Kabal Singh vs State Of Punjab

MANISHA BATRA, J (ORAL):-

The instant one is the second petition as filed by the petitioner under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (For short “BNSS”) seeking regular bail in case arising out of FIR No.71 dated 12.05.2022 registered under Sections 302, 120-B, 148 and 149 of IPC at Police Station Majitha, District Amritsar Rural. The previous petition as filed by the petitioner bearing CRM-M-43766-2023 has been dismissed as withdrawn vide order dated 05.12.2023.

Brief facts relevant for the purpose of disposal of this petition are that the aforementioned FIR was registered on the basis of statement recorded by the complainant Rajwinder Kaur alleging therein that the victim Bagicha Singh was her elder brother. On 10.05.2022, her cousin brother Kabal Singh i.e. the present petitioner and his wife Pawanjeet Kaur @ Babbo called Bagicha Singh to Village Bhangwan on some pretext. At about 7 PM, the complainant while searching for her brother had reached near the residential shed of Jasbir Singh @ Fauji and had found the said Jasbir Singh, his son and nephews who were total 4-5 in number while inflicting injuries upon her brother. Her brother while saying that he had not set the sugarcane crop of Jasbir Singh on fire was raising plea for help. Thereafter, Jasbir Singh himself gave information to the police. Her brother was firstly shifted to Civil Hospital Majitha and then to Amritsar. He succumbed to the injuries sustained by him on the next night. By alleging that the petitioner and accused Pawanjeet Kaur by hatching a conspiracy with Jasbir Singh and his family members, had allured Bagicha Singh to go to Village Bhangwan and had caused his homicidal death as they intended to grab 02 kanals of agricultural land owned by the family of the complainant which was under cultivation of Jasbir Singh @ Fauji, the complainant prayed for taking action in the matter.

After registration of FIR, investigation proceedings were initiated. Postmortem examination of dead body of the victim was conducted. On 14.05.2022, a representation was made by one Amrik Kaur claiming innocence of Jasbir Singh and his family members. An inquiry was conducted. It was revealed that the complainant had leased out 02 kanals of land to Jasbir Singh and the petitioner, cousin of the complainant with an intention to grab the same, had conspired to call the victim to Village Bhangwan where the crop of Jasbir Singh was set on fire and thereafter injuries were inflicted upon Bagicha Singh, who was left abandoned in the residential shed of Jasbir Singh so that latter could be implicated. Jasbir Singh and his family members were found to be innocent. The complainant also recorded her supplementary statement on the basis of which the present petitioner, the co-accused Pawanjeet Kaur and Gurpreet Singh were nominated as accused. The petitioner was arrested on 27.04.2023. The accused Pawanjeet Kaur was arrested on 19.02.2025 and accused Gurpreet Singh was declared as a proclaimed offender. Investigation now stands completed.

It is argued by learned counsel for the petitioner that he has been falsely implicated in this case. There is unexplained delay in lodging of the FIR. There is no eye-witness to the occurrence. The trial will take considerable time to conclude as only 01 out of 22 prosecution witnesses has been examined so far. He is alleged to be a conspirator but no circumstance showing him is made out from the record. Each day spent by him in custody has furnished a reason afresh to him to seek concession of bail. His further incarceration will not serve any fruitful purpose. It is, thus, argued that he deserves to be extended benefit of bail.

Per contra, learned State counsel has argued that the petition being a second one is not maintainable. The petitioner and the co-accused Babbo had called the victim to them and while on the way, he was assaulted by the co-accused who had hatched conspiracy with the petitioner and had died a homicidal death. The trial is going on at a proper pace and there is nothing on record to show that there would be any undue delay in conclusion of the trial. It is, thus, argued that the petition does not deserve to be allowed.

This Court has considered the rival submissions.

So far as question of maintainability of this petition being second petition is concerned, it may be mentioned that an accused has a right to make successive applications for grant of bail, and it is the duty of the Court, while entertaining such a subsequent bail application, to consider the reasons and grounds on which the earlier bail petition was rejected. The fresh grounds which persuade the Court to take a view different from the one taken in the earlier application are also required to be recorded. Reference in this regard can be made to Prasad Shrikant Purohit v. State of Maharashtra (2018) 11 SCC 458, wherein it was so observed. The petitioner is alleged to have hatched a conspiracy with the co-accused and in pursuance of the said conspiracy, the co-accused Jasbir Singh, his son and nephews i.e. the other co-accused are alleged to have inflicted injuries upon the person of the victim Bagicha Singh thereby causing his homicidal death. The petitioner was admittedly not present at the spot at the time of occurrence and was not the actual assailant. He has been linked with the case on the allegations that it was he who had hatched a conspiracy and had sent the victim to the fields of co-accused Jasbir Singh @ Fauji wherein the victim was assaulted to such an extent that he had succumbed to the injuries so sustained on the next night. The petitioner has been in custody for a period of more than 03 years and 04 months. The chances of conclusion of trial in near future are bleak as only 01 out of 22 prosecution witnesses has been examined so far. It is only on thorough assessment of the evidence to be produced during trial that any definite conclusion as to the petitioner being a conspirator can be drawn. There is nothing on record to suggest that the delay in conclusion of trial is attributable to the petitioner in any manner whatsoever.

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, 2024 INSC 645, it had 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 postulate 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 to the satisfaction of learned trial Court/CJM/Duty Magistrate concerned and on the following conditions:-

In the eventuality of breach of any of the aforementioned conditions, the respondent-State shall also be at liberty to move an application seeking cancellation of the bail.

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.