Ankush vs State of Haryana

MANISHA BATRA, J :-

The present petition has been filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) by the petitioner seeking grant of regular bail in case bearing FIR No. 745 dated 08.10.2020 registered under Sections 148, 149, 302, 323, 427, 452 and 120-B of IPC and Section 25 of Arms Act, 1959 at Police Station HTM Hisar, District Hisar.

The present FIR was registered on the basis of a complaint filed by the complainant Rahul @ Balli, alleging therein that on 07.10.2020, he, along with his friend Deepak and two other persons, namely Narendra Yadav alias Pappu and his uncle Sunil alias Tota was present in a room situated in the property of latter. In the meanwhile, accused Shivalik, Rocky and Naseeb, accompanied by some other youths and armed with weapons reached there. Accused Shivalik raised an exhortation, calling upon Deepak to come out of the room so that he could be taught a lesson for misbehaving with Keshav. The complainant, his uncle and Deepak tried to pacify them, but all the accused started manhandling the complainant and his companions. They pushed them out of the room and thereafter started pelting stones at the wooden door of the room. They dragged Deepak into the street, whereupon accused Rocky, Shivalik and Naseeb attacked him and inflicted knife blows upon him. They also assaulted the complainant and Sunil by giving blows with bindas, bricks and stones. Deepak became unconscious and the assailants thereafter fled from the spot. Deepak was immediately rushed to the hospital.

After registration of the FIR, investigation proceedings were initiated. Accused Shivalik, Naveen and Kaku were arrested on 09.10.2020. The injured Deepak succumbed to the injuries sustained by him on 12.10.2020, whereafter offence under Section 302 IPC was added. The petitioner, along with some other accused, was nominated in the present case and was accordingly arrested. The petitioner claimed himself to be a juvenile at the time of occurrence. However, no document/certificate regarding his age was produced by him. As per the ossification test report, his age was assessed to be 19-20 years at the time of occurrence. The petitioner also demarcated the place of occurrence pursuant to the disclosure statement made by him. Investigation now stands concluded.

It is argued by learned counsel for the petitioner that he has been falsely implicated in the present case. No specific overt act has been attributed to him. The case against him rests upon the disclosure statements of the co-accused, which cannot be treated as legally admissible evidence against him. Neither the complainant Rahul, who has appeared before the learned Trial Court as PW4, nor PW5 Sunil, an alleged eyewitness, has supported the prosecution version. The petitioner has been in custody for a period of about 05 years and 08 months. Out of 37 prosecution witnesses, only 19 have been examined so far. The trial is likely to take considerable time to conclude. Further incarceration of the petitioner would not serve any useful purpose. His prolonged incarceration militates against his fundamental right guaranteed under Article 21 of the Constitution of India. It is further submitted that his involvement in other cases cannot, by itself, be made a ground for denying him the benefit of bail. It is, therefore, argued that the present petition deserves to be allowed.

Per contra, learned State counsel has submitted that the petitioner was a member of the unlawful assembly which had hatched a conspiracy and, in prosecution of its common object, had assaulted the victim Deepak, thereby causing his homicidal death. It is further submitted that the petitioner had pelted stones towards the complainant and the victim. The antecedents of the petitioner are not clean. There are chances of his absconding or committing similar offences, if extended benefit of bail. Therefore, it is stressed that the petition does not deserve to be allowed.

This Court has heard the rival submissions made by learned counsel for the parties at considerable length.

The petitioner is alleged to have formed an unlawful assembly along with the co-accused and, in prosecution of the common object thereof, is further alleged to have assaulted the victim, thereby causing his homicidal death. He has been linked with the present case with the aid of Section 149 IPC. However, no specific overt act has been attributed to the petitioner insofar as the fatal injuries caused to the deceased are concerned. Only 19 out of 37 prosecution witnesses have been examined so far and it is, therefore, obvious that the chances of conclusion of trial in near future are still bleak. Obviously, the trial has been unduly prolonged. There is nothing on record to suggest that the delay in conclusion of trial in any manner is attributable to the present petitioner. It is well settled proposition of law that deprivation of the personal liberty without ensuring speedy trial is not in consonance with the right guaranteed by Article 21 of Constitution of India. Even in cases of serious offences, where some amount of deprivation of personal liberty cannot be avoided, if such period becomes unduly long, the same is against the fairness assured by Article 21 of the Constitution. In Javed Gulam Nabi Shaikh vs The State of Maharashtra and another, Criminal Appeal No.2787 of 2024, decided on 03.07.2024, it has been observed by Hon’ble Supreme Court that, howsoever, serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India. Bail is not to be withheld as punishment. It was also observed that 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. The Hon’ble Supreme Court had further observed that the over-arching postulates of criminal jurisprudence that an accused is presumed to be innocent unless proven guilty, cannot be brushed aside lightly, howsoever stringent the penal law may be and direction was given for release of appellant on bail.

Reliance can also be placed upon the observations made by Hon’ble Supreme Court in Gurbaksh Singh Sibba v. State of Punjab, (1980) 2 SCC 565 to the effect that the object of bail is to secure the attendance of the accused at the trial and the proper test to be applied in the solution of the question whether the bail should be granted or refused or whether it is probable that the party will appear to take its trial and it is indisputable that the bail is not to be withheld as a punishment.

The question of prolonged incarceration and inordinate delay engaged the attention of Hon’ble Supreme Court in another case cited as Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) 10 SCC 51, wherein while considering the correct approach towards bail, with respect to several enactments, it was observed that the provisions contained in Section 436-A of Criminal Procedure Code which requires inter alia, the accused to be enlarged on bail if the trial is not concluded within specified periods, would apply to Special Acts also in the absence of specific provisions.

In view of the discussion as made above with regard to the position of law and applying the same to the peculiar facts and circumstances of the present case, this Court is of the considered opinion that the petitioner has made out a case for release on bail since his incarceration has been prolonged and there are no chances of conclusion of trial in near future. As such, the petition is allowed and the petitioner is ordered to be admitted to bail subject to his furnishing personal bonds as well as surety bonds by two sureties in the like amount each to the satisfaction of learned trial Court/CJM/Duty Magistrate concerned.

It is made clear that any observation made herein above is only for the purpose of deciding the present petition and the same shall have no bearing on the merits of the case.