Rajesh Saroha @ Rajesh Kumar vs State of Haryana

Manisha Batra, J.

The instant petition has been filed by the petitioner under Section 483 of BNSS, 2023 for grant of regular bail to him in case arising out of FIR No. 659, dated 05.10.2022, registered under Sections 302 and 34 of IPC, at Police Station Gharaunda, District Karnal, Haryana.

The aforementioned FIR was registered on the basis of a written complaint submitted by complainant Vikram Kumar alleging that his youngest brother Anil used to work as a Halwai and Waiter. On 04.10.2022, he had left his house by telling the complainant that he was going to work in some Jagran ceremony. However, he did not return in the night and also did not respond to the calls made to him. In the morning of 05.10.2022, the complainant received a call from Police Station Gharaunda and was asked to reach there. The complainant, however, straightaway went at the Hassanpur road and met his relative Raju, who used to work with his brother Anil. He was informed that his brother did not go to work at the place where Jagran ceremony was performed. The complainant came to know that his brother had consumed liquor with some persons at the local vend and a verbal altercation had taken place between Anil and one shopkeeper. Thereafter, the complainant went to Police Station Gharaunda and found the dead body of his brother to be lying there. Injuries were found on the dead body.

After registration of the FIR, investigation proceedings were initiated. Post-mortem examination of the dead body of the victim and inquest proceedings were conducted. Vinod Kumar, a shopkeeper, was joined into investigation. He recorded a statement to the effect that on the fateful night, the victim and Raju @ Rajesh i.e. the present petitioner were seen consuming liquor in the adjacent liquor shop. They had left the said shop towards adjacent lane subsequent thereto and after some time, he had seen the petitioner while going towards the same direction. On the basis of his statement, the present petitioner and co-accused Naresh Kumar were nominated as such. They were joined into investigation on 07.10.2022 and were formally arrested. They demarcated the place of occurrence. They suffered disclosure statements admitting their involvement in the crime. The petitioner disclosed that he had struck a blow with a concrete stone on the head of the victim. He also got recovered the clothing worn by him at the time of occurrence.

It is argued by learned counsel for the petitioner that he has falsely been implicated in this case. A false recovery was planted upon him. There is no eye-witness to the occurrence. PW2 Vinod Kumar was not the eye witness to the occurrence and his statement is of no substance. The case rests upon circumstantial evidence and there is no circumstance to connect him with the commission of subject offences. He has been in custody for a period of more than 03 years and 10 months. His prolonged incarceration militates against his fundamental right as guaranteed under Article 21 of the Constitution of India. The trial will take considerable time to conclude. Co-accused Naresh Kumar has been extended benefit of bail. On parity, he too deserves to be extended the same benefit. It is, therefore, argued that the petition deserves to be allowed.

Per contra, learned State counsel has argued that PW2 Vinod Kumar, who was an eye witness to the circumstance of lastly seeing the victim with the petitioner has been examined and he has fully supported the prosecution version. The allegations against the petitioner are serious in nature and circumstances pinpoint the complicity of the petitioner in the crime. It is, therefore, argued that taking into consideration the allegations as levelled against the petitioner, he does not deserve to be extended the benefit of bail.

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

The petitioner along with the co-accused is alleged to have assaulted the victim with the help of a brick/stone and to have caused his homicidal death. There is no eye-witness to the occurrence. The case rests upon statement of PW2 Vinod Kumar and disclosure statements of co-accused as well as the petitioner himself and certain recoveries the veracity of which is to be tested during trial. The respondent/State has placed on record copy of sworn deposition of PW2 Vinod Kumar, which shows that he had lastly seen the victim along with the present petitioner while consuming liquor. However, it is only on thorough assessment of the evidence to be produced during trial that any definite conclusion as to the involvement of the petitioner in committing murder of the victim, can be drawn. The petitioner is in custody since 07.10.2022. The trial is not likely to be concluded in near future. 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 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 by two sureties in the like amount each 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.