the high court's own inability to hear the substantive appeals expeditiously enters directly and materially for consideration in the grant of bail to the convicts. This is a factor independent and dehors the individual merits of each case. It is more so in the expanded concept of liberty under article 21 and the now universally accepted right of a speedy public trial thereunder. If the high court is not in a position to hear the appeal of an accused within a reasonable period of time, it must ordinarily (unless there are cogent grounds for acting otherwise) release the accused on bail in cases of substantiative appeals on capital charges pending before it. "paras 15 and 16 of the judgment of their lordships in that case are relevant for the purpose of this case. They are as follows:"15. To recapitulate briefly it seems well settled within this jurisdiction that the constitutional right of speedy trial includes within its sweep the expeditious hearing of substantive appeals against conviction as well. Article 21 does not stop short at the end of the trial but continues to extend its protective shield even after the post-conviction stage. Equally it has to be borne in mind that in the event of later acquittal by the appellate court the long incarceration in jail during the pendency of the appeals is inherently incompensatable in terms of money. In any case it is a virtually legal impossibility to secure monetary damages against the state for wrongful or false imprisonment in such cases. Added to this is the fact that both for under-trials, and for convicts, in jails within the state the conditions are admittedly sub-human. All these are poignantly prominent factors to which one cannot possibly turn the proverbial nelson's blind eye or to gloss over them as sometime either inevitable or insoluble. Indeed these considerations become even more relevant where prolonged detentions are by the law agency's own default either by way of inordinately delayed trials extending over years, or in the appellate forum by the high court's own inability to dispose of even substantive criminal appeals in capital cases ex peditiously. Indeed these considerations become even more relevant where prolonged detentions are by the law agency's own default either by way of inordinately delayed trials extending over years, or in the appellate forum by the high court's own inability to dispose of even substantive criminal appeals in capital cases ex peditiously. These are factors which directly and pristinely enter into consideration, and more so in the context of now a constitutional right to speedy trial for the purpose of grant of bail during the pedency of a substantive appeal. One may for emphasis hearken back to gupteshwar barhi's case as a con- crete and typical example where refusal to grant bail had led to a travesty of Justice and a person innocent in the eye of law was obliged to undergo the full sentence of life imprisonment. Within this jurisdiction that case was in no way a solitary or exceptional example but was, perhaps, a typical one three years ago where the convicts were obliged to undergo substantial parts of their sentence because of grievous delay in hearing of the criminal appeals by the high court. Though fortunately that crisis situation has now been crossed, nevertheless the problem still remains albeit to a lesser degree, even today as yet a delay of three years or more in the hearing of such appeals at the Patna bench seems inevitable. There is thus no option but to hold that the issue of delay occasioned by the high court's own inability to hear the substantive appeals expeditiously enters directly and materially for consideration in the grant of bail to the convicts. This is a factor independent, dehors the individual merits of each case. 16. In fairness to Mr. Lala kailash bihari, learned counsel for the state, i must notice his vehement opposition to the stand taken on behalf of the petitioner and against grant of bail during the pendency of the appeals even irrespective of the delay in the hearing. With some regret it appears to me that ingrained in a somewhat older and fossilised approach he, perhaps, as yet could not rise to the higher pedestal of the constitutional right to speedy public trial by virtue of the expanded interpretation of article 21 nor could be hearken to the voice of the new criminal jurisprudence interpretatively created under the said article by the Supreme Court. Unmindful of the developing role of the law, Mr. Kailash bihari in a groove repeatedly slipped back and stuck to a moribund procedural approach for contending that no consideration other than the one under Section 389 of the code for suspension of sentences could come in, despite article 21 and the mandate of speedy public trials and appeals thereunder. In fact he went to the extreme length of contending that after trial and conviction there was no right to bail at all, whatever be the delay even if it be to the extent of undergoing the whole of the sentence imposed. It was contended that the suspension of sentence was entirely an issue of the merits of the case and the question of delay while undergoing sentence was wholly irrelevant to the issue. "the perusal of these rulings more so the rulings of thee Supreme Court quoted above clearly go to show that the right of an accused to the speedy trial is held to be a right implicit in article 21 of the Constitution of india. ( 14 ) WE have got two cases of our high court on this point. ( 15 ) BOTH the cases are decided by the same judge, hon'blejustice k. Ramachandriah, one is a reported case and another an unreported case. The case reported in shivarame gowda v state of karnataka. In that case, his lordship has held in para 20 at page 3563 as follows:"20. In this context, i consider it useful to refer to the provision made under the proviso (a) to Section 167 (2), cr. P. c. to the effect that if the investigating agency fails to file charge-sheet before the expiry of 90/60 days as the case may be the accused in custody should be released on bail if he is prepared to and furnishes bail. In my opinion, a similar provision would have been made by the legislature in the Criminal Procedure Code if it felt it desirable to fix an outer time limit either for framing charges after the charge-sheet is filed or for concluding trial in the courts of the magistrate, or the sessions courts as the case may be. "after taking that view, his lordship was pleased to dismiss that petition. In this judgment there is no reference by his lordship to the decision in AIR 1981 SC 939 . "after taking that view, his lordship was pleased to dismiss that petition. In this judgment there is no reference by his lordship to the decision in AIR 1981 SC 939 . In that ruling their lordships have held that the right to speedy trial is a fundamental right of an accused under article 21 of the Constitution and they have also held that the reasonable time for the conclusion of the trial should not exceed one year. But this ruling is not referred to by Justice k. Ramachandriah in shivarame gowda's case. In view of the fact that the said case disposed of by Justice k. Ramachandriah does not refer to the ruling of the Supreme Court reported in AIR 1981 SC 939 , the case can be considered as per incuriam. There is another case which is an unreported, disposed of by Justice k. Ramachandriah in criminal petition No. 815 of 1990 on 2nd july, 1990. It is a case where there are two accused facing the trial for offences punishable with or imprisonment for life. The trial has commenced in that case. His lordship granted bail to the petitioners on the ground that the trial has not been concluded though started against them inspite of the direction given by the high court on more than one occasion. ( 16 ) THERE is a ruling of the Madhya Pradesh high court in acase reported in munna alias kamta prasad and another v state of madhya pradesh, in which it is held that failure to conclude sessions trial speedily within a reasonable time amounts to deprivation of personal liberty against procedure established by law. ( 17 ) HIS lordship Justice k. Ramachandriah has relied uponmadhya pradesh high court in munna alias kamta prasad and another v state of Madhya Pradesh (supra) while granting bail in criminal petition No. 815 of 1990. ( 18 ) THE learned government pleader has relied upon shersingh and others v State of Punjab, wherein the Supreme Court has held that the mere delay in the execution of sentence of death will not amount to violation of article 21 and is not liable to be quashed by the Supreme Court. It has further held that no absolute time limit can be fixed by court in such a case. The ruling is laid down in respect of delay in execution of the death sentence. It has further held that no absolute time limit can be fixed by court in such a case. The ruling is laid down in respect of delay in execution of the death sentence. The ratio of that ruling will not be applicable to the facts of this case where the petitioners are seeking not quashing of any death sentence but granting of bail to them on account of the delay of trial against them. He also relied on raghubir singh and others u simranjit singh mann, wherein the Supreme Court has held that right of accused to speedy trial, right as to infringement of the right of the accused to speedy trial cannot be inferred merely from delay in police investigation which will depend on facts and circumstances of each case. This ruling also holds that the accused has got fundamental right under article 21 of the Constitution of India to speedy trial, and has been further held that violation of the said right will depend on facts and circumstances of each case. This ruling will not enable the prosecution to contend that there is no such right guaranteed to the petitioners under article 21 of the Constitution for the speedy trial of the case against them. Whether the delay in trial in this case can be held as an infringement of article 21 of the Constitution of India guaranteeing speedy trial to the accused will have to be considered on the facts and circumstances of this case. The learned government pleader also relied upon shahzad hasan khan v ishtiaq hasan khan and another, (supra) wherein the Supreme Court has held that where the accused persons obtained adjournment on one pretext or other things and did not allow the court to proceed with the trial and there were also serious tampering of evidence on behalf of the accused persons the order granting bail was liable to be set aside. But the said ruling is distinguishable from the facts of this case as the evidence has not commenced in this case yet and there are no allegations of tampering of evidence even though eleven accused are already on bail in this case. But the said ruling is distinguishable from the facts of this case as the evidence has not commenced in this case yet and there are no allegations of tampering of evidence even though eleven accused are already on bail in this case. He also relied upon, raghubir singh and others v state of bihar, wherein it is held that when the accused were capable of asserting their rights whenever and wherever necessary but never raised objections as to the delay and therefore it was held that the delay was not unreasonable, unfair and violative of article 21 of the Constitution of india. The charge in that case against the accused was raising war against the state and the case involved complex problems of sensitive and political nature. Their lordships of the Supreme Court in the said case held that though article 21 guarantees to an accused the right to speedy trial but on the facts and circumstances of that particular case in which the charge against the accused was of raising a war against the state and the questions involved were complex problems of sensitive and political nature and that the accused had not asserted their rights earlier, the delay was not unfair and unreasonable. ( 19 ) IN view of the rulings cited above, it will have to be heldthat an accused has got a fundamental right under article 21 of the Constitution of India to have the speedy disposal of the trial against him. ( 20 ) THE next question is what should be the length of delay soas to entitle an accused to claim his right to bail? ( 21 ) IN kadra pehadiya and others v state of Bihar (supra),the Supreme Court has observed as follows:"we had occasion in hussainara khatoon's case (supra) to criticise this shocking state of affairs and we hoped that after the anguish expressed and the severe strictures passed by us, the Justice system in the state of Bihar would improve and no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a sessions trial, but we find that the situation has remained unchanged. "in that particular case which was before their lordships of the Supreme Court, their lordships have held that the period of one year will be a reasonable period for the conclusion of the trial if the accused are in custody. In the ruling reported in Madras law journal reports (criminal) 1983, thirumuri bhaskara reddy v state of Andhra Pradesh etc. , their lordships relying on the ruling of the Supreme Court in kadra pehadiya and others u state of Bihar (supra) held in para 9 as follows:"it is, thus, imperative on the part of the government to establish more additional sessions courts to facilitate speedy trials and to avoid the problems of the under-trial prisoners and to comply with the mandate given by the Supreme Court. If more sessions courts are not established where there is necessity, then the sessions judges have no other alternative than to release such under-trial prisoners, who are rotting in the sub-jails without trial for more than a reasonable period which exceeds one year from the date of the receipt of the committal order. " ( 22 ) THE learned government pleader submitted that in theobservation of the Supreme Court in kadra pehadiya's case regarding the fixing of one year as the reasonable period is obiter dicta. He also further submitted that it was the view expressed on the question of reasonable time in that particular case and therefore it will not be binding on this court. In municipal committee, amritsar v hazara singh wherein it is held as follows:"even obiter dictum of the Supreme Court should be accepted as binding. But statements on matters other than law have no binding force. Since on facts no two cases are similar, Supreme Court's decisions which are essentially on questions of fact cannot be relied upon as precedents for decision of other cases. "their lordships in the above quoted case have quoted an earlier judgment of Supreme Court on this point in which it is held as follows:"judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that court would be attracted by article 141. Declaration of law by that court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that court would be attracted by article 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and that court itself has pointed out in guru charan v State of Punjab and prakash chandra pathak v state of Uttar Pradesh, that as on facts no two cases could be similar, its own decisions which were essentially on questions of fact could not be relied upon as precedents for decision of other cases. "therefore, even obiter dictum of the Supreme Court will be binding on this court. But the question is whether the Supreme Court has held that reasonable time for conclusion of sessions trial should be one year in all sessions cases irrespective of facts and circumstances of the cases. There cannot be any doubt that there should be some reasonable time limit fixed for the conclusion of the trial otherwise the right guaranteed to an accused to the speedy trial will become only a twinkling star and not an actual reality as held by their lordships in the case of Patna high court quoted above. While dealing with the particular facts of that case and referring to their anguish expressed by them and strictures passed the judicial system in the state of Bihar their lordships have held that reasonable time cannot be and should not be exceeded for one year for sessions trial. ( 23 ) ACCORDING to me, the time limit of one year fixed by theirlordships in that particular case was on the facts and circumstances of that case. The word used are "should not exceed" the word 'should' is also used to express probability or expectancy. Therefore, the Supreme Court has not laid down that the reasonable period of time should be one year for conclusion of all types of sessions trial. The word used are "should not exceed" the word 'should' is also used to express probability or expectancy. Therefore, the Supreme Court has not laid down that the reasonable period of time should be one year for conclusion of all types of sessions trial. In one another case in raghubir singh and others v state of Bihar (supra) which is quoted above the Supreme Court held that the delay in that case was not unreasonable and unfair in view of the complex problems of sensitive and political nature of the offence alleged therefore, though the Supreme Court has held that there should be a reasonable time limit for conclusion of trial against an accused, the time limit for concluding the trial will depend on the facts and circumstance of each case. There cannot be a hard and fixed Rule to the effect that the reasonable time for the conclusion of trial in each and every sessions case should be one year irrespective of the facts and circumstances of each case. The learned government pleader has rightly contended that if such a proposition is laid down it will lead to disastrous consequences. The Supreme Court in kadra pehadia's case has upheld the right of an accused to speedy trial as a fundamental right guaranteed to him under article 21 of the Constitution of india. In that ruling the Supreme Court has also held that delay in the conclusion of the trial can violate that right. From this, it follows that the trial should be concluded within a reasonable time. The Supreme Court in that said ruling has observed that one year should be the time limit. But the observation made by their lordships of the Supreme Court was in view of the facts and circumstances of that case. The Supreme Court has not laid down that the reasonable time to conclude the trial should be one year in all types of sessions cases irrespective of the facts and circumstances of each case. But the observation made by their lordships of the Supreme Court was in view of the facts and circumstances of that case. The Supreme Court has not laid down that the reasonable time to conclude the trial should be one year in all types of sessions cases irrespective of the facts and circumstances of each case. After studying the various rulings of the Supreme Court and other high courts quoted above it is held by this court as follows:" (1) the accused has got a fundamental right guaranteed to him under article 21 of the Constitution of India to the speedy trial of the case against him; (2) that the trial against an accused must be concluded within a reasonable time; (3) if the trial against an accused is not concluded within a reasonable time, it may be violative of article 21 of the constitution under certain circumstances; (4) if the trial is not concluded within a reasonable time against an accused amounting to violation of fundamental right of speedy trial guaranteed to him under article 21 of the Constitution of India then, accused is entitled to the grant of bail; (5) the period of reasonable time for conclusion of trial depends upon the facts and circumstances of each case and it may vary from case to case. "the various high courts have also acknowledged the right of the accused to claim bail on the ground of delay in trial and granted bail to the accused on that ground and the said cases are as follows: (1) this high court has granted bail to the accused in criminal petition No. 815 of 1990. The accused had filed an application earlier to that criminal petition for bail and it was rejected on merits. The court granted bail to the same accused in criminal petition No. 815 of 1990 on the ground that they were in custody for one year and eight months when the trial of the case was going on against them and it was not concluded within reasonable time. (2) the case reported in gyan prakash v state of rajasthan, the Rajasthan high court granted bail to the accused who were in custody for two years and two months on account of the delay in trial. (2) the case reported in gyan prakash v state of rajasthan, the Rajasthan high court granted bail to the accused who were in custody for two years and two months on account of the delay in trial. (3) the case reported in munna alias kamat prasad and another v state of madhya pradesh (supra), the Madhya Pradesh high court has granted bail to the accused when some of the accused were in custody for one year and two months, and some other accused were in custody in that very case for 2 years and 8 months. therefore, in view of the law discussed above it will have to be held that an accused has got a right to claim bail when the trial against him is not concluded within a reasonable time and the delay in conclusion of the trial amounts to a violation of the right of speedy trial guaranteed to him under article 21 of the Constitution of india. ( 24 ) PETITIONERS in this case are claiming bail not on merits buton the ground that the trial is delayed against them. Some facts relevant for the purpose of deciding this case are as under: the incident is alleged to have taken place on 5-11-1988 at about 7. 00 p. m. and a complaint is on 6-11-1988 at 9. 30 a. m. all the petitioners were arrested in this case on 21/22-11-1988. The petitioners are in custody for the last two years and seven months since the time of their arrest. They have been in custody for one year and four months after the committal of the case to the sessions court, ( 25 ) THE learned government pleader submitted that there isno change in the circumstances so as to entitle the petitioners get bail. He relied upon the decision of the Supreme Court in state of Maharashtra v captain buddhikota subha rao (supra) wherein the supreme court has held that there is no justification for passing the impugned order in the absence of a substantial change in the fact situation. But if the trial is not completed within the reasonable time and the delay in trial amounts to violation of the fundamental right of the accused to speedy trial it can be considered as a change in circumstances entitling the accused to claim bail. But if the trial is not completed within the reasonable time and the delay in trial amounts to violation of the fundamental right of the accused to speedy trial it can be considered as a change in circumstances entitling the accused to claim bail. In fact in criminal petition No. 815 of 1990 this court has rejected the bail petition of the accused therein earlier. But it granted bail to them on the ground of delay as the trial has not been concluded though evidence has commenced against them even after the accused were in custody for the last one year and eight months in that case. Hence, this contention of the learned government pleader that there is no change in the circumstances so as to make these petitioners to file this petition cannot be accepted. The learned government pleader also contended that the petitioners are charged with grave offences. The allegations of the prosecution is that the petitioners have committed the offences after full preparation and pre-planning. It is to be noted that the names of the petitioners are not mentioned in the complaint. ( 26 ) SOME of the accused in this case are granted bail byj. m. f. c. , hukeri and other accused in this case are granted bail by the sessions court, belgaum and some other accused in this case are granted bail by the high court and one of the accused is granted bail by the Supreme Court. Accused 1 to 3 are released on bail on the medical grounds. The rest of the accused are released on bail not on medical grounds. The case of the prosecution is that all these petitioners along with others formed themselves into an unlawful assembly and the offences were committed in pursuance of conspiracy that took place prior to the date of the offences. Some of the accused who are alleged to have been present at the time of incident and also alleged to have done some overt-acts have been granted bail by the learned sessions judge, belgaum. Some of the accused who are alleged to have been present at the time of incident and also alleged to have done some overt-acts have been granted bail by the learned sessions judge, belgaum. Therefore, mere gravity of the offences cannot be a ground to reject the bail application of the petitioners more so when the other accused who are involved in this case have been granted bail though the allegations against them are that they were also present at the time of the offence and participated in the offence by doing some overt acts. Further the bail in this petition is sought not on merits of the prosecution case but on the ground of delay in the trial. ( 27 ) THE learned government pleader also contended that thedelay is due to the petitioners who have protracted the trial by filing the transfer petitions and bail applications for which records were called for from the sessions court. It is brought to my notice by the learned counsel for the petitioners that records were called by this court for consideration of bail application filed by the petitioners before filing of the charge-sheet and the same cannot be said to be a ground for protraction of the trial. Therefore, the filing of the bail petitions by the petitioners or calling of the records cannot be considered as grounds for protraction of the trial. Similarly, filing of transfer petition by the petitioners cannot be considered as a ground to protract the trial, when the transfer was sought from one court to another court on the ground that the judge was disabled to hear the case and this court ordered to transfer the case from the judge who was disabled to hear the case to another judge only for the purpose of early disposal of the case. It is also brought to my notice by the learned counsel for the petitioners that now the case is pending trial and there are many more old cases which are required to be taken before this case is taken for disposal by the sessions court, belgaum. ( 28 ) THE facts that emerged for the consideration of this bailpetition are as follows: that the petitioners are in custody for more than two years and seven months from the date of their arrest and one year and four months from the committal order. ( 28 ) THE facts that emerged for the consideration of this bailpetition are as follows: that the petitioners are in custody for more than two years and seven months from the date of their arrest and one year and four months from the committal order. The second fact to be taken into consideration is some of the accused against whom the prosecution has alleged that they participated in the commission of the crime by some overt acts are granted bail by the court. The question of delay of trial is to be viewed against this background viz. , that these petitioners are in custody for more than two years and some of the accused are already released on bail and there are no allegations against the accused who have been already granted bail that either they have attempted to flee from Justice or to tamper with the prosecution witnesses. In this case, there are some accused who have been granted bail against whom the prosecution case is that they too participated in the crime by doing some overt acts and the petitioners are in custody for more than 2 years and 7 months and the trial is not concluded within a reasonable time. Hence, in this petition, the delay becomes a ground for granting bail to the petitioners also. In bhagirathsinh judeja v state of gujarat, the Supreme Court has held that bail cannot be refused to an accused by way of punishment. It has also further held that if there is a prima facie case, there is no question of considering other circumstances and even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. So taking into consideration the delay in conclusion of the trial against the petitioners the court will have to see whether there is any possibility of these petitioners tampering with the prosecution evidence if they are released on bail. Already other eleven accused persons who have been accused of similar offences of the similar nature are on bail. So taking into consideration the delay in conclusion of the trial against the petitioners the court will have to see whether there is any possibility of these petitioners tampering with the prosecution evidence if they are released on bail. Already other eleven accused persons who have been accused of similar offences of the similar nature are on bail. There is no allegation against them that they have tried to flee from Justice or tamper with the prosecution witnesses. When the state has not sought cancellation of their bail on such grounds and when there are no such allegations against the other accused who are already on bail the apprehension of the prosecution that these petitioners are likely to tamper with the prosecution witnesses or flee from Justice appear to be unfounded. However, bail will have to be granted to these petitioners subject to certain conditions to safeguard the interest of the prosecution agency. Hence, i make the following: ( 29 ) THE petition is allowed. The petitioners are granted bailon each of them executing the bond of Rs. 10,000/- with one solvent surety for the like sum to the satisfaction of the sessions judge, belgaum. This bail is granted subject to the following conditions: (I) petitioners shall not tamper with the prosecution witnesses in any manner; (ii) petitioners shall report to gokak police station on every wednesday and sunday between 8. 00 a. m. and 10. 00 a. m. till the trial is over except on the dates when they are required to attend the sessions case at belgaum; (iii) petitioners shall not leave the local limits of gokak town without the prior permission of the j. m. f. c. , gokak. --- *** --- .