AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. R. Sonar, learned counsel for the applicant. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State respondent.
The accused is facing trial before the Session Court, Yupia in connection with Sessions Case No. 31/2022 arising out of Chimpu P.S. Case No. 18/2022, under Sections 302/201 of the IPC. His earlier two bail applications were rejected by the learned Sessions Judge, Yupia, on merits. The last one was rejected on 29.04.2026.
By filing the present application, the applicant, who is stated to be the elder brother, prays for the release of the accused, Ashik Hussain on regular bail in the above P. S. Case.
The learned counsel for the applicant submits that, the accused was arrested on 06.04.2022 in connection with the aforesaid case, and since then, he has remained in custody for a considerable period of more than four years and that his continued incarceration, pending conclusion of the trial, would amount to a violation of his fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution of India.
At the very outset, the learned counsel for the applicant made it clear and submits that the present petition has been filed seeking the release of the accused on bail and it is not on consideration or re-appreciation of the merits of the prosecution case, but solely on the ground of the length of incarceration and the constitutionally guaranteed right to a speedy trial.
Learned counsel for the applicant submits that the accused has been in custody for a long period for more than 4 years and that, although 36 prosecution witnesses have already been examined, some more witnesses are still to be examined and, at this pace, the trial of the case would take considerable long time to conclude. He further submits that the accused cannot be kept in custody for an indefinite period without concluding the trial. He, therefore, prays that the accused be released on bail to enable him to properly defend his case while remaining outside the jail custody. The learned counsel further submits that keeping the Under Trial Prisoner for such a long incarceration would amount to violation of the personal liberty guaranteed under Article 21 of the constitution. In support of his submission, the learned counsel for the applicant relies upon the decision of Javed Gulam Nabi Shaikh v. State of Maharashtra & Anr., reported in (2024) 9 SCC 813, wherein it was held in paragraphs 16, 17 and 18, which are relevant and are reproduced below: -
“16.Criminals are not born but made. The human potential in everyone is good and so, never write off any criminal as beyond redemptions. This humanist fundamental is often missed when dealing with delinquents, juveniles 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 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 applicantis still an accused; not a convict. The over-arching postulates 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.”
The learned counsel for the applicant also relied upon the decision in Lalpian Mawii @ Khumi Khabug v. The State of Assam, [Bail Appl.No.3068/2024, decided on 22.01.2025], reported in 2025 (2) GLT 231, wherein it was held in paragraphs 14 and 15, which are reproduced below:-
“14.From the above decisions so rendered by the Supreme Court, it is therefore clear that the right to speedy and expeditious trial is not only a vital safeguard to prevent undue and oppressive incarceration, but it is also to mitigate anxiety and concern accompanying the accusation, as well as to curtail any impairment in the ability of an accused to defend himself. There is also an overarching societal interest paving way for a speedy trial. The concept of speedy trial is amalgamated into Article 21 as an essential part of the fundamental right to life and liberty, guaranteed and preserved under our constitution. The right to speedy trial begins with the actual restraint imposed at the time of the arrest of the accused and the consequent incarceration which continues at all stages, namely the stage of investigation, inquiry, trial, appeal and revision, so that any possible prejudice that may result due to impermissible and avoidable delay since the time of the commission of the offence till the criminal proceedings consummates into a finality, could be averted. The speedy trial, early hearing and quick disposal are sine quo non of criminal jurisprudence. The overcrowded Court-dockets, the heavy volume of work and the resultant pressure on the prosecution and the police, indubitably keeps the entire criminal jurisprudential mechanism under stress and strain. However, this cannot be an excuse to keep the accused in incarceration for an indefinite period of time. It does not serve any credit to the criminal justice system, rather it makes for a sad state of affairs.
15.The guarantee of a speedy trial is intended to avoid oppression and prevent delay by imposing on the court and the prosecution an obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose. First, it protects the accused against oppressive pre-trial imprisonment; secondly, it relieves the accused of the anxiety and public suspicion due to unresolved criminal charges and lastly, it protects against the risk that evidence will be lost on memories dimmed by the passage of time, thus, impairing the ability of the accused to defend himself. It goes without saying that the consequences of the pre-trial detention are grave. It is a settled position as per criminal jurisprudence that an accused is presumed innocent, till proven otherwise. This court cannot be unmindful that the burden of detention of such an accused frequently falls heavily on the innocent members of the family.”
On the contrary, the learned Additional Public Prosecutor, while opposing the bail application, submits that the allegation against the accused is very serious and it is for commission of offences punishable under Sections 302/201 of the IPC and that the accused is alleged to have participated in the commission of the offence along with two others. Another ground of objection raised by the learned Additional Public Prosecutor is that the trial is progressing continuously and that the examination of the prosecution witnesses is almost complete. It is further submitted that there is incriminating material evidence against the accused for the commission of the alleged offence. Under these circumstances, if the accused is released on bail, there is every likelihood that he may abscond and evade the process of law.
The learned Additional Public Prosecutor further submits that prolonged incarceration is neither an automatic nor the sole ground for release of an accused on bail. There is no delay attributable either to the prosecution or to the Court, and since the trial is at an advanced stage and is likely to be concluded within a short period, it cannot be said that the trial is being stalled indefinitely, as alleged by the learned counsel for the petitioner.
The learned Additional Public Prosecutor further submits that there is sufficient material against the accused and that he is likely to be convicted in the case. Therefore, at this stage, the release of the accused on bail would cause serious prejudice to the prosecution case.
In support of his submissions, the learned Additional Public Prosecutor relies upon the following decisions of the Hon’ble Supreme Court and the High Court:
Md. Shabuddin v. State of Assam, [BA 63/2026, decided on 05.08.2026];
Rajesh Ranjan Yadav Alias Pappu Yadav v. CBI through the Director, reported in 2006 SCC OnLine SC 1229;
Virupakshappa Gouda & Anr. v. State of Karnataka & Anr., reported in (2017) 5 SCC 406;
Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav & Anr., reported in (2005) 2 SCC 42; and
Rajendra Prasad v. State of Goa & Anr., reported in 2026 SCC OnLine SC 1657.
Learned Addl. P.P submits that the Hon’ble Supreme Court has laid down certain principle to be followed while considering the bail. He submits that for consideration of the bail of the applicant who is stated to be incarcerated for long, the ratio laid down by the Hon’ble Supreme Court and High Court in the above referred cases relied upon by him may also be considered.
Having heard the learned counsel appearing for the parties and upon perusal of the trial court record, it appears that 36 prosecution witnesses have already been examined and that the case is now at an advanced stage of trial and is likely to be concluded within a short period.
The learned Trial Court, while rejecting the bail application, had observed that the accused is a resident of Bihar and that he had allegedly committed the offence of murder of a Police Sub-Inspector in Arunachal Pradesh and thereafter fled to the State of West Bengal from where he later on was arrested, and if he is released on bail, there is every possibility of his fleeing from the clutches of law.
There can be no dispute with the proposition that the right to a speedy trial is an integral part of the guarantee contained in Article 21 of the Constitution. Prolonged pre-trial incarceration is undoubtedly a matter of constitutional concern. However, at the same time, it does not mean that due to mere length of incarceration, irrespective of the circumstances in which the trial is progressing, it has accrued an indefeasible right to bail to the accused.
Learned counsel for the parties has relied upon the decisions where the Hon’ble Supreme Court and High Court have laid the principles governing consideration of bail. The principles emerging from the various decisions of the Hon’ble Supreme Court, and High Court in the above referred cases to be considered, while considering an application for bail, including a prayer based on prolonged incarceration and alleged violation of Article 21 of the Constitution, may be summarized as follows:
Bail is discretionary: Grant of bail is a discretionary relief. However, such discretion has to be exercised judiciously, cautiously and on sound principles, and not arbitrarily.
Prima facie case: The Court has to examine whether there are reasonable grounds or prima facie materials to believe that the accused has committed the alleged offence. At the stage of bail, the Court is not required to determine the guilt of the accused.
Nature and gravity of offence: The nature and gravity of the accusation are important considerations. In a serious and heinous offence, particularly an offence carrying severe punishment, the Court is required to exercise greater caution while considering release of accused on bail.
Nature of evidence: The Court has to consider, the nature and strength of the evidence supporting the prosecution case. The Court is not required to conduct a detailed examination of the evidence or a mini-trial.
Severity of punishment: Where the offence entails severe punishment, the possibility of the accused evading the process of law cannot be ignored.
Possibility of absconding: The Court has to consider whether, if released on bail, there is a likelihood of the accused fleeing from justice or not being available to face the trial. His roots in the locality, character, antecedents, means, position and other relevant circumstances may be considered.
Possibility of influencing witnesses: The Court has to consider whether there is a reasonable apprehension that the accused, if released, may influence, threaten or intimidate the witnesses or otherwise interfere with the prosecution evidence.
Possibility of tampering with evidence or obstructing justice: The Court has to consider whether release of the accused may result in tampering with evidence or otherwise frustrate or obstruct the course of justice.
Likelihood of repetition: The possibility of the accused repeating the alleged offence, if released on bail, is also a relevant consideration.
Stage and progress of trial: The Court should consider the stage of the trial and its progress. If substantial evidence has already been recorded and the trial is proceeding expeditiously, the Court may take that circumstance into account while considering a prayer for bail based on prolonged custody of accused.
Delay and responsibility for it: While considering long incarceration, the Court should examine whether the delay in conclusion of the trial is attributable to the prosecution, the accused, the Court or the system. Where the accused is in custody for a long period because of unexplained or unjustified delay not attributable to him, the consideration under Article 21 of the Constitution assumes greater significance.
Article 21 and prolonged incarceration: The right to speedy trial is a part of the guarantee of life and personal liberty under Article 21. Prolonged pre-trial incarceration is, therefore, an important consideration while deciding bail. However, the mere length of incarceration does not automatically confer a right to bail. The period of custody has to be considered along with the nature of the offence, prima facie material, stage and progress of the trial and other relevant circumstances.
Balance between liberty and administration of justice: While protecting the personal liberty of the accused, the Court must also ensure that the criminal justice process is not prejudiced. The Court has to consider a reasonable balance between the right of the accused to personal liberty and the interest of society in a fair, effective and unhindered trial.
No mini-trial: At the stage of bail, the Court is not expected to undertake a meticulous appreciation of evidence or record findings which may prejudice the trial. The Court has only to make a broad assessment of the material available for the limited purpose of determining whether bail should be granted.
Totality of circumstances: No single factor can ordinarily be considered in isolation. The Court has to examine the totality of the circumstances and determine whether, having regard to all the relevant factors, the accused should be released on bail.
Thus, while prolonged incarceration and the constitutional guarantee under Article 21 are undoubtedly relevant and important considerations. However, they have to be balanced against the seriousness of the offence, prima facie material against the accused, the stage and progress of the trial, the likelihood of the accused being available for trial, the possibility of influencing witnesses or tampering with evidence, and the overall interests of the administration of criminal justice.
In the present case, the record does not indicate that the progress of the trial has been unduly delayed on account of any inaction or default either on the part of the prosecution or on the part of the Court. On the contrary, the record reveals that the trial has made substantial progress. Altogether, 36 prosecution witnesses have already been examined, and there is no material to demonstrate that either the prosecution or the Court has caused any avoidable delay. The allegation against the accused is for commission of grave offences punishable under Sections 302 and 201 of the IPC. The record reveals that after committing of alleged murder of police officer, the accused fled from the State, and remained absconding till he was arrested from the other State. Further, there is allegedly prima facie incriminating material against him. In the facts and circumstances of the case, the apprehension regarding the availability of the accused for the remaining proceedings also cannot be completely discarded. Furthermore, in the present case, the applicant has not been able to demonstrate or disclose any circumstance indicating that the accused is being subjected to indefinite incarceration owing to unjustified or unexplained delay in the conclusion of the trial proceedings. Thus, the constitutional protection of the accused under Article 21 remains fully operative.
In view of the above and considering the totality of the circumstances, particularly the advanced stage of the trial and the absence of any deliberate delay on the part of the prosecution or the Court, this Court is not persuaded that the continued custody of the accused, at the present stage, amounts to such a violation of Article 21 as would warrant his release on bail. Consequently, this Court finds no sufficient ground to grant bail to the accused at this stage.
Accordingly, the bail application seeking the release of the accused stands rejected.
However, considering that the accused has remained in custody since his arrest on 06.04.2022, the learned Trial Court shall make every endeavour to proceed with the remaining evidence, if any; expeditiously and in accordance with law.
With the above observations, this bail application stands disposed of.