Prolonged detention of an undertrial prisoner without trial violates rights under Article 21 of the Constitution, warranting bail.

Judgment

Mr. Harpreet Singh Brar, J.

This is the first petition under Section 439 of Cr.P.C. seeking grant of regular bail to the petitioner in the case bearing FIR No. 203 dated 25.06.2022 registered under Section 307 IPC and Section 25(1B)(a) of the Arms Act, 1959 and FIR No. 204 dated 25.06.2022 under Section 379-B IPC at Police Station Industrial Area, Sector 7, Manesar, Gurugram, Haryana (Both FIRs have been clubbed vide order dated 12.12.2022 passed by learned Additional Sessions Judge, Gurugram).

2. The present FIRs were registered on the allegation that on 25.06.2022 at 8.50 a.m. the complainant was going to attend her job, in the meantime, the petitioner came on his motorcycle and stopped her. He forcibly engaged her to talk and when she started moving, the petitioner pointed his gun on her neck. In the meantime, one person named as Sachin came there. The petitioner fired a shot from his weapon on the complainant and she became unconscious. The petitioner used to follow the complainant as he was infatuated by her.

3. Learned counsel for the petitioner inter alia contends that the petitioner is behind the bars since 02.07.2022. He is a student having clean antecedents. The investigating agency has already completed the investigation and filed the final report under Section 173 Cr.P.C. on 21.09.2023. Whether the offence under Section 307 IPC is made out or not would be a moot point to be determined by the learned trial Court as the complainant has suffered a minor lacerated wound and was discharged in a satisfactory condition.

4. Per contra, learned State counsel has opposed the prayer for grant of bail to the petitioner on the ground that the intention of the petitioner is clearly visible within the meaning of Section 307 IPC and the Medical Officer while conducting medical examination of the complainant recovered pellets from the injury on the neck which itself is sufficient to prove the ingredients of Section 307 IPC.

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, it transpires that the petitioner is behind the bars since 02.07.2022 and the complainant has already been examined by the trial Court on 03.11.2023. The prosecution has examined only 13 prosecution witnesses out of 24 prosecution witnesses. The culpability, if any, of the petitioner would be seen at the time of the trial. Keeping the petitioner in further detention without the prospect of the trial being concluded in the near future, would be violative of his rights under Article 21 of the Constitution of India.

7. Accordingly, the present petition is allowed and the petitioner-Abhay Sharma is ordered to released on regular bail, subject to his furnishing bail bonds/surety bonds to the satisfaction of the concerned trial Court/Chief Judicial Magistrate/Duty Magistrate.

8. Nothing observed hereinabove shall be construed as expression of opinion of this Court on merits of the