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2018 DIGILAW 599 (JK)

Som Raj v. State of J&K

2018-08-03

SANJAY KUMAR GUPTA, TASHI RABSTAN

body2018
JUDGMENT : Sanjay Kumar Gupta, J. 1. Heard learned counsel for the parties for grant of bail. 2. Learned senior counsel appearing for the applicant submitted that the applicant/appellant has been in jail for more than ten years and there is no likelihood of the appeal being heard in near future as the criminal appeals of the year 2004 are still pending. It is further submitted that out of three appellants, two have already been granted bail whereas it is only the appellant no3, namely Kishori Lal, who is still in custody from the last more than ten years. 3. During course of argument, it has been stated that even appeal is pending for adjudication more than five years and there is no chance of it being heard early in near future. 4. The learned counsel appearing for the State has opposed the grant of bail, stating that instead of granting bail the appeal itself may be considered for hearing. 5. We have considered the arguments advanced by both the sides. 6. During the course of argument, learned counsel for the applicant/appellant No.3 has placed on record photo-copy of the order passed by Hon’ble Division Bench of this Court in CRA No.35/2017 c/w connected matters. The relevant para of the afore order reads as under:- “On the other hand, learned Special Public Prosecutor has opposed the prayer for grant of bail. Learned senior counsel for the objectors submitted that the appeals are of the year 2017 and, therefore, the bail cannot be granted. The ratio laid down in the case of Akhtari Bi v. State of M.P. AIR 2001 SC 1528 , does not apply to the fact situation of the case, as the Supreme Court had granted the bail in the aforesaid case on the ground that the appeal was pending for five years and there were no chances of appeal being heard in near future. Learned Senior counsel for the respondents has referred to decision of the Supreme Court in the case of Hussain and anr. v. Union of India passed in Cr. Appeal No.509 if 2017 c/w Cr. Learned Senior counsel for the respondents has referred to decision of the Supreme Court in the case of Hussain and anr. v. Union of India passed in Cr. Appeal No.509 if 2017 c/w Cr. Appeal No.511 of 2017 dated 09.03.2017 and has submitted that the decision of the Supreme Court in the case of Akhtari Bi (supra) has been explained and it has been held that if the appeal is not heard for a period of five years excluding the delay for which the accused himself is responsible, the bail should normally be granted and the instant would not be covered. He has also referred to the decision of the Supreme Court in the case of Surinder Singh alias Shingara Singh v. State of Punjab, (2005) 7 SCC 387 and has commended us to para 9 of the aforesaid decision. He has also relied on judgment passed by the Supreme Court in Cr. Appeal No.511 of 2017 passed on 09.03.2017 as well as orders passed by this Court in MP No.01/2018 in Cr. Appeal No.19/2013 dated 17.07.2017, Cr.MA No.165/2013 in Cr. Appeal No.79/2013 c/w Confirm No.27/2013 dated 14.10.2014 4. We have considered the submissions made on both sides. Undoubtedly the right to speedy trial is a fundamental right under Article 21 of the Constitution of India. It is also not in dispute that the appellants have served the jail sentence for a period of more than 11 and ½ years. We have no hesitation in holding that there is no likelihood of present appeal being heard in near future and the appeals of the year 2004 are presently being heard. The appeal is continuation of the trial and therefore in our considered opinion, the period of custody would be a relevant factor for grant of bail. There is no material on record that the appellants have been guilty of protracting the trial. Therefore, taking into account the period of detention of the appellants which is more than 11 and ½ years as well as the fact that there is no likelihood of appeal being heard in near future, we are inclined to enlarge the appellants, namely, Rajesh Dogra, Vishal Singh and Naresh Singh, on bail subject to following conditions: (a) That the appellants/applicants shall furnish personal bonds in the amount of Rs.50,000/-, with two sureties of like amount to the satisfaction of the Registrar Judicial of this Court. (b) That the appellants/applicants shall not leave the State of Jammu and Kashmir without permission of this Court. (c) The appellants/applicants shall appear before this Court on each and every date of hearing. Accordingly, the bail applications are allowed.” 7. It has also been argued that the order passed by Hon’ble Division Bench of this Court in CRA No.35/2017 & connected matters has been upheld by the Apex Court in SLP(Criminal) Diary Nos.21516/2018 with Diary No(s).21518/2018 (II-C) & Diary No(s).21521/2018 (II-C), on 08.06.2018. 8. The Hon’ble Supreme Court in the judgment reported as (2001) 4 SCC 355 , Akhtari Bi v. State of M. P, has held as under:- “To have speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court, has time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the ever increasing pressure on the existing judicial apparatus. Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction. It is unfortunate that even from the existing strength of the High Courts huge vacancies are not being filled up with the result that the accused in criminal cases are languishing in the jails for no fault of theirs. In the absence of prompt action under the constitution to fill up the vacancies, it is incumbent upon the high courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular benches to deal with the criminal cases can be set up where such appeals be listed for final disposal. We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court. We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them. We request the Chief Justices of the High Courts, where the criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special benches for that purposes.” 9. From the perusal of records, it is evident that the contention of learned counsel for the applicant/appellant No.3 is correct because the applicant is in custody since more than ten years and the instant appeal is also pending in this Court for the last more than five years. There is no likelihood of this appeal being heard in near future because there are similar appeals filed prior to it, are still pending. 10. Considering the pleaded fact that the appeal is pending for over more than five years and for no fault of the applicant, the same could not be heard and the fact that the applicant has been in custody for more than ten years and two of the co-appellants having already been granted bail, and while following the judgment of Hon’ble the Supreme Court in the above referred decisions, we direct release of the applicant on bail subject to the following conditions:- (i) That the applicant/appellant shall furnish personal bonds in the amount of Rs.1,00,000/- (Rupees one lac) with two sureties of the like amount to the satisfaction of the Registrar Judicial of this Court. (ii) That the applicant/appellant shall not leave the State of Jammu and Kashmir without permission of this Court. (iii) That the applicant/appellant shall appear before this Court on each and every date of hearing. (iv) That the applicant/appellant shall report to the concerned police station once in every two weeks commencing from the date of this order. 11. (ii) That the applicant/appellant shall not leave the State of Jammu and Kashmir without permission of this Court. (iii) That the applicant/appellant shall appear before this Court on each and every date of hearing. (iv) That the applicant/appellant shall report to the concerned police station once in every two weeks commencing from the date of this order. 11. The application is, accordingly, allowed.