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2002 DIGILAW 175 (JK)

Ab. Rashid v. State

2002-05-27

B.L.BHAT

body2002
1. Petitioners, Abdul Rashid, Mohd Sadiq alias Sadiq, Mohd Hanif, Ghulam Mohd and Mohd Bhuttu, who figure as accused in a session case titled as Gulshan Kumar and others Vs State for offences under Sections 148,149,341/302-RPC pending decision before Additional Sessions Judge Reasi, have, through the medium of the petition in hand sought the indulgence of the court for releasing them on bail. It is inter alia maintained in the petition that the accused Gulshan Kumar, Harbans Lal and Mohd Lateef have been released on bail by the trial court; that the alleged occurrence took place on 26.8.1998 and since then the accused are languishing in the jail; that the eye witnesses have been examined in the case and they have not deposed anything incriminating against them; that with respect to the occurrence in question two FIRS have been filed by one Noor Bibi, the mother of the deceased and that speedy trial of the accused is a facet of the fundamental rights of life and liberty of the citizens under Art.21 of the constitution of India. 2. On 20.12.2001 notice of the petition was given to the respondent-State through Sr. AAG for filing objections but despite various opportunities granted in this behalf the Govt. Advocate has not filed objections nor has he, despite direction of this court, furnished any information with regard to the latest stage of the case. Heard learned counsel for the parties, and have perused the order recorded by the learned trial court dated 20.9.2001 whereby the accused namely Gulshan Kumar, Harbans Lal and Mohd Lateef came to be released on bail. This order is annexure A to this petition. 3. The accusations set-forth against the petitioners and other accused in the case are that on 26.8.1998 the accused persons committed the murder of one Abdul Rashid, after they intercepted the matador bearing registration No.2285/ JKU at Mari Nallah and assaulted him and inflicted injuries on his person with drat, axe and tokas, when accused Ghulam Mohd held the deceased at gun point. 4. The co-accused in the case namely, Gulshan Kumar, Harbans Lal and Mohd Lateef have been released on bail by the Trial Court. 4. The co-accused in the case namely, Gulshan Kumar, Harbans Lal and Mohd Lateef have been released on bail by the Trial Court. Accused persons have pleaded not guilty to the charge framed against them on 21.11.1998, necessitating the examination of prosecution witnesses and accordingly trial court phased out the case to as many as more than 40 times during the span of more than three years to record the prosecution evidence. It appears that so far prosecution has examined 16 witnesses out of the listed 27 witnesses and now the case is pending for recording the evidence of other 11 witnesses. 5. The petitioners attempt to secure bail from the trial court aborted as the learned Sessions Judge declined to extend the concession of bail to them on the ground that they are charged of having committed a heinous offence of murder, punishable with death and that consideration for grant of bail under Section 498 Cr.P.C. are similar to the one under Section 497-Cr.P.C. viz. to say that he shall not be so released if there appear reasonable grounds to believe that he has committed the offence for which punishment is either death sentence or life imprisonment. As a result, they were not enlarged on bail. 6. It is true that the nature of the evidence and the seriousness of the charge are the relevant considerations to determine the fate of a bail application at the pre-verdict stage in cases which entail punishment of death sentence or life imprisonment but the aspect that the prosecution has betrayed total disinterest in adducing evidence cannot be lost sight of, notwithstanding that the case was phased out for recording prosecution evidence for as many as 40 times. The accused-petitioners are in custody and languishing as under trials in the jail for about four years and yet the prosecution has taken things lightly by not examining its listed witnesses with promptitude. The accused-petitioners are in custody and languishing as under trials in the jail for about four years and yet the prosecution has taken things lightly by not examining its listed witnesses with promptitude. It appears that the legal position requires to be reiterated that expeditious disposal of a criminal case in the fundamental right of an accused guaranteed to him under Art: 21 of the constitution of India and continued confinement of the accused-petitioners in jail for four years, for no fault of theirs, is itself a ground to extend the concession of bail to them, notwithstanding the accusations against them are grave and if proved may warrant conviction and sentence in the nature of death sentence or life imprisonment. On the mere ground that the accused-petitioners are facing trial of murder charge the prosecution cannot be given unfettered discretion and long rope to protract the disposal of the case by not examining the prosecution witnesses required to prove their case at the trial. Accuseds right to speedy trial cannot be abridged on the score that the prosecution has sought its own time to produce the listed witnesses before the trial court. Such an excuse is under all circumstances bound to effect the right to life and liberty guaranteed to a citizen under Art.21 of the constitution. 7. It appears from the annexure A dated 20.09.2001, by virtue of which the co-accused came to be released on bail, that the evidence of the main witnesses of the case have already been recorded and some formal witnesses are to be examined and it further appears that the matter has taken undue time to get concluded and one is not sure as to how much more time will it take for the prosecution to conclude its evidence and thereafter how much time it will take for the accused to produce their defence evidence. 8. This being so the prayer of the accused-petitioners for grant of bail is not unwarranted. Therefore, without commenting upon the case of the prosecution and having regard to the fact that the prosecution has not resisted the petition, the accused-petitioners deserve to be admitted to bail, as no prejudice will result there from against the prosecution, who, as indicated by the trial court order dated 20.09.2001, passed with respect to bail application, have examined all the material witnesses. 9. 9. Therefore, this application is allowed and it is directed that the accused-petitioners, on furnishing bail and personal bonds in the amount of Rs.50,000/- each to the satisfaction of the trial court, shall be released from custody, provided they are not required or arrested/detained in any other case. They shall undertake to appear on every date of hearing during the course of trial of the case and will abide by the result of the trial. However, they are directed not to leave the jurisdiction of District Udhampur without prior permission of the trial court and also prior information of the concerned police station. Let a copy of this order be sent to the learned Trial Court for information and necessary action. Disposed of accordingly.