Himachal Pradesh High Court
Ayush Kumar vs State Of Himachal Pradesh on 27 December, 2024
Neutral Citation No. ( 2024:HHC:16366 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2858 of 2024
Reserved on: 20.12.2024
Date of Decision: 27.12.2024.
Ayush Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the petitioner : Mr. Hemant Vaid, Advocate.
For the Respondent : Mr Lokender Kutlehria, Additional
Advocate General with HC Anil
Kumar, No.26, IO PS Sadar, Una.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail. It has been asserted that the petitioner was
arrested for the commission of an offence punishable under
Section 21 of Narcotic Drugs and Psychotropic Substances Act
(in short ‘NDPS Act‘) registered vide case FIR No. 236/2023,
dated 10.07.2023 at Police Station Una District Una, H.P. As per
the prosecution, the police recovered 10 insulin syringes and
5.66 grams of heroin during the search of the house of the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
petitioner on 10.07.2023. As per the report of analysis, the
weight of the heroin was found to be 5.302 grams. The police
filed the charge sheet before the Court. The matter was listed for
the prosecution evidence on 20.12.2024 and 21.12.2024. 14
witnesses are yet to be examined. The petitioner has been in
custody for more than one year and five months. There is no
likelihood of the early conclusion of the trial. The petitioner had
earlier filed a bail application bearing Cr.MP(M) No. 2434 of
2023, which was dismissed by this Court on 30.11.2023. The
petitioner filed another bail petition bearing Cr.MP(M) No. 802
of 2024, which was withdrawn on 10.05.2024. The petitioner
filed another petition, No. 255 of 2024, before learned Special
Judge Una, which was dismissed on 24.07.2024. An FIR No.
25/2023 was registered against the petitioner at police station
Sarkaghat for the commission of an offence punishable under
Section 21 of the NDPS Act for the possession of a small quantity
of contraband. The petitioner was on bail in the said case. The
petitioner would abide by all the terms and conditions which the
Court may impose; hence, the petition.
2. The petition is opposed by filing a status report
asserting that the Police party received a secret information on
3
10.07.2023 that the petitioner was selling heroin to various
persons. In the case of a search of his room, a huge quantity of
heroin could be recovered from him. The information was sent
to Additional S.P. Una. The Police went to the house of the
petitioner with independent witnesses. The petitioner was
present in the house. Ten insulin syringes and 5.66 Grams of
heroin were found during the search. The police seized the
syringes and the heroin. As per the report of analysis, the
substance recovered during the search was identified as heroin,
which weighed 5.302 grams. An FIR No.25 of 2023 has been
registered against the petitioner for the commission of an
offence punishable under Section 21 of the NDPS Act on
20.02.2023 in Police Station Sarkaghat. The challan has been
prepared and presented before the Court, which was listed on
20.12.2024 and 21.12.2024 for recording the statements of
prosecution witnesses. The prosecution has cited 27 witnesses,
out of whom 13 witnesses have been examined; hence, the status
report.
3. I have heard Mr. Hemant Vaid, learned counsel for
the petitioner and Mr. Lokender Kutlehria, learned Additional
Advocate General for the respondent-State.
4
4. Mr. Hemant Vaid, learned counsel for the petitioner,
submitted that the petitioner is in judicial custody for one year
and five months. The quantity of heroin found in his possession
is 5.66 grams as per the prosecution case and 5.032 grams as per
the report of analysis. This is slightly higher than the small
quantity of 5 grams. The petitioner, even if convicted, will not be
sentenced to 10 years. He has already undergone a major part of
the sentence, and the trial is not likely to conclude soon;
therefore, he prayed that the present petition be allowed and the
petitioner be released on bail.
5. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, submitted that the petitioner
was found involved in the commission of a similar offence
earlier, and an FIR was registered against him in Police Station,
Sarkaghat. The petitioner is likely to commit a similar offence in
case of his release on bail; therefore, he prayed that the present
petition be dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
5
7. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Manik Madhukar Sarve v. Vitthal
Damuji Meher, 2024 SCC OnLine SC 2271, wherein it was observed
as under: –
“19. Courts, while granting bail, are required to consider
relevant factors such as the nature of the accusation,
the role ascribed to the accused concerned,
possibilities/chances of tampering with the evidence
and/or witnesses, antecedents, flight risk, et al. Speaking
through Hima Kohli, J., the present coram in Ajwar v.
Waseem, 2024 SCC OnLine SC 974, apropos relevant
parameters for granting bail, observed:
“26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal
offence, the Court must consider relevant factors like the
nature of the accusations made against the accused, the
manner in which the crime is alleged to have been
committed, the gravity of the offence, the role attributed
to the accused, the criminal antecedents of the accused,
the probability of tampering of the witnesses and
repeating the offence, if the accused are released on bail,
the likelihood of the accused being unavailable in the
event bail is granted, the possibility of obstructing the
proceedings and evading the courts of justice and the
overall desirability of releasing the accused on bail.
(Refer: Chaman Lal v. State of U.P. (2004) 7 SCC 525;
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu
Yadav (supra) (2004) 7 SCC 528; Masroor v. State of Uttar
Pradesh (2009) 14 SCC 286; Prasanta Kumar
Sarkar v. Ashis Chatterjee (2010) 14 SCC 496; Neeru
Yadav v. State of Uttar Pradesh (2014) 16 SCC 508; Anil
Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129;
Mahipal v. Rajesh Kumar @ Polia (supra) (2020) 2 SCC
118.
6
27. It is equally well settled that bail, once granted, ought
not to be cancelled in a mechanical manner. However, an
unreasoned or perverse order of bail is always open to
interference by the Superior Court. If there are serious
allegations against the accused, even if he has not misused
the bail granted to him, such an order can be cancelled by
the same Court that has granted the bail. Bail can also be
revoked by a Superior Court if it transpires that the courts
below have ignored the relevant material available on
record or not looked into the gravity of the offence or the
impact on the society resulting in such an order.
In P v. State of Madhya Pradesh (supra) (2022), 15 SCR
211 decided by a three-judge bench of this Court
[authored by one of us (Hima Kohli, J)] has spelt out
the considerations that must be weighed with the
Court for interfering in an order granting bail to an
accused under Section 439(1) of the CrPC in the
following words:
“24. As can be discerned from the above
decisions, for cancelling bail once granted, the court
must consider whether any supervening circumstances
have arisen or the conduct of the accused post grant of
bail demonstrates that it is no longer conducive to a
fair trial to permit him to retain his freedom by
enjoying the concession of bail during trial [Dolat
Ram v. State of Haryana, (1995) 1 SCC 349: 1995 SCC
(Cri) 237]. To put it differently, in ordinary
circumstances, this Court would be loathe to interfere
with an order passed by the court below granting bail,
but if such an order is found to be illegal or perverse or
premised on material that is irrelevant, then such an
order is susceptible to scrutiny and interference by the
appellate court.” (emphasis supplied)
20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC
1085, speaking through one of us (Ahsanuddin
Amanullah, J.), the Court, while setting aside an order of
the Punjab and Haryana High Court granting
(anticipatory) bail, discussed and reasoned:
7
“7. A foray, albeit brief, into relevant precedents is
warranted. This Court considered the factors to guide
the grant of bail in Ram Govind Upadhyay v. Sudarshan
Singh (2002) 3 SCC 598 and Kalyan Chandra
Sarkar v. Rajesh Ranjan (2004) 7 SCC 528. In Prasanta
Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496, the
relevant principles were restated thus:
‘9. … It is trite that this Court does not, normally,
interfere with an order passed by the High Court
granting or rejecting bail to the accused. However, it is
equally incumbent upon the High Court to exercise its
discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a
plethora of decisions of this Court on the point. It is
well settled that, among other circumstances, the
factors to be borne in mind while considering an
application for bail are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed
the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing if
released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.’
8. In Mahipal v. Rajesh Kumar alias Polia (2020) 2 SCC
118, this Court opined as under:
8
’16. The considerations that guide the power of an
appellate court in assessing the correctness of an order
granting bail stand on a different footing from an
assessment of an application for the cancellation of
bail. The correctness of an order granting bail is tested
on the anvil of whether there was an improper or
arbitrary exercise of discretion in the grant of bail. The
test is whether the order granting bail is perverse,
illegal or unjustified. On the other hand, an application
for cancellation of bail is generally examined on the
anvil of the existence of supervening circumstances or
violations of the conditions of bail by a person to
whom bail has been granted. …’
9. In Bhagwan Singh v. Dilip Kumar @ Deepu @
Depak, 2023 INSC 761, this Court, in view of Dolat
Ram v. State of Haryana, (1995) 1 SCC 349; Kashmira
Singh v. Duman Singh, (1996) 4 SCC 693 and X v. State of
Telangana, (2018) 16 SCC 511, held as follows:
’13. It is also required to be borne in mind that when a
prayer is made for the cancellation of the grant of bail,
cogent and overwhelming circumstances must be
present, and bail, once granted, cannot be cancelled in
a mechanical manner without considering whether
any supervening circumstances have rendered it in
conducing to allow fair trial. This proposition draws
support from the Judgment of this Court in Daulat
Ram v. State of Haryana (1995) 1 SCC 349, Kashmira
Singh v. Duman Singh (1996) 4 SCC
693 and XXX v. State of Telangana (2018) 16 SCC 511.’
10. In XXX v. Union Territory of Andaman & Nicobar
Islands, 2023 INSC 767, this Court noted that the
principles in Prasanta Kumar Sarkar (supra) stood
reiterated in Jagjeet Singh v. Ashish Mishra (2022) 9 SCC
321.
11. The contours of anticipatory bail have been
elaborately dealt with by 5-Judge Benches in Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC
9
565 and Sushila Aggarwal v. State (NCT of Delhi), (2020)
5 SCC 1. Siddharam Satlingappa Mhetre v. State of
Maharashtra, (2011) 1 SCC 694 is worthy of mention in
this context, despite its partial overruling in Sushila
Aggarwal (supra). We are cognizant that liberty is not to
be interfered with easily. More so when an order of pre-
arrest bail already stands granted by the High Court.
12. Yet, much like bail, the grant of anticipatory bail is to
be exercised with judicial discretion. The factors illustrated
by this Court through its pronouncements are illustrative
and not exhaustive. Undoubtedly, the fate of each case
turns on its own facts and merits.” (emphasis supplied)
8. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
9. It is undisputed that the petitioner had filed a bail
petition No.2434 of 2023, which was dismissed by the Court on
30.11.2023.
10. It was held in State of Maharashtra Vs. Captain
Buddhikota Subha Rao (1989) Suppl. 2 SCC 605 that once a bail
application has been dismissed, subsequent bail application can
only be considered if there is a change of circumstances. It was
observed:
“Once that application was rejected, there was no question
of granting a similar prayer. That is virtually overruling the
earlier decision without there being a change in the fact
situation. And when we speak of change, we mean a
substantial one, which has a direct impact on the earlier
decision and not merely cosmetic changes which are of little
10or no consequence. ‘Between the two orders, there was a gap
of only two days, and it is nobody’s case that during these
two days, drastic changes had taken place necessitating the
release of the respondent on bail. Judicial discipline,
propriety and comity demanded that the impugned order
should not have been passed, reversing all earlier orders,
including the one rendered by Puranik, J. only a couple of
days before, in the absence of any substantial change in the
fact situation. In such cases, it is necessary to act with
restraint and circumspection so that the process of the
Court is not abused by a litigant and an impression does not
gain ground that the litigant has either successfully avoided
one judge or selected another to secure an order which had
hitherto eluded him.
11. Similar is the judgment delivered in State of M.P. v.
Kajad, (2001) 7 SCC 673, wherein it was observed: –
8. It has further to be noted that the factum of the rejection
of his earlier bail application bearing Miscellaneous Case No.
2052 of 2000 on 5-6-2000 has not been denied by the
respondent. It is true that successive bail applications are
permissible under the changed circumstances. But without
the change in the circumstances, the second application
would be deemed to be seeking a review of the earlier
judgment, which is not permissible under criminal law as
has been held by this Court in Hari Singh Mann v. Harbhajan
Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various
other judgments.
12. Similarly, it was held in Kalyan Chandra Sarkar Vs.
Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an
earlier bail application has been rejected, the Court has to
consider the rejection of the earlier bail application and then
11
consider why the subsequent bail application should be allowed.
It was held:
“11. In regard to cases where earlier bail applications have
been rejected, there is a further onus on the court to
consider the subsequent application for grant of bail by
noticing the grounds on which earlier bail applications
have been rejected and after such consideration, if the
court is of the opinion that bail has to be granted then the
said court will have to give specific reasons why in spite
of such earlier rejection the subsequent bail application
should be granted.”
13. A similar view was taken in State of T.N. v. S.A. Raja,
(2005) 8 SCC 380, wherein it was observed:
9. When a learned Single Judge of the same court had
denied bail to the respondent for certain reasons, and that
order was unsuccessfully challenged before the appellate
forum, without there being any major change of
circumstances, another fresh application should not have
been dealt with within a short span of time unless there
were valid grounds giving rise to a tenable case for bail. Of
course, the principles of res judicata are not applicable to
bail applications, but the repeated filing of bail
applications without there being any change of
circumstances would lead to bad precedents.
14. This position was reiterated in Prasad Shrikant
Purohit v. State of Maharashtra (2018) 11 SCC 458, wherein it was
observed:
30. Before concluding, we must note that though an
accused has a right to make successive applications for
grant of bail, the court entertaining such subsequent bail
applications has a duty to consider the reasons and
12grounds on which the earlier bail applications were
rejected. In such cases, the court also has a duty to record
the fresh grounds, which persuade it to take a view
different from the one taken in the earlier applications.
15. It was held in Ajay Rajaram Hinge v. State of
Maharashtra, 2023 SCC OnLine Bom 1551 that successive bail
application can be filed if there is a material change in the
circumstance, which means the change in the facts or the law. It
was observed:
7. It needs to be noted that the right to file successive bail
applications accrues to the applicant only on the
existence of a material change in circumstances. The sine
qua non for filing subsequent bail applications is a
material change in circumstance. A material change in
circumstances settled by law is a change in the fact
situation or law which requires the earlier view to be
interfered with or where the earlier finding has become
obsolete. However, change in circumstance has no
bearing on the salutatory principle of judicial propriety
that successive bail application needs to be decided by the
same Judge on merits, if available at the place of sitting.
There needs to be clarity between the power of a judge to
consider the application and a person’s right based on a
material change in circumstances. A material change in
circumstance creates in a person accused of an offence
the right to file a fresh bail application. But, the power to
decide such subsequent application operates in a
completely different sphere unconnected with the facts of
a case. Such power is based on the well-settled and
judicially recognised principle that if successive bail
applications on the same subject are permitted to be
disposed of by different Judges, there would be
conflicting orders, and the litigant would be pestering
every Judge till he gets an order to his liking resulting in
13
the credibility of the Court and the confidence of the other
side being put in issue and there would be wastage of
Court’s time and that judicial discipline requires that such
matter must be placed before the same Judge, if he is
available, for orders. The satisfaction of material change
in circumstances needs to be adjudicated by the same
Judge who had earlier decided the application. Therefore,
the same Judge needs to adjudicate whether there is a
change in circumstance as claimed by the applicant,
which entitles him to file a subsequent bail application.”
16. Therefore, the present bail petition can only be
considered based on the change in the circumstances, and it is
not permissible to review the order passed by the Court.
17. A perusal of the status report shows that the
prosecution has cited 27 witnesses, out of whom 13 have been
examined. The petitioner was arrested on 10.07.2023. More than
one year and five months have elapsed since the arrest of the
petitioner. As per the prosecution, the petitioner was found in
possession of 5.66 grams of heroin. This is slightly more than
the small quantity. The petitioner can be sentenced to
imprisonment of 10 years, but the sentence has to be
proportional to the commission of the crime. If this aspect is
taken into consideration, it is apparent that the petitioner has
undergone a substantial part of the imprisonment. The trial is
not likely to conclude soon because the prosecution has only
14
examined 13 witnesses in a span of one year and five months and
will take considerable time to examine the remaining fourteen
witnesses; therefore, the further detention of the petitioner at
this stage is not justified.
18. It was submitted that the petitioner could indulge in
the commission of a similar offence because another FIR was
registered against the petitioner. It is not shown that the
petitioner has been convicted in the said FIR; therefore, the
pendency of the FIR is not going to impact the sentence which
can be imposed upon the petitioner.
19. It was laid down in Mohd. Muslim v. State (NCT of
Delhi), 2023 SCC OnLine SC 352, that the right of speedy trial is a
constitutional right of an accused. The right of bail is curtailed
on the premise that the trial would be concluded expeditiously.
It was observed: –
“13. When provisions of law curtail the right of an accused
to secure bail and correspondingly fetter judicial
discretion (like Section 37 of the NDPS Act, in the present
case), this court has upheld them for conflating two
competing values, i.e., the right of the accused to enjoy
freedom, based on the presumption of innocence, and
societal interest – as observed in Vaman Narain Ghiya v.
State of Rajasthan, [2008] 17 SCR 369: (2009) 2 SCC 281
(‘the concept of bail emerges from the conflict between
15
the police power to restrict the liberty of a man who is
alleged to have committed a crime, and presumption of
innocence in favour of the alleged criminal….’). They are,
at the same time, upheld on the condition that the trial is
concluded expeditiously. The Constitution Bench in
Kartar Singh v. State of Punjab, [1994] 2 SCR 375: (1994) 3
SCC 569 made observations to this effect. In Shaheen
Welfare Association v. Union of India, [1996] 2 SCR 1123:
(1996) 2 SCC 616 again, this court expressed the same
sentiment, namely that when stringent provisions are
enacted, curtailing the provisions of bail and restricting
judicial discretion, it is on the basis that investigation and
trials would be concluded swiftly. The court said that
Parliamentary intervention is based on:
A conscious decision has been taken by the
legislature to sacrifice, to some extent, the personal
liberty of an under-trial accused for the sake of
protecting the community and the nation against
terrorist and disruptive activities or other activities
harmful to society, it is all the more necessary that
investigation of such crimes is done efficiently and
an adequate number of Designated Courts are set
up to bring to book persons accused of such serious
crimes. This is the only way in which society can be
protected against harmful activities. This would
also ensure that persons ultimately found innocent
are not unnecessarily kept in jail for long periods.”
20. The Court highlighted the effects of pre-trial
detention and the importance of speedy trial as under:
“22. Before parting, it would be important to reflect that
laws which impose stringent conditions for the grant of
bail may be necessary in the 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
16Parliament, the National Crime Records Bureau had
recorded that as of 31st December 2021, over 5,54,034
prisoners were lodged in jails against a total capacity of
4,25,069 lakhs in the country[National Crime Records
Bureau, Prison Statistics in India https://ncrb. gov.
in/sites/default/files/P SI-202 1/Executive ncrb Summary-
2021.pdf]. Of these, 122,852 were convicts; the rest
4,27,165 were undertrials.
23. 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, 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. ‘
24. 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'[Working Papers – Group on Prisons & Borstals –
1966 U.K.] (also see Donald Clemmer’s ‘The Prison
Community’ published in 1940[Donald Clemmer, The
Prison Community (1968) Holt, Rinehart & Winston, which is
referred to in Tomasz Sobecki, ‘Donald Clemmer’s Concept of
Prisonisation’, available at:
https://www.tkp.edu.pl/wpcontent/uploads/2020/12/Sobecki
_sklad.pdf (accessed on 23rd March 2023).]). 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 –
17
especially in cases where special laws enact stringent
provisions, are taken up and concluded speedily.”
21. It was held in Shaheen Welfare Assn. v. Union of India,
(1996) 2 SCC 616: 1996 SCC (Cri) 366 that a person cannot be kept
behind bars when there is no prospect of trial being concluded
expeditiously. It was observed at page 621:
“8. It is in this context that it has become necessary to
grant some relief to those persons who have been de-
prived of their personal liberty for a considerable length
of time without any prospect of the trial being concluded
in the near future. Undoubtedly, the safety of the commu-
nity and the nation needs to be safeguarded, looking at
the nature of the offences these undertrials have been
charged with. But the ultimate justification for such de-
privation of liberty pending trial can only be their being
found guilty of the offences for which they have been
charged. If such a finding is not likely to be arrived at
within a reasonable time, some relief becomes neces-
sary.”
22. Similarly, it was laid down by the Hon’ble Supreme
Court in Jagjeet Singh v. Ashish Mishra (2022) 9 SCC 321: (2022) 3
SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be
subjected to unending detention pending trial. It was observed at
page 335:
“40. Having held so, we cannot be oblivious to what has
been urged on behalf of the respondent-accused that
cancellation of bail by this Court is likely to be construed
as an indefinite foreclosure of his right to seek bail. It is
not necessary to dwell upon the wealth of case law,
18which, regardless of the stringent provisions in a penal
law or the gravity of the offence, has time and again
recognised the legitimacy of seeking liberty from incar-
ceration. To put it differently, no accused can be subjected
to unending detention pending trial, especially when the
law presumes him to be innocent until proven guilty.
Even where statutory provisions expressly bar the grant
of bail, such as in cases under the Unlawful Activities
(Prevention) Act, 1967, this Court has expressly ruled that
after a reasonably long period of incarceration, or for any
other valid reason, such stringent provisions will melt
down, and cannot be measured over and above the right
of liberty guaranteed under Article 21 of the Constitution
(see Union of India v. K.A. Najeeb [Union of India v. K.A. Na-
jeeb, (2021) 3 SCC 713, paras 15 and 17] ).”
23. It was laid down by the Hon’ble Supreme Court
recently in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and
Anr. in Criminal Appeal No. 2787 of 2024 decided on 03.07.2024
that the right to speedy trial of the offenders facing criminal
charges is an important facet of Article 21 of the Constitution of
India and inordinate delay in the conclusion of the trial entitles
the accused to grant of bail, it was observed: –
“12 Long back, in Hussainara Khatoon v. Home Secy., the
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
19“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 a 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-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 a speedy trial and yet he is not given one, it may
be a relevant factor in his favour. But we cannot disentitle
an accused from complaining of infringement of his right
to a speedy trial on the ground that he did not ask for or
insist upon a speedy trial.”
20
24. It was further held that if the State or any
prosecuting agency, including the Court concerned, has no
wherewithal to provide the right of speedy trial to the accused,
then the bail should not be opposed on the ground that the crime
is serious. It was observed
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.
25. In the present case, keeping in view the sentence,
which can be imposed at the conclusion of the trial, the case of
the petitioner has not been tried expeditiously, and the
petitioner is entitled to be released on bail on this ground alone.
26. In view of the above, the present petition is allowed,
and the petitioner is ordered to be released on bail subject to his
furnishing bail bonds in the sum of ₹ 50,000/- with one surety
in the like amount, to the satisfaction of the learned Trial Court.
While on bail, the petitioner will abide by the following
conditions:
21
(i) The petitioner will not intimidate the witnesses, nor will
he influence any evidence in any manner whatsoever.
(ii) The petitioner shall attend the trial and will not seek
unnecessary adjournments.
(iii) The petitioner will not leave the present address for a
continuous period of seven days without furnishing the
address of the intended visit to the concerned Police
Station and the Court.
(iv) The petitioner shall furnish his passport, if any, before
the concerned Police Station.
(v) The petitioner will furnish his mobile number and social
media contact to the Police and the Court and will abide
by the summons/notices received from the Police/Court
through SMS/WhatsApp/Social Media Account. In case of
any change in the mobile number or social media
accounts, the same will be intimated to the Police/Court
within five days from the date of the change.
27. 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 the Court for
cancellation of the bail.
28. The observations made hereinabove are regarding
the disposal of this petition and will have no bearing,
whatsoever, on the case’s merits.
22
29. The petition stands accordingly disposed of. A copy of
this order be sent to the Superintendent District Jail Una at
Bangarh, H.P, and the learned Trial Court by FASTER.
30. A downloaded copy of this order shall be accepted by
the learned Trial Court while accepting the bail bonds from the
petitioner, and in case said Court intends to ascertain the
veracity of the downloaded copy of the order presented to it,
same may be ascertained from the official website of this Court.
(Rakesh Kainthla)
Judge
27th December, 2024
(saurav pathania)
Digitally
signed by
KARAN SINGH
GULERIA
Date:
2024.12.27
17:20:26 IST