1. Petitioners, Abdul Rashid, Mohd Sadiq alias Sadiq, Mohd Hanif, Ghulam Mohd and Mohd Bhuttu, who figure as accused in a session case titled as Gulshan Kumar and others Vs State for offences under Sections 148,149,341/302-RPC pending decision before Additional Sessions Judge Reasi, have, through the medium of the petition in hand sought the indulgence of the court for releasing them on bail. It is inter alia maintained in the petition that the accused Gulshan Kumar, Harbans Lal and Mohd Lateef have been released on bail by the trial court; that the alleged occurrence took place on 26.8.1998 and since then the accused are languishing in the jail; that the eye witnesses have been examined in the case and they have not deposed anything incriminating against them; that with respect to the occurrence in question two FIRS have been filed by one Noor Bibi, the mother of the deceased and that speedy trial of the accused is a facet of the fundamental rights of life and liberty of the citizens under Art.21 of the constitution of India.

2. On 20.12.2001 notice of the petition was given to the respondent-State through Sr. AAG for filing objections but despite various opportunities granted in this behalf the Govt. Advocate has not filed objections nor has he, despite direction of this court, furnished any information with regard to the latest stage of the case.

Heard learned counsel for the parties, and have perused the order recorded by the learned trial court dated 20.9.2001 whereby the accused namely Gulshan Kumar, Harbans Lal and Mohd Lateef came to be released on bail. This order is annexure A to this petition.

3. The accusations set-forth against the petitioners and other accused in the case are that on 26.8.1998 the accused persons committed the murder of one Abdul Rashid, after they intercepted the matador bearing registration No.2285/ JKU at Mari Nallah and assaulted him and inflicted injuries on his person with drat, axe and tokas, when accused Ghulam Mohd held the deceased at gun point.

4. The co-accused in the case namely, Gulshan Kumar, Harbans Lal and Mohd Lateef have been released on bail by the Trial Court. Accused persons have pleaded not guilty to the charge framed against them on 21.11.1998, necessitating the examination of prosecution witnesses and accordingly trial court phased out the case to as many as more than 40 times during the span of more than three years to record the prosecution evidence. It appears that so far prosecution has examined 16 witnesses out of the listed 27 witnesses and now the case is pending for recording the evidence of other 11 witnesses.

5. The petitioners attempt to secure bail from the trial court aborted as the learned Sessions Judge declined to extend the concession of bail to them on the ground that they are charged of having committed a heinous offence of murder, punishable with death and that consideration for grant of bail under Section 498 Cr.P.C. are similar to the one under Section 497-Cr.P.C. viz. to say that he shall not be so released if there appear reasonable grounds to believe that he has committed the offence for which punishment is either death sentence or life imprisonment. As a result, they were not enlarged on bail.

6. It is true that the nature of the evidence and the seriousness of the charge are the relevant considerations to determine the fate of a bail application at the pre-verdict stage in cases which entail punishment of death sentence or life imprisonment but the aspect that the prosecution has betrayed total disinterest in adducing evidence cannot be lost sight of, notwithstanding that the case was phased out for recording prosecution evidence for as many as 40 times. The accused-petitioners are in custody and languishing as under trials in the jail for about four years and yet the prosecution has taken things lightly by not examining its listed witnesses with promptitude. It appears that the legal position requires to be reiterated that expeditious disposal

Click Here to Read the rest of this document