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2021 (10) TMI 1414 - HC - Indian LawsRejection of Bail application - applicability of provisions of section 43-D(5) of the UAPA - right to a fair trial read into Article 21 of the Constitution - HELD THAT:- Though no particular correlation as between undertrial incarceration and the right to speedy trial being defeated emerges, what we see clearly is, one, that undertrials have been enlarged on bail even in cases where the offences alleged were punishable with death; and, two, that even when the period of incarceration undergone as undertrial was as little as 66 days, the Hon'ble Supreme Court enlarged the undertrial on bail. Courts must not play coroner and attend to legal or constitutional rights only after they are 'dead'. Instead we must play doctor, and save such rights from demise before they are extinguished. Courts should pro-actively step-in to protect such rights from being stifled and buried. If equity calls upon affected persons to be vigilant to protect their rights, then surely the courts must also be vigilant, and, to quote the Hon'ble Supreme Court, act as sentinels on the qui vive when it comes to protecting constitutional and legal rights. In the present case, the appellant has spent more than 12 years in custody as an undertrial; 256 witnesses have been examined over the last about 12 years, but 60 prosecution witnesses still remain to be examined. Regardless of how much longer the trial may take hereafter, the incarceration of more than 12 years suffered by the appellant in custody as an undertrial would certainly qualify as a long enough period for the system to acknowledge that the appellant's right to speedy trial continues to be defeated. Further it is observed that, even assuming that the specific role attributed to the appellant in the charge framed vide order dated 06.05.2011 against him, warrants a life sentence, section 57 of the IPC provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned to be equivalent to imprisonment for 20 years; whereby, it would be reasonable to say, that the appellant has already undergone more than half the sentence he may eventually face. To be sure, while observing so, it is not the purport of this court to pre-judge the decision of the learned Trial Court to award to the appellant whatever sentence it deems appropriate, in accordance with law, if the appellant is eventually convicted. In the present case, if the State plans to seek the capital sentence for the appellant, it is therefore all the more necessary that the appellant be afforded a speedy trial; failing which, the appellant deserves at least to be given back his liberty after more than 12 long years of imprisonment as an undertrial, since it cannot be ignored that as of now, the appellant has undergone punishment for more than a decade of his life, for an alleged offence for which he has not yet been found guilty. It is directed that the appellant be released on regular bail, pending trial, subject to the conditions imposed - application allowed.
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