Full Judgment
Sheel Nagu, J.
Case Diary is perused.
Learned counsel for the rival parties are heard.
This is third application under Section 439 Cr.P.C. by the applicant for grant of bail. Applicant has been arrested in connection with crime No. 170/2010 registered at Police Station Sabalgarh, District Morena (M.P.) u/Ss. 341, 294, 354, 302, 323, 324 and 506B of IPC and Section 3(1)11, 3(2)(5) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on 23/07/2010, since when applicant is in judicial custody.
The last bail application M. Cr. C. No. 3037/2011 was rejected on 06/09/2011 as having been withdrawn.
Learned counsel for applicant has contended that new circumstances arisen in favour of the applicant after rejection of the said application on 06/09/2011 is inordinate and unexplained delay in the criminal trial pending against the applicant for the reasons not attributable to the applicant. Learned counsel for applicant read over the ordersheets dated 04/07/2011, 30/07/2011, 29/08/2011, 01/10/2011, 01/11/2011, 24/11/2011 and 23/12/2011 of the trial court. In all these order sheets, it is reflected that the applicant has been produced from jail on every occasion but on account of absence of the prosecution witnesses, the court was compelled to adjourn the proceedings.
Perusal of the order-sheets indicate that the adjournment of the proceedings before the trial court which has occasioned delay in the trial is for reasons not attributable to the applicant/ accused but appears to be solely attributable to the prosecution for their failure to produce the prosecution witnesses.
Learned counsel for applicant has placed reliance on Bhausaheb Nagu Dhavare Vs. State of Maharashtra and others, 2001(3) Crimes 410 (SC), Narayan Yadav Vs. State of M.P. 2003(II) MPWN SN 83, Hannu Patel Vs. State of M.P. 2005(2) MPLJ SN 13 Ravishankar and others vs. State of M.P. 2005(2) MPLJ SN 18 and Mithun @ Shamshad Vs. State of M.P. 1987MPLJ, 380 to substantiate his contention that delay in trial bestows fresh cause of action upon applicant to seek bail.
Learned Public Prosecutor for respondent/ State has opposes the bail application and prays for its rejection.
Considering the submissions of learned counsel for rival parties, this court is of the considered view that right of liberty of the applicant is a fundamental right enshrined under Article 21 of the Constitution of India which cannot be curtailed unless otherwise provided by procedure established by law. Conjoint reading of Articles 21 and 22 of Constitution of India discloses the importance of liberty given by the Constitution to the citizens of this Country.
Seeking bail u/S 438/439 Cr. P. C. is undoubtedly an important mode of invoking this precious right of liberty.
Analyzing the decisions cited by the counsel for applicant, it is seen that the decision of the Apex Court in the case of Bhausaheb Nagu Dhavare Vs. State of Maharashtra and others, 2001(3) Crimes 410 (SC), does not lay down any law as regards entitlement of the benefit of bail during pretrial period and therefore is of no avail to the applicant. Similarly, the decision of this court in the case of Hannu Patel Vs. State of M.P. 2005(2) MPLJ SN 13 Ravishankar and others vs. State of M.P. 2005(2) MPLJ SN 18 are also not related to proceedings during pretrial period and in fact relate to the entitlement of bail to an appellant whose appeal against conviction is pending and disposal of appeal will take some time. Thus these two short notes are also of no help to the applicant. Thirdly, the decision of this court in the case of Narayan Yadav Vs. State of M.P. 2003(II) MPWN SN 83 supports the contention of learned counsel for applicant to the extent of extending the benefit of bail to one of the accused during pretrial stage when 9 prosecution witnesses were yet to be examined and about 4 years of incarceration of the accused had elapsed. Lastly, the case Mithun @ Shamshad Vs. State of M.P. 1987MPLJ, 380 is closest in terms of facts and circumstances to the case of applicant. In the said case due to failure of the prosecution to produce prosecution witnesses on several occasions during trial delay of about 1 month had taken place, which compelled single bench to release the accused on bail in connection with offence punishable under Section 307/34 IPC by holding that when the State opposes an application for grant of bail to an under trial prisoner during trial it is the corresponding duty of the State to ensure speedy trial and failure to discharge this duty by the State entitles the pretrial detenue to the benefit of bail.
In the instance case there is no such pleading or material on record to conclude that delay in the trial is occasioned by the applicant/ accused and therefore, this court is of the considered view that the applicant is entitled to the benefit of bail solely on account of new circumstance, which has arisen after rejection of last bail application of unexplained and inordinate delay in conducting the trial for the reason attributable to the prosecution alone.
Accordingly, without expressing any opinion on merits of the case, the present application is allowed and it is directed that applicant be released on bail on his furnishing a personal bond in the sum of Rs. 1,00.000/(Rupees one lac only) with two solvent surety each of Rs. 50,000/to the satisfaction of the Trial Court.
This order will remain operative subject to compliance of the following conditions by the applicant.
1. The applicant will comply with all the terms and conditions of the bond executed by him;
2. The applicant will cooperate in the investigation/ trial, as the case may be;
3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The applicant shall not commit an offence similar to the offence of which he is accused; and
5. The applicant will not leave India without previous permission of the trial court/ Investigating Officer, as the case may be.
A copy of this order be sent to the Court concerned for compliance.
Certified copy as per rules.