Karnataka High Court
Shashi Poojari @ Shadow @ Shashikumar vs State Of Karnataka on 13 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 09.07.2024
Pronounced on : 13.09.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.11100 OF 2023
BETWEEN:
SHASHI POOJARI
@ SHADOW @ SHASHIKUMAR
S/O VIJAY A.AMEEN
AGED ABOUT 29 YEARS
R/AT 11TH MAIN ROAD
9TH CROSS, 2ND STAGE
J.P.NAGAR, BENGALURU - 560 078.
... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR. ADVOCATE FOR
SRI CHANDRASHEKAR R. P., ADVOCATE)
AND:
STATE OF KARNATAKA
BY UDUPI TOWN POLICE STATION
UDUPI DISTRICT
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, SPP-II A/W.,
2
SRI THEJESH P., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO ENLARGE HIM ON BAIL IN SPL.C.366/2019
(CRIME NO.25/2019) REGISTERED WITH THE UDUPI TOWN POLICE
STATION, UDUPI DISTRICT ON 21.03.2019, FOR THE OFFENCE
P/U/S 384, 387, 504, 506, 507, 120B, 109, 201, 364A, 397 R/W 34
OF IPC AND SEC. 3(1)(ii), 3(2), 3(4) AND 3(5) OF KCOCA, NOW
PENDING ON THE FILE OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE AT MYSURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.07.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.2 is again before this Court seeking
his enlargement on bail for it having been turned down by this
Court in Criminal Petition No.5263 of 2022 arising out of a refusal of
bail order of the Principal District & Sessions Judge, Mysore in
Special Case No.366 of 2019 concerning Crime No.25 of 2019
registered for offences punishable under Sections 384, 387, 504,
506, 507, 120B, 109, 201 read with 34 of the IPC and Sections
3(1)(ii), 3(2), 3(4) and 3(5) of the Karnataka Control of Organised
Crimes Act, 2000 ('the Act' for short).
3
2. Heard Sri Sandesh J.Chouta, learned senior counsel
appearing for the petitioner and Sri Vijayakumar Majage, learned
State Public Prosecutor-II appearing for the respondent.
3. The facts germane are as follows:
A First Information Report comes to be registered on
15-03-2019 based upon a complaint registered by one Rathnakar
D. Shetty in Crime No.42 of 2019 against certain unknown persons.
On registration of the crime, a non-cognizable report was made in
N.C.R.No.98 of 2019. Later it transpires that permission was sought
from the learned Magistrate under Section 155(2) of the Cr.P.C. for
conduct of investigation in the light of the offences so alleged in
Crime No.42 of 2019. After registration of the crime, the case was
transferred on the point of jurisdiction to Udupi Town Police Station
and the impugned FIR comes to be registered in Crime No.25 of
2019 for the same offences.
4. The contents of the complaint is that the complainant, a
resident of Udupi runs a factory in the name of Royal Soda Factory
and had recently sold his land at Royal Garden, Udupi for which he
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had received several crores. On 13-03-2019, it is the case of the
complainant, that he had received three calls on his mobile phone
from a particular mobile number. The person who spoke on the
other side appears to have abused him in Tulu language saying that
he has not been receiving phone calls that the said person is
making for days. It is alleged that the person who spoke threatened
of killing him and his son if he did not answer the phone call. It
appears that the response of the complainant was that he was in
the temple and, therefore, he had not answered the phone calls.
Again on the same day, at 12.20 p.m., he is alleged to have
received a call spoken in Tulu language threatening him to pay him
money. Therefore, a crime was sought to be registered in Crime
No.42 of 2019 against unknown persons for having made certain
threatening calls.
5. During the investigation, the petitioner/accused No.2,
accused Nos.3 and 4 were arrested and remanded to judicial
custody. The arrest comes about on 21-03-2019. The petitioner is
said to be in custody even as on date after him being housed in
prison from 21-03-2019. This was on the basis of the complaint.
5
Investigation is conducted and the Investigating Officer files a
charge sheet before the concerned Court on 11-09-2019. Not
stopping at the offences that were alleged in the FIR, further
offences were alleged as aforementioned. The investigation had
been sought and a supplementary charge sheet comes to be filed
on 30-12-2019 adding offences punishable under Sections 364A
and 397 of the IPC.
6. After filing the charge sheet and supplementary charge
sheet, the petitioner knocks the doors of the Sessions Court in
Special Case No.366 of 2019 seeking his enlargement on bail, as by
then the petitioner was in prison for close to 15 months and the fact
that the charge sheet and the supplementary charge sheet both
had been filed by the Investigating Officer. The learned Sessions
Judge, rejects the petition seeking enlargement of the
petitioners/accused Nos.2 to 6 on bail, in terms of his order dated
10-07-2020, after which, the petitioner sought to knock the doors
of this Court in Criminal Petition No.3231 of 2022 which comes to
be withdrawn on 12-05-2022 as not pressed seeking liberty to file a
fresh petition. It is in tune with the said liberty so granted in terms
6
of the memo that was filed, petitioner approaches this Court in
Criminal Petition No.5263 of 2022 seeking his enlargement on bail.
This comes to be rejected by the following order:
".... .... ....
10. The afore-narrated facts and genesis of the complaint
are not in dispute. The examination of this Court in a petition
concerning enlargement of an accused on bail is limited to
consider whether the petitioner would be a threat to the society,
if he is enlarged on bail, in the teeth of the offences alleged
against him being either with imprisonment for life or otherwise.
The complaint though comes to be registered against unknown
persons for non-cognizable offences, the permission of the
learned Magistrate was sought to register the FIR and later
when investigation is made, the entire operation of the
organized crime syndicate comes into light. The attempts made
by the other accused - one Ravichandra Poojary, accused No.4
to seek enlargement on bail have all been futile. The facts that
led to denial of bail by the coordinate Bench of this Court in the
case of Ravichandra Poojary would also become applicable to
the petitioner in the case at hand. The evidence against the
petitioner and the documents produced clearly bring about
allegations of extortion.
11. The co-ordinate Bench while considering the petitions
seeking enlargement on bail of accused No.4 and accused No.6
has considered all the facts with regard to all the accused, which
would cover the petitioner as well. The voluntary statements
made by co accused clearly point at the allegations that would
become the aforesaid crime against the petitioner. In the
statement of objections, the State brings out enormous
circumstances which would lead to an unmistakable conclusion
that if the petitioner is enlarged on bail, he would become a
threat to the society, inasmuch as, being in prison he has used
the cell phone of accused Nos. 4 and 6 and sought to call other
witnesses and threatened them. The statement of objections
would further demonstrate that the petitioner is involved in
several such crimes.
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12. The statements recorded under Section 164 of the
CrPC of complainant's witnesses 88, 90 and 92 would clearly
demonstrate that accused No.4, the brother of the petitioner
was using mobile phones in the jail which stood in the name of
the petitioner for making certain threatening calls. Accused No.1
is also convicted for running an organized crime syndicate and
the petitioner has met accused No.1 on several occasions
including at the time when accused No.1 was housed in prison.
The charge sheet, according to the learned Additional State
Public Prosecutor, would make it clear that the petitioner is an
active associate or a member of the organized crime syndicate
and the petitioner has also been charge sheeted for offences
under Section 201 of the IPC for destroying the sim he has used
for commissioning of crime and since provisions of the Act are
invoked, the emphatic submission of the learned Additional
State Public Prosecutor is that such persons should not be
released on bail.
13. The crime involved, in the case at hand, is a maze of
facts. The charge sheet admittedly filed runs into 7000 pages. A
perusal at the documents appended to the statement of
objections would clearly indicate albeit prima facie that the
petitioner is a part of the organized crime syndicate of which
accused No.1 Rajendra Kumar S.V. @ Bannaje Raja is the chief
of that syndicate. With the facts being thus and invocation of
the Act against the petitioner as well, as also the fact that
application of accused Nos. 4 and 6 who had approached this
Court seeking enlargement on bail having been turned down,
there is no warrant for consideration of the case of the
petitioner for enlargement on bail.
14. The submission of the learned senior counsel
appearing for the petitioner is that the petitioner has been in
prison for the last 3 years and 7 months and that should weigh
as a circumstance for consideration of the case at hand for his
release on bail. Though the complaint begins with a frivolous
allegation, the investigation reveals an organized crime
syndicate. If the investigation has revealed organized crime
syndicate and charge sheet is filed on that basis, this Court is of
the considered view that the finding rendered by the coordinate
Bench while rejecting bail plea of accused Nos. 4 and 6 would
become applicable to the case at hand as well, as the link in the
8
chain of events would completely demonstrate that the
petitioner is involved and is a part of the said crime syndicate.
15. The definition 'Organized crime syndicate' and
'Organized crime' under the Act clearly bring out offences by the
syndicate and offences by the individual who is a part of the
syndicate. Therefore, if it is construed that the petitioner has
committed certain offences being a part of the crime syndicate,
he is also open to those allegations which make the offences
punishable under the Act. If the petitioner has acted individually
for the crime syndicate, even then he could be punished for
those offences under the Act. Therefore, it is not a case where
the petitioner is to be enlarged on bail.
16. In-so-far as the judgments relied on by the learned
senior counsel appearing for petitioner in plethora of cases,
there could be no qualm about the principles so laid down by
the Apex Court but it is also the law that is laid down by the
Apex Court that if release of an accused would pose a threat to
the society, such accused should not be enlarged on bail. The
material on record does warrant rejection of the petition seeking
enlargement on bail."
It was observed that the material on record would not enure to the
benefit of the petitioner for his enlargement on bail. The petitioner
is again knocking at the doors of this Court on the score of changed
circumstance. According to the petitioner, the changed
circumstance is grant of bail to accused Nos. 4 and 5 by the
coordinate Bench and the contention is that they are similarly
situated.
9
7. The coordinate Bench in Criminal petition No.3476 of 2023
grants bail to accused No.4 by the following order:
".... .... ...
7. Having heard the arguments, perused the records, on
perusal of the same and as per section 2 of the KCOC Act, there
must be more than one charge sheet to be filed before the
competent court within 10 years. As per the statement of
objections filed by the Additional SPP II, there are five cases
registered against this petitioner between 2013 and 2019. This
petitioner is accused in all the cases. That apart, as per the
charge sheet material, the Investigating Officer has stated in
which offences are the accused involved. It also reveals that this
petitioner was in jail during the relevant point of time and from
the jail, he has contacted his brother accused No.2 and other
accused for collecting money from the public and business
people. The CD Report reveals that he was in constant touch
with other accused through his mobile phone. The CD report is
not given to learned counsel for the petitioner as it is the
apprehension that the petitioner may threaten and tamper the
witnesses of the prosecution. Of-course the petitioner is entitled
to receive a copy of the same before the Trial Court.
8. The main contention of the petitioner counsel is that,
he is in custody for more than 4½ years and there is no
ingredient to attract section 397 and 364 A of IPC. Learned
senior counsel relied upon the judgment of the co-ordinate
Bench of this Court in various cases. All the cases are on a
different footing. Learned counsel relied upon an unreported
judgment of the Hon'ble Supreme Court in Special Leave to
Appeal (Crl.) No.6429/2018 wherein, it is stated that at the
time, the accused was in custody and therefore, bail has been
granted.
9. Learned senior counsel also relied upon the recent
judgment of the Hon'ble Supreme Court reported in (2021) 3
SCC 713 UOI VS K.A. Najeeb, wherein the Hon'ble Supreme
Court has granted bail to the accused who was facing trial for
the offence punishable under UAPA Act, where the accused was
in custody for long time. Here in this case, though the police
10
have filed charge sheet and additional charge sheet against the
accused persons, but in the first charge sheet there is no
offences made out punishable under Sections 364A and 397 of
IPC and while further investigation the police added Sections
364A and 397 of IPC where this petitioner received
Rs.4,35,000/- transferred by the CW159 in his account, but the
abduction was made by the accused No.3, not by this petitioner
and amount has been transferred to this petitioner account and
it was given by him to his brother for purchasing the motor
cycle. Except receiving the amount from the CW158 at the
instruction of the accused No.3, he has not directly involved in
this case, for extortion. The allegation against this petitioner is
lesser than the allegation against the other accused persons.
Ofcourse, the accused No.2 brother of the petitioner filed 227 of
Cr.P.C application for discharge of the other accused, who also
filed similar application for discharge which were pending and no
order passed by the trial court for the purpose of framing of
charges and that the petitioner is in custody for more than 4½
years. That apart as per the submission made by the Additional
SPP there were more than 240 witnesses cited in the charge
sheet and in order to examine those witnesses, it may take
atleast two years to conclude the trial which reveals, it is not
possible to conclude the trial in near future. There is no recovery
from this petitioner and it is only first case for this petitioner
along with the co accused. The Hon'ble Supreme Court held in
the Najeeb's case stated supra at paragraph 10 as under:-
"10. It is a fact that the High Court in the instant
case has not determined the likelihood of the respondent
being guilty or not, or whether rigours of Section 43-
D(5) of the UAPA are alien to him. The High Court
instead appears to have exercised its power to grant bail
owing to the long period of incarceration and the
unlikelihood of the trial being completed anytime in the
near future. The reasons assigned by the High Court are
apparently traceable back to Article 21 of our
Constitution, of course without addressing the statutory
embargo created by Section 43-D(5) of the UAPA."
10. The Hon'ble Supreme Court granted bail in the said
case with conditions. The coordinate bench also granted bail in a
similar case reported in 2020 SCC online Karnataka 2307.
The Hon'ble Supreme Court also granted bail in Mukeshbhai
Vallabhabahi Vs State of Gujarat reported in (2023) 4 SCR
11
1137 in a similar case. Considering the judgment of Hon'ble
Supreme Court in Mukehs Bhai's case and Najeeb's case, I am
of the view, the petitioner is in custody for more than 4½ years
and there is no serious allegation against him for having
kidnapped the CW158 and extortion of ransom except receiving
the money. Therefore, in view of the delay in conducting trial
keeping accused petitioner will be a pre trial detention and
minimum sentence is only 5 years in KCOC Act. Therefore I am
of the opinion the petitioner shall be enlarged on bail by
imposing certain conditions."
Accused No.5 is granted bail by another coordinate Bench in
Criminal Petition No.5587 of 2023 decided on 13-10-2023. The
reasons so rendered by the coordinate Bench are as follows:
".... .... ....
14. In the instant case, the only allegation against the
petitioner is that he had accompanied accused no.3 to Hindalga
Jail at Belagavi and had handed over a SIM Card to accused
no.1 bearing No.9964917807 which allegedly was used by
accused no.1 to call the complainant and threaten him. It is not
the case of the prosecution that the petitioner was in any way
otherwise involved in the alleged crime committed by the other
accused persons in the present case. The said SIM Card is
undisputedly not seized from the possession of the petitioner
herein.
15. Petitioner is in custody from 22.03.2019 and almost
for the last 4 1/2 years, he is behind the bars. Prolonged period
of incarceration of an accused is a factor that needs to be
considered by the courts while considering the bail application of
an accused. The Hon'ble Supreme Court in the case of UNION
OF INDIA VS K.A.NAJEEB - (2021)3 SCC 713, in paragraph
12 to 15, has observed as under:
"12. Even in the case of special legislations like the
Terrorist and Disruptive Activities (Prevention) Act, 1987 or
the Narcotic Drugs and Psychotropic Substances Act, 1985
("the NDPS Act") which too have somewhat rigorous
12
conditions for grant of bail, this Court in Paramjit Singh v.
State (NCT of Delhi) [Paramjit Singh v. State (NCT of
Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156] , Babba v.
State of Maharashtra [Babba v. State of Maharashtra,
(2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia
v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2
SCC 731: (2017) 2 SCC (Cri) 114] enlarged the accused on
bail when they had been in jail for an extended period of
time with little possibility of early completion of trial. The
constitutionality of harsh conditions for bail in such special
enactments, has thus been primarily justified on the
touchstone of speedy trials to ensure the protection of
innocent civilians.
13. We may also refer to the orders enlarging
similarly-situated accused under UAPA passed by this Court
in Angela Harish Sontakke v. State of Maharashtra [Angela
Harish Sontakke v. State of Maharashtra, (2021) 3 SCC
723] . That was also a case under Sections 10, 13, 17, 18,
18-A, 18-B, 20, 21, 38, 39 and 40(2) of the UAPA. This
Court in its earnest effort to draw balance between the
seriousness of the charges with the period of custody
suffered and the likely period within which the trial could be
expected to be completed took note of the five years'
incarceration and over 200 witnesses left to be examined,
and thus granted bail to the accused notwithstanding
Section 43-D(5) of the UAPA. Similarly, in Sagar Tatyaram
Gorkhe v. State of Maharashtra [Sagar Tatyaram Gorkhe v.
State of Maharashtra, (2021) 3 SCC 725] , an accused
under UAPA was enlarged for he had been in jail for four
years and there were over 147 witnesses still unexamined.
14. The facts of the instant case are more egregious
than these two above cited instances. Not only has the
respondent been in jail for much more than five years, but
there are 276 witnesses left to be examined. Charges have
been framed only on 27-11-2020. Still further, two
opportunities were given to the appellant NIA who has
shown no inclination to screen its endless list of witnesses.
It also deserves mention that of the thirteen co-accused
who have been convicted, none have been given a sentence
of more than eight years' rigorous imprisonment. It can,
therefore, be legitimately expected that if found guilty, the
respondent too would receive a sentence within the same
ballpark. Given that two third of such incarceration is
already complete, it appears that the respondent has
already paid heavily for his acts of fleeing from justice.
13
15. This Court has clarified in numerous judgments
that the liberty guaranteed by Part III of the Constitution
would cover within its protective ambit not only due
procedure and fairness but also access to justice and a
speedy trial. In Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of India
[Supreme Court Legal Aid Committee (Representing
Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731,
para 15 : 1995 SCC (Cri) 39], it was held that undertrials
cannot indefinitely be detained pending trial. Ideally, no
person ought to suffer adverse consequences of his acts
unless the same is established before a neutral arbiter.
However, owing to the practicalities of real life where to
secure an effective trial and to ameliorate the risk to society
in case a potential criminal is left at large pending trial, the
courts are tasked with deciding whether an individual ought
to be released pending trial or not. Once it is obvious that a
timely trial would not be possible and the accused has
suffered incarceration for a significant period of time, the
courts would ordinarily be obligated to enlarge them on
bail."
16. In the present case, the prosecution has cited totally
157 charge-sheet witnesses. The order sheet maintained by the
Trial Court in Spl.C.No.366/2019 would go to show that the case
is still at the stage of hearing before charge. Therefore, in the
immediate near future, the trial of the case is not likely to be
completed.
17. A coordinate bench of this Court has granted regular
bail to accused no.4 in the present case in Crl.P.No.3476/2023
disposed of on 20.09.2023. Accused no.4 allegedly had
participated in the crime by receiving ransom money which was
demanded by accused no.1. As against the petitioner herein
even such an allegation is not found in the charge sheet. The
coordinate bench of this Court taking into consideration that
accused no.4 is in custody for the last more than 4 1/2 years
and that there are no serious allegations against him for having
kidnapped CW-158 and extortion of ransom except receiving
money, had granted regular bail to accused no.4.
18. The judgment in Kavitha Lankesh's case supra would
not be applicable to the facts and circumstances of the present
case, since in the said case the Hon'ble Supreme Court was
14
considering the question whether the High Court was justified in
quashing the charge sheet filed against the accused in so far as
it relates to the offences under the KCOCA. Having regard to the
material available in the said case, the Supreme Court had held
that even though there was no sufficient material to attract the
offence under Section 3(1) of the KCOCA, since there was some
material against the accused for attracting the offences under
Sections 3(2), 3(3) & 3(4) of the KCOCA, the High Court was
not justified in quashing the charge sheet against the accused in
the said case in so far as it relates to the offences under the
KCOCA.
19. Considering the nature of material available against
the petitioner and also the allegations made in the charge sheet,
I am of the opinion that the petitioner who is in custody for the
last more than 4 1/2 years has made out a prima facie case for
grant of regular bail. In addition to the same, the coordinate
bench of this Court has enlarged accused no.4 on regular bail in
Crl.P.No.3476/2023 as against whom there is allegation in the
charge sheet that he had collected ransom money, but as
against the petitioner even such an allegation is not there.
Under the circumstances, I am of the view that the petitioner's
prayer for grant of regular bail is required to be answered in the
affirmative."
The learned senior counsel appearing for the petitioner would
vehemently contend that the petitioner is also entitled to parity of
treatment as is given to accused Nos. 4 and 5. Accused No.6 in the
case at hand has also been enlarged on bail on the following
reasons in Criminal Petition No.1668 of 2024 decided on
22-04-2024 reading:
".... .... ....
13. Prolonged period of incarceration of an accused is a
factor that needs to be considered by the courts while
15
considering the bail application of an accused. The Hon'ble
Supreme Court in the case of UNION OF INDIA VS
K.A.NAJEEB - (2021)3 SCC 713, in paragraph 12 to 15, has
observed as under: -
"12. Even in the case of special legislations like the
Terrorist and Disruptive Activities (Prevention) Act, 1987 or the
Narcotic Drugs and Psychotropic Substances Act, 1985 ("the
NDPS Act") which too have somewhat rigorous conditions for
grant of bail, this Court in Paramjit Singh v. State (NCT of
Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC
252 : 1999 SCC (Cri) 1156] , Babba v. State of Maharashtra
[Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2
SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v.
State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114]
enlarged the accused on bail when they had been in jail for an
extended period of time with little possibility of early
completion of trial. The constitutionality of harsh conditions for
bail in such special enactments, has thus been primarily
justified on the touchstone of speedy trials to ensure the
protection of innocent civilians.
13. We may also refer to the orders enlarging similarly-
situated accused under UAPA passed by this Court in Angela
Harish Sontakke v. State of Maharashtra [Angela Harish
Sontakke v. State of Maharashtra, (2021) 3 SCC 723] . That
was also a case under Sections 10, 13, 17, 18, 18-A, 18-B, 20,
21, 38, 39 and 40(2) of the UAPA. This Court in its earnest
effort to draw balance between the seriousness of the charges
with the period of custody suffered and the likely period within
which the trial could be expected to be completed took note of
the five years' incarceration and over 200 witnesses left to be
examined, and thus granted bail to the accused
notwithstanding Section 43-D(5) of the UAPA. Similarly, in
Sagar Tatyaram Gorkhe v. State of Maharashtra [Sagar
Tatyaram Gorkhe v. State of Maharashtra, (2021) 3 SCC 725] ,
an accused under UAPA was enlarged for he had been in jail for
four years and there were over 147 witnesses still unexamined.
14. The facts of the instant case are more egregious
than these two abovecited instances. Not only has the
respondent been in jail for much more than five years, but
there are 276 witnesses left to be examined. Charges have
been framed only on 27-11-2020. Still further, two
opportunities were given to the appellant NIA who has shown
no inclination to screen its endless list of witnesses. It also
16
deserves mention that of the thirteen co-accused who have
been convicted, none have been given a sentence of more than
eight years' rigorous imprisonment. It can, therefore, be
legitimately expected that if found guilty, the respondent too
would receive a sentence within the same ballpark. Given that
two-third of such incarceration is already complete, it appears
that the respondent has already paid heavily for his acts of
fleeing from justice.
15. This Court has clarified in numerous judgments that
the liberty guaranteed by Part III of the Constitution would
cover within its protective ambit not only due procedure and
fairness but also access to justice and a speedy trial. In
Supreme Court Legal Aid Committee (Representing Undertrial
Prisoners) v. Union of India [Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners) v. Union of
India, (1994) 6 SCC 731, para 15: 1995 SCC (Cri) 39], it was
held that undertrials cannot indefinitely be detained pending
trial. Ideally, no person ought to suffer adverse consequences
of his acts unless the same is established before a neutral
arbiter. However, owing to the practicalities of real life where to
secure an effective trial and to ameliorate the risk to society in
case a potential criminal is left at large pending trial, the courts
are tasked with deciding whether an individual ought to be
released pending trial or not. Once it is obvious that a timely
trial would not be possible and the accused has suffered
incarceration for a significant period of time, the courts would
ordinarily be obligated to enlarge them on bail."
14. The Hon'ble Supreme Court granted bail in the said
case with conditions. The coordinate bench also granted bail in a
similar case reported in 2020 SCC online Karnataka 2307.
The Hon'ble Supreme Court also granted bail in Mukeshbhai
Vallabhabahi Vs State of Gujarat reported in (2023) 4 SCR
1137 in a similar case. Therefore, the present petitioner is also
entitled for grant of bail due to prolonged incarceration."
8. It is not in dispute that the petitioner has been in custody
from the time when he was drawn into the web of the proceedings
through a supplementary charge sheet on 30-12-2019 and,
17
therefore, he is in custody since 5 years. All other accused who are
also alleged of identical offences have been enlarged on bail. It thus
becomes apposite to refer to the judgment of the Apex Court in the
case of JAVED GULAM NABI SHAIKH v. STATE OF
MAHARASHTRA1 wherein the Apex Court has held as follows:
".... .... ...
7. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, we are
inclined to exercise our discretion in favour of the appellant
herein keeping in mind the following aspects:
(i) The appellant is in jail as an under-trial prisoner past four
years;
(ii) Till this date, the trial court has not been able to even
proceed to frame charge; and
(iii) As pointed out by the counsel appearing for the State as
well as NIA, the prosecution intends to examine not less
than eighty witnesses.
8. Having regard to the aforesaid, we wonder by what
period of time, the trial will ultimately conclude. Howsoever
serious a crime may be, an accused has a right to speedy trial
as enshrined under the Constitution of India.
9. Over a period of time, the trial courts and the High
Courts have forgotten a very well settled principle of law that
bail is not to be withheld as a punishment.
10. In the aforesaid context, we may remind the trial
courts and the High Courts of what came to be observed by this
Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court
reported in (1978) 1 SCC 240. We quote:
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2024 SCC OnLine SC 1693
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"What is often forgotten, and therefore warrants reminder,
is the object to keep a person in judicial custody pending trial or
disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18
Cox]:
"I observe that in this case bail was refused for the
prisoner. It cannot be too strongly impressed on the,
magistracy of the country that bail is not to be withheld as a
punishment, but that the requirements as to bail are merely to
secure the attendance of the prisoner at trial."
11. The same principle has been reiterated by this Court
in Gurbaksh Singh Sibba v. State of Punjab, (1980) 2 SCC
565 that the object of bail is to secure the attendance of the
accused at the trial, that the proper test to be applied in the
solution of the question whether bail should be granted or
refused is whether it is probable that the party will appear to
take his trial and that it is indisputable that bail is not to be
withheld as a punishment.
12. Long back, in Hussainara Khatoon v. Home Secy.,
State of Bihar, (1980) 1 SCC 81, this court had declared that
the right to speedy trial of offenders facing criminal charges is
"implicit in the broad sweep and content of Article 21 as
interpreted by this Court". Remarking that a valid procedure
under Article 21 is one which contains a procedure that is
"reasonable, fair and just" it was held that:
"Now obviously procedure prescribed by law for
depriving a person of 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 part of
the fundamental right to life and liberty enshrined in Article 21.
The question which would, however, arise is as to what would
be the consequence if a person accused of an offence is denied
speedy trial and is sought to be deprived of his liberty by
imprisonment as a result of a long delayed trial in violation of
his fundamental right under Article 21."
13. The aforesaid observations have resonated, time and
again, in several judgments, such as Kadra Pahadiya v. State of
Bihar, (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S.
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Nayak, (1992) 1 SCC 225. In the latter the court re-emphasized
the right to speedy trial, and further held that an accused,
facing prolonged trial, has no option:
"The State or complainant prosecutes him. It is, thus,
the obligation of the State or the complainant, as the case may
be, to proceed with the case with reasonable promptitude.
Particularly, in this country, where the large majority of
accused come from poorer and weaker sections of the society,
not versed in the ways of law, where they do not often get
competent legal advice, the application of the said rule is wholly
inadvisable. Of course, in a given case, if an accused demands
speedy trial and yet he is not given one, may be a relevant
factor in his favour. But we cannot disentitle an accused from
complaining of infringement of his right to speedy trial on the
ground that he did not ask for or insist upon a speedy trial."
14. In Mohd Muslim @ Hussain v. State (NCT of Delhi),
2023 INSC 311, this Court observed as under:
"21. Before parting, it would be important to reflect that
laws which impose stringent conditions for grant of bail, may be
necessary in public interest; yet, if trials are not concluded in
time, the injustice wrecked on the individual is immeasurable.
Jails are overcrowded and their living conditions, more often
than not, appalling. According to the Union Home Ministry's
response to Parliament, the National Crime Records Bureau had
recorded that as on 31st December 2021, over 5,54,034
prisoners were lodged in jails against total capacity of 4,25,069
lakhs in the country. Of these 122,852 were convicts; the rest
4,27,165 were undertrials.
22. The danger of unjust imprisonment, is that inmates
are at risk of "prisonisation" a term described by the Kerala
High Court in A Convict Prisoner v. State, 1993 Cri LJ 3242, as
"a radical transformation" whereby the prisoner:
"loses his identity. He is known by a number. He loses
personal possessions. He has no personal relationships.
Psychological problems result from loss of freedom, status,
possessions, dignity any autonomy of personal life. The inmate
culture of prison turns out to be dreadful. The prisoner
becomes hostile by ordinary standards. Self-perception
changes."
23. There is a further danger of the prisoner turning to
crime, "as crime not only turns admirable, but the more
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professional the crime, more honour is paid to the criminal"
(also see Donald Clemmer's 'The Prison Community' published
in 1940). Incarceration has further deleterious effects - where
the accused belongs to the weakest economic strata :
immediate loss of livelihood, and in several cases, scattering of
families as well as loss of family bonds and alienation from
society. The courts therefore, have to be sensitive to these
aspects (because in the event of an acquittal, the loss to the
accused is irreparable), and ensure that trials - especially in
cases, where special laws enact stringent provisions, are taken
up and concluded speedily."
15. The requirement of law as being envisaged under
Section 19 of the National Investigation Agency Act,
2008 (hereinafter being referred to as "the 2008 Act") mandates
that the trial under the Act of any offence by a Special Court
shall be held on day-to-day basis on all working days and have
precedence over the trial of any other case and Special Courts
are to be designated for such an offence by the Central
Government in consultation with the Chief Justice of the High
Court as contemplated under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of
India v. K.A. Najeeb, (2021) 3 SCC 713] had an occasion to
consider the long incarceration and at the same time the effect
of Section 43-D(5) of the UAP Act and observed as under : (SCC
p. 722, para 17)
"17. It is thus clear to us 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. Indeed, both
the restrictions under a statute as well as the powers
exercisable under constitutional jurisdiction can be well
harmonised. Whereas at commencement of proceedings, the
courts are expected to appreciate the legislative policy against
grant of bail but the rigours of such provisions will melt down
where there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against the
possibility of provisions like Section 43-D(5) of the UAPA being
used as the sole metric for denial of bail or for wholesale breach
of constitutional right to speedy trial."
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17. In the recent decision, Satender Kumar
Antil v. Central Bureau of Investigation, (2022) 10 SCC 51,
prolonged incarceration and inordinate delay engaged the
attention of the court, which considered the correct approach
towards bail, with respect to several enactments, including
Section 37 NDPS Act. The court expressed the opinion that
Section 436A (which requires inter alia the accused to be
enlarged on bail if the trial is not concluded within specified
periods) of the Criminal Procedure Code, 1973 would apply:
"We do not wish to deal with individual enactments as
each special Act has got an objective behind it, followed by the
rigour imposed. The general principle governing delay would
apply to these categories also. To make it clear, the provision
contained in Section 436-A of the Code would apply to the
Special Acts also in the absence of any specific provision. For
example, the rigour as provided under Section 37 of the NDPS
Act would not come in the way in such a case as we are dealing
with the liberty of a person. We do feel that more the rigour,
the quicker the adjudication ought to be. After all, in these
types of cases number of witnesses would be very less and
there may not be any justification for prolonging the trial.
Perhaps there is a need to comply with the directions of this
Court to expedite the process and also a stricter compliance of
Section 309 of the Code."
18. Criminals are not born out but made. The human
potential in everyone is good and so, never write off any
criminal as beyond redemption. This humanist fundamental is
often missed when dealing with delinquents, juvenile and adult.
Indeed, every saint has a past and every sinner a future. When
a crime is committed, a variety of factors is responsible for
making the offender commit the crime. Those factors may be
social and economic, may be, the result of value erosion or
parental neglect; may be, because of the stress of
circumstances, or the manifestation of temptations in a milieu of
affluence contrasted with indigence or other privations.
19. 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.
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Article 21 of the Constitution applies irrespective of the nature
of the crime.
20. We may hasten to add that the petitioner is still an
accused; not a convict. The over-arching postulate of criminal
jurisprudence that an accused is presumed to be innocent until
proven guilty cannot be brushed aside lightly, howsoever
stringent the penal law may be.
21. We are convinced that the manner in which the
prosecuting agency as well as the Court have proceeded, the
right of the accused to have a speedy trial could be said to have
been infringed thereby violating Article 21 of the Constitution."
9. In the light of the fact that other accused are released on
bail and the petitioner has spent close to 5 years in prison and the
charge is yet to be framed by the concerned Court, these factors
would come within the parameters of what the Apex Court has held
in JAVED GULAM NABI SHAIKH's case supra which was a case
concerning offences under the Unlawful Activities (Prevention) Act,
1967. I, therefore, deem it appropriate to follow the judgments
rendered by the Coordinate Benches in releasing other co-accused
and enlarge the petitioner on bail, imposing certain stringent
conditions.
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10. For the aforesaid reasons, the following:
ORDER
The criminal petition is allowed. The trial Court is directed to
release the petitioner – accused No.2 on bail in Special case No.366
of 2019 pending before the Principal District and Sessions Judge at
Mysore, subject to the following conditions:
(i) Petitioner/accused No.2 shall execute a personal bond
for a sum of `5,00,000/- (Rupees five lakhs only) with
two sureties for the like sum to the satisfaction of the
trial Court;
(ii) Petitioner shall not strictly indulge in similar offences;
(iii) Petitioner shall not tamper with the prosecution
witnesses directly/indirectly;
(iv) Petitioner shall not leave the jurisdiction of this Court
without prior permission of the trial Court, except while
attending any other case in any other Court; and
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(v) Petitioner shall cooperate with the trial without causing
any delay by attending the Court proceedings, unless
otherwise exempted.
If any of the above conditions are violated, the prosecution is
at liberty to seek cancellation of this bail order.
Sd/-
(M. NAGAPRASANNA)
JUDGE
bkp
CT:SS