HC grants bail to murder accused constable after 12 years of incarceration

Srinagar Jan 04: Granting bail to a police constable, who is accused of murdering his wife and has already served more than 12 years’ incarceration due to prolonged trial, the High Court of Jammu & Kashmir and Ladakh ruled that long incarceration of an undertail without any likelihood of conclusion of trial in near future infringes upon the right of speedy trial of such undertrial.
Allowing a plea of an accused, the court of Justice Sanjay Dhar termed the case a “classic example” of prolongation of the trial by the prosecuting agency and police department whose officials are duty bound to render assistance in speedy trial of cases.
The court underscored that without the cooperation and assistance of the prosecuting agency and the police department, the speedy trial will always remain a “distant dream.”
Justice Dhar said “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 single bench recorded that the trial court does have power to terminate the trial by closing the prosecution evidence.
“But I am conscious of the fact that in heinous offences like murder, the Courts generally do not take this extreme step, particularly when the witnesses to be examined are material witnesses like witnesses to memo of disclosure and recovery and the investigating officer, as is the present case,” judge Dhar said.
The bench said that courts refrain from closing the evidence in such cases as it amounts to failure of justice but this should not be taken as a device by the prosecution to protract the trial.
The court passed the observations after noting that prosecution is yet to examine three witnesses, who are all police officials and the trial court is struggling to procure their attendance for recording their statements despite issuing warrants of arrest against these three witnesses and 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,” Justice Dhar observed.
The court observed that the delay in conclusion of the trial is solely attributable to the prosecution.
The court said that the officers and officials of the police department, who are obliged and duty bound to assist in the speedy trial of the cases, 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,” the bench said.
The court underscored 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,”
The bench noted that in cases where trial has been prolonged to infinite limits on account of non-cooperation of the prosecution and the police department, the accused can certainly be enlarged on bail even in a murder case.
Rejecting the argument of Government counsel that long incarceration of an accused cannot be the sole ground for enlarging him on bail, particularly in a murder case, the court said if the argument 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 the next one decade.
The bench further noted that the contention of the respondents that the petitioner has misused the concession of temporary bail by threatening prosecution witnesses, at this stage of the trial is not tenable because statements of all the civil witnesses in the case have already been recorded and there is no chance of threatening of civil witnesses by the petitioner at this stage.
“I find that the petitioner 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,” Justice Dhar said while granting bail to the petitioner.
The bench directed the respondents to release the petitioner on bail subject to various conditions including furnishing of personal bond along with two local sureties in the amount of Rs one lakh each to the satisfaction of the trial court.
The court passed the observations in a plea by Manzoor Ahmad Mir seeking bail in an FIR registered against him in 2010 for offences under Section 302, 380 and 457 RPC with Police Station, Batamaloo, Srinagar.
As per the prosecution, the petitioner is alleged to have harassed and murdered his wife, who was working as a Nurse in the Health Department of the J&K, on September 29, 2010.
The petitioner through counsel, N.A Ronga has sought bail on the ground of his long incarceration and on account of violation of his right to speedy trial.
According to the petitioner, he is in custody for the last more than 12 years but the trial against him has not concluded as yet.
It was contended that there is no likelihood of completion of trial in near future, as such, the petitioner deserves to be enlarged on bail.