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2024 DIGILAW 85 (RAJ)

Naveen S/o Diwan Singh v. State Of Rajasthan

2024-01-12

GANESH RAM MEENA

body2024
JUDGMENT : 1. The Second Bail Application has been filed by the petitioner in connection with FIR No. 128/2023 for offence u/S 366. The main ground for filing the Second Bail Application is delay in trial. 2. Learned counsel for the petitioner submits that the petitioner is in custody since 09.04.2023 and charge-sheet was filed on 01.05.2023, whereas the charge was framed on 16.08.2023. He further submits that out of the 17 prosecution witnesses, till date only one witness has been examined by the Trial Court and other witnesses could not be examined because they are not being produced by the prosecution before the court. 3. Learned counsel for the petitioner submits that the prosecution has failed in producing the prosecution witnesses before the trial court. He has also placed on record the ordersheets of the trial court proceedings. 4. Learned counsel for the petitioner further submits that speedy trial is the right of the petitioner. 5. Public prosecutor vehemently opposed the bail application and submitted that there are specific allegations of committing rape against the petitioner. He further submits that the delay in trial is not of such a nature that the petitioner could be given benefit of bail on that ground. 6. Considered the averments made by learned counsel for the petitioner as well as the public prosecutor and perused the challan papers as well as the order-sheets of the trial court. 7. From the facts on record, it is borne out that the petitioner was put to custody in the present case on 09.04.2023 for the alleged offences and after completion of investigation the investigating agency submitted charge-sheet against the petitioner on 01.05.2023 and thereafter charges were framed on 16.08.2023 against the petitioner for offences u/S 366 and 376 IPC. 8. As per the order-sheets of the trial court, on 06.09.2023, which was the first date for examining the witnesses, no witness was present before the court and the prosecution witness Nos. 1, 2 & 3 were summoned by the bailable warrants and the matter was ordered to be posted on 16.09.2023. 9. On 16.09.2023, again none of the prosecution witnesses were produced before the trial court for examination. 10. Then on 27.09.2023, no witness appeared before the trial court. 11. Again on 13.10.2023, 20.10.2023 & 26.10.2023, none of the witnesses were produced before the trial court even after the bailable warrants were issued for their presence. 9. On 16.09.2023, again none of the prosecution witnesses were produced before the trial court for examination. 10. Then on 27.09.2023, no witness appeared before the trial court. 11. Again on 13.10.2023, 20.10.2023 & 26.10.2023, none of the witnesses were produced before the trial court even after the bailable warrants were issued for their presence. 12. On 01.11.2023, only one witness (PW-1) appeared before the trial court and was examined and the trial court again issued bailable warrants for other witnesses. 13. Thereafter, on 07.11.2023, 23.11.2023 & 20.12.2023, none of the witnesses were produced by the prosecution for examination before the trial court. 14. Section 309 of the Code of Criminal Procedure, 1973 provides that inquiry or trial when relates to an offence u/S 376 IPC, the inquiry or trial shall be completed within a period of two months from the date of filing of charge-sheet. Section 309 of the Cr.P.C is quoted as under:- Section 309. Power to postpone or adjourn proceedings- (1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded: Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376AB, section 376B, section 376C or section 376D, section 376DA, section 376DB of the Indian Penal Code (45 of 1860), the inquiry or trial shall be completed within a period of two months from the date of filing of the charge sheet. (2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance no adjournment, no adjournment shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Provided also that- (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or crossexamination of the witness, as the case may be. Explanation 1- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2- The terms on which an adjournment or postponement may be granted in include, in appropriate cases, the payment of costs by the prosecution or the accused.” 15. Hon’ble Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and Anr., reported in 2022 Vol. 10 SCC, page 51 in para 49 & 50 has observed as follows:- “49. Hon’ble Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and Anr., reported in 2022 Vol. 10 SCC, page 51 in para 49 & 50 has observed as follows:- “49. Seeking to impeach Warren Hastings for his activities during the colonial period, Sir Edmund Burke made the following famous statement in “The World’s Famous Orations” authored by Bryan, William Jennings, published by New York: Funk and Wagnalls Company, 1906: “Law and arbitrary power are in eternal enmity. Name me a magistrate, and I will name property; name me power, and I will name protection. It is a contradiction in terms, it is blasphemy in religion, it is wickedness in politics, to say that any man can have arbitrary power. In every patent of office the duty is included. For what else does a magistrate exist? To suppose for power is an absurdity in idea. Judges are guided and governed by the eternal laws of justice, to which we are all subject. We may bite our chains, if we will, but we shall be made to know ourselves, and be taught that man is born to be governed by law; and he that will substitute will in the place of it is an enemy to God.” 50. Section 437 of the Code is a provision dealing with bail in case of non-bailable offenses by a court other than the High Court or a Court of Sessions. Here again, bail is the rule but the exception would come when the court is satisfied that there are reasonable grounds that the accused has been guilty of the offense punishable either with death or imprisonment for life. Similarly, if the said person is previously convicted of an offense punishable with death or imprisonment for life or imprisonment for seven years or more or convicted previously on two or more occasions, the accused shall not be released on bail by the magistrate.” 16. Hon’ble Apex Court in the case of Surinder Singh Vs. State of Punjab, reported in 2005 Vol. 7 SCC 387, has observed as follows:- “It is no doubt true that this Court has repeatedly emphasised the fact that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution. Hon’ble Apex Court in the case of Surinder Singh Vs. State of Punjab, reported in 2005 Vol. 7 SCC 387, has observed as follows:- “It is no doubt true that this Court has repeatedly emphasised the fact that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution. 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 the law. If a person is deprived of his liberty under a procedure which is not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution. It has also been emphasised by this 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. These are observations made in several decisions of this Court dealing with the subject of speedy trial. In this case, we are concerned with the case where a person has been found guilty of an offence punishable u/S 302 IPC and who has been sentenced to imprisonment for life. The Code of Criminal Procedure affords a right of appeal to such a convict. The difficulty arises when the appeal preferred by such a convict cannot be disposed of within a reasonable time.” 17. The Coordinate Bench of this court in S.B. Criminal Misc. VII Bail Application No. 3701/2022 (Savnta Vs. State of Rajasthan), decided on 21.04.2022 has observed as under:- “In Vinod Bhandari v. State of M.P., reported in (2015) 11 SCC 502 , a Division Bench of the Hon'ble Apex Court, considered the rights of an accused praying for bail pending trial and observed 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. 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 theaccused 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 v. Rajesh Ranjan: (2005) 2 SCC 42 , State of U.P. v. Amarmani Tripathi: (2005) 8 SCC 21 , State of Kerala v. Raneef: (2011) 1 SCC 784 and Sanjay Chandrav. CBI: (2012) 1 SCC 40 . 13...… 14...… 15...… 16..… 17..… 18. It is certainly a matter of serious concern that the Appellant has been in custody for about one year and there is no prospect of immediate trial. When a person is kept in custody to facilitate a fair trial and in the interest of the society, it is duty of the prosecution and the Court to take all possible steps to expedite the trial. Speedy trial is aright of the accused and is also in the interest of justice....................." Notably, the accused is not responsible for the delay occasioned in the completion of trial. There are several cases where the Hon’ble Supreme Court has granted bail even at the stage of defence evidence. In Special Leave to Appeal (Crl.) No(s).5397/2019 titled Ghanshyam Sharma v. State of Rajasthan, the Hon'ble Supreme Court had granted bail at the stage where trial was almost at the verge of completion and petitioners were given opportunities to put forth their defence by order dated10.01.2020.” 18. In the present case, several opportunities have been granted to the prosecution to produce the witnesses and the prosecution failed to produce the witnesses even after issuance of bailable warrants for the presence of prosecution witnesses. 19. In the present case, several opportunities have been granted to the prosecution to produce the witnesses and the prosecution failed to produce the witnesses even after issuance of bailable warrants for the presence of prosecution witnesses. 19. Taking into consideration the law laid down by the Hon’ble Apex Court and so also the obsrevations of the Coordinate Bench in the case of Savanta (supra) and on consideration of the facts and circumstances, this court can unhesitatingly says that because of the lethargic approach of prosecution in producing witnesses before the trial court, the fundamental right of the petitioner for a speedy trial has been put to jolt, and, therefore, this court deems just and proper to enlarge the petitioner on bail. Accordingly, the Second Bail Application is allowed and it is ordered that the accused petitioner named above shall be enlarged on bail, provided that he furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) together with two sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each to the satisfaction of the Trial Judge for his appearance before the trial Court concerned of all the dates of hearing as and when called upon to do so.