Himachal Pradesh High Court
Date Of Decision: 3.3.2025 vs State Of Himachal Pradesh on 3 March, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
2025:HHC:4242
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 11 of 2025
Date of Decision: 3.3.2025
________________________________________________________________
Hanuman
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the petitioner: Mr. N.K. Thakur, Senior Advocate with Mr. Divya
Raj Singh, Advocate.
For the Respondent: Mr. Anup Rattan, Advocate General with Mr. Rajan
Kahol, Mr. Vishal Panwar and Mr. B.C. Verma,
Additional Advocates General and Mr. Ravi
Chauhan, Deputy Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner namely Hanuman, who is behind the bars for
almost five and half years, has approached this Court in the instant
proceedings filed under Section 483 of Bharatiya Nagarik Suraksha
Sanhita, 2023, for grant of regular bail in case FIR No.93/2019, dated
23.9.2019, under Sections 302 and 201 of Indian Penal Code, registered at
PS Haripur, District Kangra, Himachal Pradesh.
2. Pursuant to orders dated 2.1.2025 and 9.1.2025, respondent-
State has filed the status report and ASI Chaman Lal, has come present
with record. Record perused and returned.
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2
3. Close scrutiny of status report/record reveals that on
23.9.2019, complainant Sh. Mohan Singh got his statement recorded under
Section 154 CrPC, alleging therein that his son Ashwani Kumar i.e.
deceased, had purchased a new Swift Car and had gone to Baijnath Nag
Mandir on 22.9.2019, alongwith family. Complainant alleged that at
9:30am, all family members came back to the house and thereafter the
deceased went towards Padiarkhar for parking the vehicle. He alleged that
on same day at 11:30am, his son informed that he is going to Palampur
taking one passenger. He alleged that at 8:30pm, he called up his son, but
he did not pick up the phone. He alleged that he as well as other family
members repeatedly tried to contact deceased Ashwani Kumar as well as
his friends, but in vain and as such, appropriate action in accordance with
law be taken to trace his son. On the basis of aforesaid complaint made by
the complainant, police after having lodged FIR detailed herein above
started investigation and recovered the dead body of the deceased son from
the railway line near Ranital. During investigation, it emerged that bail
petitioner herein, who at the relevant time, was working in Indian Army,
had killed deceased son of the complainant on the suspicion of illicit
relationship of his wife with the deceased. Since 27.10.2019, petitioner is
behind the bars. Since investigation is complete and nothing remains to be
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recovered from the bail petitioner, he has approached this Court in the
instant proceedings for grant of regular bail on the ground of inordinate
delay in conclusion of trial. Prior to filing of the petition at hand, petitioner
had approached this Court by way of Cr.MP(M) No. 849 of 2024, which was
dismissed as withdrawn vide order dated 8.5.2024 with a direction to the
court below to conclude the trial expeditiously, preferably, within six
months. Since despite there being aforesaid direction issued by this
Court, court below has not been able to conclude the trial and as of today,
70 witnesses out of 84 witnesses remain to be examined, bail petitioner has
approached this Court in the instant proceedings for grant of bail.
4. While fairly admitting factum with regard to filing of challan in
the competent court of law, Mr. Rajan Kahol, learned Additional Advocate
General, states that taking note of gravity of offence alleged to have been
committed by him, he does not deserve any leniency and as such, prayer
made by the petitioner for bail on the ground of delay cannot be accepted.
He states that 14 prosecution witnesses out of 84 witnesses, already stand
examined and for recording the statements of remaining witnesses, court
below has already fixed the matter for 26.4.2025. While making this court
peruse record, Mr. Kahol states that bail petitioner has committed heinous
crime of murder by killing an innocent person on the suspicion of illicit
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4
relations of his wife with him. He states that since petitioner hails from the
State of Haryana coupled with the fact that he has committed heinous
crime of murder, it may not be in the interest of justice to enlarge him on
bail because in that event, he may not only flee from justice but may also
tamper with the prosecution evidence.
5. Having heard the learned counsel representing the parties and
perused material available on record, this court is not persuaded to agree
with Mr. N.K. Thakur, learned Senior counsel, appearing for the petitioner
that bail petitioner has been falsely implicated, rather there is ample
material adduced on record suggestive of the fact that petitioner having
suspicion of illicit relationship inter-se his wife and deceased Ashwani
Kumar, killed him, however having taken note of the fact that bail
petitioner is behind bars for approximately five years and five months and
till date, prosecution has been able to examine only 14 witnesses out of 84
witnesses, prayer made by the bail petitioner for grant bail deserves to be
considered on the ground of inordinate delay in conclusion of trial.
6. Though Mr. Rajan Kahol, learned Additional Advocate General,
attempted to argue that delay, if any, in trial was on account of delay in
sanction of prosecution by the Army, but such fact, if any, may not be of
any relevance for the reason that on account of delay in prosecution
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sanction, freedom of the bail petitioner cannot be curtailed for an indefinite
period that too without his being held guilty. Moreover, this court finds
that prosecution evidence in the case at hand had commenced in the year
2022 and till date, prosecution has not been able to examine even half of
the witnesses. As of today, only 14 witnesses have been examined. Though
in the case at hand, trial court has fixed the matter for recording the
statement of witnesses in the month of April, but taking note of the fact
that it took almost 2½ years for the prosecution to examine 14 witnesses,
this Court has reason to presume and believe that considerable time is
likely to be consumed in conclusion of the trial and in case, petitioner is left
to incarcerate in jail for an indefinite period during trial, it would not only
amount to pre-trial conviction, rather same would also be in violation of
Article 21 of Constitution of India.
7. By now, it is well settled that speedy trial is legal right of the
accused and one cannot be made to suffer indefinitely for delay in trial and
as such, this Court sees no reason to keep the bail petitioner behind the
bars for indefinite period during trial. Hon’ble Apex Court in case titled
Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has
held delay in criminal trial to be in violation of right guaranteed to an
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accused under Article 21 of the Constitution of India. Relevant para of the
afore judgment reads as under:-
“11. This Court has consistently recognised the right of the accused
for a speedy trial. Delay in criminal trial has been held to be in
violation of the right guaranteed to an accused under Article 21 of
the Constitution of India. (See: Supreme Court Legal Aid Committee
v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union
of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have
been released on bail on the ground that they have been in jail for a
long period of time and there was no likelihood of the completion of
the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi),
(1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC
569).
8. Recently, Hon’ble Apex Court in Javed Gulam Nabi Shaikh
Vs. State of Maharashtra and Another, Criminal Appeal No.2787 of
2024, decided on 03.07.2024, adversely commented upon the approach of
trial Court as well as High Court while considering the prayer for grant of
bail. In the aforesaid judgment, Hon’ble Supreme Court having taken note
of the fact that appellant in that case was in jail for last four years and
Court till that date was not able to frame charges, proceeded to enlarge
accused on bail in a case registered under the provisions of Unlawful
Activities (Prevention) Act, 1967. In no uncertain terms, Hon’ble Apex Court
in aforesaid judgment held that, however serious a crime may be, an
accused has right to speedy trial, as enshrined in Article 21 of the
Constitution of India. Relevant Paras of aforesaid judgment are reproduced
hereinbelow, which reads as under:
2025:HHC:4242
7“7. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, we are inclined to exercise
our discretion in favour of the appellant herein keeping in mind the
following aspects:
(i) The appellant is in jail as an under-trial prisoner past four years;
(ii) Till this date, the trial court has not been able to even proceed to frame
charge; and
(iii) As pointed out by the counsel appearing for the State as well as NIA, the
prosecution intends to examine not less than eighty witnesses.
8. Having regard to the aforesaid, we wonder by what period of time,
the trial will ultimately conclude. Howsoever serious a crime may be, an
accused has a right to speedy trial as enshrined under the Constitution of
India.
9. Over a period of time, the trial courts and the High Courts have
forgotten a very well settled principle of law that bail is not to be withheld
as a punishment.
10. In the aforesaid context, we may remind the trial courts and the
High Courts of what came to be observed by this Court in Gudikanti
Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978)
1 SCC 240. We quote:
“What is often forgotten, and therefore warrants reminder, is the
object to keep a person in judicial custody pending trial or disposal
of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :
“I observe that in this case bail was refused for the prisoner. It
cannot be too strongly impressed on the, magistracy of the
country that bail is not to be withheld as a punishment, but that
the requirements as to bail are merely to secure the attendance
of the prisoner at trial.”
11. The same principle has been reiterated by this Court in Gurbaksh
Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the
object of bail is to secure the attendance of the accused at the trial, that the
proper test to be applied in the solution of the question whether bail should
be granted or refused is whether it is probable that the party will appear to
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take his trial and that it is indisputable that bail is not to be withheld as a
punishment.
12. Long back, in Hussainara Khatoon v. Home Secy., State of Bihar
reported in (1980) 1 SCC 81, this court had declared that the right to
speedy trial of offenders facing criminal charges is “implicit in the broad
sweep and content of Article 21 as interpreted by this Court”. Remarking
that a valid procedure under Article 21 is one which contains a procedure
that is “reasonable, fair and just” it was held that:
“Now obviously procedure prescribed by law for depriving a
person of liberty cannot be “reasonable, fair or just”unless that
procedure ensures a speedy trial for determination of the guilt of
such person. No procedure which does not ensure a reasonably
quick trial can be regarded as “reasonable, fair or just” and it
would fall foul of Article 21. There can, therefore, be no doubt
that speedy trial, and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article21. The
question which would, however, arise is as to what would be the
consequence if a person accused of an offence is denied speedy
trial and is sought to be deprived of his liberty by imprisonment
as a result of along delayed trial in violation of his fundamental
right under Article 21.”
13. The aforesaid observations have resonated, time and again, in
several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar
reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak
reported in (1992) 1 SCC 225. In the latter the court re-emphasized the
right to speedy trial, and further held that an accused, facing prolonged
trial, has no option:
“The State or complainant prosecutes him. It is, thus, the obligation
of the State or the complainant, as the case maybe, to proceed with
the case with reasonable promptitude. Particularly, in this country,
where the large majority of accused come from poorer and weaker
sections of the society, not versed in the ways of law, where they do
2025:HHC:4242
9not often get competent legal advice, the application of the said rule
is wholly inadvisable. Of course, in a given case, if an accused
demands speedy trial and yet he is not given one,may be a relevant
factor in his favour. But we cannot disentitle an accused from
complaining of infringement of his right to speedy trial on the
ground that he did not ask for or insist upon a speedy trial.”
14. In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in
2023INSC 311, this Court observed 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.
According to the Union Home Ministry’s response to Parliament, the
National Crime Records Bureau had recorded that as on
31stDecember 2021, over 5,54,034 prisoners were lodged in jails
against total capacity of 4,25,069 lakhs in the country. Of these
122,852 were convicts; the rest 4,27,165 were undertrials.
22. The danger of unjust imprisonment, is that inmates are at risk
of “prisonisation” a term described by the KeralaHigh Court in A
Convict Prisoner v. State reported in 1993Cri LJ 3242, 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”(also see Donald
Clemmer’s ‘The Prison Community’ published in 1940).
Incarceration has further deleterious effects – where the accused
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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.”
15. The requirement of law as being envisaged under Section 19 of the
National Investigation Agency Act, 2008 (hereinafter being referred to as
“the 2008 Act”) mandates that the trial under the Act of any offence by a
Special Court shall be held on day-to-day basis on all working days and
have precedence over the trial of any other case and Special Courts are to
be designated for such an offence by the Central Government in
consultation with the Chief Justice of the High Court as contemplated
under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of India v. K.A. Najeeb
reported in (2021) 3 SCC 713] had an occasion to consider the long
incarceration and at the same time the effect of Section 43-D(5) of the UAP
Act and observed as under : (SCC p. 722, para 17)
“17. It is thus clear to us that the presence of statutory restrictions
like Section 43-D(5) of the UAPA per se does not oust the ability of
the constitutional courts to grant bail on grounds of violation of
Part III of the Constitution. Indeed,both the restrictions under a
statute as well as the powers exercisable under constitutional
jurisdiction can be well harmonised. Whereas at commencement of
proceedings,the 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 safe-guard against the
possibility of provisions like Section 43-D(5) of the UAPA being used
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as the sole metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.”
17. In the recent decision, Satender Kumar Antil v. Central Bureau
of Investigation reported in (2022) 10 SCC 51, prolonged incarceration
and inordinate delay engaged the attention of the court, which considered
the correct approach towards bail, with respect to several enactments,
including Section 37 NDPS Act. The court expressed the opinion that
Section 436A (which requires inter alia the accused to be enlarged on bail if
the trial is not concluded within specified periods) of the Criminal
Procedure Code, 1973would apply:
“We do not wish to deal with individual enactments as each special
Act has got an objective behind it, followed by the rigour imposed.
The general principle governing delay would apply to these
categories also. To make it clear, the provision contained in Section
436-A of the Code would apply to the Special Acts also in the
absence of any specific provision. For example, the rigour as
provided under Section 37 of the NDPS Act would not come in the
way in such a case as we are dealing with the liberty of a person.
We do feel that more the rigour, the quicker the adjudication ought
to be. After all, in these types of cases number of witnesses would
be very less and there may not be any justification for prolonging
the trial. Perhaps there is a need to comply with the directions of
this Court to expedite the process and also a stricter compliance of
Section 309 of the Code.”
18. Criminals are not born out but made. The human potential in
everyone is good and so, never write off any criminal as beyond redemption.
This humanist fundamental is often missed when dealing with
delinquents,juvenile and adult. Indeed, every saint has a past and every
sinner a future. When a crime is committed, a variety of factors is
responsible for making the offender commit the crime. Those factors may be
social and economic, maybe, the result of value erosion or parental neglect;
may be, because of the stress of circumstances, or the manifestation of
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temptations in a milieu of affluence contrasted with indigence or other
privations.
19. If the State or any prosecuting agency including the court concerned
has no wherewithal to provide or protect the fundamental right of an
accused to have a speedy trial as enshrined under Article 21 of the
Constitution then the State or any other prosecuting agency should not
oppose the plea for bail on the ground that the crime committed is serious.
Article 21 of the Constitution applies irrespective of the nature of the
crime.”
9. Recently, in Tapas Kumar Palit v. State of Chhattisgarh
(Criminal Appeal No. 738 of 2025 arising of SLP (Criminal) No. 15971 of
2024) decided on 14.2.2025, the Hon’ble Apex Court has reiterated that
howsoever serious a crime may be the accused has a fundamental right of
speedy trial as enshrined in Article 21 of the Constitution of India. In the
afore case, accused was booked under Sections 10, 13, 17, 38(1)(2), 40, 22-
A and 22-C respectively of the Unlawful Activities Prevention Act, 1967,
Sections 8(2), (3) and (5) of the Chhattisgarh Vishesh Jan Suraksha
Adhiniyam, 2005 and Sections 120B, 201 and 149 read with 34 of the
Indian Penal Code, 1860. In case under Section 10 of the Unlawful
Activities Prevention Act, there is provision of life imprisonment and death
sentence, however, in the afore case, Hon’ble Apex Court taking note of the
fact that accused is behind bars for more than five years and prosecution
has been not able to examine all the witnesses, proceeded to enlarge him
on bail on the ground of inordinate delay in conclusion of trial.
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10. Repeatedly, it has been held that one is deemed to be innocent
till the time guilt, if any, of his/her is not proved in accordance with law. In
the case at hand also, guilt, if any, of the accused is yet to be proved in
accordance with law, by leading cogent and convincing material on record.
Apprehension expressed by the learned Additional Advocate General that in
the event of petitioner’s being enlarged on bail, he may flee from justice,
can be best met by putting the bail petitioner to stringent conditions as has
been fairly stated by the learned counsel for the petitioner.
11. Needless to say, object of the bail is to secure the attendance of
the accused in the trial and the proper test to be applied in the solution of
the question whether bail should be granted or refused is whether it is
probable that the party will appear to take his trial. Otherwise, bail is not
to be withheld as a punishment. Otherwise also, normal rule is of bail and
not jail. Court has to keep in mind nature of accusations, nature of
evidence in support thereof, severity of the punishment which conviction
will entail, character of the accused, circumstances which are peculiar to
the accused involved in that crime.
12. Hon’ble Apex Court in Criminal Appeal No. 227/2018,
Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has
held that freedom of an individual cannot be curtailed for indefinite period,
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especially when his/her guilt is yet to be proved. It has been further held by
the Hon’ble Apex Court in the aforesaid judgment that a person is believed
to be innocent until found guilty.
13. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau
of Investigation (2012)1 Supreme Court Cases 49 has held that gravity
alone cannot be a decisive ground to deny bail, rather competing factors are
required to be balanced by the court while exercising its discretion. It has
been repeatedly held by the Hon’ble Apex Court that object of bail is to
secure the appearance of the accused person at his trial by reasonable
amount of bail. The object of bail is neither punitive nor preventative.
14. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC
218, Hon’ble Apex Court has held that the object of the bail is to secure the
attendance of the accused in the trial and the proper test to be applied in
the solution of the question whether bail should be granted or refused is
whether it is probable that the party will appear to take his trial. Otherwise
also, normal rule is of bail and not jail. Apart from above, Court has to keep
in mind nature of accusations, nature of evidence in support thereof,
severity of the punishment, which conviction will entail, character of the
accused, circumstances which are peculiar to the accused involved in that
crime.
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15. The Apex Court in Prasanta Kumar Sarkar versus Ashis
Chatterjee and another (2010) 14 SCC 496, has laid down various
principles to be kept in mind, while deciding petition for bail viz. prima facie
case, nature and gravity of accusation, punishment involved, apprehension
of repetition of offence and witnesses being influenced.
16. In view of the aforesaid discussion as well as law laid down by
the Hon’ble Apex Court, bail petitioner has carved out a case for grant of
bail. Accordingly, the petition is allowed and the petitioner is ordered to be
enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in
the sum of Rs. 5,00,000/- with one local surety in the like amount to the
satisfaction of concerned Chief Judicial Magistrate/trial Court, with
following conditions:
(a) He shall make himself available for the purpose of interrogation, if
so required and regularly attend the trial Court on each and every
date of hearing and if prevented by any reason to do so, seek
exemption from appearance by filing appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper
the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any
person acquainted with the facts of the case so as to dissuade
him/her from disclosing such facts to the Court or the Police
Officer; and
(d) He shall not leave the territory of India without the prior
permission of the Court.
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17. It is clarified that if the petitioner misuses the liberty or violates
any of the conditions imposed upon him, the investigating agency shall be
free to move this Court for cancellation of the bail.
18. Any observations made hereinabove shall not be construed to
be a reflection on the merits of the case and shall remain confined to the
disposal of this application alone. The petition stands accordingly disposed
of.
19. The bail petitioner is permitted to produce copy of the order
downloaded from the High Court Website and the trial court shall not insist
for certified copy of the order, however, it may verify the order from the
High Court website or otherwise.
March 3, 2025 ( Sandeep Sharma ),
(manjit) Judge
