12 Years After Arrest, J&K&L High Court Grants Bail To Constable Accused Of Murdering Wife; Says Police Prolonging Trial
Observing that a long period of incarceration of an accused without any hope of conclusion of trial leads to a meltdown of the the rigour of 1st Proviso to Section 437 CrPC, the Jammu & Kashmir and Ladakh High Court recently granted bail to a man accused of murdering his wife.Justice Sanjay Dhar said the accused has "carved out a case for grant of bail" on account of his long...
Observing that a long period of incarceration of an accused without any hope of conclusion of trial leads to a meltdown of the the rigour of 1st Proviso to Section 437 CrPC, the Jammu & Kashmir and Ladakh High Court recently granted bail to a man accused of murdering his wife.
Justice Sanjay Dhar said the accused has "carved out a case for grant of bail" on account of his long incarceration for more than 12 years and on account of the fact that by the conduct of the prosecution and the police department, there is hardly any chance of conclusion of trial in near future.
The court relied on Hussainara Khatoon vs. Home Secretary, State of Bihar wherein Supreme Court has deprecated the delay in commencement of trials, which it said would apply equally to long pendency of trials.
It also referred to Union of India vs. K. A. Najeeb, the case where Supreme Court originally observed that "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."
"From the foregoing enunciation of the law laid down by the Supreme Court, it becomes clear that long incarceration of an under trial without any likelihood of conclusion of trial in near future infringes upon the right of speedy trial of such undertrial. While the Supreme Court has, in some cases, gone to the extent of quashing the trial itself but consistent view of the Supreme Court has been that in case the delay in conclusion of the trial amounts to oppression or harassment, the Court can interfere in such situations and grant bail to an accused in a heinous crime like murder also," said the court.
The accused Manzoor Ahmad Mir, who was a police constable, allegedly killed his wife in 2010. He is facing trial for offences under Section 302, 380 and 457 RPC. His main ground for bail was his long incarceration and violation of his right to speedy trial. Since there is no likelihood of completion of trial in near future, he deserves to be enlarged on bail, his counsel contended before the court.
The moot question that fell for adjudication before the bench was whether a person who has been accused of having committed a heinous offence like murder, is entitled to be enlarged on bail on the ground of his long incarceration of more than 12 years.
The bench noted that the petitioner had been arrested on 15.12.2010 and the challan against him was filed before the trial court on 12.01.2011. A total of 44 witnesses have been cited in the challan and till date evidence of the prosecution has not been completed, the court observed.
While relying on various Supreme Court judgements, Justice Dhar said in deciding bail applications, one of the important factors which should be taken into account is the delay in concluding the trial.
"If an accused is denied bail but is ultimately acquitted, nobody is going to compensate him for the period he has spent in custody. Therefore, long incarceration of an accused may not be by itself a ground for grant of bail but it certainly becomes a ground for grant of bail to an accused, if the delay in conclusion of trial is attributable to the prosecution," it added.
Taking note of delay in the case against Mir, the court observed that though warrants of arrest have been issued for presence of some witnesses in the case but the same are not being executed.
"The record further shows that on 03.10.2022, the learned trial court has even issued a show cause notice to SHO, P/S, Batamaloo, for his failure to execute the warrants against the witnesses but no fruitful purpose has been achieved in spite of taking such steps," it added.
Observing that the delay in conclusion of the trial is solely attributable to the prosecution, the bench said police officials are avoiding to appear before the court as witnesses thereby protracting the trial.
"It is not a case where some civil witnesses, who may have been won over by the accused and avoiding to depose in support of the prosecution but it is a case where even the police officials have scant regard for the process of the Court and they are avoiding to help the prosecution in speedy trial of the case," added the court.
The court further said that without the cooperation and assistance of the prosecuting agency and the police department, the speedy trial will always remain a distant dream.
"The present case is a classic example of prolongation of the trial by the prosecuting agency and the police department whose officials are duty bound to render assistance in speedy trial of cases. It is high time that the respondents should put their house in order and instruct their officers and officials to render all possible assistance in conclusion of criminal trials instead of blaming the Criminal Courts for the delay".
The court further observed that while there cannot be any quarrel with the proposition that long incarceration cannot be sole ground for bail, the accused can certainly be enlarged on bail even in a murder case where trial has been prolonged to infinite limits on account of non-cooperation of the prosecution and the police department.
"As already discussed hereinbefore in the case of long incarceration of an accused without any hope of conclusion of trial in near future, the rigour of 1st Proviso to Section 437 of the Cr. P. C would melt down. If the argument of learned Government Advocate is accepted, then the respondent and its officials can very well avoid appearance in the Court for another ten years thereby ensuring that the petitioner does not come out of jail for next one decade," said the bench.
Case Title: Manzoor Ahmad Mir Vs UT of J&K
Citation: 2023 LiveLaw (JKL) 3
Coram : Justice Sanjay Dhar
Counsel For Petitioner: Mr NA Ronga
Counsel For Respondent: Mr Sajad Ashraf GA, Mr Tawheed Ahmad