The court's decision highlighted the importance of considering the rights of the accused under Article 21 of the Constitution of India, especially in cases where the trial has not made any progress despite the conclusion of the investigation by the investigating agency.

JUDGMENT :

HARPREET SINGH BRAR, J.

Present petition has been filed under Section 439 of Code of Criminal Procedure for grant of regular bail to the petitioner in case FIR No.78 dated 21.09.2017 registered under Sections 302, 34 of Indian Penal Code (Sections 148, 149 and 201 IPC added later on and Section 34 of IPC deleted later on) at Police Station Sadar Sunam, District Sangrur.

2. The FIR was registered at the statement of one Neelam Rani on the allegations that on 20.09.2017, her nephew Mukesh Kumar went away on his motor cycle bearing No.PB13Z-6865. At 6:00 o’clock, Mukesh Kumar informed the complainant on telephone that his friend Babandeep Singh has been released on bail and thereafter, he disconnected the phone and did not return. On 21.09.2017, one person namely Jaggi informed the complainant that Mukesh Kumar is lying unconscious near Sirhand drain. Upon this, the complainant rushed to the spot and found that her nephew Mukesh Kumar had died and he was having deep sharp edged injuries on his head.

3. Learned counsel for the petitioner inter alia contends that the petitioner is not named in the FIR. Initially, the investigating agency had prepared the untraced report in the present case and after a gap of more than 5 years on 01.11.2022 a supplementary statement was made by the brother-in-law of the deceased Mukesh Kumar, which is also based on the hearsay evidence, having no value in the eyes of law. The only evidence available on record against the petitioner is the disclosure statement made by co-accused Gurdhian Singh @ Bholu, in which, he has confessed that he has given injuries to Mukesh Kumar with iron axe and due to the injuries, Mukesh Kumar had died. Even in the confessional statement made by co-accused Gurdhian Singh @ Bholu, no role has been attributed to the petitioner. Moreover, the weapon i.e. iron axe recovered at the instance of co-accused Gurdhian Singh @ Bholu, was never sent for chemical examination. No effort has been made by the investigating agency to establish and prove any identity of the assailants as no Test Identification Parade was ever conducted.

4. Per contra, the learned State counsel, on instructions from SI Karamjit Kaur, opposes the prayer of grant of regular bail to the petitioner on the ground that the petitioner is involved in heinous crime and his complicity is clearly established on the basis of disclosure statement made by the coaccused.

5. A two Judge Bench of Hon’ble Supreme Court in ‘Satender Kumar Antil v. CBI’ (2022) 10 SCC 51, with respect to prevailing conditions of undertrial prisoner in India has observed:

“6. Jails in India are flooded with undertrial prisoners. The statistics placed before us would indicate that more than 2/3rd of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offence, being charged with offences punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offence being inherited by many of them. As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the investigating agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other.”

6. Having heard the learned counsel for the parties and after perusing the record of the case, it transpires that the petitioner is behind the bars since 02.11.2022. The investigating agency has already concluded the investigation and submitted the final report under Section 173 Cr.P.C. on 11.01.2023. Trial of the case has not made any progress yet as out of 29 witnesses cited by the prosecution, none has been examined so far. Culpability, if any, would be determined at the time of the trial. No