1 75 S.B. CRIMINAL MISC. BAIL APPLICATION NO. 5969/2009. Sanwar Lal Vs. The State of Rajasthan Date of Order :: 16th November 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Javed Moyal, for the petitioner. Mr. M.A. Bhurat, Public Prosecutor. ... BY THE COURT: The petitioner is accused of offence under Section 376 IPC; the victim involved in the present matter is said to be a minor girl; and the petitioner is related to her as uncle (फ फ). The accusation is of the petitioner having taken the girl, who has stated her age at 13 years, to the basement of his house and having committed rape. In the medical examination, the age estimation of the victim has been stated at 14 to 16 years. The FIR was lodged on 22.04.2008, the charge-sheet was filed against the petitioner on 17.05.2008, and the case was committed to the Sessions Court on 21.05.2008. The bail application as moved by the petitioner was declined by the learned Additional Sessions Judge (Women Atrocities Cases), Bhilwara on 22.05.2009 particularly looking to the gravity of the accusations. The certified copy of the said order was obtained on 23.05.2009 but the present bail application under Section 439 Cr.P.C. has been moved by the petitioner only on 12.11.2009. 2 With the submissions that the petitioner is being denied his fundamental rights particularly for inordinate and unexplained delay in the matter where even the charge has not been framed even after 1½ years of commitment of the case to the Sessions Court, the learned counsel for the petitioner has strenuously argued that the petitioner is entitled to be enlarged on bail on this count alone. The learned counsel has particularly referred to Rules 42 and 43 of the General Rules (Criminal), 1980 ['the Rules of 1980'] and has also referred to the decision of the Hon'ble Supreme Court in the case of State, CBI/SPE, New Delhi Vs. Pal Singh & Anr. : (2001) 1 SCC 247, of the Hon'ble Delhi High Court in the case of Mohinder Singh Oberoi & Anr. Vs. State : 1988 (2) Crimes 783, of this Court in the case of Ruldu Singh Vs. State of Rajasthan : 1996 Cri.L.J. 3176, and, again of the Hon'ble Supreme Court in the case of Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, Patna : 1979 Cr.L.R. 444. The learned counsel has also referred to the decision of this Court in the case of Visnhu Vs. State of Rajasthan : 2003(1) R.Cr.D. 531 and argued that in the overall circumstances and particularly for the medical report not supporting the allegation of rape, the petitioner deserves to be enlarged on bail. Learned counsel for the petitioner has been heard at length and the material placed on record including the challan papers and the order-sheets have been examined. 3 So far the aspect relating to delay in the proceedings is concerned, there is no gainsaying the position that it has not been considered proper by the Courts to keep the accused in custody for indefinite time where the trial would not commence for long for none of his fault, as has been held by the Hon'ble Supreme Court in Hussainara Khatoon and Pal Singh's cases, by the Hon'ble Delhi High Court in Mohinder Singh Oberoi's case, and by this Court in Ruldu Singh's case. It needs hardly any reiteration that speedy trial is definitely a right recognised by law; and such a right is enforced by the Courts in appropriate and practical manner. Rules 42 and 43 of the Rules of 1980 also refer to the very first principles pertaining to the sessions trial that the same is to be conducted with greatest expedition; and that once opened, the sessions trial should be attempted to be completed in one session. However, all such requirements cannot be taken up and applied in an abstract manner or detached from the ground realities and from the facts of a particular case. In the case of Hussainara Khatoon (supra), the Hon'ble Supreme Court passed the necessary orders particularly after finding that there had been a large number of undertrial prisoners confined in jails for abnormally long period of time; and protracted detention particularly for delay in investigation was considered to be unlawful and violative of fundamental rights. In Pal Singh's case (supra), the Hon'ble Supreme 4 Court did not interfere with the order granting bail to some of the accused persons particularly after observing that despite all efforts, the trial had not even begun and the Hon'ble Court observed that the respondents who were arrested way back in the year 1996 could not justifiably be detained in jail as undertrial prisoners. On facts, the said case represents an entirely different and peculiar situation. In Mohinder Singh Oberoi's case (supra), the accused was found to be in jail for a period of about 3 years without any trial and the conduct of the accused was not found to be questionable at all so far the delay was concerned. In Ruldu Singh's case, the delay in trial was considered to have been contributed by the prosecution agency alone. When the order-sheets relating to the sessions case at hands are examined, it is noticed that after filing of the charge- sheet, the case was committed to the sessions on 21.05.2008, was taken up by the Sessions Court on 26.05.2008, and was placed for framing of charge on 18.07.2008. The order-sheet dated 18.07.2008 specifically states that adjournment was sought on behalf of the accused petitioner for arguments on framing of charge. On 20.08.2008 and on 26.09.2008, the matter was adjourned for the Presiding Officer being not available; and on 03.12.2008, for the accused having not been produced, the matter was adjourned to 29.01.2009. However, on 29.01.2009 and on 07.03.2009, the matter was adjourned for time having been sought for arguments on 5 framing of charge. On 28.04.2009, the matter was, yet again, adjourned when further time was sought for arguments on framing of charge. Of course, on 16.05.2009, 05.06.2009, and 09.07.2009, the matter was adjourned for the Presiding Officer being not available but then, on 03.08.2009, another adjournment was sought for arguments on framing of charge. Then, on 14.10.2009, the matter was adjourned to 17.12.2009 for the Presiding Officer being on leave. On a comprehension of the order-sheets, it appears that, of course, the matter has been adjourned on some of the posting dates for the Presiding Officer being not available in the Court but on various other occasions, specifically the adjournments were sought for arguments on the question of framing of charge. It cannot, therefore, be said that the accused petitioner has not contributed equally to the adjournments and thereby, to some part of delay in the matter. Moreover, it does not appear from the order-sheets at all that any request was ever made by the accused petitioner before the learned Sessions Court that the matter be proceeded with expedition or even an objection was raised for any adjournment. The decisions as referred by the learned counsel, in the given fact situation, hardly render assistance to the petitioner at this stage. As noticed, the facts of the case give out the allegations of the petitioner violating the person of a minor girl, said to be about 13 years in age (vide her statement); and even in the 6 medical report, her age estimation has come to 14 to 16 years. Even if the medical report is otherwise not directly giving out the opinion on the question of sexual assault, the accusation by the prosecutrix, particularly as emanating from her statements under Section 164 Cr.P.C., cannot be ignored at this stage. There is yet another strong reason for this Court being disinclined to grant indulgence to the petitioner at this stage. The petitioner is said to be the uncle (फ फ) of the prosecutrix, i.e., the husband of the sister of the father of the prosecutrix. Looking to the petitioner's position in the family and looking to the age of the prosecutrix, it does not appear appropriate to consider the bail plea of the petitioner before the prosecutrix is examined in the trial. In view of the aforesaid, this bail application under Section 439 Cr.P.C. moved on behalf of the petitioner Sanwar Lal S/o Jagdish Lohar stands rejected at this stage. (DINESH MAHESHWARI), J. //Mohan//