2022 (1) TMI 1437 - HC - Indian Laws

Application for bail - Prolonged custody for more than 11 years - impact on fundamental rights - Offence punishable under Sections 302 307 147 148 149 341 323 120-B and 427 of the IPC -Restrictions on granting bail under special legislations - Balancing the right to speedy trial with the gravity of the crime and societal impact - HELD THAT - In the case of Supreme Court Legal Aid Committee 1994 (10) TMI 290 - SUPREME COURT the Court had directed proviso for grant of bail that benefit of direction in clause (ii) and (iii) shall not be available to those persons who are in the opinion of the Trial Court for the reasons to be stated in writing likely to tamper with evidence or influence the prosecution witnesses. In the case of Shaheen Welfare Association 1996 (2) TMI 597 - SUPREME COURT it was cautioned that bail can be granted unless Court comes to conclusion that their antecedents are such that releasing them may be harmful to the lives of complainant family members of complainant or witnesses. In the case of Hussainara Khatoon 1995 (8) TMI 345 - SUPREME COURT it was observed that sympathy for under trials who are in jail for long terms on account of pendency of cases has to be balanced having regard to impact of crime. The Division Bench of this Court in the case of NIA Vs. Areeb Majeed. 2021 (2) TMI 1380 - BOMBAY HIGH COURT has observed that in cases under Special Acts parameters for grant of bail are more stringent and they remain in custody. The courts are required to perform balancing act so as to reach a golden mean in between the rights of an individual and those of society at large. The court has to look into those aspects while granting bail even on the ground that the under trial is in prolonged custody. In the light of observations of Supreme Court and this Court as stated above the Court has to perform balancing act. The sympathy for under trials who are in custody has to be balanced with gravity/magnitude of crime likelihood of threat to witnesses. The analysis may be based on facts of each case. It is required to be noted that the applicant is in custody for more than 11 years and 6 months. It is not clear as to when the trial would come to an end. The prosecution has so far examined 21 witnesses. There is proposed list of 62 more witnesses. The future picture is unclear as to how long it would take to conclude the trial. While the applicant had preferred previous application for bail this Court thought it ft to expedite the trial instead of granting bail. The trial Court was directed to conclude the trial within a period of six months vide order dated 11th December 2019. At that time 19 witnesses were examined. Two years down the line two more witnesses were examined. 11 and half years is a long period. There is passage of about two years from the issuance of the said directions and apparently only two witnesses are examined. Even before the declaration of lock-down there was no speed in the trial. The applicant cannot be incarcerated in custody for indefinite period. Prolonged custody infringes Article-21 of the Constitution of India. Except apprehension there is no material that the applicant would abscond or tamper with the evidence. Co-accused Sanjay Bhairu Waskar has been granted bail by this Court vide order dated 10th November 2014. The said accused was involved in other cases. Apart from merits of the case this Court had observed that the said accused is in custody from 13th June 2010 for a period of about 4 and half years. Hence case for grant of bail is made out. Hence Criminal Bail Application is allowed.

Summary

Issues Involved:
1. Prolonged custody and right to speedy trial.
2. Medical grounds for bail.
3. Applicability of statutory restrictions under special legislations (MCOC Act).
4. Balancing individual rights and societal interests.
5. Previous rejections of bail applications.

Summary:

Prolonged Custody and Right to Speedy Trial:
The applicant has been in custody for more than 11 years and 6 months. The trial has been proceeding at a slow pace, with only 21 out of 103 witnesses examined. The court emphasized that "Right to speedy trial flows from right to life and liberty under Article 21 of the Constitution of India." The prolonged custody without trial infringes Article 21, and the court cited various judgments to support that prolonged incarceration violates the right to a speedy trial.

Medical Grounds for Bail:
The applicant had suffered a cardiac arrest while in custody and had undergone coronary angioplasty. The court had previously granted temporary bail for medical treatment. The applicant's health condition was considered a significant factor in granting bail.

Applicability of Statutory Restrictions under Special Legislations (MCOC Act):
The court acknowledged the stringent conditions for granting bail under Section 21(4) of the MCOC Act. However, it was noted that these restrictions should not impede the granting of bail when prolonged custody infringes constitutional rights. The court referred to the Supreme Court's decision in Union of India Vs. K.A. Najeeb, which stated that "the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution."

Balancing Individual Rights and Societal Interests:
The court performed a balancing act between the applicant's right to liberty and the societal interest in ensuring justice. It was noted that "sympathy for under trials who are in custody has to be balanced with gravity/magnitude of crime, likelihood of threat to witnesses." The applicant was not found to pose a significant risk of absconding or tampering with evidence.

Previous Rejections of Bail Applications:
The applicant's previous bail applications were rejected, but the prolonged custody and slow pace of the trial were considered new grounds for granting bail. The court noted that "the trial Court was directed to conclude the trial within a period of six months vide order dated 11th December, 2019," but only two more witnesses were examined in the subsequent two years.

Order:
The court allowed the Criminal Bail Application No. 995 of 2021, directing the applicant to be released on bail upon executing a P.R. Bond of Rs. 1,00,000 with one or more sureties. The applicant must stay out of the jurisdiction of Rajarampuri Police Station, provide details of his residence, not leave India without permission, not tamper with evidence, and attend the trial court regularly.

Conclusion:
The court granted bail to the applicant considering the prolonged custody, right to a speedy trial, medical grounds, and balancing individual rights with societal interests, despite the stringent conditions of the MCOC Act.