State Of Rajasthan, Through Pp v. Connected

: Mr. Arvind Balaut Mr. Nikhlesh Katara Mr. Rinesh Kumar Gupta For Respondent(s) : Mr. Vivek Sharma, Addl. G.A. For Complainant : Ms. Abhilasha Choudhary for Mr. Satya Pal Poshwal HON'BLE MR. JUSTICE FARJAND ALI (THROUGH VIDEO CONFERENCING) Order 13/02/2025

1. The jurisdiction of this Court has been invoked by way of filing applications under Section 439 Cr.P.C. at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below: [2025:RJ-JP:6547] (2 of 9) [CRLMB-1741/2024] S.No. Particulars of the Case

1. FIR Number

2. Concerned Police Station

3. District

4. Offences alleged in the FIR Manpur Dausa Under Sections 147, 148, 149, 323, 341, 302 and 427 of the IPC

5. Offences added, if any --

6. Date of passing of impugned

20.11.2023 (S.B. CRLMBA No.1741/2024)

7. Date of passing of impugned

04.01.2025 (S.B. CRLMBA No.1880/2025)

2. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioners and they have been made accused based on conjectures and surmises.

3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

4. Heard learned counsel for the parties and gone through the niceties of the matter. The bail application preferred on behalf of the petitioner Naresh Chandra on earlier occasion was dismissed by this Court vide order dated 14.11.2024 in the batch of bail applications led by S.B. Criminal Misc. Bail Application No.2898/2024 and it would be worthwhile to reproduce the facts and the entire bail order; which reads as [2025:RJ-JP:6547] (3 of 9) [CRLMB-1741/2024] follows: "Bail Appln. No.2898/2024 The bail application preferred on behalf of accused Naresh is sought to be withdrawn by the learned counsel for the Petitioner since the court is not inclined to grant bail to him. Still, he is permitted to withdraw the bail application. Accordingly, the bail application filed on behalf of petitioner Naresh Chandra is dismissed as withdrawn. Bail Appln. No.9320/2024 & 9399/2024 The jurisdiction of this court has been invoked 1. by way of filing the instant applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case

4. FIR Number Concerned Police Station District Offences alleged in the FIR

5. Offences added, if any

6. Date of passing of impugned (SBCRLMB No.9320/2024) Date of passing of impugned (SBCRLMB No.9399/2024) Manpur Dausa Sections 147, 148, 149, 323, 341, 302 & 427 of the IPC Sections 323/149, 302 in alternate 302/149 of the IPC

11.07.2024

17.07.2024

2. It is contended on behalf of the accused- petitioner that no case for the alleged offences is made out against them and their incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioners and they have been made an accused based on conjectures and surmises. Contrary to the submissions of learned counsel 3. for the petitioners, learned Public Prosecutor opposes the bail applications and submits that the present case is not fit for enlargement of accused on bail. [2025:RJ-JP:6547] (4 of 9) [CRLMB-1741/2024] I have heard and considered the submissions 4. made by both the parties; perused the material available on record and have gone through the niceties of the matter. The bail granted to co-accused has been made 5. to challenge before Hon’ble the Supreme Court as it is stated by learned counsel for the complainant. For a long, the bail applications of the petitioners have been adjourned for want of status of the above, but it is apprised to this court that till date the bail application pending before the Apex Court has not been disposed of. It is vehemently and fervently argued by learned counsel for the petitioners that similarly situated accused Ashok Kumar, Bhupendra and Vishal have been granted bail by this Court and the Coordinate Bench of this Court vide orders dated 14.12.2021 & 11.08.2023 passed SBCRMLB No.15535/2021 & 1671/2023 and despite having ground of parity, the present petitioners are languishing in jail. Since last two years, the trial is not proceeding speedily and till now only nine witnesses could have been examined out of the total 42 witnesses. A glimpse over the FIR suggests commission of a 6. gruesome murder of the deceased Sanjay Kumar Gurjar, but upon close scrutiny of the record and after going through the niceties of the matter, it appears that the incident took place on 22.07.2021 at 8.30 p.m. on a public road, near petrol pump and the FIR in this regard came to be lodged by Shirshak Kumar, the son of the deceased Sanjay Kumar on 23.07.2021 around 11:00 pm in the night, i.e., after 27 hours of the incident. The inordinate delay occasioned in lodging of the FIR in relation to murder of a policeman gives a thought to the Court to tentatively believe upon the submission of the defence that the story is exaggerated, embellished and some of the persons have falsely been implicated, and so also that the genesis and genuineness of the story has deliberately been suppressed. There is a substance in the submission of the defence that Shirshak Kumar, the complainant/first informant, who happens to be son of the deceased as well as his mother were not accompanying the deceased when the incident took place. There is a weight in the argument that if the first informant Shirshak Kumar and his mother were accompanying the deceased when assault was made, [2025:RJ-JP:6547] (5 of 9) [CRLMB-1741/2024] then surely the independent witness Santosh, must have shown their presence in his statement, however, a perusal of statement of independent witness Santosh reveals that he alone was present when the incident took place. The other aspect is that had he been present at the spot, the FIR must have been lodged promptly. 7. As per the statement of independent witness Santosh recorded under Section 161 of the Cr.P.C. by the police during investigation on 24.07.2021, on the fateful day of incident when he was near the petrol pump; the deceased Sanjay Gurjar coming through a motorcycle. As per him, accused Ravinder alias Kalu Gurjar, Richpal Gurjar and Naresh Gurjar along with 3-4 other persons came in a jeep there, obstructed the way of Sanjay Gurjar and whereafter an assault was made upon him, as a consequence of which, he fell down on the earth and whereafter he was brutally clobbered. The above witness Santosh, did not mention the 8. fact that the first informant Shirshak Kumar and his mother were also with the deceased when the assault was made. He also did not mention the presence of the present petitioners Man Singh and Shankar at the time of incident. Although he mentioned that 3-4 unknown persons were also there, but no identification parade was conducted in this regard so as to ascertain the identity of real culprits who made assault. Even the name of the petitioner, Man Singh, does not find place in the FIR lodged at the instance of the first informant Shirshak Kumar after 27 hours of the incident. If, the defence argument is considered that first informant Shirshak Kumar and his mother were not present at the spot, then there remains nothing against the petitioners as a piece of incriminating material because neither they are named in his statement nor they were put to identification. They are behind the bars since last two years and out of 42 witnesses, only 9 witnesses could have been examined and looking to the snail's pace progress, it cannot be speculated that how much the prosecution shall take time to produce its evidence so as to substantiate the charge. This court feels that for the purpose of the proving charges, an accused cannot be kept detained for an indefinite period, because doing so certainly infringes his fundamental [2025:RJ-JP:6547] (6 of 9) [CRLMB-1741/2024] rights which is otherwise guaranteed by the Constitution of India. In a Sessions case, a trial ought to have 9. commenced and completed within a Session i.e. one year. When some unavoidable circumstances are considered than it can be doubled, however in any case a person cannot be detained for the purpose of giving an opportunity to the prosecution to substantiate the charge as the same is not desirable under the law. Right to have speedy trial is guaranteed by the Constitution of India and herein this case the same has been infringed owing to lackadaisical behavior of the prosecution party in not presenting the witness in the trial within a reasonable period. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty. 10. As far as the case of petitioner Man Singh is concerned, he was arrested after two years of the incident, a weapon alleged to have been recovered from him from the same place where the incident took place two years ago. It is highly debatable that the said recovery is nothing but farce. As on date, on the one hand, there are submissions with regard to seriousness of the allegations and severity of the punishment and on the other hand, the fact remains that identically situated persons are at liberty since they have been enlarged on bail. Indeed, the ground of parity is available with the petitioner. It would not be appropriate to see that some of the accused persons are on bail and some of them are detained, the accusation against all of them are identical in nature. Thus, viewing the matter from any angle, I don’t deem it appropriate to further allow incarceration of the petitioners. In light of these facts and circumstances, it is deemed suitable to grant the benefit of bail to the petitioners in the present matter. 11. Accordingly, the instant bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners as named in the cause title shall be enlarged on bail provided each of them furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the [2025:RJ-JP:6547] (7 of 9) [CRLMB-1741/2024] satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so." It is observed that the main cause behind rejection of the bail of the petitioner Naresh Chandra on 14.11.2024 had been the statement of witness Santosh Gurjar, who allegedly has stated during investigation regarding complicity of the petitioner in commission of the crime.

5. Now, the sole eye witness Santosh Gurjar has been examined in the trial on 19.12.2024-20.12.2024 as PW-13. During his examination-in-chief, he did not say any thing about the petitioner Naresh or the petitioner Vijay Kumar. An exculpatory statement come out when he was cross examined. In an unambiguous and unequivocal terms, he replied before the trial Court in his own testimony that on the day of incident, he did not see the petitioner Naresh at the spot either coming or going. This Court has already made up a mind to ignore the evidence of first informant Shirshak Kumar for the reasons assigned in paragraph Nos.6, 7 and 8 of the order dated 14.11.2024.

6. As on date, leaving aside the testimony of witness Shirshak Kumar, there remains nothing which can be said a peace of incriminating evidence against the petitioner so as to justify his further incarceration. Naresh Chandra is languishing in jail since January 2022 and now more than three years have elapsed. Out of a total of 42 projected prosecution witnesses, only 14 have been examined so far. [2025:RJ-JP:6547] (8 of 9) [CRLMB-1741/2024]

7. Looking to the snail's pace progress of the trial, it can be speculated that further orders would be required to reach on a legitimate conclusion of the trial. Whether during pending trial, an accused can be kept detained for an indefinite period only for the purpose that the evidence be brought against him.

8. In a sessions case, it is ordinarily expected that the trial should be concluded within a period of one year, i.e., within one session. If it commenced in April, it should come to an end in March of the following year. However, due to unavoidable and inevitable circumstances, such as the number of projected prosecution witnesses or reasons beyond the control of the judicial officers, an elastic interpretation can be done but in any stage of imagination, a trial of a detained accused pending trial cannot be elongated for three years or more.

9. Article 21 of the Constitution of India guarantees every individual that no person shall be deprived of his right to life and liberty except in accordance with the procedure established by law. In Menaka Gandhi vs. Union of India reported in AIR 1978 SC 597, Hon'ble the Supreme Court held that the procedure should be fair and reasonable.

10. In view of the above, the quality of evidence, the period of incarceration and the overall facts and circumstanced of the case, I feel it appropriate to extend the benefit of bail to the petitioners in the present matter.

11. Accordingly, the instant bail application under Section 439 [2025:RJ-JP:6547] (9 of 9) [CRLMB-1741/2024] Cr.P.C. is allowed and it is ordered that the accused- petitioners as named in the cause title shall be enlarged on bail provided each of them furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so. Ashutosh-19-20 (FARJAND ALI),J