ORDER
Dipak Misra, J.
1. Extinction of one's liberty amounts to crucifixion of one's soul. Because of this feeling a noble soul had demanded 'Give me liberty or give me death'. It is a cherished ideal that echoes the inner desire of every human soul. No one would like to bArticleer it for the entire wealth of the world. The cause of liberty is treated as the cause of the creator. One's freedom, may be that of an accused or a convict can be curtailed in accordance with the terms of procedure established by 'law' but how long that, curtailment should continue as far as an accused is concerned is the seminal question that arises for consideration in this application for obtaining concession of bail-third attempt by the petitioner who has been arraigned as an accused in Crime No. 21/97 instituted for offences punishable under Sections 302, 147 and 148/149 of the Indian Penal Code (in short 'IPC'). The singular contention is that the delay in disposal of the trial in S.T. No. 86/97 entitles the petitioner to be enlarged on bail, moreso, when this Court had issued directions for disposal of the trial by specified period and had granted him leave to renew the prayer for bail in case the trial is not completed within the stipulated time.
2. The essential facts :
The petitioner along with 7 others has been arraigned as accused in respect of offences punishable as mentioned above and is facing trial in S.T. No. 86/97 pending in the Court of learned First Additional Sessions Judge, Satna. The petitioner had approached this Court in Misc. Cr. Case No. 2757/97. This Court while declining to admit the petitioner to bail passed a direction to the learned trial Judge to expedite the trial. As there was not much progress in the trial the petitioner agitated his grievance again and sought to be enlarged on bail in M. Cr. C. No. 509/98 but the said prayer was rejected by order dated 23-1 -1998. However, this Court directed the trial should be disposed of as expeditiously as possible preferably by end of May, 1998. This Court also recorded the assurance of the learned Government Advocate who had stated that the prosecution would produce the witnesses on the dates fixed for hearing and would not seek unnecessary adjournments.
3. During the pendency of the trial an application was filed by the accused/petitioner before the trial Court stating that a counter case which was pending in the said Court should be tried and disposed of along with S.T. No. 86/97. The aforesaid prayer of the petitioner was accepted by the trial Court as is revealed from the order dated 7-4-1998. While passing the aforesaid order the trial Court had posted the matter to 6-6-1998. As the date was fixed beyond the time stipulated by this Court, the petitioner had approached this Court for being released on bail on the ground there has not been progress in the trial.
4. It is relevant to state here though in the petition certain other grounds have been taken with regard to the merit of the case, the main thrust of submission relates to delay in trial.
5. I have heard Mr. R.N. Rai, learned counsel for the petitioner and Mr. P.D. Gupta, learned Government Advocate for the State. Mr. R.N. Rai, learned counsel for the accused/petitioner has contended that right to speedy trial is a fundamental right and as the said principle has been given a go by in the present case the petitioner is entitled to be admitted to bail. It is his further submission that delay in trial has to be considered as a changed circumstance to invoke the discretion of this Court for obtaining concession of bail. It has also been argued that as a counter-case has been clubbed with the present case, there would be substantial delay in disposal of the trial and that would justify entertaining the prayer for bail of accused/petitioner. Mr. Rai to buttress his submission has placed reliance on the decision rendered in the case of Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 : 1979 Cri LJ 1036.
Mr. Gupta, learned Government Advocate, per contra, has urged with vehemence that there has been substantial progress in the trial. In fact, submits Shri Gupta, a few witnesses remain to be examined, and hence the principle 'delay defeats justice' would not be applicable, and in any case the delay in trial in the present case cannot be regarded as a factor for admitting the accused/ petitioner to bail. The learned counsel has further put forth the prayer for clubbing of the counter-case with the present trial was at the instance of the accused and, therefore, he cannot be allowed to claim the concession of bail on the ground of delay. It is also highlighted by him that in both the cases there has been substantial progress of trial and delay in the trial cannot be attributed to the prosecution and, therefore, the prayer for bail is liable to be rejected.
6. Before I advert to deal with the obtaining factual matrix and the eloquent claim made by the petitioner, it is appropriate to deal with the concept of speedy trial and the rights of accused for enlargement on bail on such a count.
7. The concept of speedy trial has become a mandate of Article. 21 of the Constitution. It was held in the case of Husssainara Khatoon v. State of Bihar, AIR 1979 SC 1360: 1979 Cri LJ 1036 (at page 1041 of CriLJ):
If a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article. 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article. 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential Article of the fundamental right to life and liberty enshrined in Article. 21.
Again in the case of Hussainara Khatoon, 1979 Cri LJ 1036 (supra) Bhagwati, J. (as his Lordship then was) indicated a time frame in the following words at page 1041 of Cri LJ:-
Even a delay of one year in the commencement of the trial is bad enough, how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice.
In the decision rendered in the case of Kadra Pahadiya v. State of Bihar, AIR 1981 SC 939 : 1981 Cri LJ 481 wherein Bhagwati, J. (as his Lordship then was) expressed his anguish over the delayed trial in the following terms :
3 more years have passed, but they are still rotting in jail, not knowing what is happening to their case. They are perhaps reconciled to their fate, living in a small world of their own, clipped, cabined and confined within the four walls of the prison. The outside world just does not exist for them. The Constitution has no meaning and significance, and human rights no relevance for them. It is a crying shame upon our adjudicatory system which keeps man in jail for years on end without a trial.
8. It is apposite to refer to the decision rendered in the case of Kehar Singh v. Union of India, AIR 1989 SC 653: 1989 Cri LJ 941 wherein the Apex Court registered the view as under at page 945 (of Cri LJ):--
To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the Courts to Article. 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence.
The principle of speedy trial came to be considered in the decision rendered in the case of Abdul Rehman Antulay v. R.S. Naik, AIR 1992 SC 1701- : 1992 Cri LJ 2717 in which the Constitution Bench speaking through Jeevan Reddy, J, expressed the view as under at page 2747 (of Cri LJ):--
1. Fair, just and reasonable procedure implicit in Article. 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
2. Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how this Court has understood this right and there is no reason to take a restricted view.'
3. The concerns underlying the right to speedy trial from the point of view of the accused are :
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction :
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non availability of witnesses or otherwise.
Their Lordships further proceeded to state as under:--
4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the procedures. As is often pointed out, 'delay is a known tactic'. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is who is responsible for the delay Proceedings taken by either Article in good faith, to vindicate their rights and interest, as perceived by them cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings, be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/ petition is admitted and an order of stay granted by a superior Court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex Article representation.
5. While determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work load of the Court concerned, prevailing local conditions and so on -- what is called, the systematic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
In the case of R.P. Upadhyay v. State of A.P. (1996) 3 SCC 422 emphasis has also been laid down on the right to speedy trial.
Again in the case of 'Common Cause' v. Union of India, (1996) 4 SCC 33: 1996 Cri LJ 2380, the Apex Court reiterating the need for speedy expressed thus at page 2382 (of Cri LJ) :--
It is a matter of common experience that in many cases where the persons are accused of minor offences punishable for not more than three years or even less with or without fine, the proceedings are kept pending for years together. If they are poor and helpless, they languish in jails for long periods either because there is no one to bail them out or because there is no one to think of them. The very pendency of criminal proceedings for long periods by itself operates as an engine of oppression. Quite often, the private complaints institute these proceedings out of oblique motives. Even in case of offences punishable for seven years or less with or without fine the prosecutions are kept pending for years and years together in criminal Courts. In a majority of these cases, whether instituted by police or private complaints, the accused belong to the poorer Sections of the society, who are unable to afford competent legal advice. Instances have also come before Courts where the accused, who are in jail, are not brought to the Court on every date of hearing and for that reason also the case undergo several adjournments. It appears essential to issue appropriate directions to protect and effectuate the right to life and liberty of the citizens guaranteed by Article. 21 of the Constitution. It is also necessary to ensure that these criminal prosecution do not operate as engines of oppression.
In this context, I may usefully refer to the decision in the case of Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India, (1994) 6 SCC 731 wherein the Apex Court while considering the provisions restricting the grant of bail under Narcotic Drugs and Psychotropic Substances Act, 1985 and the delay in the trial of the accused person laid down as under:--.We have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article. 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article. 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article. 21, which has to be telescoped with the right guaranteed by Article. 14 which also promises justness, fairness and reasonableness in procedural matters.
In the case of Shaheen Welfare Association v. Union of India, (1996) 2 SCC 616 : 1996 Cri LJ 1866 their Lordships of the Apex Court while dealing with the case of TADA under trials held that deprivation of personal liberty without prospect of trial being concluded within a reasonable time justifies invocation of Article. 21 of the Constitution.
9. From the aforesaid decisions it emerges that speedy trial is the mandate of the Constitution and delay in certain cases may entitle the accused to be enlarged on bail. It would depend upon the nature of crime, the gravity of the offence and the delay committed by the prosecution. In this context, I may profitably refer to the decision rendered in the case of Madheshwardhari Singh v. State of Bihar, AIR 1986 Pat 324 : 1986 Cri LJ 1771, wherein the Full Bench of Patna High Court laid down as follows Paras 52,45 of Cri LJ:--
Laying down of an outer time limit to concretise the right to speedy public trial is envisioned both by principle and precedent. A callous and inordinarily prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reasons) in investigating and original trial for offences other than capital ones plainly violate the constitutional guarantee of a speedy public trial under Article. 21. Unless the fundamental right to speedy trial is to be whittled down into a mere pious wish, its enforceability in Court must at least be indicated by an outer limit to which as investigation and the trial in a criminal prosecution may ordinarily extend. Holding otherwise would be merely paying lip service to a precious right whilst denuding it of the benefits of its actual enforceability.
In the aforesaid case the Full Bench fixed the outer the limit of 7 years. However, they indicated a note of caution that it should not be misconstrued to mean that the delay of less than 7 years would not in any case cause prejudice.
Delay in hearing of criminal appeal was considered by the High Court of Orissa in the case of Lati v. State 1991 CLT813 wherein it was held by the Division Bench of the said Court that if an appeal is not disposed of by the High Court within a period of three years from the date of filing of the appeal the accused should be released on bail where cogent personal reasons exist, in the first instance for a temporary period and then after watching of the performance of the convict the period of bail may be extended till the disposal of the appeal.
10. In this context, it is worthwhile to refer to the decision rendered in the case of Munna v. State of M.P. 1989 MPLJ 781 wherein B.M. Lai, J. (as his Lordship then was) after referring to the cases of Hussainara Khatoon 1979 Cri LJ 1036 (supra) and Babu Mulla v. State of M.P. 1978 MPLJ 623 : 1978 Cri LJ 1846, held as under :
If the conclusion of the trial is not possible within a reasonable time, the under trial prisoner deserves to be released on bail pending trial on the ground of delay in trial. Where bail is claimed on the ground of delay in trial, due to laches on the Article of prosecution, the Court shall examine the record and satisfy itself in coming to the conclusion whether the accused has created any hindrance and the delay in the trial is the result of the non -cooperation of the accused with the trial and if it is found that delay in the trial was caused due to accused's attempt, then he shall not be entitled to get the benefit of bail on the ground of delay in trial.
In the case of Ramroop Singh v. State of M.P. 1987 Cri LJ 1256 this Court took note of the fact that the learned Additional Sessions had adjourned the case on various dates on the request of public prosecutor on flimsy grounds and extended the benefit of bail to the accused.
11. In view of the aforesaid law laid down in I various decisions it is graphically clear that right I to speedy trial is the fundamental right and if the trial is delayed it would amount to the denial of justice and entitle an accused to be admitted to bail. But, a significant, but, the cause of delay whether attributable to the prosecution or to the accused has to be borne in mind at the time of exercise of judicial discretion for grant of bail. Irrefragably, the delay in trial is an important factor to be taken note of at the time of consideration of application for bail and no Court can take a myopic view in this regard but simultaneously it cannot be magnified to ostracize the role played by the accused in causing the delay. The age old principle that he who seeks discretion must conduct himself cannot be given a decent burial to confer the concession of bail to an accused who has made a deliberate attempt to cause delay with ultimate intention to gain advantage of such delay. As has been laid down in the case of Munna 1989 MPLJ 781 (supra) delay caused by the accused would not entitle him to be released on bail.
12. In the case at hand it is clear as noon day that as directed by this Court the trial commenced and almost all the witnesses have been examined. The petitioner at that stage filed an application for clubbing of his case with the counter case. It is to be noted here that the learned trial Judge vide its letter dated 18-6-1998 has communicated to this Court that in S.T. No. 86/97 (counter case) five witnesses had already examined and 11 more were to be examined. He sought for some time for the disposal of the cases. Considering the obtaining factual matrix, the role played by the petitioner, the period of delay caused, absence of any role of the prosecution, I am of the considered view that the petitioner is not entitled to be enlarged on bail. However, the learned trial Judge would do well to dispose of both the cases (S.T. No. 86/97 and S.T. No. 87/97) by end of 1 5-11-1998. The factual of disposal shall be intimated to the Registry of this Court. Let a copy of this order be communicated to the trial Court.
13. Resultantly, the application for bail stands rejected.