JAHIR HAK versus THE STATE OF RAJASTHAN

JAHIR HAK

THE STATE OF RAJASTHAN

(Criminal Appeal No. 605 of 2022)

April 11, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ. ]

Code of Criminal Procedure, 1973: s.439 – Application foranticipatory bail by undertrial prisoner who has undergone 8 yearsof incarceration – Appellant was arrested in connection with FIRfor offences punishable under ss.10, 13, 15 to 18, 18A, 18B, 19,20, 23 and 38 of 1967 Act – Charges were framed against him on29.01.2018 – Appellant has been in custody for period of 8 years– By impugned order, his application for bail was rejected by HighCourt – On appeal, held: Appellant is charged with offences, someof which are punishable with minimum punishment of 10 yearsand the sentence extending to imprisonment for life – The conditionin s.43D(5) of the Act of 1967 has been understood to be lessstringent than the provisions contained in Narcotic Drugs andPsychotropic Substances Act, 1985 – Prosecution seeks to examineas many as 109 witnesses of which only 6 witnesses have been fullyexamined so far – In view of nature of the case against the appellant,the evidence and long period of incarceration that he has alreadyundergone, appellant released on bail subject to such conditionsas shall be fixed by the trial court – Unlawful Activities (Prevention)Act, 1967 – ss.10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38

Union of India v. K. A. Najeeb (2021) 3 SCC 713 –relied on.

Case Law Reference

(2021) 3 SCC 713

relied onPara 9

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.605 of 2022.

From the Judgment and Order dated 24.03.2021 of the High Courtof Judicature for Rajasthan at Jodhpur in S.B. Criminal MiscellaneousBail Application No.14646 of 2020.

AMohd. Irshad Hanif, Mujahid Ahmed, Rizwan Ahmed, Danish SherKhan, A. R.Siddiqui, Mohit Kumar, Advs. for the Appellant.

Ms. Pragati Neekhra, Adv. for the Respondent.

The following order of the Court was passed:

BORDER

Leave granted.

(1) By the impugned order, the appellant is denied bail which issought under Section 439 of the Code of Criminal Procedure. Theappellant was arrested on 08.05.2014 in connection with FIR 113/2014Cof Police Station Pratapnagar, Jodhpur for offences punishable underSections 10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the UnlawfulActivities (Prevention) Act, 1967 (in short ‘Act of 1967’).

(2) chargesheet came to be filed against the appellant on17.09.2014. Charges have been framed against the appellant onD29.01.2018. It is not in dispute that the appellant has been in custody fora period of almost 8 years. As far as stage of the case is concerned,examination of only 6 witnesses have been completed. The seventhwitness is being examined. Ms. Pragati Neekra, learned counsel for theState, does not dispute the fact that there are 109 witnesses. Withoutmuch dispute, it can be found that the appellant who is an undertrialEprisoner, has already undergone long period of incarceration.

(3) This Court issued notice in this matter on 29.09.2021. Thereafterthe matter came up on 26.11.2021 wherein the complaint of the appellantthat out of 180 witnesses cited by the prosecution, evidence of not evena single witness was complete was noted; the counsel for the State, wasFasked to get instructions and also to submit before the Court as to theapproximate time within which the trial can be concluded.

(4) Thereafter this Court passed the following order on 03.12.2021:

“The petitioner is in custody since the last 7 years. Learnedcounsel for the State submits that there are total of 109 witnessesGfor prosecution. It is common case that the evidence of even thefirst witness is not yet completely recorded. In the circumstances,we think it fit to call for report from the Additional District andSessions Judge, No. 3, Jodhpur City, as to within what time thetrial in the case can be concluded. Accordingly, we direct that

Additional District and Sessions Judge, No. 3, Jodhpur City, shallsend report as to the earliest point of time when the trial can beconcluded. The report to be sent within period of three weeksfrom today.

List the case on 10[th] January, 2022.”

Pursuant to the said order, report was filed by the Judgeconcerned wherein it was indicated that there is quite probability oftaking at least 2 to 3 years in disposal of the instant case. The said reportis dated 20.12.2021.

(5) Thereafter, again, this matter was taken up on 19.01.2022. Onthe said date, the following order was passed:

“After hearing the learned counsel for the parties, we areof the view that interest of justice requires that the State placesan affidavit before us indicating the position of the other accusedwith charges against them and the difference, if any, between thepetitioner and the other accused. The affidavit shall also indicateabout the need for any measures to protect the witnesses whowill depose in the trial. The affidavit shall be file on or before24.01.2022.

The petitioner will be free to file affidavit-in-reply to theaffidavit which we have ordered the State to file.

List the matter on 25.01.2022.

(6) Still further, the following order passed on 04.02.2022:

“By the impugned order, the High Court has rejected theapplication for bail maintained by the petitioner under the provisionsof the Unlawful Activities (Prevention) Act, 1967.

We have heard learned counsel for the petitioner and alsothe learned counsel appearing for the respondent-State.

The petitioner has been in custody since 08.05.2014, that isalmost for 8 years. Based on an order passed by this Court as tothe possibility of an early disposal of the trial itself, the reportindicates that even after putting every effort in the matter andkeeping in view the number of witnesses, accused persons,Advocates, cross examination by them and the number of casespending in the Court, there is probability of at least 2-3 years forthe disposal in the case.

In the affidavit filed by the State before this Court by wayof compliance with the order passed by this Court asking therespondent to indicate about the need for any measures to protectthe witnesses who would depose in trial, it has been stated that atotal of 110 witnesses shall be deposing during trial out of which,the statements of three prosecution witnesses have already beenrecorded. It is further stated that the concerned official hadcontacted the private witnesses out of whom three witnesses haveapprehended danger to their lives to depose against the accusedduring trial.

Learned counsel for the petitioner would point out that suchan apprehension has not been raised during the past eight yearsand it is frivolous and there is no threat from the petitioner. This isbesides reiterating that there is no material against the petitionerwhereas the learned counsel for the State would, on her part,reiterate that it is matter where very serious offences are allegedand is not case where bail may be granted to the petitioner. Shefurther would point out that the trial is progressing and the State isalso taking effective steps for an early disposal of the matter.We are of the view that in the facts of this case, when thepetitioner has already spent nearly 8 years in custody, theappropriate order to pass would be to first direct the examinationof the three witnesses who have raised concerns about threat totheir lives from the accused and the matter should receive attentionof this Court after their evidence is adduced. However, thesewitnesses must be examined on priority basis. In suchcircumstances, we pass the following order:

There will be direction that the respondent-State shallensure that these witnesses are examined on priority basis andthat, at any rate, the examination is completed within maximumperiod of two months from today.

List this case for further consideration on 11.04.2022.

The State will ensure that the deposition of the witnesses inquestion shall be placed before this Court after translation on orbefore 08.04.2022.”

Today the depositions of witnesses mentioned in the order dated04.02.2022 have been placed before the Court.

(7) The learned counsel for the appellant would point out thatwitness named Devendra Patel has been declared hostile. As far as theother two witness - Hemant and Pappuram examined on behalf of theprosecution are concerned, it is pointed out by the learned counsel forthe appellant that there is nothing in the deposition of the said witnesseswhich implicates the appellant. This aspect, as such, is not disputed bythe learned counsel for the State. No doubt, the learned counsel for theState does point out that in the nature of the case set up against theappellant, there would be further evidence which may unfold.

(8) In this regard, the basis of the case against the appellant appearsto be largely the fact that he was found to be in touch with one of theaccused and which is sought to be made good by conversations whichthe appellant is alleged to have engaged in with that accused on 31occasions, who is co-villager. According to the respondent, the saidaccused is the head of sleeper cell module of Indian Mujahideen.

(9) We bear in mind the judgment of this Court reported in Unionof India v. K. A. Najeeb (2021) (3) SCC 713. Therein, the followingobservations cannot be overlooked:

“12. Even in the case of special legislations like the Terrorist andDisruptive Activities (Prevention) Act, 1987 or the Narcotic Drugsand Psychotropic Substances Act, 1985 (“the NDPS Act”) whichtoo have somewhat rigorous conditions for grant of bail, this Courtin Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v.State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156], Babba v. State of Maharashtra [Babba v. State ofMaharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] andUmarmia v. State of Gujarat [Umarmia v. State of Gujarat,(2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accusedon bail when they had been in jail for an extended period of timewith little possibility of early completion of trial. The constitutionalityof harsh conditions for bail in such special enactments, has thusbeen primarily justified on the touchstone of speedy trials to ensurethe protection of innocent civilians.

19. Yet another reason which persuades us to enlarge therespondent on bail is that Section 43-D(5) of the UAPA iscomparatively less stringent than Section 37 of the NDPS Act.Unlike the NDPS Act where the competent court needs to besatisfied that prima facie the accused is not guilty and that he is

Aunlikely to commit another offence while on bail; there is no suchprecondition under UAPA. Instead, Section 43-D(5) of the UAPAmerely provides another possible ground for the competent courtto refuse bail, in addition to the well-settled considerations likegravity of the offence, possibility of tampering with evidence,influencing the witnesses or chance of the accused evading theBtrial by absconsion, etc.”(10) No doubt, in the said case, as pointed out by the learnedcounsel appearing on behalf of the State, the Court was dealing with anorder passed by the High Court granting bail, whereas, in this case, theconverse is true, that is, the impugned order is one rejecting the applicationCfor bail. The fact remains that the appellant has been in custody as anundertrial prisoner for period of nearly 8 years already. The appellant,it may be noted, is charged with offences, some of which are punishablewith minimum punishment of 10 years and the sentence may extend toimprisonment for life. Learned counsel for the appellant also points out

Dthat one of the co-accused namely Shri Aadil Ansari has been releasedon bail on 30.09.2020 by this Court. No doubt, in this regard, we keep inmind the submission of the State that the role attributed to the saidaccused is different.

(11) The condition in Section 43D(5) of the Act of 1967 has beenunderstood to be less stringent than the provisions contained in NarcoticEDrugs and Psychotropic Substances Act, 1985, as already noticed byus. We would think that in the nature of the case against the appellant,the evidence which has already unfolded and above all, the long periodof incarceration that the appellant has already undergone, time has arrivedwhen the appellant be enlarged on bail. We bear in mind the fact that theFprosecution seeks to examine as many as 109 witnesses of which only 6witnesses have been fully examined so far. Accordingly, we allow theappeal, set aside the impugned order and direct that the appellant shallbe released on bail subject to such conditions as shall be fixed by the trialCourt.

Needless to say, the observations which have been made in thisGorder are for the purpose of deciding the application for bail and theCourt will, undoubtedly, decide upon the fate of the appellant in the trialon the basis of the evidence and in accordance with law.

Devika GujralH