Research › Search › Judgment

Rajasthan High Court · body

2024 DIGILAW 402 (RAJ)

Bhoma Ram, S/o. Lachharam v. State Of Rajasthan

2024-03-05

FARJAND ALI

body2024
ORDER : 1. The jurisdiction of this court has been invoked by way of filing the second application under Section 439 CrPC at the instance of accused-petitioner. His first bail application being S.B. Criminal Misc. Bail Application No.16442/2021 was dismissed as not pressed by the Coordinate Bench of this Court vide order dated 18.01.2022. A liberty was granted to the petitioner to The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number 211/2019 2. Concerned Police Station Raniwada 3. District Jalore 4. Offences alleged in the FIR Sections 147, 148, 149, 302 and 120-B of the IPC 5. Offences added, if any Sections 323, 324 and 302/34 of the IPC 6. Date of passing of impugned order 30.11.2023 2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. Xxxx 4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor as well as learned counsel for the respondent-complainant oppose the bail application and submits that the present case is not fit for enlargement of accused on bail. 5. Have considered the submissions made by both the parties and have perused the challan papers as also the material made available to the Court. 6. The petitioner is an accused of committing murder of deceased Babu on the fateful night of 06.10.2019. Besides the petitioner some other persons were also made accused out of which one of the co-accused namely Dinesh has already been released on bail by the Coordinate Bench of this Court vide order dated 18.01.2022. 7. For the purpose of ascertaining whether an accused is guilty or not only a reasonable period can be awarded to the prosecution while keeping the accused behind the bars. As a matter of fact, the petitioner is in judicial custody in this case since 08.10.2019. More than four years have elapsed but the trial is not going to be culminated. How long a person, accused of an offence can be detained for want of evidence against him; the question is not comprehensible to this Court. 8. As a matter of fact, the petitioner is in judicial custody in this case since 08.10.2019. More than four years have elapsed but the trial is not going to be culminated. How long a person, accused of an offence can be detained for want of evidence against him; the question is not comprehensible to this Court. 8. While entertaining a bail plea of an accused, it is evident that his/her/their case is pending and the trial is ongoing, thus, presumption of innocence is there to support him. There are certain provisions pertaining to presumption in the Indian Evidence Act, 1872 such as Sections 111A, 113A, 113B, 114, 114A etc. and in some special statutes also, there are provisions regarding presumption that can be drawn but nowhere in the Evidence Act or any other penal statutes, the doctrine of presumption of guilt has been advocated. All the presumption clauses referred above come into the picture when the prosecution succeeds in discharging the burden laid upon it regarding establishment of the basic features of the case, thus, the initial burden always lies on the prosecution and only after discharge of the initial burden, the theory of reverse burden comes into play. Simply put, the theory of reverse burden or the reverse onus theory means that once the fundamental facts/features/truth of a case has/have been established which is substantial enough to move the burden from the prosecution to the defence, then the burden of proof shifts and lies on the defence/accused to disprove the allegations leveled against him/her/them or to prove his/her/their innocence. Having said this, suffice it is to say that while considering a bail plea under Section 439 of CrPC which relates to a bail pending trial, there is always a presumption of innocence in favour of the accused. Having said this, suffice it is to say that while considering a bail plea under Section 439 of CrPC which relates to a bail pending trial, there is always a presumption of innocence in favour of the accused. While taking into account consideration of presumption of innocence, Court cannot lose sight of the other parameters that are to be considered while entertaining a bail plea which have been laid down and reiterated innumerable times by Hon’ble the Supreme Court in plethora of cases like nature and gravity of offences and availability of material in support thereof; whether there are prima facie or reasonable grounds to believe that the accused has committed the offence; severity of punishment in case of finding of guilt of the accused; possibility of abscondance of accused if released in bail; possibility of hampering of or tampering with the evidence if released on bail; character, conduct and social status of the accused; antecedents of the accused; if the accused is an influential person, then whether he may put impact on the smooth process of trial if released on bail; possibility of the prosecution witnesses being influenced; likelihood of repetition of offence or peril of infraction of justice if bail is granted. 9. There is not even a single provision in the Code of Criminal Procedure which recognizes the power or grants the power to any Court to allow a part of sentence to be suffered at pre-conviction stage and the rest of the sentence to be served post his conviction. The sentence cannot be divided and passed in such a manner that some part of it is suffered before passing of judgment of conviction and the rest is suffered after passing of judgment of conviction. In fact, sentence shall begin from the date of passing of order of sentence when the signature of the judicial officer is appended on the same. Thus, an accused cannot be made to undergo an indefinite period of detention pending trial particularly in cases where a strong arguable case exists in favour of the accused. 10. In fact, sentence shall begin from the date of passing of order of sentence when the signature of the judicial officer is appended on the same. Thus, an accused cannot be made to undergo an indefinite period of detention pending trial particularly in cases where a strong arguable case exists in favour of the accused. 10. After pondering over the legal provisions made in the code of Criminal Procedure, the law enunciated by Hon’ble the Supreme Court through plethora of judicial pronouncements and upon deliberation of bail jurisprudence, it is understood that the only thing which a court of law has to ascertain while entertaining a bail plea is whether the accused should be allowed to come to the court to attend the judicial proceeding from his home and he may be allowed to remain with his family and within the society on the specific condition that on the stipulated date of the hearing of the case, he will willfully attend the court proceeding or contrary to this, he is such a person that even in the pending trial, he should be detained and should not be allowed to visit his family and should be lodged at a specified place of detention so that on the day of hearing, he may be brought to the court from the jail. In other words, it is to be decided whether he may be allowed to eat, sleep and live with his family like a man ordinarily does or he may be allowed to eat, sleep and live in the jail. It all boils down to this that whether the Court wishes to allow the accused to come to the court to attend the proceedings from his home upon furnishing his bonds and surety of independent person(s) or the court thinks that he cannot be allowed to roam free and therefore, he should be detained so that he may be brought before the court on the day fixed for the hearing. This Court is of the considered view that this is one of the prime concerns which is to be thought over and to be ascertained while entertaining a bail plea. This Court is of the considered view that this is one of the prime concerns which is to be thought over and to be ascertained while entertaining a bail plea. It is a judicially noticeable fact in the present era that due to high volume of pending cases, culmination of trial takes considerable time and in my view, keeping the accused behind the bars during the pendency of the case would serve no purpose except in exceptional circumstances. 11. The entire gamut of bail jurisprudence revolves around the conduct of the accused. Release of a person having bad conduct or a history of bad conduct may be a peril to the society. It is his conduct which brings into the mind of a judicial officer to make an idea that if the accused is released on bail, he may commit the offence again/ repeat the offence again and as such, the same will not be in societal interest. Here, it is to be made clear that such kind of speculation should not be made on vague and bald pleas and aspersions rather there must be some solid material to reach on the above conclusion which means that the speculation should not be vague but should be well-founded. Here, in this case, neither the prosecution has placed any material nor any argument has been raised in this regard. 12. The main object of keeping a person behind the bars pending trial is nothing more than to ensure a smooth, unhindered, fair and speedy trial and to ensure that he may be present to receive the sentence as may be passed. No such apprehension has been shown in this legal aspect of the matter and as such, there is no legal impediment to release the accused on bail in view of the discussion made herein above. 13. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.