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2025 DIGILAW 500 (HP)

Rakesh Kumar v. State of Himachal Pradesh

2025-03-26

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. The above named applicants have filed the present applications, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as the 'BNSS'), for releasing them on bail, during the pendency of the trial, in a case, arising out of FIR No.27/2018, dated 2 nd February, 2018, registered with Police Station, West Shimla, H.P., under Sections 302, 201, 392 and 120-B of the Indian Penal Code (hereinafter referred to as the ‘IPC’). 2. According to the applicants, they have falsely been implicated, in the present case, and there is nothing, on record to connect them with the alleged crime. Investigation, in the present case, is also stated to be completed. 3. As per the applicants, there are total 60 witnesses and only 52 witnesses have been examined. The applicants are in judicial custody, for the last seven years. As such, according to them, there is undue delay in the trial, which violates their fundamental rights, under Article 21 of the constitution of India. 4. The applicants have given certain undertakings, for which, they are ready to abide by, in case, they are ordered to be released on bail, during the pendency of the trial. 5. When put to notice, the police has filed the status report, disclosing therein, that on 02.02.2018, statement of complainant Mohan Lal was recorded, under Section 154 Cr.P.C, disclosing therein, that he is serving in HRTC Department, as Mechanic and posted at Dhalli. 5.1. On 02.02.2018, the complainant was at home and at about 7.30 a.m., his uncle Bhoop Singh, telephonically, informed him about the fact that one truck met with an accident at Sheel bridge and requested him to go to the spot, upon which, he, along with other villagers, reached at the spot, then, he noticed that vehicle No.HP71- 7005 was there. The engine of the same was ignited, however, the left side tyre was out of the retaining wall. The engine of the truck was switched off, by the uncle of this witness and this person put the stone on the backside of the tyre. On the spot, blood was found. When this witness reached near the retaining wall, then, he noticed a person lying there. The tyre, which was out of the retaining wall, was also found to be stained with blood, upon which, the police was informed, as well as, ambulance was called. 5.2. On the spot, blood was found. When this witness reached near the retaining wall, then, he noticed a person lying there. The tyre, which was out of the retaining wall, was also found to be stained with blood, upon which, the police was informed, as well as, ambulance was called. 5.2. When, the police along with the ambulance, reached at the spot, then, the person, who was in the ambulance, declared the said person, as dead. When, the spot was visited, 50 meters down in the gorge, another person was found dead. According to the complainant, it seems that both the said persons were killed by someone and the dead bodies were thrown there. The blood was covered with sand to conceal the evidence, upon which, the police registered the case and the criminal machinery swung into motion. 5.3. During investigation, police has collected the physical evidence, so found from the spot and sent the same to FSL, Junga. The deceased were identified as Nimin Kumar @ Naveen son of Deep Chand and Chander Pal son of Ramesh. Both were resident of Tehsil Nahan, District Sirmaur. 5.4. During investigation, on 03.02.2018, the CDRs of mobile of deceased Nimin @ Naveen were obtained for analysis and it was found that Naveen and the holder of mobile No.98160-26494, had talked with each other on 02.02.2018 from 7.20 p.m. to 09.07 p.m. and 10.55 p.m. to 11.27 p.m. The said mobile was found to be issued in the name of Rakesh Kumar (applicant), who, as per the police report, was working as Driver in M/s Rishi Markandey Flour Mills. 5.5. During investigation, the involvement of the applicants, was found, and they were arrested. After the investigation of the case, the police has filed the report under Section 173(2) Cr.P.C., which is pending adjudication in the Court of learned Additional Sessions Judge-I, Shimla, District Shimla, H.P. 6. It is the further case of the police that out of 58 witnesses, 44 have been examined, 4 witnesses had unfortunately expired, and 2 have been given up. The case is now listed for 08.04.2025, for evidence, as such, it has been prayed that the trial is at the verge of conclusion. 7. On the basis of the above facts, it has been apprehended that in case, the applicants are released on bail, in that eventuality, they may flee from justice and also coerce the witnesses. 8. The case is now listed for 08.04.2025, for evidence, as such, it has been prayed that the trial is at the verge of conclusion. 7. On the basis of the above facts, it has been apprehended that in case, the applicants are released on bail, in that eventuality, they may flee from justice and also coerce the witnesses. 8. In this case, the applicants, in order to establish their plea that there is undue delay in the trial, have annexed the zimini orders passed by the learned trial Court. As such, according to the applicants, they are entitled to the relief, as claimed, in the applications. 9. In order to substantiate their claim, the applicants have relied upon the decision of the Hon’ble Supreme Court, in Criminal Appeal No.5387 of 2024, titled as Athar Parwez versus Union of India, Neutral Citation No. ( 2023 INSC 995 ) , wherein, it has been held, as under:- “19. Long incarceration and unlikely likelihood of trial being completed in near future has also been taken as a ground for exercising its constitutional role by the Constitutional Courts to grant bail on violation of Article 21 of the Constitution of India which guarantees trial to be concluded within a reasonable time. Gross delay in conclusion of the trial would justify such invocation leading to a conclusion of violation of Part III the Constitution of India, which may be taken as a ground to release an undertrial on bail. A reference in this regard may be made to the judgment of this Court in Union of India v. K.A. Najeeb, (2021), 3 SCC 713 . It requires mention that in that case this Court considered the factum that there were 276 witnesses left to be examined which would lead to a prolong trial resulting in no possibility of the trial coming to an end at an early date resulting in suffering of incarceration for a significant period of time by an accused, making it an obligation on the Court on such consideration to enlarge such an accused on bail. It may be mentioned here that the Court was cautious enough to mention that the restrictions under the statute as in this case, Section 43-D (5) of UAPA, 1967 as well as the powers exercisable under the Constitutional jurisdiction by the Court need to be harmonized. 20. It may be mentioned here that the Court was cautious enough to mention that the restrictions under the statute as in this case, Section 43-D (5) of UAPA, 1967 as well as the powers exercisable under the Constitutional jurisdiction by the Court need to be harmonized. 20. At the initial stage, the legislative policy needs to be appreciated and followed by the Courts. Keeping the statutory provisions in mind but with the passage of time the effect of that statutory provision would in fact have to be diluted giving way to the mandate of Part III of the Constitution where the accused as of now is not a convict and is facing the charges. Constitutional right of speedy trial in such circumstances will have precedence over the bar/strict provisions of the statute and cannot be made the sole reason for denial of bail. Therefore, the period of incarceration of an accused could also be a relevant factor to be considered by the constitutional courts not to be merely governed by the statutory provisions.” 10. With due respect to the law laid down by the Hon’ble Supreme Court, the same, in no way, helps the case of the applicants, as, the trial is now, at the verge of conclusion. 11. Moreover, specific apprehension has been expressed by the Police that in case, the applicants are ordered to be released on bail, they may not be available for the trial and may also coerce the witnesses. 12. As stated above, out of 58 witnesses, 50 have been examined/given up/expired. Only 8 witnesses are left to be examined. 13. The question of releasing a person, on bail, is to be considered, keeping in view the peculiar facts and circumstances of each case. The longer period of custody could only be considered, in case, there is undue delay in the trial. 14. Keeping in view the fact that the case is based upon the circumstantial evidence and in the case, which is based upon the circumstantial evidence, the number of witnesses are always on the higher side. 15. Considering all these facts, this Court is of the view that applicants have failed to make out a case for releasing them on bail. As such, the applications are dismissed. 15. Considering all these facts, this Court is of the view that applicants have failed to make out a case for releasing them on bail. As such, the applications are dismissed. However, keeping in view the period of custody, the learned trial Court is requested to expedite the hearing of the case and conclude the trial, as expeditiously, as possible. 16. Any of the observations, made herein above, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail applications.