Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 1332 (RAJ)

Sunil v. State

2022-04-27

VINIT KUMAR MATHUR

body2022
JUDGMENT Vinit Kumar Mathur, J. - The present fourth bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner who is in custody in connection with F.I.R. No. 0109/2017, Police Station Gajner District Bikaner for the offence under Section 8/15 of NDPS Act. 2. Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material available on record. 3. Counsel for the petitioner submits that the third bail application of the petitioner was dismissed by this court vide order dated 19.08.2020. The present fourth bail application has been filed on the ground that despite repeated directions having been issued by this court, the trial is not being proceeded and concluded. Learned counsel for the petitioner further submits that on 18.01.2019, the learned trial court was directed to expedite the trial proceedings. After 18.01.2019, when the trial was being proceeded at a snail's pace, again on 19.08.2020, this court while rejecting third bail application of the petitioner, direction was issued that since the petitioner has faced incarceration for more than three and half years, the trial court was directed to call the witnesses and expedite the trial proceedings. The counsel further submits that after the directions having been issued by this court on two occasions, more than a period of one and a half year has passed, still the trial proceedings have not been concluded as out of total 14 witnesses, only 07 witnesses have been examined so far. Learned counsel has placed on record order sheets of the trial court to contend that a close reading of the same will show that the witnesses who are mostly police officials despite having been summoned by the trial court from time to time, failed to appear for tendering their evidence before the trial court. The counsel submits that the trial proceedings are not being concluded on account of failure of the witnesses in appearing before the trial court. The witnesses who are not appearing before the trial court are officials of the police department, therefore, the directions issued by this court for expediting the trial proceedings could not be complied with. Learned counsel further submits that the petitioner has already suffered the incarceration for more than four and half years. The witnesses who are not appearing before the trial court are officials of the police department, therefore, the directions issued by this court for expediting the trial proceedings could not be complied with. Learned counsel further submits that the petitioner has already suffered the incarceration for more than four and half years. The counsel for the petitioner relies upon a judgment of three Judges bench of Hon'ble Supreme Court rendered in the case of Union of India v.. K.A. Najeeb 2021 (3) SCC 713 . Learned counsel further submits that casual approach of the police officials in not appearing before the trial court for their examination is hampering the trial proceedings resulting into delay in deciding the case of the petitioner for which he had to suffer the incarceration. The counsel relies upon the judgment of Hon'ble Supreme Court in the case of Tapan Das v. Union of India decided on 07.10.2021 and order of coordinate bench of this court passed in S.B. Criminal Second Bail Application No. 2392/2019 Oma Ram @ Om Prakash v.. State decided on 06.05.2019 and the observations made by this court in S.B. Criminal Misc. 3rd Bail Application No. 15198/2021 Manjeet Singh v.. State of Rajasthan decided on 07.12.2021. Therefore, it is prayed that the petitioner may be enlarged on bail. 4. Learned Public Prosecutor has filed a reply to the present bail application. He submits that on account of pandemic of Covid-19 in the country, the witnesses who are police officials could not appear before the trial court for their examination. Learned Public Prosecutor is not in position to dispute the fact that the petitioner has suffered the incarceration for more than four and half years and the orders passed by this court for expediting the trial proceedings. 5. I have considered the submissions made at the bar and gone through the relevant documents of the case. The petitioner is facing the trial for an offence under NDPS Act and has suffered the incarceration for more than four and half years. It is a fact that learned trial court has summoned the witnesses from time to time for their examination before the trial court. It is worth noticing here that mostly the summoned witnesses are police officials serving in the State of Rajasthan and their non appearance before the trial court clearly shows defiance and disrespect towards orders of the trial court. It is worth noticing here that mostly the summoned witnesses are police officials serving in the State of Rajasthan and their non appearance before the trial court clearly shows defiance and disrespect towards orders of the trial court. The fact that the country was facing the pandemic does not absolve the departmental witnesses more particularly when they are police officials to appear before the trial court for their deposition especially when the courts were functioning during this period and thus, this court finds that their non-appearance before the trial court on the ground of Pandemic cannot be a reasonable excuse. In the case of Tapan Das decided on 07.10.2021, the Hon'ble Supreme Court as well as coordinate benches of this court have taken into consideration that if a person has suffered the incarceration for more than 4-5 years and his trial has not been completed, he is entitled to be enlarged on bail. 6. The Hon'ble Supreme Court in the case of Union of India v.. K.A. Najeeb (supra) has observed as under:- "17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part-III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial". 7. In view of the discussions made above, this Court deems it just and proper to release the petitioner on bail. 8. Accordingly, this 4th bail application filed under Section 439 Cr.P.C. is allowed and it is directed that the petitioner Sunil S/o. Mohan Ram shall be released on bail in connection with F.I.R. No. 0109/2017, Police Station Gajner District Bikaner provided he executes a personal bond in a sum of Rs. 8. Accordingly, this 4th bail application filed under Section 439 Cr.P.C. is allowed and it is directed that the petitioner Sunil S/o. Mohan Ram shall be released on bail in connection with F.I.R. No. 0109/2017, Police Station Gajner District Bikaner provided he executes a personal bond in a sum of Rs. 1,00,000/- (Rupees: One Lac Only) with two sound and solvent sureties of Rs. 50,000/- (Rupees: Fifty Thousand Only) each to the satisfaction of the learned trial Court for his appearance before that Court on each and every date of hearing and whenever called upon to do so till the completion of the trial. 9. It is a matter of grave concern that despite repeated directions having been issued by this court, the officials of Rajasthan Police are not cooperating in expediting the trial proceedings before the trial court for the heinous offences. 10. Taking strong exception in the matter, this court feels that Director General of Police, State of Rajasthan, Jaipur should take urgent, immediate steps by issuing appropriate directions for appearance of the police officials who are enlisted witnesses before the trial court and ensure recording of their testimony before the concerned courts for speedy trial of the cases, specially the heinous offences. 11. A copy of this order be sent to the Director General of Police, State of Rajasthan, Police Headquarters, Jaipur.