S. 497(1), third & fourth provisos---Offence not punishable with death---Bail---Delay in conclusion of the trial---Extent and scope of............

 2022 S C M R 1

S. 497(1), third & fourth provisos---Offence not punishable with death---Bail---Delay in conclusion of the trial---Extent and scope of the right of an accused to bail on the statutory ground of delay in conclusion of the trial under the third proviso to S. 497(1), Cr.P.C. and the exceptions to such right provided under the fourth proviso, stated.

Part (a) of third proviso to section 497(1), Cr.P.C. envisaged that in an offence not punishable with death, the trial of the accused was to be concluded within a period of one year from the date of detention of the accused, and in case the trial was not so concluded, the law mandated the release of the accused on bail. The accused, thus, had a statutory right to be released on bail if his trial for such offence was not concluded within a period of one year from the date of his detention. Period of one year for the conclusion of the trial began from the date of the arrest/detention of the accused and it was of little importance as to when the charge was framed and the trial commenced. The purpose and objective of the provision was to ensure that the trial of an accused was conducted expeditiously and the pre-conviction detention of an accused did not extend beyond the period of one year, in cases involving offences not punishable with death. In such cases, if the trial of an accused was not concluded within a year of his detention, the statutory right to be released on bail ripened in his favour.

This statutory right to be released on bail was, however, subject to two exceptions: one was embodied in the third proviso itself and the second was provided in the fourth proviso to section 497, Cr.P.C. As per these exceptions, the right to be released on bail on the ground of delay in conclusion of the trial was not available to an accused if: (i) the delay in conclusion of the trial was occasioned by an act or omission of the accused or by any other person acting on his behalf, or (ii) the accused was a convicted offender for an offence punishable with death or imprisonment for life or was in the opinion of the court a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life.

With respect to the first exception the act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel of the accused could not be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments were sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments were repetitive, reflecting a design or pattern to consciously delay the conclusion of the trial. Thus, mere mathematical counting of all the dates of adjournments sought for on behalf of the accused was not sufficient to deprive the accused of his right to bail under the third proviso.

The second exception to the right of the accused to be released on bail on the ground of delay in conclusion of the trial was provided in the fourth proviso to section 497, Cr.P.C. According to which the provisions of the third proviso did not apply to the accused who was: (i) a convicted offender for an offence punishable with death or imprisonment for life; or (ii) a hardened, desperate or dangerous criminal, in the opinion of the Court; or (iii) an accused of an act of terrorism punishable with death or imprisonment for life.

Conditions (i) and (iii) above were self-explanatory and must be borne out from the record. Under condition (i), the accused must have been earlier convicted by a court of law for an offence punishable with death or imprisonment for life. Under condition (iii), the accused must be accused of an act of terrorism punishable with death or imprisonment for life. It was condition (ii) which required the Court to apply its judicious mind to the facts and circumstances of the case and make an opinion as to whether or not the accused was a hardened, desperate or dangerous criminal. The words hardened, desperate or dangerous had been couched in between conditions (i) and (iii) and therefore signified the same sense of gravity and seriousness as to the nature of the offence and character of the accused. "Dangerous" meant harmful, perilous, hazardous or unsafe - someone who could cause physical harm or injury or death. "Hardened" was someone who was pitiless, hardhearted, callous or unfeeling and set in his bad ways and no longer likely to change, having a tendency of repeating the offence and was, thus, dangerous to the society. "Desperate" was someone who was reckless, violent and ready to risk or do anything; such person was, therefore, also dangerous to society. All the three words painted a picture of a person, who was likely to seriously injure and hurt others without caring for the consequences of his violent act. Therefore, for this exception to apply, there had to be material to show that the accused was such a person who would pose a serious threat to the society if set free on bail. In the absence of any such material, bail could not be denied to an accused on the statutory ground of delay in conclusion of the trial. Moundar v. State PLD 1990 SC 934 rel.