Sandeep Singh @ Kala vs State Of Punjab

MANISHA BATRA, J. (ORAL)

The instant petition has been filed by the petitioner under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) for grant of regular bail in case arising out of FIR No.10 dated 05.02.2024 registered under Sections 302, 452, 148, 149 of IPC at Police Station Khanauri, District Sangrur.

The aforementioned FIR was registered on the basis of statement recorded by the complainant, Dhanraj, alleging therein that on 05.02.2024, his brother Naresh Kumar was present in his house. At about 2:00 PM, someone called him from outside. He went outside and when he reached near the main gate of his house, the petitioner along with the co-accused was found present there along with wooden sticks. All of them at once opened an assault upon the victim Naresh Kumar. To save himself, he rushed inside his house, but the assailants criminally trespassed into his house and extended beatings to the victim by striking blows with wooden sticks, giving punches and kicks. His family members had rushed for his rescue, but they too were assaulted. The assailants then fled away. The complainant was attracted to the spot on hearing noises, and saw the assailants while fleeing away. The victim Naresh was rushed to hospital, but succumbed to the injuries sustained by him.

After registration of FIR, investigation proceedings were conducted. Post-mortem examination of dead body of the victim was conducted. The accused Rampal and Ramkali were arrested on 06.02.2024. They suffered disclosure statements admitting their involvement in the crime. The accused Pradeep, Parveen and Kuldeep were arrested on 08.02.2024. The petitioner was arrested on 17.02.2024. He too suffered disclosure statement admitting his involvement in the crime and got recovered a danda. Investigation now stands concluded.

It is argued by learned counsel for the petitioner that he has been falsely implicated in this case. No specific role has been attributed to him. Neither any specific injury has been attributed. He has suffered incarceration for a period of more than two years and six months. The trial is not likely to be concluded in near future as only 3 out of 32 prosecution witnesses have been examined so far. The co-accused Parveen, Ashok and Kuldeep Singh have been extended benefit of bail. The case of petitioner is on similar footing and principle of parity weighs in his favour. His antecedents are clean. His prolonged incarceration militates against his fundamental rights guaranteed under Article 21 of the Constitution of India. His further incarceration will not serve any fruitful purpose. It is, therefore, argued that he deserves to be extended benefit of bail.

Per contra, learned State counsel, assisted by learned Senior counsel for the complainant, has argued that the allegations against the petitioner are grave in nature. The victim had in fact sustained multiple injuries. Request for further investigation in the matter has been pending before the higher police authorities, and a petition has also been filed before this Court by the complainant. It is, therefore, argued that the petitioner does not deserve the concession of bail.

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

The petitioner is alleged to have formed membership of an unlawful assembly with the co-accused and in prosecution of common object thereof, is alleged to have assaulted the victim. However, no specific overt act has been attributed to him. He has been linked with the offences with the aid of Section 149 of IPC. It is well-settled proposition of law that in cases of group violence, individual roles must be specifically established and mere presence at the spot of occurrence cannot impute the same level of culpability to all the accused. The petitioner has been in custody since 20.02.2024 i.e. for a period of 0202 years, 06 months and 26 days. Only 03 out of 32 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 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 as well as surety bonds to the satisfaction of the learned Chief Judicial Magistrate/trial Court/Duty Magistrate concerned.

It is, however, clarified that the observations made above shall not be construed as an expression of opinion of this Court on the merits of the case and shall not influence the outcome of the trial in any manner.

Since the main petition has been allowed, pending application, if any, is rendered infructuous.