G. P. Mathur, J. - (1.) A first information report was lodged at P. S. Jamalpur, district Mirzapur, at 5.30 p.m. on 18-9-1989 alleging that on account of litigation regarding land, which had been decided in favour of the deceased Ram Briksha Singh by the High Court, there was enmity between Sattan Singh and the deceased. The deceased was going on a cycle from school to his village when at about 5 p.m. applicant Pappu Singh alias Ashoka Kumar Singh, armed with a country made pistol, and four others armed with spears surrounded the deceased. The applicant fired from his pistol at the deceased and he fell down and thereafter the remaining four accused assaulted with spears. On the basis of the first information report lodged by the complainant a case was registered under sections 147, 148, 149 and 302/5-4 IPC as Crime no. 100 of 1989 at P. S. Jamalpur, district Mirzapur, post mortem was performed on the dead body of the deceased which showed that he sustained a fire-arm wound of entry of the size of 2 cm x 2 cm x bone deep on the right side of the head just above the right ear besides seven incised wounds. Internal examination showed that right and left parietal bones and frontal bones were fractured. According to the applicant he surrendered on 22-9-1989. On 11-12-1989 a bail application moved by the applicant was rejected by the learned Sessions Judge, Mirzapur. The applicant then moved a bail application in the High Court which was also rejected on 14-3-1990. Subsequently the applicant moved a second bail application in this court on 17-5-1990. It was contended on behalf of the applicant that as the case had not been committed to the court of sessions and as nine months had elapsed, the applicant was entitled to be released on bail. Reliance was placed on a decision of Hon'ble S. I. Jafri, J. in Sri Narain Rai v. State, 1989 AWC 28/, wherein it has been held that if the accused was in jail for nine months and the case has not been committed to the court of sessions, he should be released on bail. Disagreeing with the view expressed in Sri Narain Rai's case (supra) to the effect that if an accused was in custody lor nine months and the case had not been committed to the court of sessions he should be released on bail, Hon'ble B. L. Yadav, J. referred the bail application to a Division Bench for reconsideration of the view expressed in the aforesaid case. The bail application has thus come up before us for hearing.
(2.) AT the outset we may mention here that the applicant is involved in a case under section 302 IPC which is punishable with death or imprisonment for life. We would therefore confine our discussion to those cases where an accused is in custody in respect of serious offences punishable with the sentence of death or imprisonment for life, like sections 302, 396, IPC etc. Part III of the Constitution of India guarantees some fundamental rights. Article 19 (1) (d) lays down that all citizens shall have the right to move freely though out the territory of India and Article 21 lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The framers of our constitution borrowed heavily from the American constitution. The Fifth amendment of American constitution provides that no person shall be deprived of life, liberty or property without due process of law and the sixth Amendment provides that : "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." By the objectives resolution adopted on January 12, 1947, the Constituent Assembly solemnly pledged itself to draw up for India's future goverance a constitution. Two days after the adoption of the resolution the Assembly appointed an Advisory committee for report on Minorities, Fundamental Rights, Tribals and Excluded Areas. The Advisory Committee in turn constituted on February 27, 1947, five sub committees one of which was to deal with fundamental rights. The sub-committee on Fundamental Rights discussed the subject on March 23/26 and 29, 1947, and included in its draft report two clauses, clause 11 and 29, which read as follows ; "11. No person shall be deprived of his life, liberty or property without due process of law." 29. No person shall be subjected to prolonged detention preceding trial, to excessive bail, or unreasonable refusal thereof, or to inhuman or cruel punishment." The Drafting Committee, however, introduced a far reaching change in the clauses by replacing the expression "without due process of law" by the expression "except according to the procedure established by law" and clause 29 of the draft report was altogether dropped, (see The Framing of India's constitution -A study" edited by B. Shiva Rao) at page 175 and 231.
(3.) THOUGH the Indian Constitution does not guarantee a speedy trial as the sixth amendment to the American constitution does, the Supreme Court while interpreting Article 21 of the constitution in Maneka Gandhi v. Union of India, AIR 1978 SC 597, laid down that the procedure must be "right and just and fair and not arbitrary, fanciful or oppressive." The Supreme Court stated the law more clearly in Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360, where at page 1365 it was observed as follows. "We think that even under our constitution, through speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this court in Maneka Gandhi v. Union of India, AIR 1978 SC 597. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable' fair and just.' If a person is deprived of his liberty under a procedure which is not reasonable, fair or just, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just, unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fail foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21," It is therefore, clear that the constitution guarantees a speedy trial for determination of the guilt of an accused person. Some provisions of the Code of Criminal Procedure, 1973, may also be noticed in this connection, Proviso (a) to sub-section (2) of section 167 provides that no magistrate shall authorise the detention of the accused person in custody under sub-section (2) for a total period exceeding ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and sixty days where the investigation relates to any other offence, and on the expiry of the aforesaid period the accused shall be released on bail. Therefore, the Code provides that in case the investigation is not completed within ninety days where it relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years; if it is not completed in sixty days where the investigation relates to any other offence, the accused shall be released on bail. However, if the investigation is completed within the period of ninty days or sixty days as the case may he and charge sheet is submitted the code does not provide for automatic grant of bail except under subsection (6) of section 437 Sec 437 (6) provides that if in a case triable by a magistrate, the trial of a person accused of any non bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of such period, be released on bail to the satisfaction of the magistrate unless for reasons to be recorded in writing the magistrate otherwise directs. Therefore, even in those cases which are triable by a magistrate the Code contemplates a situation where an accused may remain in custody for a period of sixty days prior to the submission of charge-sheet and again for a period of sixty days from the first date fixed for taking evidence in the case. Besides this period of four months some time is bound to be taken between the period when the charge sheet is submitted and the first date is fixed for taking evidence. However, the code does not provide for grant of bail on the ground of delay in trial in these cases which are triable by a court of sessions. The offences which are punishable with sentence of more than ten years RI are generally triable by the court of sessions and not by a court of magistrate.;