After 5 years

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HONBLE MR. JUSTICE S.VISHWAJITH SHETTY
CRL.P.No.7963/2023
BETWEEN:
SRI. MOHAN NAYAK N

AND:
STATE OF KARNATAKA


14. In the case of SAGAR TATYARAM GORKHE VS
STATE OF MAHARASHTRA - (2021)3 SCC 725,
considering the fact that the accused persons were in jail
for a period of four years, and there were 147 witnesses
who were still to be examined, the Hon'ble Supreme
Court had enlarged the accused on bail.

15. In K.A.Najeeb's case supra, considering the fact
that the accused were in jail for a period of more than
five years and there were 276 witnesses left to be
examined, the Hon'ble Supreme Court had refused to
interfere with the order granting bail to the accused by
the High Court on the ground of delay in trial and long
period of incarceration suffered by the accused. In
paragraphs 15, 17 & 18 of the said judgment, it has been
observed as under:
15. This Court has clarified in numerous
judgments that the liberty guaranteed by Part III
16
of the Constitution would cover within its
protective ambit not only due procedure and
fairness but also access to justice and a speedy
trial. In Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of
India [Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of
India, (1994) 6 SCC 731, para 15 : 1995 SCC
(Cri) 39] , it was held that undertrials cannot
indefinitely be detained pending trial. Ideally, no
person ought to suffer adverse consequences of
his acts unless the same is established before a
neutral arbiter. However, owing to the
practicalities of real life where to secure an
effective trial and to ameliorate the risk to society
in case a potential criminal is left at large pending
trial, the courts are tasked with deciding whether
an individual ought to be released pending trial or
not. Once it is obvious that a timely trial would
not be possible and the accused has suffered
incarceration for a significant period of time, the
courts would ordinarily be obligated to enlarge
them on bail.
17. It is thus clear to us that the presence
of statutory restrictions like Section 43-D(5) of
the UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds of
violation of Part III of the Constitution. Indeed,
both the restrictions under a statute as well as
the powers exercisable under constitutional
17
jurisdiction can be well harmonised. Whereas at
commencement of proceedings, the courts are
expected to appreciate the legislative policy
against grant of bail but the rigours of such
provisions will melt down where there is no
likelihood of trial being completed within a
reasonable time and the period of incarceration
already undergone has exceeded a substantial
part of the prescribed sentence. Such an
approach would safeguard against the possibility
of provisions like Section 43-D(5) of the UAPA
being used as the sole metric for denial of bail or
for wholesale breach of constitutional right to
speedy trial.
18. Adverting to the case at hand, we are
conscious of the fact that the charges levelled
against the respondent are grave and a serious
threat to societal harmony. Had it been a case at
the threshold, we would have outrightly turned
down the respondent's prayer. However, keeping
in mind the length of the period spent by him in
custody and the unlikelihood of the trial being
completed anytime soon, the High Court appears
to have been left with no other option except to
grant bail. An attempt has been made to strike a
balance between the appellant's right to lead
evidence of its choice and establish the charges
beyond any doubt and simultaneously the
respondent's rights guaranteed under Part III of
our Constitution have been well protected.
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16. In Mohd. Muslim alias Hussain's case, the Hon'ble
Supreme Court while considering the rigor under Section
37 of the NDPS Act, for granting bail to the accused, has
observed that grant of bail on undue delay in trial cannot
be said to be fettered by Section 37 within the imperative
of Section 436A which is applicable to the offences under
the NDPS Act. In the said judgment, at paragraphs 22 to
24, it has been observed as under:
22. Before parting, it would be important
to reflect that laws which impose stringent
conditions for grant of bail, may be necessary in
public interest; yet, if trials are not concluded in
time, the injustice wrecked on the individual is
immeasurable. Jails are overcrowded and their
living conditions, more often than not, appalling.
According to the Union Home Ministry's response
to Parliament, the National Crime Records Bureau
had recorded that as on 31st December 2021,
over 5,54,034 prisoners were lodged in jails
against total capacity of 4,25,069 lakhs in the
country20. Of these 122,852 were convicts; the
rest 4,27,165 were undertrials.
23. The danger of unjust imprisonment, is
that inmates are at risk of prisonisation a term
described by the Kerala High Court in A Convict
19
Prisoner v. State21 asa radical transformation
whereby the prisoner:
loses his identity. He is known by a
number. He loses personal
possessions. He has no personal
relationships. Psychological problems
result from loss of freedom, status,
possessions, dignity any autonomy
of personal life. The inmate culture
of prison turns out to be dreadful.
The prisoner becomes hostile by
ordinary standards. Self-perception
changes.
24. There is a further danger of the
prisoner turning to crime, as crime not only
turns admirable, but the more professional the
crime, more honour is paid to the criminal22 (also
see Donald Clemmer's The Prison Community
published in 194023). Incarceration has further
deleterious effects - where the accused belongs
to the weakest economic strata : immediate loss
of livelihood, and in several cases, scattering of
families as well as loss of family bonds and
alienation from society. The courts therefore,
have to be sensitive to these aspects (because in
the event of an acquittal, the loss to the accused
is irreparable), and ensure that trials - especially
in cases, where special laws enact stringent
provisions, are taken up and concluded speedily.