Sharafat v. State of H.P.

a) FIR No. 87/2025, under Section 4, 5 and 6 of Arms Act, registered in Police Station Janpad, Shamli. b) F.I.R No. 258/2020 under Section 5 and 25 of Arms Act, registered Shamli. c) F.I.R No. 298/2018 under Section 51(9) Wild Life Protection act, registered in police Station Janpad, Shamli. d) F.I.R No. 299/2018 under Section 3 and 25 of Arms Act, registered in police Station Janpad, Shamli. Section e) 147/148/149/307/336/504,506 of Indian Penal Code, registered in Police Station, Janpad, Shamli. f) F.I.R No. 81/1992 under Section 302 and 307 of Indian Penal Code, registered in police Station Janpad, Shamli. g) F.I.R No. 56/1998 under Section 302 of Indian Penal 19/2011 under F.I.R No. 3 Code, registered in police Station Janpad, Shamli. h) In F.I.R No. 63/1998 under Sections 3, 25 of Arms Act, registered in police Station Janpad, Shamli; i) FIR No. 32 /1998 under Section 380 of IPC, registered in Police Station, Janpad, Shamli; j) FIR No. 7 of 1995, under Sections 3, 25 of Arms Act, registered in Police Station, Janpad, Shamli; k) FIR No. 10/1999, under Sections 3, 25 of Arms Act, registered in Police Station, Janpad, Shamli; l) FIR No. 428/2022, under Section 147, 148, 149, 353, 504 and 506 IPC.

#7. The applicant, through his counsel, has given certain undertakings, for which, he is ready to abide by, in case ordered to be released on bail.

#8. On the basis of above facts, a prayer has been made to allow the application.

#9. When put to notice, the police has filed the status report, disclosing therein, that on 26.10.2021, an information was received in the Police Station, upon which, HC Umesh Pal, No. 87 and HHC Jai Singh, No. 487 had gone to the spot in their official vehicle No. HP-14B-6204. When, they reached at the spot, they have partially verified the facts and thereafter, he has informed the then SHO, Police Station, Kandaghat to verify the facts, upon which, the then SHO Brij Lal, alongwith other police officials, reached at the spot. 4

9.1 Complainant, Hemant Kumar made a statement, under Section 154 of Cr. P.C., disclosing therein, that he is the Up-Pradhan of Gram Panchayat, Bisha. On 26.10.2021, he was in his house and at about 7:45 a.m., one Mukul Sharma, who is his co-villager, informed him on telephone that one Taxi has been found to be parked near the Dhyarighat Temple, in which, on the driver seat, one person was found lying unconscious. Said Mukul Sharma was not sure whether he was dead or alive. On this, Up-Pradhan and Bhupesh Sharma reached on the spot and Pradhan Dharam Dutt was informed telephonically about the incident.

9.2 On the spot, one Ertiga Taxi No. HR 38Y-0410 was found parked, facing towards Shimla. In the said car, on the driver seat, one person was found, whose neck was found bent towards left side. The blood was oozing out from his head. On checking its papers, the vehicle was found to be sold by Sanjay Jain to Bashid Khan, on the Sale & Purchase affidavit. The deceased was found to be Bashid Khan, 5 S/o Shri Rasheed Khan. When, the dead body was taken out from the vehicle, it was found that someone had hit on his head with sharp edged weapon.

9.3 On the basis of above facts, the Police registered the case, under Section 302 IPC and criminal machinery swung into motion. Photography and videography of the spot was done. On the body of vehicle, mobile number 98734-91921 was found written/printed. On contacting the said number, the same was found pertaining to Bashid Khan, the owner of the vehicle.

9.4 It has also transpired that Bashid Khan had gone to Shimla to drop a passenger on 25.10.2021. The key of the car was found to be thrown at a distance of about 20 feet from the vehicle. Inside the car, a number of hair were found scattered and on the rear seat, four plastic glasses and one water bottle, were found. At a distance of about 80 meters away from the spot, on the left side of the road, one mobile ‘Redme’ was found in broken condition. The 6 said fact was disclosed by the Site Engineer Ranjit Singh.

9.5 The physical evidence, so found, was collected. Relatives of Bashid Khan, namely, Kasim Khan and Abdullah, reached on the spot. They had also identified deceased Bashid Khan as their brother-in-law. His dead body, thereafter, was taken to Regional Hospital, Solan, for post-mortem examination. The cause of death was found to be a gunshot injury.

9.6 On 30.10.2021, when the IO alongwith the team, was heading towards the spot, then at Dhyarighat, three local persons, namely Neeraj, Gaurav and Rahul, informed them that on the railway track, one golden coloured pistol was found. The finger prints expert, ASI Sanjeev Kumar, on checking, found it to be the country made pistol and disclosed that there were no finger prints on it. The said pistol was taken into possession.

9.7 During investigation, CCTV footage of TTR, Parwanoo, dated 25.10.2021 and that of Amreek, 7 Sukhdev Dhaba, Muruthal, dated 2.11.2021 was taken into possession. On perusal of the CDR of mobile number of deceased Bashid Khan, it was found that on 25.10.2021, one call was received on his number from mobile number 85277-43272. When, the holder of the said mobile number was associated in the investigation, it was found that his name was Afzal Ali, who was an Auto driver in Delhi. According to him, on 25.10.2021, when, he was present at Saket Metro Station and was waiting for the passengers, at about 3:45 p.m., a young man, aged about 22-23 years came to him and asked him that he wants to make a call to a Taxi owner, as, his phone was not connecting. He has saved the number of the Taxi driver as ‘My Friend’.

9.8 According to his further revelations, the said person contacted the driver of Taxi No. HR-0410 and requested him that one boy wants to hire his taxi to go to Shimla. When, the CCTV footage of Amreek, Sukhdev Dhaba was shown to him, although, he had identified the said boy, but, he could not disclose his 8 address. The CCTV footage of Saket Metro Station was also obtained.

9.9 During investigation, it was found that the wife of the applicant was having two sim cards, issued by Vodafone, bearing numbers 87430-44318 and 96541-17196. When, the requisite information was obtained, both the numbers were found to be issued in the name of applicant. When, the CDRs of those numbers were analyzed, then, it was found that these numbers were in contact with mobile No. 87919-17658 and 72530-17658.

9.10 On 25.10.2021, it was found that the conversation had taken place on these numbers. During the midnight of 26.10.2021, location of mobile No. 72530-17658, was found to be at village Jhajha, Tehsil Kandaghat, District Solan.

9.11 On 26.10.2021, from mobile number 87919- 17658, three calls were made to 78302-41366. When, the requisite documents were obtained from the service provider, then, it was found that mobile number 78302-41366 was issued in the name of Kaif 9 Ayaz, S/o Iliyaz. When Kaif Ayaz was associated in the investigation, it was found that mobile number 78302-41366 was being used by his nephew Asadullah. While purchasing the sim card, Asadullah has given his ID proof. When the CCTV footage was shown to him on the laptop, he has identified the person as his elder nephew Sarik Khan.

9.12 When, the CDRs of mobile numbers 87919- 17658 and 72530-17658 were obtained from the service provider, then, the same were found to be issued in the name of Sarik Khan. He was associated in the investigation, on 14.11.2021.

9.13 During investigation, he has disclosed that he came into contact with Rafat and developed intimate relations with her. When, her husband came to know about the said fact, he told her that he will obtain her call details. Rafat disclosed the said fact to Sarik Khan and provided him a sum of Rs.8,000/- to purchase a country made pistol, upon which, he purchased the said weapon on payment of Rs. 4,000/-. Alongwith the said weapon, he had gone to 10 Delhi.

9.14 On 12.10.2021, he handed over the said weapon alongwith cartridges to Rafat. From

12.10.2021 to 22.10.2021, he remained in the house of Rafat at Sangam Vihar, Delhi.

9.15 On 23.10.2021, Rafat, as per the status report, apprised him that some guests are coming, as such, she has requested him to stay in a hotel. On

25.10.2021, he took the taxi of Bashid on the pretext that he wants to go to Shimla. On 26.10.2021, on the way, he requested Bashid Khad to stop the car, as he wanted to respond the call of nature. Thereafter, he killed Bashid Khan by firing a bullet upon him. Thereafter, he took a lift to Shimla and stayed in a hotel, near Shimla Bus Stand.

9.16 On the basis of above facts, accused Sarik Khan was arrested on 14.11.2021. During police custody, he has made disclosure statement, under Section 27 of the Indian Evidence Act and got recovered live cartridges and also identified the room, hired by him, in Hotel Rajdoot, Shimla. 11

9.17. As per the status report, involvement of Sharafat (applicant) was found, on the revelations made by main accused Sarik Khan, who has stated that weapon used by him, was purchased by him from Sharafat (applicant). He was searched for, at his residential house, but was not found there. Thereafter, in order to procure his presence, NBWs were issued, but he was not found. Consequently, on

26.4.2023, proceedings under Section 82 of the Cr. P.C. were initiated and he has been declared as ‘Proclaimed Offender’, on 23.6.2023.

9.18 It is further case of the Police that on

19.3.2025, S.I. Som Pal, Police Station, Bhawan Shamli, District Muzaffarnagar, U.P. telephonically informed the Police that applicant Sharafat has been arrested in case FIR No. 87 of 2025, dated 12.3.2025, under Sections 4-5-25 of the Arms Act, with Police Station, Bhawan Shamli, upon which, Police of Police Station, Kandaghat obtained production warrant from the Court of learned ACJM- I, Solan, H.P., and in compliance of the production 12 warrant, he was produced before the Court of learned ACJM-I, Solan, on 23.5.2025 and his custody was transferred to the present case.

9.19. On 23.5.2025, applicant was brought to Police Station, Kandaghat and was inquired and arrested on the same day. On 24.5.2025, he was produced before the Court of learned ACJM-I, Solan, from where, he was remanded to Police custody, till

26.4.2025.

9.20 During investigation, applicant has disclosed that village of accused Sarik Khan, (resident of Village Titron, District Nukur, District Saharanpur) and his village are stated to be at a distance of about ½ k.m. Sarik Khan was known to him, from the year 2020-2021. Sarik Khan is stated to have requested the applicant to provide him a country made pistol and cartridges to kill someone. In the year 2021, when the applicant was on his way to a private factory in Haryana, where he is stated to be working, he handed over the country made pistol and cartridges to Sarik Khan, for a sum of Rs. 4000/-. 13 However, he could not disclose about the date and place, as to when and where, he allegedly handed over the said weapon to Sarik Khan. As per the status report, following cases are stated to have been registered against the applicant, details of which, are as under: i) FIR No. 56 of 1998, u/s302 IPC; ii) FIR No.63 of 1998, u/s25 of Arms Act; iii) FIR No. 60 of 1995, u/s 302 IPC; iv) FIR No. 8/1995, u/s 25 of Arms Act. (in all the aforesaid cases, the applicant has been acquitted by the competent Court of law. v) FIR No. 32 of 1998, u/s 380 IPC; vi)FIR No. 10 of 1999, u/s Arms Act; vii) FIR No. 428 of 2002, u/s141,148,149,353,504 and 506 IPC; viii) FIR No. 299 of 2018, u/s 5/25 of Arms Act; ix) FIR No. 298 of 2018, u/s 9 and 51 of Wild Life Protection Act; x) FIR No. 258 of 2020, u/s 5/25 of Arms Act. (All the aforesaid cases are stated to be pending adjudication before the competent Court of law.)

9.21 Apart from this, FIR No. 87 of 2025, registered under Sections 3/25 of Arms Act is also stated to be pending adjudication.

9.22 In the status report, it has been apprehended 14 that in case, the applicant is released on bail, he may not be available for trial and may coerce the witnesses, as earlier, he was declared Proclaimed Offender, upon which, FIR No. 60 of 2025, dated

23.5.2025, under Section 209 of BNS was registered against him, with Police Station, Kandaghat. The case is now stated to be listed for recording of statements of PWs, at serial Nos. 3, 13 and 14, on

19.9.2025.

9.23. In the supplementary status report, filed on

30.7.2025, it has been mentioned that there are total 60 witnesses, out of which, 32 witnesses have been examined and seven witnesses have been given up, and the case is now stated to be listed on 19.9.2025 for remaining evidence.

#10. On the basis of above facts, a prayer has been made to dismiss the application.

#11. As per the stand taken by the Police, only 32 witnesses have been examined out of 60 witnesses whereas, seven witnesses have been given up and now the case is stated to have been listed on 15

19.9.2025. In this case, the FIR has been registered on 26.10.2021. As such, it can be said that there is delay in conclusion of trial, against the applicant.

#12. Right to speedy trial has been held to be fundamental right by the Constitutional Bench of the Hon’ble Supreme Court, in a case titled as Abdul Rehman Antulay and others versus R.S. Nayak and another, reported in (1992) 1 Supreme Court Cases

#225. In the said case, the Hon’ble Supreme Court has held that the accused has right to speedy trial, which flows from Article 21 of the Constitution of India. Relevant paragraph 86 of the said judgment, is reproduced, as under: “86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: (1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the 16 accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the right to speedy trial from the point of view of the accused are: (a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise. (4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, “delay is a known defence tactic”. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is — who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court 17 is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation. (5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on — what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker [33 L Ed 2d 101] “it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate”. The same idea has been stated by White, J. in U.S. v. Ewell [15 L Ed 2d 627] in the following words: ‘… the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.’ However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (7) We cannot recognize or give effect to, what is called the ‘demand’ rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put 18 against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker [33 L Ed 2d 101] and other succeeding cases. (8) Ultimately, the court has to balance and weigh the several relevant factors — ‘balancing test’ or ‘balancing process’ — and determine in each case whether the right to speedy trial has been denied in a given case. (9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order — including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded — as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. (11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.” 19 (self emphasis supplied)

#13. A three Judge Bench of the Hon’ble Supreme Court, in another case, titled as Raj Deo Sharma versus State of Bihar, reported in (1998) 7 Supreme Court Cases 507, has supplemented the decision of the Hon’ble Supreme Court in Abdul Rehman Antulay’s case (supra), by issuing the additional directions. Relevant paragraph 13 of the judgment in Raj Deo Sharma’s case (supra), is reproduced as under: “17. After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution Bench in Antulay case [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] with the following directions: (i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case. (ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one-half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit. (iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of 20 three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time-limit. (iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by clauses (i) to (iii). (v) Where the trial has been stayed by orders of the court or by operation of law, such time during which the stay was in force shall be excluded from the aforesaid period for closing the prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in “Common Cause” A Registered Society v. Union of India [(1996) 4 SCC 33 : 1996 SCC (Cri) 589] as modified by the same Bench through the order reported in “Common Cause” A Registered Society v. Union of India [(1996) 6 SCC 775 : 1997 SCC (Cri) 42] .”

#14. In a case, titled as Dharmendra Kirthal versus State of Uttar Pradesh and another, reported in (2013) 8 Supreme Court Cases 368, the Hon’ble Supreme Court has held the right to speedy and fair trial to be an integral part of very soul of Article 21 of the Constitution of India. Relevant paragraphs 30 to 33 of the judgment, is reproduced, as under: “30. Keeping the aforesaid enunciation in view, we shall presently proceed to deal with the stand and stance of both the sides. The first submission 21 which pertains to the denial of speedy trial has been interpreted to be a facet of Article 21 of the Constitution. In Kartar Singh [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , the majority, speaking through Pandian, J., has expressed thus: (SCC p. 638, paras 85-86) “85. The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge. 86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. In this context, it may be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.” 31. Be it noted, the Court also referred to the pronouncements in Hussainara Khatoon (1) v. State of Bihar [(1980) 1 SCC 81 : 1980 SCC (Cri) 23] , Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] , Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC 98 : 1980 SCC (Cri) 40] , Hussainara Khatoon (6) v. State of Bihar [(1980) 1 SCC 115 : 1980 SCC (Cri) 57] , Kadra Pahadiya v. State of Bihar [(1983) 2 SCC 104 : 1983 SCC (Cri) 361] , T.V. Vatheeswaran v. State of T.N. [(1983) 2 SCC 68 : 1983 SCC (Cri) 342] and 22 Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] . 32. The present provision is to be tested on the touchstone of the aforesaid constitutional principle. The provision clearly mandates that the trial under this Act of any offence by the Special Court shall have precedence and shall be concluded in preference to the trial in such other courts to achieve the said purpose. The legislature thought it appropriate to provide that the trial of such other case shall remain in abeyance. It is apt to note here that “any other case” against the accused in “any other court” does not include the Special Court. The emphasis is on speedy trial and not denial of it. The legislature has incorporated such a provision so that an accused does not face trial in two cases simultaneously and a case before the Special Court does not linger owing to clash of dates in trial. It is also worthy to note that the Special Court has been conferred jurisdiction under sub-section (1) of Section 8 of the Act to try any other offences with which the accused may, under any other law for the time being in force, have been charged and proceeded at the same trial. 33. As far as fair trial is concerned, needless to emphasise, it is an integral part of the very soul of Article 21 of the Constitution. Fair trial is the quintessentiality of apposite dispensation of criminal justice. In Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158 : 2004 SCC (Cri) 999] , it has been held as follows: (SCC p. 183, para 33) “33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation—peculiar at times and related to the nature of crime, persons involved— directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.” (self emphasis supplied) 23

#15. Similar view has been taken by a two Judge Bench of the Hon’ble Supreme Court, in case, titled as Hussain and another versus Union of India, reported in (2017) 5 Supreme Court Cases 702. Relevant paragraphs 9 to 12 of the judgment, are reproduced, as under: “9. As already noticed, speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. This constitutional right cannot be denied even on the plea of non-availability of financial resources. The court is entitled to issue directions to augment and strengthen the investigating machinery, setting up of new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional Judges and other measures as are necessary for speedy trial [Hussainara Khatoon (4) v. State of Bihar, (1980) 1 SCC 98, para 10 : 1980 SCC (Cri) 40]. 10. Directions given by this Court in Hussainara Khatoon (7) v. State of Bihar, (1995) 5 SCC 326 : 1995 SCC (Cri) 913, to this effect which were left to be implemented by the High Courts are as follows: (SCC p. 328, para 2) “2. Since this Court has already laid down the guidelines by orders passed from time to time in this writ petition and in subsequent orders passed in different cases since then, we do not consider it necessary to restate the guidelines periodically because the enforcement of the guidelines by the subordinate courts functioning in different States should now be the responsibility of the different High Courts to which they are subordinate. General orders for release of undertrials without reference to specific fact situations in different cases may prove to be hazardous. While there can be no doubt that undertrial prisoners should not languish in jails on account of refusal to enlarge them on bail for want of their capacity to furnish 24 bail with monetary obligations, these are matters which have to be dealt with on case-to-case basis keeping in mind the guidelines laid down by this Court in the orders passed in this writ petition and in subsequent cases from time to time. Sympathy for the undertrials who are in jail for long terms on account of the pendency of cases has to be balanced having regard to the impact of crime, more particularly, serious crime, on society and these considerations have to be weighed having regard to the fact situations in pending cases. While there can be no doubt that trials of those accused of crimes should be disposed of as early as possible, general orders in regard to Judge-strength of subordinate judiciary in each State must be attended to, and its functioning overseen, by the High Court of the State concerned. We share the sympathetic concern of the learned counsel for the petitioners that undertrials should not languish in jails for long spells merely on account of their inability to meet monetary obligations. We are, however, of the view that such monitoring can be done more effectively by the High Courts since it would be easy for those Courts to collect and collate the statistical information in that behalf, apply the broad guidelines already issued and deal with the situation as it emerges from the status reports presented to it. The role of the High Court is to ensure that the guidelines issued by this Court are implemented in letter and spirit. We think it would suffice if we request the Chief Justices of the High Courts to undertake a review of such cases in their States and give appropriate directions where needed to ensure proper and effective implementation of the guidelines. Instead of repeating the general directions already issued, it would be sufficient to remind the High Courts to ensure expeditious disposal of cases.”

#11. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. This Court has held that while a person in custody for a grave offence may not be released if trial is delayed, trial has to be expedited or bail has to be 25 granted in such cases [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39]. 12. Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice. Directions of this Court in Noor Mohammed v. Jethanand, (2013) 5 SCC 202, are as follows: (SCC p. 217, para 34) “34. … Therefore, we request the learned Chief Justice of the High Court of Rajasthan as well as the other learned Chief Justices to conceive and adopt a mechanism, regard being had to the priority of cases, to avoid such inordinate delays in matters which can really be dealt with in an expeditious manner. Putting a step forward is a step towards the destination. A sensible individual inspiration and a committed collective endeavour would indubitably help in this regard. Neither less, nor more.” (self emphasis supplied)

#16. A three Judge Bench of the Hon’ble Supreme Court, in case, titled as Union of India versus K.A. Najeeb, reported in (2021) 3 Supreme Court Cases 713, has held that when 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 accused on bail. Relevant paragraphs 11 and 15 of the judgment, are reproduced, as under: “11. The High Court's view draws support from a batch of decisions of this Court, including in Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 : 1996 SCC (Cri) 366 , laying down that 26 gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case: (SCC p. 622, para 10) “10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.” *** *** *** 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.” (self emphasis supplied) 27

#17. The Hon’ble Supreme Court in a recent decision in Special Leave to Appeal {Crl.) No(s} 4169 of 2023, titled as Rabi Prakash versus the State of Odisha, decided on 13th July, 2023, has held that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution. The relevant para-4 of the judgment is reproduced as under:- “4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believed that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, general militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

#18. It would be pertinent to record herein that this Court, while deciding Cr.MP(M) No.2628 of 2023, 28 titled as ‘Tejender Singh Vs. State of Himachal Pradesh’, has issued specific directions to the trial Courts for conducting the trials, as per provisions of Section 309 of CrPC/Section 346 of B.N.S.S.2023.

#19. Despite these directions, in spite of concluding the trial, as expeditiously as possible, the learned trial Court has summoned the prosecution witnesses in a piecemeal manner. Out of 60 witnesses, 32 witnesses have been examined and seven witnesses have been given up. Meaning thereby, 21 witnesses are yet to be examined.

#20. In such situation, this Court is of the view that the chances of conclusion of trial, against the applicant, in near future, are not bright, as such, keeping the applicant in judicial custody, would be nothing, but, pre-trial punishment, which is prohibited under the law. Moreover, the applicant is presumed to be innocent till his guilt is proved by the prosecution, during the trial.

#21. Co-accused Rafat has already been released 29 on bail, by this Court, on 18.10.2024, in Cr. MP(M) No. 1944 of 2024. As such, on the ground of parity also, the applicant is entitled for the relief, as claimed, in the application.

#22. So far as the registration of other cases, against the applicant, is concerned, the applicant has not been convicted in any of the cases, and mere registration of other cases does not take away the presumption of innocence of applicant and he is presumed to be innocent, till proven guilty, after the full-fledged trial.

#23. For the apprehensions, which have been expressed, by the police, in the status report, qua the fact that in case, the applicant is ordered to be released on bail, he may coerce the witnesses and may not be available for the trial, stringent conditions can be imposed, upon the applicant, in case, he is ordered to be released on bail.

#24. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 30

#25. Consequently, the applicant is ordered to be released, on bail, in case FIR No. 68 of 2021, dated

26.10.2021, registered, under Sections 302, 201 read with Section 120-B of the IPC and Sections 25(1)(A) and 27(2) of Arms Act,1959, registered with Police Station, Kandaghat, District Solan, H.P., on his furnishing personal bail bond, in the sum of Rs.2,00,000/-, with two sureties, in the like amount, to the satisfaction of learned trial Court. This order, however, shall be subject to the following conditions: a) The applicant shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; d) The applicant shall not leave the territory of India without the prior permission of the Court.

#26. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as, these observations, are 31 confined, only, to the disposal of the present bail application.

#27. It is made clear that respondent-State is at liberty to move appropriate application, in case, any of the bail conditions, is found to be violated, by the applicant.

#28. Registry is directed to forward a soft copy of the bail order to the Superintendent of District Jail, Solan, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

#29. In case, applicant is not released, within a period of seven days, from the date of grant of bail, the Superintendent of District Jail, Solan, is directed to inform this fact to the Secretary, DLSA, Solan. The Superintendent of District Jail, Solan is further directed that if applicant fails to furnish the bail bonds, as per the order, passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court. (Virender Singh) Judge

19.8.2025 (Kalpana) 32 RAJNI