Rajasthan High Court: In a bail application filed under Section 439 of the Criminal Procedure Code, 1973 (‘CrPC’) on behalf of the petitioner-accused who was in custody since 08-06-2020 for offences under Sections 3 and 9 of the Official Secrets Act, 1923 (‘OSA’) and Section 120-B of the Penal Code, 1860 (‘IPC’), Anil Kumar Upman, J., opined that the petitioner was already facing trial before the trial court and in any case, he could not be awarded sentence for more than seven years. The petitioner was in custody since 08-06-2020, and thus he had already undergone one-half of the maximum sentence which could be awarded in case of conviction. Thus, considering the overall facts and circumstances of the case, the Court directed that the petitioner should be released on bail provided that he furnishes a personal bond of Rs. 1,00,000 together with two sound and solvent sureties of Rs. 50,000 each to the satisfaction of the trial court with the stipulation that he should appear before the Court and any court to which the matter would be transferred on all subsequent dates of hearing.
Background
In an instant case, on the basis of a typed report submitted by Police Inspector, an FIR was registered at the Police Station against the petitioner for the offences under Sections 3 and 9 of the OSA and Section 120-B of the IPC. It was alleged that a secret information was received to the Technical Cell of the Department that the petitioner was working in Gangapur Army Area and was in contact with the Pakistani Intelligence through social media and he was providing military related confidential information to them, which was a threat to national security.
The Court vide order dated 08-08-2023, granted liberty to the petitioner to file bail application before the Trial Court under the provisions of Section 437(6) of CrPC and thus, the petitioner filed a bail application under Section 439 of the CrPC before the Trial Court. However, the trial Court dismissed the application of the petitioner. Thereafter, the petitioner filed the bail application under Section 439 of the CrPC read with Section 437(6) of the CrPC before the Sessions Court, which was also dismissed by the Sessions Court vide order dated 18-09-2023.
Thus, the petitioner filed the present bail application. The petitioner contended that he had been falsely implicated in the case and he had suffered incarceration of nearly three years and six months, thus his right to life and personal liberty under Article 21 of the Constitution was seriously infringed.
Analysis, Law, and Decision
The Court noted that on 07-09-2020, a complaint was filed against the petitioner before the Magistrate and thereafter, pre-charge evidence was recorded and on 17-04-2023, charges were framed against the petitioner and the case was ordered to be posted for 01-05-2023 for recording the evidence. Thus, sixty days had already been passed from the first date fixed for recording the evidence. Further, the trial was still pending and statements of only two witnesses were recorded.
The Court opined that the delay in conclusion of trial was not attributable to the petitioner and this lethargic attitude was seriously violating the fundamental right of the speedy trial of the petitioner as guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo.
The Court upon perusal of Section 437(6) of the CrPC opined that the provision was divided in two parts. As per the first part, if any case was triable by a Magistrate, the alleged offence was non-bailable and the trial was not concluded with sixty days from the first date fixed for taking evidence and in case such person should be released on bail. Further, in the second part, discretion was conferred to the Magistrate to record his satisfaction and after recording such reasons in writing, the Magistrate could refuse the bail.
The Court relied on Haricharan Ramteke v. State of Chhattisgarh, 2021 SCC OnLine Chh 62 and opined that the provision of Section 437(6) of the CrPC were mandatory in nature and a very little discretion was available with the magistrate to refuse the bail of an under-trial prisoner subject to recording his reasons for rejecting such bail application in writing.
The Court opined that the petitioner was facing trial before the trial court and in any case, he could not be awarded sentence for more than seven years. The petitioner was in custody since 08-06-2020, and thus he had already undergone one-half of the maximum sentence which could be awarded in case of conviction. Thus, considering the overall facts and circumstances of the case, the Court directed that the petitioner should be released on bail provided that he furnishes a personal bond of Rs. 1,00,000 together with two sound and solvent sureties of Rs. 50,000 each to the satisfaction of the trial court with the stipulation that he should appear before the Court and any court to which the matter would be transferred on all subsequent dates of hearing.
The Court directed that the petitioner should report to the concerned police station on first Monday of every month till the trial was not concluded and would not involve himself in similar offence during the bail. Further, if in case any breach of these condition was reported or came to the Court’s notice, the Trial Court could cancel the bail granted to him by this Court.
[Vikas Kumar v. State of Rajasthan, 2023 SCC OnLine Raj 3911]
Advocates who appeared in this case :
For the Petitioner: Kapil Prakash Mathur and Sukhdev Singh Solanki, Advocate;
For the Respondents: Babulal Nasuna, PP.
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