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2024 DIGILAW 191 (HP)

Bishan Dass v. State of Himachal Pradesh

2024-03-21

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. Petitioner is an accused in case FIR No. 158 of 2020, dated 17.07.2020, registered under Sections 302 and 201 of the Indian Penal Code, at Police Station Nagrota Bagwan, District Kangra, H.P. 2. The allegation against petitioner is that on 17.07.2020, he gave beatings to his wife Smt. Praveen Kumari and thereby caused her death. As per post-mortem report, fourteen ante-mortem injuries were found on the person of deceased. 3. Petitioner was arrested on the date of incident itself. The trial in the case has already begun and ten prosecution witnesses have already been examined. 4. The bail has been sought on the grounds that the evidence collected by police does not prima facie disclosed the commission of offence under Section 302 of the Indian Penal Code. The conduct of the petitioner has not been cruel, rather, he himself had informed about the death of his wife. Further, it has been submitted that the petitioner has already offered custody for more than three years and his right to speedy trial has been violated. 5. On the other hand, the prayer is opposed, on the ground that the allegations against petitioner are serious in nature. He is accused of brutally injuring his own wife, who had succumbed to the injuries within no time. The release of petitioner on bail, at this stage, can affect the fair trial as the petitioner may influence the prosecution witnesses. 6. I have heard learned counsel for the parties and have perused the record from police file. 7. The contention raised by learned Senior Counsel for the petitioner that the material on record does not prima facie suggest the ingredients of offence under Section 302 of the Indian Penal Code, deserves rejection for the simple reason that the petitioner has already been charged for the offence of murder by learned Trial Court after perusal of material on record and finding sufficient material to frame such charge. Petitioner has not assailed the order passed by learned Trial Court, whereby, the charge was framed against him. This Court while deciding the bail petition will not re-apprise the material on record and cannot arrive at a conclusion which may have the effect of setting aside the order passed by learned Trial Court in accordance with law. Petitioner has not assailed the order passed by learned Trial Court, whereby, the charge was framed against him. This Court while deciding the bail petition will not re-apprise the material on record and cannot arrive at a conclusion which may have the effect of setting aside the order passed by learned Trial Court in accordance with law. Thus, it cannot be said that the prima facie material does not exist against petitioner to try him for offence under Section 302 of IPC. However, the matter is required to be looked at from another angle. 8. The right to speedy trial is one of the various manifestations of Article 21 of the Constitution of India and has repeatedly been held by the Hon’ble Supreme Court to be a valuable right available to a person or accused of an offence. In Dr. Vinod Bhandari Vs. State of M.P. 2015(1) Criminal Court Cases 294 (S.C.), Hon’ble Supreme Court has held as under:- “12. It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time. Reference may be made to decisions of this Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2005)2 SCC 42 , State of U.P. vs. Amarmani Tripathi (2005) 8 SCC 21 , State of Kerala vs. Raneef (2011) 1 SCC 784 and Sanjay Chandra vs. CBI, (2012)1 SCC 40 .” 9. In Zahur Haider Zaidi Vs. Central Bureau of Investigation, (2019)20 SCC 404 , a three Judges Bench of Hon’ble Supreme Court had granted bail to an accused of offence under Section 302 of the IPC in following terms :- “1. Leave granted. We would presently consider whether the accused- appellant Zahur Haider Zaidi is entitled to be released on bail. The issue of transfer of case would be considered on a subsequent date after hearing all the accused. 2. Leave granted. We would presently consider whether the accused- appellant Zahur Haider Zaidi is entitled to be released on bail. The issue of transfer of case would be considered on a subsequent date after hearing all the accused. 2. Our attention has been drawn to the allegations against the accused-appellant and that he is in custody for the last 19 months. Though the accused-appellant is facing charge under Section 302, we are told that the trial has not made substantial progress beyond the framing of the charge. Completion of trial will take some time. 3. The only apprehension expressed on behalf of the Central Bureau of Investigation is that the appellant being a highly placed police officer may intimidate and win over witnesses and influence them. 4. We are of the view that the bail ought not to be denied on the aforesaid ground and in the event of any such conduct, the prosecution can always approach the competent court for cancellation of bail. 5. Taking into account the allegations, the period of custody suffered and likely time that may be taken for completion of trial, we are of the view that the accused- appellant should be released on bail in connection with FIR No.RC SI 2017 S0009 CBI/SC-I/New Delhi, on satisfaction of the appropriate condition(s) as may be imposed by the learned trial court. The order of the High Court is set aside. The appeal is disposed of to the aforesaid extent.” 10. In Criminal Appeal Nos. 152 of 2020, Prabhakar Tewari v. State of UP and Anr. (along with connected matter) and Criminal Appeal No.98 of 2021, Union of India v. K.A. Najeeb, the Hon’ble Supreme Court has emphasized the value of speedy trial for the accused and in cases of delay in completion of trials, liberty of bail has been granted. 11. In Criminal Appeal No. 943 of 2023 titled as Mohd Muslim @ Hussain Vs. State (NCT of Delhi), Hon’ble Supreme Court, vide its judgment dated 28.03.2023, has held as under: - “21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were under-trials. 22. The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High Court in A Convict Prisoner v. State21 as “a radical transformation” whereby the prisoner: “loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.” 23. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal”22 (also see Donald Clemmer’s ‘The Prison Community’ 20 National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/PSI- 2021/Executive_ncrb_Summary-2021.pdf 21 1993 Cri LJ 3242 22 Working Papers - Group on Prisons & Borstals - 1966 U.K. published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.” 12. In the facts of instant case, there is nothing to suggest that the petitioner has been accessory in delaying the trial of the case. Petitioner is of young age. Petitioner also has no other criminal antecedents or past criminal history. 13. It is reflected from the records that the trial of the case is proceeding at snail’s pace. In the facts of instant case, there is nothing to suggest that the petitioner has been accessory in delaying the trial of the case. Petitioner is of young age. Petitioner also has no other criminal antecedents or past criminal history. 13. It is reflected from the records that the trial of the case is proceeding at snail’s pace. Only ten prosecution witness have been examined till date and 32 more are remaining. In these circumstances, the trial of the case is not likely to be concluded in reasonable period. 14. Petitioner has already suffered incarceration for more than 3 years. Pre-trial incarceration cannot be punitive or preventive. 15. In the given circumstances of the case, the further pre-trial incarceration of the petitioner will not be justified. The only concern of the court is with respect to availability of the petitioner for the trial and its fair conclusion and for such purposes, petitioner is being put to stringent conditions as detailed hereafter. 16. In the given facts and circumstances of the case, the instant petition is allowed and the petitioner is ordered to be released on bail in case registered vide FIR No.158 of 2020 dated 17.7.2020 at Police Station, Nagrota Bagwan, District Kangra, H.P. under Sections 302 and 201 of the IPC, on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One lacs) with one surety in the like amount to the satisfaction of learned trial court. This order shall, however, be subject to the following conditions: - i) Petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion. ii) Petitioner shall not tamper with the prosecution evidence, in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand. iii) Petitioner shall be liable for immediate arrest in the instant case in the event of petitioner violating the conditions of this bail. (iv) Petitioner shall not leave India without permission of learned trial Court till completion of trial. 17. Any expression of opinion herein-above shall have no bearing on the merits of the case and shall be deemed only for the purpose of disposal of this petition.