(1.) It has been a pleasure to hear the cool argument of applicants counsel Shri Sengar on a point of law in this third bail application Just after hearing some ball applications where the applicant tried to strengthen his argument by volume of his voice with matching expression. The legal point pressed is that if a criminal case cannot be concluded within one year then bail has to be granted and in this case, the applicant has been in jail for one year and nine months. The argument has been expanded by saying that speedy trial is a right of citizen and bail has to be granted in recognition of the fundamental right and out of respect to the Constitution. During the course of argument, it has also come that two witnesses have been examined in this case in January, 1988.
(2.) For the aforesaid proposition of law, the learned counsel has placed reliance on the Full Bench Case of Patna High Court styled Anurag Baitha v. State of Bihar1. In this case, majority judgment was delivered by Chief Justice S.S. Sindhawalia. There is no doubt that this majority judgment supports the case of the applicant. It was said in the said judgment that appellant would become entitled to claim bail on the ground of delay in hearing the appeal itself unless there are cogent grounds for acting, otherwise. The judgment seems to lay down that the same principle will apply in Sessions Trial and if the matter cannot be concluded in a year, the bail should be granted. In this judgment a number of decisions including that of the Supreme Court were considered. Referring to one Supreme Court case, it was remarked-With deepest respect, I am unable to concur with the view In State (through Deputy Commissioner of Police, Special Branch, Delhi) v. Jaspal Singh Gill, which with great reverence appears to me as having some-what misconstrued the underlying ratio of Koshmira Singh's case. Thus, it seems that the majority Judgment did not concur with the case of Jaspal Singh Gill, a case decided by the Supreme Court, and drew support from some other cases of Supreme Court. The matter does not end here. The third judge took a different view and said that he was not able to agree that if an appeal is not disposed of within a period of one year, the appellant may be considered for release on bail on the ground of delay in the disposal of the appeal, even though on merits, he is not entitled to the grant of bail. He further states that in law, as in life, there arc no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae. I also find in the minority judgment that orders for bail on the ground of delays may create paradise for criminals and expose the law abiding and peaceful citizen to horrors and dangers. The majority sought to put very shocking and heinous crimes on a slightly different footing. About this, the minority judgment said that there will be a further controversy as to which is a very shocking and heinous crime as for one it may be very shocking but for the other it may not be so and the categorization and classification of such case will further entail the delay in the disposal of the appeal itself The learned judge in the minority judgment concluded saying that one cannot forget that this is a society consisting not only of the criminals alone but innocent and. law abiding and law fearing people also whose interest is also to be safeguarded side by side with the interest of the criminals. Thus, the Authority of majority judgment is considerable weakened because the majority could not explain the Supreme Court case of Jaspal Singh Gill and merely declined to concur with the view taken in it and the third judge gave a dissenting judgment.
(3.) The learned counsel for the applicant has laid much stress on the high sounding principle that personal liberty of the citizen is involved. Of course, liberty is to be secured to a citizen; but through process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim, who lost his life, and who feel helpless and believe that there is no justice in, the world as also the collective interest of the, community, so that the society does not loose faith in the institution of justice, and indulge in private retribution. Order is the basic need in a organised society. The essential rights are subject to the elementary need for order without which guarantee of those rights would be a mockery. The case of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions. It is not to be treated with disdain. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system of administration of justice in an even handed manner without fear of criticism. Hard and ugly facts make even application of harsh laws imperative and they have to be tolerated as a necessarily evil in modern restless society. This accounts for special provisions regarding bails in certain special Acts and caution in granting bail even for offences under the Indian Penal Code. It will be killing justice to permit ball in every case just in the name of liberty and delay in the face of evidence depicting cruel facts. It will render the justicing system of the country suspect. There are cases when one understands and appreciates the language of deterrence more than reformative jargon and in case of serious offences to protect society, it may be necessary to refuse bail taking all the circumstances in considerations. If bail is made the rule ignoring the facts of the case and the relevant consideration, society will be left absolutely at the mercy of some, who may not care much for the sentence that may be finalized by superior courts after a decade or two. The court cannot sit in ivory tower or close its eyes to what is happening in the society. Everyone knows how unsafe, it has become to live in a village and how ordinary law abiding citizen in the City is afraid of muscle men. The courts have to bear in mind that in order to check State from making in road on the liberty of citizen, they do not give power to over loads of underground world to rule the society and trample others liberty. In order to secure liberty of one, liberty of thousands is not to be destroyed. Balance has to be struck. Pendulam has to be kept mid way. If it is taken to one side, it is bound to go to the other. So the position is that facts of each case will have to be considered and where it appears that the crime is so high handed, that it seems that granting bail to the accused may lead to destruction of evidence or to danger to ordinary citizen, bail may have to be refused In the case of Shahjad Hasan Khan v. Ishtiyak Hasan Khan, the bail was granted by the High Court on the ground of delay and in doing so it placed reliance on the concept of liberty. The case went to Supreme Court and it cancelled the bail. While doing so, it said that the High Court proceeded to grant bail simply on the ground that liberty of a citizen was, involved, which is the case in every criminal case more particularly in a murder case where a citizen, who let alone losing liberty has lost his very life. In that case, the accused was taken into custody on 22nd April, 1985, High Court granted bail on 7th June, 1986. Supreme Court allowed the appeal and directed the accused to be taken into custody forthwith. It gave reasons on April 28, 1987. Thus, the accused had been in jail for about 2 years when the Supreme Court delivered the judgment and cancelled bail. In the face of it how it can be said that after expiry of one year, bail has to be granted in every criminal trial. In the case of Virendra Singh v. Awadhesh Kumar, some Supreme Court cases were considered by Allahabad High Court. In that case more than a year had elapsed since committal of the case but the High Court said that the grant of bail merely on that ground was not justified. In the case of Raghubir Singh and others v. State of Bihar, the right of speedy trial was clearly recognised. It was taken to have been, guaranteed by Article 21 of the Constitution. But even therein, it was said that there are a number of considerations, which arise in the case of granting bail. They mentioned some considerations, in which, the delay may occur and said a host of other questions may arise which the court may not be able to readily visualise just then and the question whether the right to a speedy trial which forms part of fundamental right to life and liberty guaranteed by Article 21 has been infringed is ultimately a question of fairness in the administration of justice even as acting fairly is of the essence of the principles of natural justice and a fair and reasonable procedure is what is contemplated by the expression procedure established by Law, in Article 21. It was remarked that it was true that there were what appeared to be lulls in Investigation for fairly long spells but they are unable to see anything sinister in the lulls. The court was satisfied that such delay as there was in the investigation of the case was not so wanton and that it was the outcome of the nature of the case and the general situation prevailing in the country. Thus, the circumstances of the case were considered and everything was not decided merely on the point of delay. In that case too, the accused had been in jail for more than one and half years when the Supreme Court delivered the judgment and it is nowhere mentioned that on the ground of delay, the accused should be let off on bail. Then the case of Jaspal Singh Gill5, with which majority judgment of the Patna High Court could not concur in there. In it various considerations were mentioned for granting bail and it was said specifically that larger interest of the public or the State and similar other consideration have to be taken into account.