Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 809 (ALL)

Tulsi Ram v. State of U. P.

2019-04-01

ANIL KUMAR, VIKAS KUNVAR SRIVASTAV

body2019
ORDER : 1. Heard learned counsel for the appellant and learned A.G.A. appearing for the State. This is the second bail application while the first bail application has been rejected vide order dated 20.07.2016. 2. The appellant has been convicted by judgment and order dated 17.01.2013 passed by learned Additional Session Judge, Court No. 7, Sitapur in Sessions Trial No. 885/2010 arising out of Case Crime No. 149/2010, under Sections-498-A, 302, I.P.C., relating to Police Station-Mahmodabad, District Sitapur. 3. Learned counsel for the appellant-applicant while pressing the bail application moved on behalf of the appellant-applicant submits that appellant-accused is in jail nearly 9 years and there is no likelihood that the appeal may be heard in near future. 4. So taking into consideration the said facts as well as the fact that the PW-1, the author of the F.I.R. the father of the deceased in his statement stated that on the date of incident, the appellant-accused is working with him in his field and after hearing news of death, he along with him went to the place where deceased was found dead. So taking into consideration the said facts, he may be enlarged on bail. 5. Learned A.G.A. while opposing the bail application submits that the first bail application of the appellant-applicant has been rejected on merit vide order dated 20.07.2016, relevant portion of the same is quoted here-in-below:-- "Accused-appellant Tulsi Ram, who happens to be husband of the deceased, is convicted for the murder of his wife. Deceased was found dead inside the house of appellant. Cause of death was reported to be strangulation. Three other injuries were also found on the body of the deceased. Accused has come with a specific defence during trial that there was altercation of the deceased with his brother Ram pal and thereafter she died all of a sudden and taking advantage of her death he has been falsely implicated. Thus, the appellant could not furnish any explanation for the death of his wife which took place inside his house. The defence taken by him is patently false as cause of death was strangulation. Appellant was not granted bail even during trial." 6. So taking into consideration the said fact as well as the fact that the appellant-applicant has been rightly convicted by trial court for the offences on the basis of evidence on record, so he is not entitled for bail. 7. Appellant was not granted bail even during trial." 6. So taking into consideration the said fact as well as the fact that the appellant-applicant has been rightly convicted by trial court for the offences on the basis of evidence on record, so he is not entitled for bail. 7. Accordingly, while rebutting the said contention that so far as the period of incarceration has not been disputed by learned A.G.A. So taking into consideration the said fact as well as the fact that in the present case, statement of PW-1, the complainant not taking into consideration by this Court while making the first bail application. In view of the said fact he is entitled for bail. 8. We have heard the learned counsel for the parties and gone through the records for the purpose of granting the bail application. 9. No doubt incarceration is not the sole ground for granting bail to the applicant-accused, however, under our Constitution, speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by Hon'ble Supreme Court in the case of Maneka Gandhi V. Union of India, AIR 1978 Supreme Court 597 wherein it has been held that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just. 10. Speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution of India. The aforesaid Article confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law. 11. If a person is deprived of his liberty under a procedure which not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution of India. It has also been emphasized by Hon'ble the Apex Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It has also been emphasized by Hon'ble the Apex Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. 12. Hon'ble Apex Court in the case of Dataram Singh v. State of Uttar Pradesh and Another, 2018 (3) SCC 22 : ( AIR 2018 SC 980 ) paras 3 to 6), held as under:- "2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. It the Investigating Officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the Investigating Officer and was not absconding or not appearing when required by the Investigating Officer. Surely, if an accused is not hiding from the Investigating Officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. Surely, if an accused is not hiding from the Investigating Officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by parliament by inserting Section 436-A in the Code of Criminal Procedure, 1973. 4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prison, leading to social and other problems as noticed by this Court in Re-Inhuman Conditions in 1382 Prison? (2017) 10 SCC 658 : (2018) 1 SCC (Cri) 90. 5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India? (2018) 11 SCC 1 : (2017) 13 Scale 609 : ( AIR 2017 SC 5500 ) going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : 1980 SCC (Cri) 465 : ( AIR 1980 SC 1632 ) in which it is observed that it was held way back in Nagendra nath Chakravarti, AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinson - AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. Reference was also made to Emperor v. H.L. Hutchinson - AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days." In the case of Nikesh Tarachand Shah v. Union of India and another, 2018 (11) SCC 1 : ( AIR 2017 SC 5500 paras 10 to 14), Hon'ble the Apex Court held as under:- 15. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows: "No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." It is well known that Magna Carta, which was wrung out of King John by the barons on the 15th of June, 2015, was annulled by Pope Innocent III in August of that very year. King John died one year later, leaving the throne to his 9 year old son, Henry HI. It is in the reign of this pious King and his son, Edward I, that Magna Carta was recognized by kingly authority. In fact, by the statutes of West minister of 1275, Kind Edward I repeated the injunction contained in clause 39 of Magna Carta. However, when it came to the reign of the Stuarts, who believed that they were kings on earth as a matter of divine right, a struggle ensued between Parliament and King Charles I. This led to another great milestone in the history of England called the Petition of Right of 1628. Moved by the hostility of the Duke of Buckingham, the House of Commons denied King Charles I the means to conduct military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the among them were those who became famous as "the Five Knights". Each of them sought a writ of habeas corpus to secure his release. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the among them were those who became famous as "the Five Knights". Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King's Bench, headed by the Chief Justice, made an order sending the knights back to prison. The Chief Justice's order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, "let right be done as is desired by the petition". Among other things, the Petition had prayed that no free man should be imprisoned or detained, except by authority of law. 16. In Bushell's case, decided in 1670, Chief Justice Sir John Vaughan was able to state that: "the writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it." Despite this statement of the law, one Jenkes was arrested and imprisoned for inciting persons to riot in a speech, asking that King Charles I be petitioned to call a new Parliament. Jenkes went from pillar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent him to the King himself, who, "immediately commanded that the laws should have their due course." (See Jenke's case, How. St. Tr. 1189 at 1207, 1208 (1676)). It is cases like these that led to the next great milestone of English history, namely the Habeas Corpus Act of 1679. This Act recited that many of the King's subject have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King's Bench Judges subject to penalties for noncompliance. 17. This Act recited that many of the King's subject have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King's Bench Judges subject to penalties for noncompliance. 17. The next great milestone in English history is the Bill of Rights of 1689, which was accepted by the only Dutch monarch that England ever had, King William HI, who reigned jointly with his wife Queen Mary II. It is in this document that the expression "excessive bail ought not to be required?." first appears in Chapter 2, clause 10. 18. What is important to learn from this history is that clause 39 of Magna Carta was subsequently extended to pre-trial imprisonment, so that persons could be enlarged on bail to secure their attendance for the ensuing trial. It may only be added that one century after the Bill of Rights, the U.S. Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the U.S. Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted' We may only add that the Eighth Amendment has been read into Article 21 by a Division Bench of this Court in Rajesh Kumar v. State through Government of NCT of Delhi (2011) 13 SCC 706 , at paragraphs 60 and 61 : (2011 AIR SCW 5997, paras 76 & 77).. 19. In Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 -588 : ( AIR 1980 SC 1632 ), the purpose of granting bail is set out with great felicity as follows:- 27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti (AIR 1924 Cal 476, 479, 480 : 1924 (25) Cri.L.J. 732) that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the "Meerut Conspiracy cases' observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor ( AIR 1931 All 504 : 1932 (33) Cri.L.J. 94) it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson ( AIR 1931 All 356 , 358 : 1931 (32) Cri.L.J. 1271) it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time-to-time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. According to the High Court, the variety of cases that may arise from time-to-time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Code of Criminal Procedure was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. 28. Coming nearer home, it was observed by Krishna Iyer J., in Gaudikanti Narasimhulu v. State [ (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that : (SCC p. 242, para 1) : ( AIR 1978 SC 429 , at P. 430, para 1) '1......the issue of bails is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process?. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right." 29. In Gurcharan Singh v. State (UT of Delhi) (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that : (SCC p. 129, para 29): ( AIR 1978 SC 179 , at P. 187, (para 29) "29.... There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail" 30. In American Jurisprudence (2nd. Volume 8, p. 806, para 39), it is stated: "where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. In American Jurisprudence (2nd. Volume 8, p. 806, para 39), it is stated: "where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end." It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail." 13. Further, the period of incarceration cannot be a sole ground for granting bail to an accused-applicant but the same is subject to the facts and circumstances of the particular case and if reverting to the facts of the instant matter, although the first bail application of the appellant-accused was rejected vide order dated 20.07.2016 by a co-ordinate bench of this Court, but, since then more than three and a half years has been elapsed, however, it is also not disputed that the applicant-accused is in jail from more than nine years and there is no likelihood for hearing of the appeal on merit as well as the arguments which has been advanced by learned counsel for the appellant-accused for the purpose of bail especially evidence/statement of PW-1, the author of FIR/father of the deceased which was not under consideration when the first bail application was rejected by an order dated 20.07.2016 as well as the fact that due to pendency of the heavy docket the appeals which were filed in the year 1981/82 are not to be heard and disposed of on merits in the near future. 14. Considering the aforesaid circumstances in its entirety, we are of the opinion that sufficient ground for allowing the bail application has been made out. 15. 14. Considering the aforesaid circumstances in its entirety, we are of the opinion that sufficient ground for allowing the bail application has been made out. 15. Accordingly, without commenting upon the merits of the case, let the appellant-applicant/Tulsi Ram convict of Sessions Trial No. 885/2010 arising out of Case Crime No. 149/2010, under Sections-498-A, 302, I.P.C., relating to Police Station-Mahmodabad, District Sitapur, be enlarged on bail during pendency of the appeal subject to his furnishing a personal bond and two sureties each to the satisfaction of the learned Court below. 16. The amount of fine imposed shall be deposited within one month from today and in default, the appellant-applicant shall be deprived of the benefit of bail order as passed today. 17. The bonds after being accepted shall be transmitted to this Court for being kept on record of the file of appeal.