Petitioners who were arrested on 08.05.2000, 08.01.1998 and 08.01.1998 respectively for the alleged offence punishable under Sections 120(B), 307, 302 and Section 4 of Public Property (Prevention of Damage and Loss) Act and Section 151 of Railway Act 1980 and Section 3 of Explosive Substances Act, 1980 and Section 3 of Explosive Substances Act, in Crime No.21, 1229 and 433 of 1997, seek bail.
2. Mr.Sankarasubbu, learned counsel appearing for the petitioners submitted that the petitioners are in custody for a very long period. Petitioners in Crl.O.P.No.13345 of 2009 and 22650 of 2009 are languishing in jail as under trial prisoners for more than 11 years and petitioner in Crl.O.P.No.22650 of 2009 is in jail as under trial prisoner for more than 9 years. The petitioners are charged with the aid of
Section 120-B IPC and there is no direct material against the petitioners. Though the prosecution had examined all the witnesses, even single witness do not speak connecting the petitioners to the alleged crime. In the absence of any material connecting the petitioners to the alleged crime their prolonged custody is illegal and personal liberty is infringed for a considerable length of time and by invoking
Article 21 of the Constitution of India as fundamental right the petitioners are entitled for bail. The learned counsel also relied on the decision of the Honourable Supreme Court reported in (1996) 2 S.C.C 616 (Shaheen Welfare Association v. Union of India and Others ).
3. Mr.Kumaresan, learned Public Prosecutor submitted that the earlier bail petitions of these petitioners have been dismissed by this Honourable High Court considering the grave nature of the offence. Totally 10 accused are charge sheeted and one accused is absconding. All the 10 accused who are close associates and militant fundamentalist "Islamic Defence Force" hatched conspiracy to blast bombs in trains which started from chennai on 05.12.1997 evening and in execution of conspiracy, bombs were planted, and on 06.12.1997 morning bomb blasts were in three trains, consequently 10 persons were killed and 72 persons were injured. The learned Public Prosecutor further submitted that prosecution had closed after examining its witnesses and the questioning of the accused under
Section 313 Cr.P.C by court is in progress. The trial has come to final stage of completion and if the accused released on bail at this stage, they may abscond and it may hamper the completion of trial. The learned Public Prosecutor further added that even if two witnesses who were examined to support the charge of conspiracy against the accused, have not supported the prosecution, the other materials through other witnesses are available to implicate the petitioners and the prosecution is ready with written arguments to submit it before the trial court immediately after the examination of the accused under
Section 313 Cr.P.C if the case is posted for arguments. The learned Public Prosecutor submitted a copy of the docket entry of the trial Court stating that the trial was not delayed by prosecution but it was only by the accused.
4. This Court considered the submissions and perused the records. The facts of the case are very serious in nature. Bombs were planted in three trains and innocent public were killed and injured, for no fault. The accused are facing grave charges punishable with death. Though it is contended by the learned counsel for petitioners that even after examination of all the witnesses by prosecution no incriminating material has come out against the petitioner, this aspect can not be considered by the High Court at this stage, and it must be left open to the trial court to decide and any observation by this Court may prejudice the trial court, since the trial has come to the final stage.
5. The question now arises for consideration is whether the petitioner should be released on bail on the ground that accused having right to speedy trial, languishing in jail for several years, personal liberty being deprived, the trial has not come to an end.
6. Occurrence had taken place on 06.12.1997. The petitioners were arrested in the year 1998 and 2000. The case was committed to Sessions in the year 2001. Till June 2006, trial has not commenced for various reasons. After commencement of trial, prosecution examined 151 witnesses and in November, 2009, the proceeding under
Section 313 Cr.P.C had commenced.
7. The Honourable Supreme Court held in Supreme Court Legal Aid Committee representing under trial prisoners Vs. Union of India reported in 1995 SCC(Crl.) 39 in paragraph 15 as follows:
"We have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by
Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by
Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by
Article 21, which has to be telescoped with the right guaranteed by
Article 14 which also promises justness, fairness and reasonableness in procedural matters."
8. The Apex Court observed in Shaheen Welfare Association vs. Union of India and others reported in (1996(2) SCC 616) as follows:
"9. The petition thus poses the problem of reconciling conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive activities. While it is disruptionists, it is equally necessary that terrorists and disruptionists are speedily tried and punished. In fact the protection to innocent civilians is dependent on such speedy trial and punishment. The conflict is generated on account of the gross delay in the trial of such persons. This delay may contribute to absence of proper evidence at the trial so that the really guilty may have to be ultimately acquitted. It also causes irreparable damage to innocent persons who may have been wrongly accused of the crime and are ultimately acquitted, but who remain in jail for a long period pending trial because of the stringent provisions regarding bail under TADA. They suffer severe hardship and their families may be ruined.
10. Bearing in mind the nature of the crime and need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh Case (1994) 3 SCC 569, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.
11. These competing claims can be reconciled by taking a pragmatic approach.
12. The proper course is to identify from the nature of the role played by each accused persons the real hardcore terrorists or criminals from others who do not belong to that category; and apply the bail provisions strictly insofar as the former class is concerned and liberally in respect of the latter class. This will release the pressure on the courts in the matter of priority for trial. Once the total number of prisoners in jail shrinks, those belonging to the former class and, therefore, kept in jail can be tried on a priority basis. That would help ensure that the evidence against them does not fade away on account of delay. Delay may otherwise harm the prosecution case and the harsh bail provisions may prove counter-productive. A pragmatic approach alone can save the situation for, otherwise, one may find that many of the undertrials may be found to have completed the maximum punishment provided by law by being in jail without a trial. Even in cases where a large number of persons can certainly be evaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberally considered. With inadequate number of courts, the only pragmatic way is to reduce the prison population of TADA detenus and then deal with hardcore undertrials on priority basis before the evidence fades away or is lost. Such an approach will take care of both the competing interests. This is the approach which we recommend to courts dealing with TADA cases so that the real culprits are promptly tried and punished.
13. For the purpose of grant of bail to TADA detenus, we divide the undertrials into three ( sic four) classes, namely, (a) hardcore undertrials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular; (b) other undertrials whose overt acts or involvement directly attract Sections 3 and/ or
4 of the TADA Act; (c)
Section 3 and
4, but by virtue of Section 120-B or 147 IPC, and : (d) those undertrials who were found possessing incriminating articles in notified areas and are booked under Sections 5 of TADA.
14. Ordinarily, it is true that the provisions of Sections 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity of the charges. Adopting this approach we are of the opinion that undertrials falling within group (a) cannot receive liberal treatment. Cases of undertrials falling in group (b)would have to be differently deal with, in that, if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the court comes to the conclusion that their antecedents are such that releasing them may be harmful to the lives of the complainant, the family members of the complainant, or witnesses. Cases of undertrials falling in groups (c) and (d) can be dealt with leniently and they can be released if they have been in jail for three years and two years respectively..........."
9. Applying the ratio laid down by the Honourable Supreme Court, though the bail petitions should be considered, now this Court does not want to consider and decide whether the petitioners are hardcore under trials or not and whether they are directly involved or not, since the trial itself nearing completion. After completion of questioning the accused under
Section 313 Cr.P.C in a few days, the case has to be posted for defence witnesses if any. It appears that earlier some direction has been given by the High Court to complete the trial within the prescribed time and now the trial court has been informed by a letter from Sub-Assistant Registrar on 15.10.2009 that High Court has granted further three months time to dispose of the case. It is not proper to release the petitioners on bail at the conclusion stage of trial.
10. In the above said circumstances, the bail petitions are dismissed.
ksr