P.K. Lohra, J.Languishing in jail, as under-trial for last eight years, accused-petitioner Jagmohan Singh alias Rinku has laid this bail application under Section 439 Cr.P.C., 1973

2. Succinctly stated, the facts of the case are that pursuant to investigation of CR No. 310/2009 lodged with Police Station Sadar, Barmer, for offences under Sections 5/9-B, 6/9-B of the Explosives Act 1884, 4, 5, 6 of the Explosive Substances Act 1908, 7/25(1) (D)(1-AA), 29 of the Arms Act, 3/10, 13, 18, 20 of the Unlawful Activities (Prevention) Act, 2008 and 153-A, 120-B of the IPC. Initially, five accused persons including petitioner was apprehended and subsequently 10 other accused persons were also arrested. Upon completion of investigation, police submitted charge-sheet against all of them including the petitioner for aforesaid offences. Presently, petitioner along with other co-accused persons is facing trial in Sessions Case No. 04/2016(37/2010) pending before Addl. Sessions Judge No. 2, Barmer (for short, learned trial Court).

3. Learned counsel for the petitioner, Mr. Dhirendra Singh, has argued that trial of the sessions case is proceeding at snails pace inasmuch as out of 59 witnesses cited by the prosecution so far only 49 have been examined and petitioner is under incarceration for last 8 years. Learned counsel would contend that the evidence tendered by prosecution during trial for showing involvement of petitioner in commission of alleged offences is unworthy of any credit whatsoever. Elaborating his submissions in this behalf, learned counsel argues that a meaningful construction of the testimony of witness Laxman Singh (PW22) would ipso facto reveal that he has neither identified nor shown nexus of the petitioner for the aforesaid offences. While referring to the statement of PW23 Sunil Tak, learned counsel urged that he has turned hostile. Harping on other alleged incriminating evidence of PW24 Mani Ram, PW28 Manish and PW36 Suvinder Singh, it is submitted by learned counsel that depositions of these witnesses nowhere suggest any nexus or proximity of the petitioner with charged offences. Mr. Dhirendra Singh has further contended that there is no recovery from the petitioner much less recovery of any explosive substance. Claiming parity with other accused persons, viz., Mubaraq, Kale Khan alias Kaliya, Ramda Khan, Najeer Khan S/o Jiya Khan and Meeru s/o Babal, who have been enlarged on bail, learned counsel would contend that he is also liable to be released on bail. In support of his arguments, learned counsel has placed reliance on a decision of Supreme Court in Hussain & Anr. v. Union of India [(2017) 5 SCC 702] .

4. Per contra, learned Addl. Advocate General, Mr. K.L. Thakur, has vehemently opposed the bail application of petitioner. It is submitted by learned Addl. Advocate General that petitioner is facing trial for serious offences including offences endangering security and integrity of the Nation, therefore, he is not entitled for bail. Learned Addl. Advocate General would contend that petitioner is having direct nexus with an outlawed terrorist organization Babbar Khalsas Chief Paramjeet Singh, who is a citizen of United Kingdom, and Sodiya, and call details collected during investigation clearly show his nexus with them, is sufficient to thwart his bail plea. Learned Addl. Advocate General submits that circumstantial evidence to connect the petitioner with alleged offences is reliable/clinching, and a cumulative reading of the entire prosecution evidence, which has come to the fore during trial, sufficiently completes the chain for proving his culpability. Learned Addl. Advocate General has also relied on the testimony of PW24 Mani Ram, which according to him is inculpatory in nature vis-a-vis petitioner. Learned Addl. Advocate General has also placed heavy reliance on some of the call details of STD Booth collected during investigation allegedly showing petitioners communication with some of the members of outlawed group Babbar Khalsa to persuade this Court for nixing his bail application. Lastly, learned Addl. Advocate General has urged that accused Khanu Khan alias Khaniya, Musa Khan and Najir s/o Neeru Khan have been denied bail and case of the petitioner is on par with them.

5. I have bestowed my consideration to the arguments advanced by rival counsels and perused the materials available on record including the relevant evidence/material, which is relied upon by the learned counsel for the parties.

6. At the outset, it may be observed that testimony of PW22 Laxman Singh is per se hearsay evidence inasmuch as his version about involvement of two Sardars is based on an information divulged by other witness PW23 Sunil Tak. If the testimony of PW22 Laxman Singh is examined in conjunction with statements of PW23 Sunil Tak then it would ipso facto reveal that his statements are completely discredited for the reason that PW23 has not supported the prosecution case by turning hostile. Likewise, the statements of PW24 Mani Ram, PW28 Manish and PW36 Suvinder Singh are also not of much significance for prima facie fixing the petitioner for alleged offences. It goes without saying that there is no recovery of any incriminating material from the petitioner and the so-called call details on which the prosecution has placed reliance, is not of the personal phone/cell phone of the petitioner. At this stage, it is also a relevant consideration that petitioner is under incarceration for last 8 years and completion of trial is likely to consume more time.

7. It is true that petitioner is facing trial for grave and serious offences but then the inordinate delay in conclusion of trial cannot be overlooked by the Court at the cost of sacrificing his sacrosanct fundamental right enshrined under Article 21 of the Constitution of India. The factum of languishing in jail during trial for a longer period, undoubtedly, deprives an under-trial prisoner of his personal liberty. Repercussions and ill-effects of prolonged detention of under-trial are enormous on his psyche, overall personality and perception about future life. In some cases, entire family of an under-trial is uprooted or ruined due to his remaining under custody for two/three years, if he is the sole bread winner of family. The detention of an under-trial for a considerable period not only invades his fundamental right enshrined under Article 21 of the Constitution but at times may also prove to be counterproductive upon favourable conclusion of the trial.

8. Elaborating with precision on hardships and graver consequences of pre-trial detention, Supreme Court, in Moti Ram & Ors. v. State of Madhya Pradesh [(1978) 4 SCC 47] , observed:

"The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family."

9. Supreme Court, in Supreme Court Legal Aid Committee representing Under-trial Prisoners v. Union of India & Ors. [(1994) 6 SCC 731] , examined the fundamental rights of under-trial prisoners enshrined under Article 21, 14 & 19 of the Constitution and emphasized the need for speedy trial. The Court held:

"As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. What then is the remedy The offences under the are grave and, therefore, we are not inclined to agree with the submission of the learned Counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time. Alternatively he contended that such accused persons whose trials have been delayed beyond reasonable time and are likely to be further delayed should be released on bail on such terms as this Court considers appropriate to impose. This suggestion commends to us. We were told by the learned Counsel for the State of Maharashtra that additional Special Courts have since been constituted but having regard to the large pendency of such cases in the State we are afraid this is not likely to make a significant dent in the huge pile of such cases. We, therefore, direct as under:

(i) Where the under-trial is accused of an offence(s) under the prescribing a punishment of imprisonment of five years or less and fine, such an under-trial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the concerned Special Judge with two sureties for like amount.

(ii) Where the under-trial accused is charged with an offence(s) under the providing for punishment exceeding five years and fine, such an under-trial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs. 50,000 with two sureties for like amount.

(iii) Where the under-trial accused is charged with an offence(s) under the punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under-trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

(iv) Where an under-trial accused is charged for the commission of an offence punishable under Sections 31 and 31A of the Act, such an under-trial shall not be entitled to be released on bail by virtue of this order."

10. In Hussain & Anr. (supra), Supreme Court, while considering some of its earlier decisions, has reiterated the same principle and acknowledging fundamental right of life and liberty enshrined under Article 21 of the Constitution vis-a-vis under-trials, made the following observations:

"In view of the above, we do consider it necessary to direct that steps be taken forthwith by all concerned to effectuate the mandate of the fundamental right Under Article 21 especially with regard to persons in custody in view of the directions already issued by this Court. It is desirable that each High Court frames its annual action plan fixing a tentative time limit for subordinate courts for deciding criminal trials of persons in custody and other long pending cases and monitors implementation of such timelines periodically. This may perhaps obviate the need for seeking directions in individual cases from this Court. We also feel that it is desirable for Chief Justices of all the High Courts to take other steps consistent with the directions already issued by this Court for expeditious disposal of criminal appeals pending in High Courts where persons are in custody by fixing priority having regard to the time period of detention. We also reiterate the directions for setting up of adequate number of forensic laboratories at all levels. Specification of some of these issues is in addition to implementation of other steps including timely investigation, timely serving of summons on witnesses and accused, timely filing of charge-sheets and furnishing of copies of charge-sheets to the accused. These aspects need constant monitoring by High Courts."

11. The Court has also made endeavour to prescribe period for conclusion of magisterial and sessions trials by making following observations:

"To sum up:

(i) The High Courts may issue directions to subordinate courts that-

(a) Bail applications be disposed of normally within one week;

(b) Magisterial trials, where Accused are in custody, be normally concluded within six months and sessions trials where Accused are in custody be normally concluded within two years;

(c) Efforts be made to dispose of all cases which are five years old by the end of the year;

(d) As a supplement to Section 436A, but consistent with the spirit thereof, if an under-trial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such under-trial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;

(e) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.

(emphasis added)"

12. In view of foregoing discussion and considering a very vital fact that petitioner, an under-trial, is in custody for last 8 years and co-accused Mubaraq, Kale Khan alias Kaliya, Ramda Khan, Najeer Khan S/o Jiya Khan and Meeru s/o Babal have been enlarged on bail, while refraining to make any comment on merits of the case, I feel persuaded to enlarge him on bail.

13. Accordingly, the instant bail application is allowed and accused-petitioner, Jagmohan Singh @ Rinku S/o Shri Gurunam Singh, arrested in connection with CR No. 310/2009 lodged with Police Station Sadar, Barmer, is ordered to be released on bail; provided he furnishes a personal bond of Rs. 1,00,000/- with two sureties for like amount, including one local surety, to the satisfaction of learned trial Court with the undertaking to appear before that Court on all dates of hearing and as and when called upon to do so with further stipulation that he shall neither leave the Country, nor change his residential address without prior permission of the learned trial Court.

14. It is made clear that if necessity is felt by learned trial Court for imposing any other condition, depending on attending facts and circumstances, it shall be at liberty to prescribe the same.