Rajasthan High Court – Jaipur
Kishan Kumar @ Krishan Kumar S/O Vijay … vs State Of Rajasthan (2024:Rj-Jp:51357) on 6 December, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JP:51357]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 12535/2023
Kishan Kumar @ Krishan Kumar S/o Vijay Paswan, Aged About
20 Years, R/o Village Bidupur Kathariya P.s. Bidupur, State
Vaishali, Distt. Bihar (At Present Confined Central Jail Ajmer,
(Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Manju Muleva W/o Ramsingh, R/o Police Station
Bandarsindri Ajmer, Permanent R/o 260, Pushakar Road
Haribhau Upadhyay Nagar Ajmer Christianganj Ajmer.
----Respondents
For Petitioner(s) : Mr. Satya Pal Poshwal
For Respondent(s) : Mr. Sudesh Saini Addl. G.A.
Mr. Manvendr Singh Shekhawat PP
Mr. Rishi Raj Singh Rathore, PP
Mr. Onkar Singh Rajpurohit, PP
HON’BLE MR. JUSTICE FARJAND ALI
(Through Video Conferencing)
Order
06/12/2024
1. The jurisdiction of this Court has been invoked by way of
filing the instant bail application under Section 439 Cr.P.C. at the
instance of accused-petitioner. The requisite details of the matter
are tabulated herein below:
S. No. Particulars of the Case
1. FIR Number 142/2021
2. Concerned Police Station Bandarsindri
3. District Ajmer
4. Offences alleged in the Section 8/20 of the NDPS Act
FIR
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5. Offences added, if any Section 8/29 of the NDPS Act
6. Date of passing of 18.04.2023
impugned order
2. Briefly stated that facts of the case are that on 25.09.2021,
Shri Jogendra and Sunil, Constables, Special Team intercepted a
Truck bearing registration No.RJ42 GA 1319 and during search 8
plastic bags carrying Ganja therein were recovered. The total
weight of these bags was 230.8 kg whereafter the driver and
other person sitting therein were interrogated and they disclosed
their names as Rajpal (Driver) and Kishan Kumar (Khalasi). The
samples were taken from the recovered contraband and the same
were sent to the FSL for its chemical examination. The accused
were arrested and a case under Section 8/20 under the NDPS Act
got lodged.
3. 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. Co-accused Jaman Lal Badariya
has already been enlarged on bail this Court vide order dated
17.05.2022 passed in SBCRLM2ndB No.4979/2022. 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.
4. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail application
and submits that the present case is not fit for enlargement of
accused on bail.
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5. I have considered the submissions made by the parties and
have perused the material available on record.
6. Perusal of the record revealing that the petitioner is behind
the bar since 25.09.2021 and out of total 23 witnesses, only nine
witnesses have been examined in the trial till date, thus, looking
to the snail pace progress of the trial, he has again approach this
Court for protecting his liberty.
7. Now it is not in dispute that the petitioner is behind the bar
in this case since 25.09.2021. It is a case of the prosecution that
petitioner was apprehended in connection with the recovery of
huge quantity of Ganja, from a Truck which was being driven by
one Rajpal. The charge-sheet has been filed way back and the trial
has also been commenced long ago but no endeavours have been
made to conclude it.
8. It is a firm view of this Court that an under trial prisoner
cannot be incarcerated for an indefinite period. Only a reasonable
time can be granted to the prosecution to prove its case and at
the same time, the accused cannot be left languishing in jail for
want of evidence against him as he required to be presumed
innocent until the guilt is proven.
9. Normally, trial of a sessions case is completed within a period
of one year from its commencement, however, for some
unavoidable and inevitable circumstances, the period can be
extended but keeping the accused detained in jail for more than
three years for the purpose of production of evidence is
detrimental to the interest of accused detained in jail.
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10. This Court has made an elaborate discussion with regard to
bail of an under trial accused on the ground of delay in
culmination of the trial. This Court feels that if the accused is
under detention, it is obligatory for the prosecution to complete
the trial within a reasonable period. This Court has passed an
elaborated order dated 08.02.2024 in the case of Lichhaman
Ram @ Laxman Ram Vs. State of Rajasthan (S.B. Criminal
Misc. Bail Application No.5916/2023); the relevant part of the
said order is being reproduced as under:-
7. This Court feels that the nature and gravity of
offence and availability of material in support thereof
are not the only factors to be taken into account while
considering a bail application. The fact that trial is to be
concluded within a reasonable period of time is
imperative while considering grant of bail to an
accused. It is settled principle of criminal
jurisprudence that there is presumption of innocence
at the pre-conviction stage and the objective for
keeping a person in jail is to ensure his presence to
face the trial and to receive the sentence that may be
passed. This detention is not supposed to be punitive
or preventive in nature. An accused is considered to be
innocent until he or she or they are
proven guilty in the court of law.
8. As per the fundamental rights granted to every
citizen/person by the Constitution of India, the accused
cannot be expected to languish in custody for an
indefinite period if the trial is taking unreasonably long
time to reach the stage of conclusion. An under trial
prisoner, who is waiting for the trial to complete and
reach a conclusion about his guilt for the alleged crime,
is not only deprived of his right to a speedy trial but his
other fundamental rights like right to liberty, freedom(Downloaded on 27/12/2024 at 11:44:05 PM)
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carrying on any occupation, business or trade and
freedom to dignity are also hampered.
11. The Hon’ble Supreme Court vide judgment dated 26.09.2024
passed in V. Senthil Balaji Vs. The Deputy Director,
Directorate of Enforcement [Criminal Appeal
No.4011/2024] has also granted bail to an accused of an
offence under the penal provision of Prevention of Money
Laundering Act. The relevant paras of the said judgment is
reproduced hereunder :-
“24. There are a few penal statutes that make a
departure from the provisions of Sections 437, 438,
and 439 of the Code of Criminal Procedure, 1973. A
higher threshold is provided in these statutes for the
grant of bail. By way of illustration, we may refer to
Section 45(1)(ii) of PMLA, proviso to Section 43D(5)
of the Unlawful Activities (Prevention) Act, 1967 and
Section 37 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, ‘NDPS Act‘). The
provisions regarding bail in some of such statutes
start with a non obstante clause for overriding the
provisions of Sections 437 to 439 of the CrPC. The
legislature has done so to secure the object of
making the penal provisions in such enactments. For
example, the PMLA provides for Section 45(1)(ii) as
money laundering poses a serious threat not only to
the country’s financial system but also to its
integrity and sovereignty.
25. Considering the gravity of the offences in such
statutes, expeditious disposal of trials for the crimes
under these statutes is contemplated. Moreover,
such statutes contain provisions laying down higher(Downloaded on 27/12/2024 at 11:44:05 PM)
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disposal of the trial is also warranted considering the
higher threshold set for the grant of bail. Hence, the
requirement of expeditious disposal of cases must
be read into these statutes. Inordinate delay in the
conclusion of the trial and the higher threshold for
the grant of bail cannot go together. It is a
wellsettled principle of our criminal jurisprudence
that “bail is the rule, and jail is the exception.”
These stringent provisions regarding the grant of
bail, such as Section 45(1)(iii) of the PMLA, cannot
become a tool which can be used to incarcerate the
accused without trial for an unreasonably long time.”
12. In an another case titled as Javed Gulam Nabi Shaikh Vs.
State of Maharashtra & Anr. (Criminal Appeal
No.2787/2024), the Hon’ble Supreme Court vide its order dated
03.07.2024 has made enunciation of the law in this regard and it
would be very apt to reproduce the relevant paras of the said
order hereunder :-
“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.
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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 take
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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 Article 21.
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 a long 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-
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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
may be, 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 not 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 2023 INSC 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 31st December 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.
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22. The danger of unjust imprisonment,
is that inmates are at risk of
“prisonisation” a term described by the
Kerala High Court in A Convict Prisoner v.
State reported in 1993 Cri 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 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
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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 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
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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, 1973 would 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.
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Those factors may be social and economic,
may be, the result of value erosion or parental
neglect; may be, because of the stress of
circumstances, or the manifestation of
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.
20 We may hasten to add that the petitioner is
still an accused; not a convict. The over-
arching postulate of criminal jurisprudence that
an accused is presumed to be innocent until
proven guilty cannot be brushed aside lightly,
howsoever stringent the penal law may be.
21 We are convinced that the manner in which the
prosecuting agency as well as the Court have
proceeded, the right of the accused to have a
speedy trial could be said to have been
infringed thereby violating Article 21 of the
Constitution.
22 In view of the aforesaid, this appeal succeeds
and is hereby allowed. The impugned order
passed by the High Court is set aside.”
13. In Rabi Prakash Vs. State of Odisha passed in Special
leave to Appeal (Crl.) No.(s) 4169/2023, Hon’ble the Apex Court
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has again passed an order dated 13th July, 2023 dealing this
issue and has held that the provisional liberty(bail) overrides the
prescribed impediment in the statute under Section 37 of the
NDPS Act as liberty directly hits one of the most precious
fundamental rights envisaged in the Constitution, that is, the
right to life and personal liberty contained in Article 21.
14. Considering the overall facts and circumstances of the case
and the fact that the petitioner is incarcerated from last more than
three years and looking to the fact that till date only nine
witnesses have been examined there seems high probability that
the trial may take long time to conclude thus, it is deemed
suitable to grant the benefit of bail to the petitioner.
15. 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.
(FARJAND ALI), J
mamta/14
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