Rajasthan High Court – Jodhpur
Vishal vs State Of Rajasthan (2025:Rj-Jd:12236) on 4 March, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:12236]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous III Bail Application No. 1885/2025
Vishal S/o Shri Kishor, Aged About 24 Years, R/o Gadola, Tehsil
Pratapgarh , P.s. Rathajana, Dist Pratapgarh (Raj) (Presently
Lodged In Dist Jail Pali)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ashok Khilery
For Respondent(s) : Mr. Vikram Rajpurohit, DyGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
04/03/2025
1. The jurisdiction of this court has been invoked by way of
filing the third bail application under Section 439 CrPC 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 122/2022 2. Concerned Police Station Rohat 3. District Pali 4. Offences alleged in the FIR Section 8/17 and 18 of the NDPS Act 5. Offences added, if any Section 8/29 of the NDPS Act 6. Date of passing of impugned - order
2. It is contended on behalf of the accused-petitioner that co-
accused Vishal S/o Parmendra has been enlarged on bail by this
court vide order dated 21.01.2025 and the case of the present
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petitioner is not at all distinguishable from the said accused. He
further submits that no case for the alleged offences is made out
against him and his incarceration is not warranted. There are
several flaws and latches in the case of the prosecution. 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.
5. I have heard and considered the submissions made by both
the parties and perused the material available on record.
6. It is emanating from the record that SHO, Police Station
Rohat, District Pali, alongwith his team on 30.04.2022 intercepted
a Motor Cycle which was driven by Vishal S/o Kishore and Vishal
S/o Parmendra was his pillion rider who was having a white bag in
his hand wherein 5 plastic bags containing 4 Kg 110 gram opium
milk got recovered. After seizure the petitioner and co-accused
got arrested and a case under the NDPS Act was registered
against them. After investigation, charge sheet has been filed in
the Court concerned. Similarly situated co-accused Vishal S/o
Parmendra has been enlarged on bail by this court and the case of
the present petitioner stands on identical footing.
7. This Court feels that an under trial prisoner should not be
kept confined for an indefinite period for no fault of them in
impeding the course of trial. A perusal of the material revealing
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that the trial had been commenced in this matter in the year 2022
but owing to one or the other reason, the recording of the
prosecution witnesses could not be completed. It is transpiring
that out of the total 23 projected prosecution witnesses, only 7
could have been examined uptill now. This Court feels that
looking to the snail’s pace progress of the trial, it would still take
a long time to reach onto a legitimate conclusion. It is also
noticed that sincere endeavors have not been made by the trial
Court in proceeding with the trial to get an early culmination of
the same.
8. This Court observes that the nature and gravity of the offence,
alongside the evidentiary materials presented, are not the sole
determinants in adjudicating a bail application. The expeditious
conclusion of the trial within a reasonable time-frame is an
essential consideration when deliberating the grant of bail to an
accused. It is a well-entrenched principle of Criminal
Jurisprudence that the presumption of innocence remains
operative at the pre-conviction stage. The primary objective of
incarcerating an accused pre-trial is to secure their presence for
trial and to ensure that he/she/they are available to serve the
sentence imposed upon him/her/them. Such detention is not
intended to be punitive or preventive in nature and an accused
cannot be detained for an indefinite period as an individual is
presumed innocent until proven guilty by a Court of law.
9. In adherence to the fundamental rights enshrined in the
Constitution of India, it is impermissible to subject an accused to
indefinite incarceration if the trial is protracted beyond reasonable
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limits. An under-trial prisoner, awaiting the conclusion of the legal
process to ascertain their culpability, is deprived of the right to a
speedy trial. This delay impinges upon several fundamental rights,
including the right to liberty, freedom of movement, the right to
pursue a profession, and the right to dignity, thereby violating the
constitutional guarantee of fair and just treatment.
10. 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 threshold for the grant of bail.
The expeditious 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(Downloaded on 06/03/2025 at 09:36:07 PM)
[2025:RJ-JD:12236] (5 of 10) [CRLMB-1885/2025]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.”
11. 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.
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.
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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 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(Downloaded on 06/03/2025 at 09:36:07 PM)
[2025:RJ-JD:12236] (7 of 10) [CRLMB-1885/2025]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-
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 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
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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.”
15 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, 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.”
16 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, may be, the result of
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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.
17 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.
18 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.
19 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.
20 In view of the aforesaid, this appeal succeeds and is
hereby allowed. The impugned order passed by the
High Court is set aside.”
In view of the enunciation made regarding provisions for bail
and looking to the fact that the similarly situated co-accused has
been granted bail; the petitioner is behind the bar around three
years and noticing that culmination of trial in a near future is not a
seeming fate, therefore, without going into the niceties of the
matter it is felt that the right of the accused to have a speedy trial
should be protected. There is high probability that the trial may
still take a long time to conclude. In light of these facts and
circumstances and on the ground of parity, it is deemed suitable to
grant the benefit of bail to the petitioner.
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12. 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
133-Pramod/-
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