Vinay Jaidev Wasankar (In Jail) vs State Of Mah., Thr. Economic ...
2021 Latest Caselaw 6969 Bom

Order                                                                                       0305ba939.19
                                                    1


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.


                      CRIMINAL APPLICATION [BA] NO. 939/2019.
                                          Vinay Jaidev Wasankar.
                                                -VERSUS-
                                           State of Maharashtra.

Office notes, Office Memoranda of
Coram, appearances, Court's orders                           Court's or Judge's Orders
or directions and Registrar's orders.

                          Shri D.V. Chauhan, Advocate for the Applicant.
                          Ms. S. Jachak, A.P.P. for the Non-applicant.



                                         CORAM : VINAY JOSHI, J.

DATE : MAY 03, 2021.

Heard learned Counsel for the parties through

video conference.

2. Can mere delay in the trial, and long period of

detention be solely sufficient for enlargement on bail inspite

of the charges of serious economic offences, is the question.

Precisely this is the sole issue which falls for consideration

and can be perceived on filtering the record.

3. The applicant/accused has been charged for the

offence punishable under Sections 420, 406, 409, 506 read

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with Section 120-B of the Indian Penal Code, and Section 3 of

the Maharashtra Protection of Interest of Depositors Act, 1999

[MPID]. A crime in this respect has been registered with the

Economic Offence Wing (EOW), Crime Branch, Civil Lines,

Nagpur vide Crime No.156/2014 on 09.05.2014. The gist of

allegations against the applicant is that - the applicant is the

main conspirator who has floated various schemes to lure

general public and collected Crores of rupees under promise

of paying excessive interest. As per the police report, near

about 700-800 common citizens were trapped into the fishy

schemes under which they lost their hard earned money. The

entire embezzlement is to the tune of Rs.127 Crores, and still

some unknown investors are approaching the investigating

agency with their grievances.

4. It is alleged that the crime had affected the entire

community, as also the economy. Large number of middle

class people became the victim and have lost their huge

money making their life miserable. Allegedly the applicant

has conducted seminars, published advertisement which

indicates calculated and deliberate design in executing the

desired act. On said background the matter is to be viewed.

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While considering the rights of the accused, the Court must

be mindful of the rights of hundreds of victims who have

imposed faith on the applicant and have been virtually

brought on the streets. The impact of the crime and its social

repurcations also bears relevance.

5. The applicant/accused made series of attempts

before the trial Court and this Court for his release, however,

none of them yielded so far. It would be apposite on my part

to make brief references of the attempts made by the

applicant / accused before this Court only.

6. The applicant / accused came to be arrested in the

year 2014. After his arrest and filing of the charge sheet, his

entitlement for bail was first time tested before this Court in

Misc. Criminal Application No. 763/2015, which went against

him vide an elaborate order dated 22.12.2015. This was

followed by a second attempt after two years vide Criminal

Application (BA) No.327/2017. In the said application, after

arguing the matter for some time, perhaps on perceiving non-

inclination of this Court, the applicant sought permission to

withdraw, which resulted into dismissal of bail application as

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withdrawn vide order dated 05.07.2017. Again after a gap of

two years, the applicant/accused applied to this Court for

grant of bail vide Criminal Application (BA) No.182/2019,

however, was unable to achieve the result which is reflected

in the order of this Court dated 23.04.2019. It is to be noted

that till date the applicant/accused did not chooses to

approach to the Hon'ble Supreme Court for redressal of his

grievance. During the interregnum period similar number of

attempts were made before the trial Court, however they met

the same fate.

7. In this background this is the fourth attempt by

way of the present Criminal Application filed on 04.10.2019.

It is a very sorry state of affairs that the bail application

remained pending for more than 1 ½ years for one or the

other reason.

8. Repeated rejection of bail on merits has foreclosed

the applicants right to claim bail on merits on same grounds

before the same Court. This position has not been denied by

Shri Chauhan, the learned Counsel appearing for the

applicant. This being the position, this time the bail is

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claimed purely on the ground of long period of incarceration,

and inordinate delay in holding the trial. The learned

Counsel for the applicant reminded that the applicant is

behind bars for a period of more than 6 years. According to

him, there is no likelihood of concluding the trial in near

future, and therefore, it violates the fundamental right of the

applicant of speedy trial, which is part of Article 21 of the

Constitution of India.

9. The learned Counsel for the applicant has ably

assisted by providing a chart indicating all the factual events

which gives a fair idea about the things. On the other hand

Ms. Jachak, the learned A.P.P. has equally provided a chart

which contains a gist and indicates the progress of the trial till

date. The said material ably assists to great extent in

deciding this application.

10. It is to be noted that while deciding Criminal Writ

Petition No. 722/2018 (filed by one of the co-accused), this

Court vide its order dated 10.09.2018, for the first time

expedited the trial by requesting the learned Special Judge to

dispose of the case till 30.09.2019. Record indicates that this

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Court vide its order dated 01.10.2019, has extended the time

for a period of six months, which would logically end on

30.04.2020.

11. The learned A.P.P. while placing the status of the

trial has briefed (paragraph no.3), that this Court vide order

dated 04.03.2021 has extended the time for the period of six

months, which would come to an end on 03.09.2021. These

orders are relevant for deciding this application. Precisely the

trial has been expedited and directions were issued to

conclude the trial till 03.09.2021.

12. The learned Counsel for the applicant by and large

expressed that there are several accused, some of them are

still absconding, charge sheet runs into thousands of pages,

hundreds of witnesses are to be examined, therefore, there is

no likelihood of concluding the trial in near future. He has

also canvassed that the trial Court is overburdened with some

other assignments and several High Court expedited cases are

pending on his file. He also attempted to demonstrate that,

as and when the trial Court receives instructions /directions

from this Court for expediting the trial, then for some time

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the trial proceeds, but, again comes to a standstill.

13. The learned Counsel for the applicant has drawn

my attention to a Pursis dated 04.01.2020 filed by the

prosecution in trial Court citing total 87 witnesses, with a

note that there may be 8 to 10 more witnesses. On this count

he has straneously argued that the entire exercise would take

few more years, and therefore, it is totally improper to detain

the applicant/accused behind bars for an indefinite period.

14. The learned Counsel for the applicant by placing

reliance on the decisions in case of Supreme Court Legal Aid

Committee .vrs. Union of India and others - (1994) 6 SCC

731; Saheen Welfare Association .vrs. Union of India and

others - (1996) 2 SCC 616; Vinod Bhandari .vrs. State of

Madhya Pradesh - (2015) 11 SCC 502; Union of India .vrs.

K.A. Najeeb - 2021 SCC Online SC 50 and The National

Investigation Agency .vrs. Areeb Ejaz Majeed - (Criminal

Appeal No. 389/2020 - Bombay High Court decided on

23.02.2021), has argued that gross delay in disposal of the

trial would justify invocation of Article 21 of the Constitution

of India, and consequential release of the under trial on bail.

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He would submit that there is a fundamental breach of the

Constitutional right of the applicant/accused to have a speedy

trial, therefore, further incarceration would add to illegality.

The bottom line of his submission is, since it is impossible to

conclude the trial in near future, it is obligatory to release the

applicant, an under trial, on bail. The learned Counsel for

the applicant also took me through certain part of the cited

judgments to impress that, in serious crimes involving the

offences under - Narcotic Drugs and Psychotropic Substances

Act, 1985; Unlawful Activities (Prevention) Act, 1967;

Terrorist and Disruptive Activities (Prevention) Act, 1987 also

the Courts have recognized the right to fair and speedy trial

and released the under trials on bail.

15. On the other hand, the learned A.P.P. has

straneously argued that mere delay in concluding trial cannot

be a sole criteria for releasing accused of serious crime on

bail. She would submit that the gravity of the offence,

seriousness of the crime, impart on the society, do matters

while deciding the entitlement for bail. In support of said

contentions, the learned A.P.P. has placed reliance on the

decisions in cases of - Sudha Singh .vrs. The State of Uttar

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Pradesh and another - (Criminal Appeal No. 448/2021 @

Special Leave Petition (Criminal) No. 3577/2020, decided on

23.04.2021); National Investigating Agency vrs. Zahoor

Ahmad Shah Watali - (2019) 5 SCC 1; Kalyan Chandra

Sarkar .vrs. Rajesh Ranjan @ Pappu Yadav and another -

(2004) 71 SCC 528; State of Gujarat .vrs. Mohanlal Jitamalji

Porwal and another - (1987) 2 SCC 364 and Nimmagadda

Prasad .vrs. Central Bureau of Investigation - (2013) 7 SCC

16. On facts, the learned A.P.P. submitted that till date

the trial Court has examined 37 witnesses and the process has

geared up. She would submit that there were glitches in the

smooth progress of trial, since number of accused

represented by various Advocates and different kinds of

application are filed. However, the prosecution will endeavor

to expedite the process by examining the remaining witnesses

at the earliest. She has canvassed that due to current global

pandemic situation the work of trial Court has been

effectively hampered, which cannot be considered as demerit

of the prosecution agency to facilitate expediting the process.

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Lastly she would submit, that though the applicant was in jail

for 6 years, that alone does not gives him a right to claim bail,

particularly, when his case was repeatedly tested and turned

down on merits by this Court.

17. During pendency of this application, this Court

was of the view to take a stock of the progress of the trial.

Accordingly, vide order dated 16.12.2020, this Court has

called report from the trial Court about the progress of the

trial. Inasmuch as directed the trial Court to prepare a

schedule of trial for early disposal. In response, the trial

Court has submitted its report showing the progress of trial,

along with difficulties faced in expediting the trial.

18. Be that as it may, as per the tabular chart

furnished by the learned A.P.P., till 05.03.2021 total 37

witnesses have been examined which can be considered as a

substantial progress in the trial. Particularly, on the

background that till the date of filing of this application, the

trial Court had examined only 6 witnesses. Needless to say

that thereafter, the normal functioning of the trial Courts was

held up due to current global pandemic situation. Therefore,

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it can be reasonably expected that on restoring the normalcy

in Court functioning, the trial would be progressed with a

reasonable speed.

19. Therefore, at this juncture, on account of mere

delay in trial, the applicant/accused cannot be enlarged on

bail, particularly when he is charged with serious economic

offences involving allegation of duping near about 800

peoples for huge sum Rs. 127 Crores. Already this Court has

extended the time to conclude the trial till 03.09.2021,

therefore, till that time the urge for grant of bail requires no

consideration. In case the trial Court is unable to conclude

the trial till the extended period, then the applicant can revive

his request for bail.

20. While parting with the order, it is necessary to

issue certain directions to the trial Court to protect the right

of under trial to have speedy trial. The trial Court shall fix a

specific time slot in each week for conducting the trial. The

trial Court shall make every endeavor to conclude the trial

within extended period. The State shall secure the presence

of the witnesses on each date, as directed by the trial Court.

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The State shall make prompt arrangement of incharge

prosecutor, in case the special prosecutor is in difficulty. The

State shall take a review of the remaining witnesses and

examine the witnesses whose evidence they deem it to be

necessary.

In that view of the matter, at this stage the

applicant is not entitled for bail, hence the following order.

ORDER

(i) Criminal Application is dismissed with liberty to the applicant/accused to approach this Court after 03.09.2021, if the trial is not concluded.

(ii) The Trial Court and State are directed to follow the directions contained in paragraph No. 20 of this order and to act accordingly.

JUDGE

Rgd.