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2025 DIGILAW 619 (HP)

Sanju Tamang v. State of Himachal Pradesh

2025-04-03

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, J. 1. Petitioner is co-accused in FIR No.270/2018, dated 26.10.2018, registered under Sections 341, 382, 323, 504 and 376D of Indian Penal Code at Police Station Manali, District Kullu, H.P. He was arrested on 05.12.2018 and by means of the present petition, seeks enlargement on regularbail, primarily on account of delay in trial. 2. The prosecution case in nut shell is that a lady of Russian nationality (hereinafter referred to as the complainant) was admitted for treatment at Mission Hospital Manali. She lodged a complaint on 26.10.2018 that while coming alongwith her friend, Sh. Dinesh Baloon, from old Manali towards new Manali via Hadimba Temple road, at around 12 O’clock in the midnight, two unknown persons (present petitioner and one Sh. Sanjay) gave them beatings, abused in filthy language, snatched their belongings, compelled the complainant’s friend to go to ATM for giving them cash. The complainant further alleged that both the accused persons, including the present petitioner, brought her to a nearby forest and raped her. Whereafter, they left her in the forest. The complainant was taken to Mission Hospital Manali. On her statement, the FIR was registered.During investigation, with the help of CCT Camera Footage, both the accused persons were traced out. Their complicity was found in the incident and they were arrested on 05.12.2018. Medical examination of the complainant was got conducted. During investigation, it transpired that accused persons had committed sexual intercourse with the complainant using condoms. Spot was got identified from the accused persons as well. From the spot, used condoms were also recovered. Accused persons were also got identified from Sh. Dinesh Baloon by conducting test identification parade before the learned Magistrate. On completion of the investigation, charge sheet in the case was presented on 28.01.2019. Supplementary challan was presented on16.02.2021. 3. Learned counsel for the petitioner contended that the petitioner had no role in the commission of crime lodged against him. He is not connected in any manner with the case. There is no link evidence to show involvement of the petitioner in the case. Petitioner was apprehended after lapse of more than a month and only on the basis of suspicion. Medical evidence available on record of the case belies the prosecution version. Material witnesses examined by the prosecution have not supported the prosecution case. There is no link evidence to show involvement of the petitioner in the case. Petitioner was apprehended after lapse of more than a month and only on the basis of suspicion. Medical evidence available on record of the case belies the prosecution version. Material witnesses examined by the prosecution have not supported the prosecution case. Learned counsel for the petitioner also pleaded that despite grant of several opportunities to prosecution, till date the complainant and her friend Sh.Dinesh Baloon have not turned up to depose before the Court. Due to delay owing to the prosecution, there is no possibility of conclusion of the trial in the near future. The petitioner, therefore, deserves to be enlarged on bail at this stage.Learned Additional Advocate General while opposing the bail plea, submitted that petitioner is charged with the commission of heinous offence. His involvement in the crime has been sufficiently proved during investigation. The petitioner does not deserve leniency at this stage when trial is underway and some of the material prosecution witnesses, including the complainant and her friend, are yet to be examined. It is also apprehended that the petitioner, if released on bail, may influence the remaining prosecution witnesses. 4. Consideration: (i) Petitioner, seeks bail on ground of delay in trial. In Union of India vs. K.A. Najeeb, (2021) 3 SCC 713 Hon’ble Apex Court considered various judicial precedents where Article 21 of the Constitution of India was invoked in case of gross delay in disposal of cases of under trials and consequential necessity to release them on bail. The earlier decisions were reiterated that liberty granted by Part-III of the Constitution, would cover within its protective ambit not only due procedure and fairness, but also access to justice and speedy trial. It was held that once it is obvious that a timely trial would not be possible and the accused have suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge them on bail. Some relevant paras from the judgments are extracted hereinafter:- “10. It is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43D(5) of UAPA are alien to him. Some relevant paras from the judgments are extracted hereinafter:- “10. It is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43D(5) of UAPA are alien to him. The High Court instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section43D(5) of UAPA. 11. The High Court’s view draws support from a batch of decisions of this Court, including in Shaheen Welfare Assn, laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case: “10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.”(Emphasis supplied) 12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act”) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), Babba v. State of Maharashtra and Umarmia alias Mamumia v. State of Gujarat enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. 13. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. 13. We may also refer to the orders enlarging similarly situated accused under the UAPA passed by this Court in Angela Harish Sontakke v. State of Maharashtra. That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years’ incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra, an accused under the UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined. 15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail. 17. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, 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 UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.” X vs. State of Rajasthan & Anr. SLP (Cr.) No. 13378 of 2024 decided on 27.11.2024 was an appeal preferred against an order granting bail to a person accused of rape. The Apex Court held that ordinarily in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should be loath in entertaining the bail application of the accused. Hon’ble Apex Court further held that once the trial commences, it should be allowed to reach its final conclusion. The moment the High Court exercises its discretion in favour of the accused and orders his release on bail by looking into depositions, it will have its own impact on pending trial. However, Hon’ble Apex Court further held that in the event of trial getting unduly delayed and that too for no fault of accused, the Court may be justified in ordering his release on bail on the ground of infringement of accused’s right to speedy trial. Relevant portion of the judgment is as under: - “14. Ordinarily in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should be loath in entertaining the bail application of the accused. 15. Relevant portion of the judgment is as under: - “14. Ordinarily in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should be loath in entertaining the bail application of the accused. 15. Over a period of time, we have noticed two things, i.e. (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. 16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed.” (ii) In the instant case, a status report was filed by the respondent-State in the case on 11.03.2025. As per the report, material prosecution witness Sh. Dinesh Baloon had been summoned twenty one times by the learned Trial Court, but had remained present only once in the Court. Taking note of this status report, following order was passed in this petition on 11.03.2025: - “Learned Deputy Advocate General has filed today a fresh status report in terms of which material prosecution witness Sh. Dinesh Baloon, had been summoned 21 times by the learned Trial Court but remained present only once before the learned Trial Court. However, his statement could not be recorded at that time. Dinesh Baloon, had been summoned 21 times by the learned Trial Court but remained present only once before the learned Trial Court. However, his statement could not be recorded at that time. Let the respondents file an affidavit as to how many material witnesses remain to be examined; the details of their having been summoned; the result thereof and as to why out of 51 prosecution witnesses in the FIR that was registered on 05.12.2018, statement of only 21 witnesses have been recorded till date. List on 19.03.2025.” Pursuant to the above order, compliance affidavit has been filed by the respondent-State. This affidavit states that twenty-five prosecution witnesses still remain to be examined in this case, out of which, twelve are material and remaining are formal witnesses. Out of twelve material witnesses, listed in Annexure R-4 appended alongwith the affidavit, four are Russian nationals; two are police officials; four are doctors and the remaining two material witnesses are private individuals including Sh. Dinesh Baloon, friend of the complainant. The status report and the compliance affidavit clearly state that service of summons has been attempted upon Sh. Dinesh Baloon, a Nepali national, with his local address of Manali, twenty-one times for his appearance before the learned Trial Court. During hearing of the bail petition, learned Additional Advocate General submitted that this material witness, despite having been summoned twenty-one times, could be served only once, that too in the year 2019; That it has not been possible to serve him ever since; He has never appeared before the learned Trial Court. Compliance affidavit shows that even the second individual cited as material witness has not deposed despite issuance of summons to him eight times. The complainant has also not deposed as yet despite having been summoned fifteen times. (iii) Petitioner, no doubt, is accused of commission of a heinous offence, but he also has right of speedy trial. He cannot be permitted to languish behind the bars for an indefinite period awaiting completion of trial. Looking at the present pace of the trial, feasibility of early completion of trial seems very very remote. Respondents have not attributed slow pace of trial to the petitioner. The petitioner has already spent more than six years in custody. Petitioner cannot be left in lurch to remain as an under trial prisoner for an indefinite period of time especially when early conclusion of trial is unlikely. Respondents have not attributed slow pace of trial to the petitioner. The petitioner has already spent more than six years in custody. Petitioner cannot be left in lurch to remain as an under trial prisoner for an indefinite period of time especially when early conclusion of trial is unlikely. Prosecution’s apprehension of petitioner’s influencing material witnesses appears to be misplaced as prosecution has not been able to produce two private individuals despite summoning them repeatedly. Remaining material witnesses are either Russian nationals, doctors or police personnel. This aspect can otherwise be taken care of by imposing stringent conditions. The petitioner, at this stage, has made out a case for his enlargement on regular bail for delay in trial. 5. In view of above, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh only) with two local sureties each in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:- (i) The petitioner shall not tamper with the prosecution evidence or influence/contact prosecution witnesses in any manner whatsoever. (ii) The petitioner will not leave India without prior permission of the Court. (iii) The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer. (iv) Petitioner shall attend the trial on every hearing, unless exempted in accordance with law. (v) The petitioner shall not contact, threaten or intimidate the victim/complainant and their family members in any manner whatsoever. (vi) Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any. 6. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove. 7. 6. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove. 7. With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any. 8. The pending miscellaneous application(s), if any, also stand disposed of.