Judgment:
Sharma, J.
1. Accused petitioners Ram Kumar and Sandeep have preferred this fourth bail petition. First, second and third bail petitions were respectively dismissed by this court on July 4, 2000, July 21, 2000 and Jan. 23, 2001.
2. An FIR was registered with the Police Station Sadar Jhunjhunu in connection with the murder of a candidate Birbal Singh, an old man of 75 years on the date of polling of Panchayal Elections. The murder was committed in broad day light on January 29, 2000 in a thickly populated area. According to the prosecution case Harphool Singh accused was the main rival of Birbal Singh in the said election. On account of political enmity Harphool Singh along with 33 accused formed unlawful assembly and came to village Bhimsar around 12 noon in three jeeps. They killed Birbal Singh and his body was taken away by them. As per post mortem report Birbal Singh died due to extensive haemorhage caused by 31 multiple injuries on all parts of his body including head and chest.
3. This court while dismissing third bail petition of the petitioners observed thus:
'From the record it is exfacie established that murder of a candidate aged 75 years was committed on the polling day in a broad day light in a thickly populated area. The alleged dare devils who have no regard to law are not entitled to be released on bail. 1 again reiterate that while deciding bail petition the court should strike balance between the liberty of the accused and the collective interest of the society.'
4. This court also considered the doctrine of binding precedent and it was observed that the doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions. But there is yet another doctrine of per incuriam which provides that where a court omits to consider a binding precedent of the superior court rendered on the same issue or omits to consider any statute while deciding that issue, the said decision of the Court should be ignored. Therefore in view of the principles laid down by their Lordships of the Supreme Court in State of Maharshtra v. Chintaman Dighe, AIR 1991 SC 1603, it was observed that the said principles were overlooked while granting bail to co-accused and the evidence collected by the investigating agency was prejudged, hence the doctrine of per incuriam got attracted.
5. Now the petitioners have submitted this fourth bail petition on the ground that trial has been delayed without any fault of the petitioners and for the last 23 months they are in custody, thus their constitutional right of speedy trial has been violated. On May 3, 2001 this court directed the trial court to complete the trial within six months but the trial has not been completed and on September 13, 2001, the trial court allowedthe application under Section 319 Cr.P.C. moved by the prosecution and 9 otheraccused persons have been summoned through non- bailable warrants. Althoughseparate trial was ordered for these nine accused persons but the High Court reversedthe order and all the accused persons will be tried jointly as a result of which the fourwitnesses already examined shall have to be recalled.
6. Shri Jagdeep Dhankar the learned Senior Counsel contends that right of speedy trial granted under Article 21 of the Constitution of India has been denied to the petitioners in the instant case as the prosecution seeks to examine 60 witnesses in support of its case and as a matter of fact the trial is yet to be effectively take of. The delay in the trial in the present situation is resulting in curtailment of the petitioners right guaranteed to them under Article 21 of the Constitution of India and the petitioners deserve to be released on bail. Learned Senior Counsel placed reliance on Ram Niwas v. State of Rajasthan, 1995 (2) RCD 530 (Raj.), wherein this court granted bail to the accused who was custody for 21 months and no progress was made in the trial.
7. Per contra, Mr. S.R. Bajwa, learned Senior Counsel urged that the question of denial of the right of speedy trial has to be decided by balancing the attending circumstances and relevant factors. Placing reliance on Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr., 1992 (1) SCC 225, Mr. Bajwa, learned Senior Counsel contends that it is neither advisable for feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings.
8. I have pondered over the rival submissions.
9. Plea of speedy trial was considered in Abdul Rehman Antulay's case (supra) by the Bench of Five Judges of the Hon'ble Supreme Court and it was indicated in para 83 thus:
'83 But then speedy trial or other expressions conveying the said concept-are necessarily relative in nature. One may ask speedy means, how speedy? How long a delay is too long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, are work load in the particular court, means of communication and several other circumstances have to be kept in mind. For example, take the very case in which Ranjan Dwivedi (petitioner in Writ Petition No. 268 of 1987) is the accused. 151 witnesses have been examined by the prosecution over a period of five years. Examination of some of the witnesses runs into more than 100 typed pages each. The oral evidence adduced by the prosecution so far runs into, we are told, 4000 pages. Even though it was proposed to go on with the case five days of a week and week after week, it was not possible for various reasons viz., non-availability of the counsel, non-availability of accused, interlocutory proceedings and other systemic delays. A murder case may be a simple one involving say a dozen witnesses which can be concluded in a week while another case may involve a large number of witnesses, and may take several weeks. Some offences by their very nature e.g., conspiracy cases, cases of misappropriation, embezzlement, fraud, forgery, sedition, acquisition of disproportionate assets by public servants, cases of corruption against high public servants and high public officials take longer time for investigation and trial. Then again, the workload in each court, district, region and State varies. This fact is too well known to merit illustration at our hands. In many places, requisite number of courts are not available. In some places, frequent strikes by members of the bar interferes with the work schedules. In short, it is not possible in the very nature of things and present day circumstances to draw a time-limit beyond which a criminal proceedings will not be allowed to go. Even in the USA, the Supreme Court has refused to draw such a line. Except for the Patna Full Bench decision under appeal, no other decision of any High Court in this country taking such a view has been brought to our notice. Nor, to our knowledge, in United Kingdom. Wherever a complaint of infringement of right to speedy trial is made the court has to consider all the circumstances of the case including those mentioned above and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably long period. In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delay may occur for which neither the prosecution nor the accused can be blamed, but the system itself. Such delays too cannot be treated as unjustifiable-broadly speaking. Of course, if it is a minor offence- not being an economic offence- and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated hereinafter. For all the above reasons, we are of the opinion that it is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory.'
10. Right of speedy trial creates an obligation on the prosecutor to be ready to proceed to trial within a reasonable time.
11. In the Constitution of the USA right of an accused to be tried speedily provided in express terms, but this was not incorporated in the Indian Constitution. The Hon'ble Supreme Court in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, said that only such speedy trial was available as the provisions of the Code of Criminal Procedure made possible. On a proper grievance being made, or suo moto, court could always ensure speedy trial by suitable directions to the trial court including orders of transfer to a court where expeditious disposal could be ensured. With the decision of this Court in Maneka Gandhi v. Union of India, 1978 (1) SCC 248, Article 21 of the Constitution received a new content. According to the ratio of the said case procedure relating to punishment of crime must be fair, just and reasonable.
12. In Hussainara Khatoon v. Home Secretary State of Bhar, 1980 (1) SCC 81, again the Hon'ble Supreme Court spelt out the right to speedy trial. In the USA, the right is express and unqualified. In India it is only a component of justice and fairness. Indian Courts have to reconcile justice and fairness to the accused with many other interests which are compelling and paramount.
13. In giving effect to the plea of denial of speedy trial following kind of delay may be ignored in view of ratio indicated in Abdul Rehman Antulay's case (supra).
(a) Delay wholly due to congestion of the Court calendar, unavailability of judges, or other circumstances beyond the control of the prosecutor.
(b) Delay caused by the accused himself not merely by seeking adjournments but also by legal devices which the prosecutor has to counter.
(c) Delay caused by orders, whether induced by the accused or not, of the court, necessitating appeals or revisions or other appropriate actions or proceedings.
(d) Delay caused by legitimate actions of the prosecutor.
14. I am unable to pursuade myself to agree with the submission of Mr. Dhankar learned Senior Counsel that act of moving application under Section 319 Cr.P.C. was a malafide act on the part of public prosecutor. To my mind it was a legitimate action of the public prosecutor and if on account of this bonafide act, delay in trial is caused it may be ignored in giving effect to the plea of denial of speedy trial.
15. In view of above discussion I am not inclined to release the petitioners on bail, The bail petition accordingly stands dismissed. However I direct the learned trial court (Fast Track) to give priority to the trial of the petitioners case and allot the case, two days in every week so as to complete the trial as expeditiously as possible.