Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(P&H) 2154

2009(1) LAW HERALD (P&H) (DB) 150
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice K.S. Garewal
The Hon’ble Mr. Justice Jitendra Chauhan
Crl. Appeal No. 132 DB of 2007
Dalip Singh
v.
State of Punjab
{Decided on 19/12/2008}

Advocates:
For the Appellant:Mr. S.S. Rana, Advocate.
For the Respondent: Mr. V.K. Jindal, AAG, Punjab.
Mr. P.S. Sullar, Sr. Deputy Advocate General, Haryana.

IMPORTANT POINT
Bail--Grant of--If a court is satisfied that the accused will resist tampering with evidence or try to abscond, the court should not hesitate from granting bail. Heavy amount of bond can be imposed with a local surety. The accused can be required to submit himself to police surveillance or electronic surveillance to keep a tag on him.
Suspension of sentence pending appeal--Division Bench judgments in the case of Dharam Pal v. State of Haryana, Daler Singh v. State of Punjab, requires re-consideration--Referred to Full Bench.

Headnote:(A) Criminal Law--Bail--FIR under Section 302 IPC--Section 437(6) Cr.P.C. entitles an accused to be released on bail if trial before Magistrate is not concluded within 60 days from the first date of recording of evidence--An accused can also be released on bail after 60/90 days where investigation has not been concluded as provided in proviso 2 of Section 167 of Cr.P.C.--|Criminal Procedure Code, 1973, Section 439--Criminal Procedure Code, 1973, Section 437(6). (Para 6)
       (B) Criminal Law--Bail--Grant of--If a court is satisfied that the accused will resist tampering with evidence or try to abscond, the court should not hesitate from granting bail. Heavy amount of bond can be imposed with a local surety. The accused can be required to submit himself to police surveillance or electronic surveillance to keep a tag on him--|Criminal Procedure Code, 1973, Section 439. (Para 11)
       (C) Criminal Law--Detention during trial destroys the man, bail saves him from ill affects of detention and yet makes him available to receive sentence, if he is convicted--Convicts get paid some daily wage--Undertrials get nothing, they lose their jobs, their families are deprived of income, their children are unable to pursue studies--Therefore, bail ought to be considered by the trial court itself after 180 days from the date of commencement of the prosecution evidence--|Criminal Procedure Code, 1973, Section 439.(Paras 11, 12 & 13)
       (D) Criminal Law--Suspension of sentence pending appeal--FIR under Section 302 IPC--Period of detention undergone by the accused is set off against the sentence of imprisonment--Undertrial period should be added to the post conviction period and an appellant who has completed 5 years in all should be entitled to suspension of sentence automatically--When the undertrial period is also counted towards sentence then it should not make any difference if the appellant has or has not done three years after conviction--In view of these aspect Division Bench judgments in the case of Dharam Pal v. State of Haryana, 1999 (4) RCR (Crl.) 600 and Daler Singh v. State of Punjab, 2007(1) LAW HERALD (P&H) 390 requires re-consideration--Referred to Full Bench--|Criminal Procedure Code, 1973, Section 389 & 428. (Paras 16, 17)

JUDGMENT

K.S. Garewal, J.:- On November 26, 2008, we had expressed our extreme dismay at the long time the appellant’s trial had taken before the trial court. We now propose to record some observations on the criminal justice system in the States of Punjab and Haryana and Union Territory, Chandigarh. Our desire is to highlight Dalip Singh’s case, make it an example to demonstrate the rickety system we have developed.

2. It would be appropriate to preface our order with a brief chronology of Dalip Singh’s trial. He was arrested on July 13, 1998 and charged for murder of his wife Jasbir Kaur by smashing her head with a spade. The occurrence had taken place at 6.30 a.m. on July 13, 1998. FIR 44 was registered under Section 302 IPC at Police Station Machhiwara.

3. After investigation, the report under Section 173 Cr.P.C. was presented to Judicial Magistrate Ist Class, Samrala on September 1, 1998. The case was committed to the Court of Sessions for trial on September 29, 1998. Charge against Dalip Singh was framed on October 27, 1998 to which he pleaded not guilty and claimed trial. The case was adjourned to February 2, 1999 for the recording of prosecution evidence. Therefore, Dalip Singh’s trial effectively commenced on February 2, 1999.

4. At the trial, the prosecution examined 14 witnesses, three of whom were examined on affidavits. Therefore, statements of the 11 witnesses were recorded and their depositions ran into only 28 pages. The prosecution evidence was finally closed on August 26, 2006, 6-1/2 years were consumed for recording 28 pages of evidence. From the above we can only conclude that the criminal justice system is in complete shambles.

5. No one seems to be in-charge of the criminal justice system. The police blames the prosecution, who blames the defence. The trial judge is over-burdened with work and the accused person, in whose favour there is a presumption of innocence, continues to languish in jail without bail.

6. The Code of Criminal Procedure entitles an accused to be released on bail if trials before Magistrates are not concluded within 60 days from the first date of recording of evidence. This is provided in Section 437 (6) of the Code. An accused person can also be released on bail after 60/90 days where investigation has not concluded. (proviso 2 of Section 167 of Cr.P.C). Article 22 of the Constitution provides that preventive detention or detention without trial cannot be longer than three months unless the case is considered by an Advisory Board.

7. A person detained in custody has many rights. He has also the right to a speedy trial. This right has been recognized by the Supreme Court in a long line of judicial pronouncements [Hussainara Khatoom (I) v. Home Secy. State of Bihar, 1980 SCC (Cri.) 23, Abdul Rehman Antulay v. R.S. Nayak 1992 SCC (Cri) 93 Raj Deo Sharma v. State of Bihar (1988) 7 SCC 507, Akhtari Bi (Smt.) v. State of M.P. (2001) 4 SCC 355, Bipin Shantilal Panchal v. State of Gujarat and another (2001) 3 SCC 1, Supreme Court Legal Aid Committee representing Undertrial Prisons versus Union of India 1994 (3) R.C.R. (Criminal) 639, Common Cause a Registered Society through its Director versus Union of India 1996 (2) R.C.R. (Criminal) 419, Raj Deo Sharma versus State of Bihar 1998 (4) R.C.R. (Criminal) 206 and 396, Usha Ahuja versus State of Haryana 1999 (4) R.C.R. (Criminal) 52, P.Ramachandra Rao versus State of Karnataka 2002 (2) R.C.R. (Criminal) 553, and Moti Lal Saraf versus State of Jammu and Kashmir and another 2006 (4) R.C.R. (Criminal) 637.]

8. On November 26, 2008, we had asked the Advocates General of Punjab and Haryana to assist the Court. Today, the learned Additional Advocate General, Punjab has filed before us lists of undertrials lodged in Central/District Jails, Ludhiana, Patiala, Hoshiarpur and Bathinda. These lists are taken on record.

9. The lists contain names of undertrials, dates on which they were admitted to the jails, details of FIRs and the names of the trial cour

Click Here to Read the rest of this document

2008 Supreme(P&H) 2154

2009(1) LAW HERALD (P&H) (DB) 150IN THE HIGH COURT OF PUNJAB AND HARYANA (DIVISION BENCH)BeforeThe Hon’ble Mr. Justice K.S. GarewalThe Hon’ble Mr. Justice Jitendra ChauhanCrl. Appeal No. 132 DB of 2007Dalip Singh v.State of Punjab{Decided on 19/12/2008}

Cases Referred (2)

2009(1) LAW HERALD (P&H) (DB) 150
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice K.S. Garewal
The Hon’ble Mr. Justice Jitendra Chauhan
Crl. Appeal No. 132 DB of 2007
Dalip Singh
v.
State of Punjab
{Decided on 19/12/2008}