Prolonged incarceration without trial is unconstitutional and violates the right to speedy trial under Article 21; balance must be maintained between personal liberty and societal interest.

ORDER :

ANIL KUMAR UPMAN, J.

1. The instant bail application under Section 483 BNSS has been filed on behalf of the petitioner, who has been arrested in connection with FIR No.32/2019, registered at SOG, Special Police Station, District SOG/ATS, Jaipur for offences punishable under Sections 406, 409, 420, 467, 468, 471 & 120B of IPC and Section 65 of the Information Technology Act. After completion of investigation, Police filed charge-sheet in the matter.

2. Learned Senior Counsel appearing on behalf of the petitioner submits that the petitioner has falsely been implicated in this case. It is submitted that alleged offences are triable by the Magistrate. Learned Counsel submits that the petitioner is facing trial before the Magistrate’s Court, and even in the event of conviction, the maximum sentence that may be imposed would not exceed seven years. The petitioner has already undergone incarceration for approximately six years and four months, having been in judicial custody since 20.09.2019, while the trial remains pending. Counsel submits that in these circumstances, it is apparent that petitioner's fundamental right to speedy trial, guaranteed under Article 21 of the Constitution of India, stands seriously infringed. Counsel further submits that the delay in the trial is solely attributable to the prosecution, and under such circumstances, further custody of the petitioner would not serve any fruitful purpose. It is submitted that co-accused persons have already been granted benefit of bail by Co-ordinate Bench of this Court and one co-accused has been granted benefit of bail by Hon’ble Supreme Court. Lastly, he submits that in view of the prolonged incarceration suffered by the petitioner, he may kindly be enlarged on bail. Reliance has been placed upon the judgment of Hon’ble Supreme Court in the case of Sanjay Chandra versus CBI reported in AIR 2012 SC 830.

3. Per contra, the learned State counsel assisted by Add. SP, SOG, vehemently oppose the submissions advanced on behalf of the petitioner. It is submitted that the delay in the trial is attributable to the accused persons because they are continuously seeking time for making submissions on the issue of charge. Counsel further submits that at least 60 adjournments have been sought from the accused side to make the submissions and therefore, trial is still pending at the stage of consideration of charge. It is submitted that the petitioner is a habitual offender as 38 other cases have been registered against him. It is submitted that the matter pertains to scam of crores of rupees thus, looking to the gravity of offence, benefit of bail may not be extended to the petitioner.

4. I have considered the contentions.

5. In light of the rival submissions of both the parties, I have perused the material available on record including order sheets of the trial Court placed by the Counsel for the petitioner during the course of arguments. Bare perusal of the record would reveal that the petitioner is in custody since 20.09.2019 while trial still remains pending. In deciding bail applications an important factor which should be taken into consideration by Court is the delay in concluding the trial. When the under trial prisoners are detained in judicial custody to an indefinite period, Article 21 of the constitution is violated. Every person, detained or arrested, is entitled to speedy trial. Section 346 of BNSS provides provision for conducting the trial specially when accused is in custody. Section 346 of BNSS is being reproduced below for ready reference:

Section 346: Power to postpone or adjour