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2001 DIGILAW 73 (JK)

State Of J. &K. v. Ravi Chand

2001-03-29

O.P.SHARMA

body2001
1. The only question involved in this Criminal Revision whether the order releasing the respondents who are facing trial on the charge of murder is an abuse of the process of the court. 2. The facts of the case in brief are these. One Pawan Kumar was killed on 23-11-1997. A Police Challan was produced against the accused-respondents on 09-02-1998 charging them with the murder of said Pawan Kumar. The Additional Sessions Judge, Jammu found them prima facie guilty of murder and framed charges punishable under section 302/149/148/323 RPC against them on 25-09-1998. While the evidence was being recorded, the accused-respondents applied for release on bail. The learned trial court allowed the application by its order dated: 19-05-2000 on the sole and the only ground:- "That this court in a case S. Ajit Singh Vs. State of J&K, Cr. L.J. 2000 (J&K) 343, has granted bail to the accused because of the delay on the part of prosecution to produce its evidence and the facts being identical, the ratio is applicable." 3. Mr. Sharma, learned Govt. Advocate, appearing for the State argued that the order of the trial court is illegal because the offence of murder being punishable with death or life imprisonment, bail could be granted only if the accused was under the age of sixteen at the time the offence was committed or is a woman or a sick person. Since bail has not been granted on any of these grounds, the order, argued the learned counsel is liable to be set aside and the bail bonds cancelled. The contention of Mr. Bhushan appearing for the accused-respondentsis that the order impugned being an interlocutory, revision is not maintainable in view of the bar of sub-section 4 (a) of section 435 Cr. P.C. He also argued that the trial court having exercised the discretion, the same should not be interfered when the trial is nearing conclusion as only statements of two or three remain to be recorded. 4. The first question is whether the decision of this court in S. Ajit Singh (supra) is a law declared which has to be followed. It is para 7 of the judgment on which reliance has been placed by the trial court which reads as under:- "7. 4. The first question is whether the decision of this court in S. Ajit Singh (supra) is a law declared which has to be followed. It is para 7 of the judgment on which reliance has been placed by the trial court which reads as under:- "7. In the background of this case, as well as on account of circumstances explained hereinabove, this court is constrained to observe that non-examination of witnesses after having been allowed numerous opportunities does not justify the continuance of the petitioner to be kept in custody during the pendency of the trial. Especially when no reasonable muchless justifiable cause has been made out from the record for non-examination of its evidence by the prosecution." These observations are in the particular facts and circumstances of the case and as such it is not in every case of delay that such a conclusion can be drawn. It is not even an obiter-dicta required to be followed by the subordinate courts. After reproducing this para, the trial court concluded as under:- "11. This is amply clear from the above that the accused persons cannot be allowed to suffer incarfenation in the jail on account of the fact that despite numerous opportunities the prosecution has unjustifiably failed to examine any witness other than the ones mentioned herein, details whereof have been given in the application on behalf of the accused-applicant." 5. It appears the trial court was not made aware of the judgment of the Supreme Court in Raj Deo Sharma Vs. State of Bihar, AIR 1998 SC 3281, wherein specific directions have been given to the trial courts regarding the manner the trial is to proceed in case where the persecution fails to complete evidence within the specified period. Now whether delay in producing evidence could be a ground for releasing the accused involved in a murder case on bail will depend upon either the scope of section 497 or the application of the directions given by the Supreme Court. It is, however, made clear that the observations of the trial court that "It is the bail not jail which is the rule and exception is to refuse the bail" has no application whatsoever to the case in which the offence is punishable by death or life imprisonment as is evident from the plain reading of section 497 Cr. It is, however, made clear that the observations of the trial court that "It is the bail not jail which is the rule and exception is to refuse the bail" has no application whatsoever to the case in which the offence is punishable by death or life imprisonment as is evident from the plain reading of section 497 Cr. P.C. This section does not vest discretion in the trial court to carve out any other ground for grant of bail except covered by the first proviso. The trial court while releasing the respondents on bail on the ground that there has been delay on the part of prosecution to examine witnesses has infact introduced a new exception not recognized by the first proviso to section 497. This becomes apparent when we read section 497 with the first proviso which is extracted:- "497. When bail may be taken in case of non-bailable offence.- (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has not been guilty of an offence punishable with death or imprisonment for life: Provided that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail." 6. The expression, "but he shall not be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment of life� is significant. So bail can be granted only if the court forms an opinion that there are reasonable grounds for believing that the accused had not committed the offence punishable with life imprisonment or death. This admittedly is not the ground on which the accused in this case have been admitted to bail by the trial court. It is also admitted that they have not been released on bail under the first proviso because none of them is below sixteen or sick and infirm person. This takes us to the question whether the accused could be released on bail on the grounds that he has been denied speedy trial. It is also admitted that they have not been released on bail under the first proviso because none of them is below sixteen or sick and infirm person. This takes us to the question whether the accused could be released on bail on the grounds that he has been denied speedy trial. A Constitution Bench in Abdul Rehman Antualy and others Vs. R.S. Hayak and another, 1992 (1) SCC 225 laid down as many as 11 propositions regarding the right of an accused to speedy trial and the parameters within which this right has to be determined. Proposition 10 and 11 being relevant, may be-extracted below:- 10. It is neither available 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 of 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 USA too has repeatedly refused to fix any such outer time limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. 11. An objection based on denial of right of speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains 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." 7. Assuming that there was denial of speedy trial in this case which in my opinion though it is not, yet this question had to be decided by this court in view of proposition 11 and not by the trial court. The trial court, therefore, exceeded jurisdiction while passing the impugned order on the ground that the prosecution has delayed the trial of the case. The trial court, therefore, exceeded jurisdiction while passing the impugned order on the ground that the prosecution has delayed the trial of the case. It has also not weighed several relevant factors to hold whether right to speedy trial has been denied in this case as required by proposition 8 which reads as under :- "8. 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." There appears to be no delay in this case because out of forty four murder cases, sixteen were instituted between 1991 and 1997. The learned Additional Sessions Judge informed the court that he has granted bail only in one and rejected in four cases. Out of these forty two cases, one is pending trial since, April, 1991. another since September, 1992, third since April, 1993 and fourth since July, 1993. Atleast eight are pending since 1996, When identical cases are pending in the same court, releasing the accused on bail on the ground of denial of speedy trial in one instituted later ignoring the earlier one would not be proper even if the court has jurisdiction to grant bail. However, the jurisdiction exercised by the trial court is not traceable to section 497 Cr. RC. as noticed above because as long as the trial continues on the charge of murder, it cannot be said that they would not be guilty of the offence for which they have been charged. The only exception to this principle is the procedure to be followed as directed by their lordships of the Supreme Court in Raj Deo Sharma Vs. State of Bihar, AIR 1998 Sc 3281, in which following directions have been given:- "16. The only exception to this principle is the procedure to be followed as directed by their lordships of the Supreme Court in Raj Deo Sharma Vs. State of Bihar, AIR 1998 Sc 3281, in which following directions have been given:- "16. After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution Bench in Antulays case (supra) with the following directions: (i) In case where the trial is for an offence punishable with imprisonment for a period nor exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charge framed whether the prosecution has been examined all the witnesses or not, within the said period and the court can proceed to the next step provided by law for the trial of the case. (ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit. . ¢ (iii) If the offence under trail is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the Court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the Court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the Court considers it necessary to grant further time to the prosecution to adduce evidence the aforesaid time limit. (iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trail, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by Clauses (i) to (iii). (iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trail, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by Clauses (i) to (iii). (v) Where the trial has been stayed by orders of court or by operation of law such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by the Court in "Common Cause Vs. Union of India, (1996) 4 SCC 331 (1996) AIR SC W 2279) as modified by the same Bench through the order reported in "Common Cause" as Registered Society Vs. Union of India, (1996) 6 SCC 775: (1997 AIR SCW 290)." 8. This case is not covered by any of these directions because bail could be granted only in terms of direction No. 2 which is not applicable. The order passed by the trial court is not supported by the judgment in "Common Cause Vs. Union of India" (supra) either. 9. Mr. Bhushan appearing for the respondents, however, challegned the maintain ability of this petition on the ground that order impugned is an interlocutory order against which revision is not maintainable. In support of this he placed reliance on the decision of Supreme Court in Amar Nath and others Vs. State of Haryana and others, AIR 1977 SC 2185 and a Bench decision of Orissa High Court in Nilu and others Vs. State, 1983 Cr. L.J. 1590. In case Amar Nath, the observations of Their Lordships are as under:- "Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that term "interlocutory order" in S. 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad of artistice sense. It merely, denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. It seems to us that term "interlocutory order" in S. 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad of artistice sense. It merely, denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides interlocutory order so to bar a revision be said to the High Court against that order, because that would be against the very object which formed the bais for insertion of this particular provision in S. 397 of the 1973 Code. Thus for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adujicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court." , 10. However, if the High court is of the view that the process of the court has been abused, this court has not only the power but the duty to intervene as laid down in Rajathi V. C.Ganesan, A.I.R 1999 SC 2374 by observing as under: - 10. In Krishan V. Krishnaveni (1997) 4 SCC 241: (1997 AIR SCW 950: AIR 1997 SC 987: 1997 Cr. LJ 1519) this court explained the scope and power of the High Court under section 482 of the Code. The question before the court was if in view of the bar of second revision under subsection (3) of section 397 of the code was prohibited, inherent power of the High Court is still available under section 482 of the Code. LJ 1519) this court explained the scope and power of the High Court under section 482 of the Code. The question before the court was if in view of the bar of second revision under subsection (3) of section 397 of the code was prohibited, inherent power of the High Court is still available under section 482 of the Code. This Court said as under (para 10 of AIR ACW): "Ordinarily, when revision has been barred by section 397 (3) of the Code, a person-accused/complainant-cannot be allowed to take recourse to the revision to the High Court under section 397 (1) or under inherent powers of the High Court under section 482 of the Code since it may amount to circumvention of the provisions of section 397 (3) or section 397(2) of the Code. It is seen that the High Court has suo motu power under section 401 and continuous supervisory jurisdiction under section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statuory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under section 397 (1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise of inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously." 11. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise of inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously." 11. Since the order of the trial court is not covered by any of the provisions of law, therefore, it is an abuse of the process of the court. This petition, is therefore, allowed and the order impugned quashed. The bail bonds executed by the respondents shall stand cancelled. They will surrender before the trial court or the Superintendent Jail on or before 31/03/ 2001 failing which their sureties shall stand forfeited and the trial court shall proceed to recover the amount in accordance with section 514 Cr.P.C. The Registry will see that the original file alongwith copy of the order reaches the trial court by 30/03/2001 instant, failing which the delay, if any, shall be explained to this court in Chamber.