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Judgment
SUMEET GOEL, J. (ORAL)
Present petition has been filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) for grant of regular bail to the petitioner in case FIR No.165 dated 11.3.2023 under Sections 147, 149, 302 and 201 of the IPC, registered at Police Station Shivaji Colony, Rohtak, District Rohtak.
The case set up in the FIR in question (as set out in the present petition by the petitioner) is as follows:-
‘The contents of the case are as under that on 11.03.2023 an information has been received in the Police Station that dead body of a person is laying in Ganda Nala of the fields of village Mayna. On this information S.I. Baje Singh 505/H along with HC Rakesh, 1942 EHC Mukesh, 1685 were reached at Ganda nala situated in the field of Village Mayna and after getting the dead body out from the nala tried to get it identified. After receiving the information from some source Satish S/o Ashok Kumar resident of Anwal District Rohtak reached at the spot alongwith his family members and identified the dead body of his brother namely Yogesh @ Cheeta S/o Ashok Kumar resident of Village Anwal, District Rohtak and presented an application to SI Baje Singh 505/H the contents of which are as under:
To, SHO Sahab Police Station Shivaji Colony, Rohtak Sir, it is submitted that I Satish S/o Ashok Kumar is the resident of Village Anwal District Rohtak and we are two brothers the elder one is Yogesh @ Cheeta and younger one is mysel. On 03.03.2023 in the village there was a Jagaran and during that a light has taken place in between my brother Yogesh with Ravi @ Vicky S/o Satnarayan@ Baba, Bholu S/o Dalbir, Dhillu S/o Azad, Ajay S/o Lal and Sourabh S/o Sanjay all are residents of village Anwal District, Rohtak, On 07.03.2023 suddenly my brother Yogesh has been misplaced from the village to whom we are searching till now on our own and who was not found anywhere. Today we received an information that dead body of young man is found laying in the ganda nala of the field of village Mayna upon which I alongwith my family members and other villagers reached at the ganda nala of the fields of village Mayna and saw the dead body. It is found that the same is of my elder brother Yogesh @ Cheeta who has been killed by strangulation and with the intension of making the dead body disappeared the same has been put in the ganda nala by covering with shawl. I have verified on my own that my elder brother Yogesh has been murdered by Ravi @ Vicky, Bholu, Dhillu, Ajay and Sourabh jointly by keeping the enmity of the quarrel which has taken place on 03.03.2023. Legal action be taken against all the above named persons. SD Satish, Satish S/o Ashok Kumar resident of Village Anwal, District Rohtak date 11.03.2023 Mobile No. 8529412884. From the contents of the application, offence U/s 147, 149, 302, 201 IPC is found to have been committed. Therefore, for registration of case tehrir is being sent through EHC Mukesh, 1685 to the Police Station. After registration FIR No. be informed. FSL team, SHO shab and crematorium vehicle may be sent on the spot. Special report of the case be sent to Magistrate shab and higher officials. ISI is going ahead on the spot for carrying the proceeding u/s 174 CRPC. SD Baje Singh SI No. 505/H Police Station, Shivaji Colony, Rohtak present at ganda nala in the fields of Mayna District Rohtak Dt 11.03.2023 at 04:15 PM the investigation is initiated by SI Baje Singh.’
Learned counsel for the petitioner has argued that the petitioner is in custody since 13.3.2023. Learned counsel has further submitted that the challan qua the petitioner (herein) was prepared as far back as on 19.5.2023 but out of total 21 cited prosecution witnesses, only 6 have been examined till date. Learned counsel has further urged that the petitioner was initially named in the FIR in question on account of suspicion. Learned counsel has further urged that all the prime prosecution witnesses already stand examined, thus, the petitioner is not in a position to tamper with the evidence. Learned counsel has further submitted that the petitioner is a young man aged 25 years with clean antecedents. Thus, regular bail is prayed for.
Learned State counsel has opposed the present petition by arguing that the allegations raised are serious in nature and thus the petitioner does not deserve the concession of regular bail. Learned State counsel seeks to place on record custody certificate dated 31.8.2026 in Court, which is taken on record.
I have heard counsel for the parties and have gone through the available records of the case.
The petitioner was arrested on 13.3.2023 wherein after investigation was carried out; challan qua the petitioner was prepared on 19.5.2023 and subsequently filed. Total 21 prosecution witnesses have been cited but only 6 have been examined till date. It is thus indubitable that culmination of trial will take its own time. It would be apposite to refer herein to a judgment passed by the Hon'ble Supreme Court in Criminal Appeal No.2787 of 2024 titled as Javed Gulam Nabi Shaikh vs. State of Maharashtra and another, decided on 03.07.2024; relevant whereof reads as under:-
“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.
20.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.
21.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.”
The rival contentions raised at Bar give rise to debatable issues which shall be ratiocinated upon during the course of trial. This Court does not deem it appropriate to delve deep into these rival contentions, at this stage, lest it may prejudice the trial. Nothing tangible has been brought forward to indicate the likelihood of the petitioner absconding from the process of justice or interfering with the prosecution evidence.
As per custody certificate dated 31.8.2026 filed by learned State counsel, the petitioner has already suffered incarceration for a period of 3 years, 5 months and 17 days & is not shown to be involved in any other case.
Keeping in view the entirety of the factual milieu of the case in hand; especially the factum of the petitioner having suffered incarceration for more than 3 years and 5 months, the petitioner being a man with clean antecedents, the FIR initially having been registered on the basis of suspicion only, all the prime prosecution witnesses having been examined and the possibility of termination of trial in near future is bleak; this Court is inclined to grant the concession of regular bail.
Suffice to say, further detention of the petitioner as an undertrial is not warranted in the facts and circumstances of the case.
In view of above, the present petition is allowed. Petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the Ld. concerned CJM/Duty Magistrate. However, in addition to conditions that may be imposed by the concerned CJM/Duty Magistrate, the petitioner shall remain bound by the following conditions:-
The petitioner shall not mis-use the liberty granted.
The petitioner shall not tamper with any evidence, oral or documentary, during the trial.
The petitioner shall not absent himself on any date before the trial.
The petitioner shall not commit any offence while on bail.
The petitioner shall deposit his passport, if any, with the trial Court.
The petitioner shall give his cell-phone number to the Investigating Officer/SHO of concerned Police Station and shall not change his cell-phone number without prior permission of the trial Court/Illaqa Magistrate.
The petitioner shall not in any manner try to delay the trial.
In case of breach of any of the aforesaid conditions and those which may be imposed by concerned CJM/Duty Magistrate as directed hereinabove or upon showing any other sufficient cause, the State/complainant shall be at liberty to move for cancellation of bail of the petitioner.
Ordered accordingly.
Nothing said hereinabove shall be construed as an expression of opinion on the merits of the case.