Bombay High Court
Sameer S/O Sudhir Joshi vs State Of Mah. Thr. Pso Ranapratap ... on 24 September, 2021
Bench: V. G. Joshi
Order 2409aba399.20
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION [BA] NO. 399 OF 2020.
Sameer Sudhir Joshi.
-VERSUS-
The State of Maharashtra, through P.S. Ranapratap Nagar, Nagpur.
CRIMINAL APPLICATION [BA] NO. 1334 OF 2020.
Sameer Sudhir Joshi.
-VERSUS-
The State of Maharashtra, through P.S. Khadan, Akola.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
S/Shri A.M. Ghare and S.V. Sirpurkar, Advocates for the
Applicant.
Shri S.A. Ashirgade, A.P.P. for the Non-applicant.
CORAM : VINAY JOSHI, J.
DATE : SEPTEMBER 24, 2021.
Heard.
2. Both applications are filed by one and same
applicant/accused namely Sameer Sudhir Joshi, seeking
regular bail on the same ground of delay in holding
trial. Hence, for the sake of convenience, they are
heard and taken up together for disposal.
3. Criminal Application No. 399/2020, arise
out of Crime No.348/2013 registered with Ranapratap
Nagar Police Station, Nagpur for the offence punishable
Order 2409aba399.20
under Sections 406, 409, 420, 421, 120-B read with
Section 34 of the Indian Penal Code, under Section 3 of
the Maharashtra Protection of Interest of Depositors Act
(MPID) and Section 45-iA, 45-S punishable under
Section 58-B of the Reserve Bank of India Act, 1934,
which is later on numbered as MPID Case No. 3/2013,
pending on the file of Special Judge, Nagpur.
Criminal Application No.1334/2020 arise
out of Crime No.219/2013 registered with Khadan
Police Station, Akola for the offence punishable under
Sections 406, 409, 420, 465, 467, 468, 471, 472, 201
120-B read with Section 34 of the Indian Penal Code
and under Section 3 of the Maharashtra Protection of
Interest of Depositors Act (MPID), which is later on
numbered as MPID Case No. 73/2014, pending on the
file of Special Judge, Akola.
4. The applicant is seeking bail purely on the
ground of delay in holding trial, as there is no
likelihood of concluding the said trial in near future. It
is submitted that the applicant came to be arrested on
13.10.2013, and for near about last 8 years, he suffered
pre-trial detention. It is not in dispute that for near
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about last 8 years, the applicant/accused is languishing
in jail. In Crime No.399/2020, the applicant had twice
approached this Court for bail, however, both
applications were rejected vide order dated 26.04.2017
and 20.02.2018. While rejecting the second bail
application, this Court has expedited the trial with a
direction to decide the same within a period of one
year i.e. upto 19.02.2019, as per the report of the trial
Court dated 04.09.2021. The said period was extended
from time to time, and now the last extension would
expire on 23.08.2022. The report further indicates that
so far the prosecution has examined 56 witnesses, and
48 witnesses are still remained to be examined. It is
also informed that the charge sheet consists of 70000
to 80000 pages. The learned A.P.P. upon instructions,
filed a Pursis dated 14.09.2021, informing that the
prosecution is now intending to examine 19 witnesses
only.
5. In Crime No.219/2013, the applicant has
earlier applied for pre-arrest bail to this Court which
was rejected vide order dated 22.12.2014. In said case,
this Court has not expedited the trial. The report of
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Special Judge dated 03.09.2021 indicates that till date
not a single witness has been examined in the case.
The learned A.P.P. has filed a Pursis dated 18.09.2021,
informing that the prosecution is prosecution is
intending to examine 90 witnesses in said case.
6. As regards the MPID Case No.3/2013
(Criminal Application No.399/2020), is concerned, till
date 56 witnesses have been examined as yet, and
some more witnesses remained to be examined.
Record demonstrate that this Court has for the first
time directed to complete the trial within one year
20.02.2018, and the said time was extended from time
to time and now it is extended upto 23.08.2022. It
conveys that though the matter is time bound, the trial
Court is not able to conclude it within the stipulated
period, and going on seeking extension on extensions
for one or the other reason. It is canvassed that taking
into account the history of the proceedings, absolutely
there is no likelihood of concluding the trial in near
future. In view of that, there is no manner of doubt
that it will take few more years to conclude the trial.
7. Learned A.P.P. while resisting bail
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applications would submit that the trial in Special Case
No.3/2013 is at the verge of completion, since only 19
witnesses remained to be examined. It is required to
be noted that the report of Special Judge indicates that
as per list of witnesses, 48 witnesses have remained to
be examined. Though the prosecution has filed a Pursis
that they would examine only 19 witnesses, however,
the possibility of examining more witnesses cannot be
ruled out in view of vast magnitude of the case.
Pertinent to note that the charge sheet is running into
70000 to 80000 pages, meaning thereby every
document is required to be referred to the witness,
which would consume time. Besides that in said case
there are 26 accused, out of which 25 were already
enlarged on bail. Each witness is to be cross-examined
by different Advocates engaged by various accused. It is
apparent that even after completion of recording of
evidence, still the trial would take few months to
prepare and record statements of accused under
Section 313 of the Code of Criminal Procedure, to hear
final arguments and to deliver judgment. Having
regard to all these facts, it cannot be said that the trial
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Court would be in a position to conclude the case in
few months.
8. It is argued that besides Section 409 of the
Indian Penal Code, the applicant has undergone
maximum sentence prescribed for rest of the offences.
It is urged that even if the offence punishable under
Section 409 has been proved, still there is no minimum
rider of imposing punishment for said offence. While
pressing bail on the point of delay, the learned Counsel
appearing for the applicant has relied on certain
judgments wherein the Supreme Court has ruled that
delay in holding trial touches to the life and personal
liberty of the accused, which is violation of Article 21 of
the Constitution of India.
9. The applicant has already undergone pre-
trial detention for near about 8 years. Moreover, one
cannot vouch as to when the trial of part heard MPID
case No.3/2013 would be concluded. Moreover,
another Special Case No.73/2013, pending at Akola
Court has not even commenced.
10. While claiming bail, learned Counsel for
the applicant has relied on the decision in Special Leave
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to Appeal (Cri) No. 4057/2021 dated 23.09.2021
(Vinay Jaidev Wasankar .vrs. State of Maharashtra).
It is argued that in the said similar case, the Supreme
Court after considering long incarceration of the
accused has released him on bail. In ordr to bring
factual aspect of the said case on record, my attention
is invited to the facts as contained in Criminal Bail
Application No.939/2019 filed before this Court
(Nagpur Bench), against which the said Special Leave
to Appeal was filed. In said case on similar facts, the
Supreme Court by considering that the accused therein
charged for similar offences was in custody for past 7
years, has released him on bail. The case at hand
stands on some what similar footing. In said case, on
similar premise the Supreme Court due to long
incarceration took a view that it is a fit case to grant
bail. In case at hand, the applicant equally was charged
for similar offences under I.P.C and M.P.I.D. having
somewhat similar volume of defalcated amount.
11. On the point of delay in trial, it is
straneously argued that since the accused is languishing
in jail for 8 years, the Court shall take note of the said
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fact especially with reference that yet one of the trial
has even not commenced. The Supreme Court in
catena of decisions has recognized the right of accused
for fair and speedy trial, as a valuable right under
Article 21 of the Constitution of India. In this regard,
profitable reference can be made to the observations of
this Court in case of National Investigation Agency .vrs.
Areeb Ejaz Majeed ( 2021 SCC Online Bom 239), of
which paragraph no.29 reads as under :
"29. But, the case of the respondent on the second
aspect of the matter appears to be on firm footing.
There is no dispute about the fact that right to fair and
speedy trial is a right recognized under Article 21 of
the Constitution of India. The Hon'ble Supreme Court
and various High Courts, including this court, have
consistently held that the undertrials cannot be allowed
to languish for years together in jail, while the trials
proceed at snail's pace. If ultimately, the accused are
found to be not guilty, the number of years, months
and days spent by such accused as undertrials in jail,
can never be given back to them and this is certainly a
violation of their valuable right under Article 21 of the
Constitution of India. Therefore, right to speedy trial
has been recognized and reaffirmed consistently by the
judgments of the superior courts."
12. On the touchstone of above legal principles,
it is to be remembered that already accused is in jail for
8 years. There is no hope of completing the trial in
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near future, apart from the fact that one of the case has
even not commenced. In the circumstances, further
detention of applicant/accused is wholly unjustifiable.
In the circumstances, this is a case for grant of bail,
hence, the following order.
(i) Criminal Applications are allowed and
disposed of.
(ii) The applicant/accused Sameer Sudhir
Joshi is released on bail in connection
with Crime No.348/2013 registered
with Ranapratap Nagar Police Station,
Nagpur for the offence punishable
under Sections 406, 409, 420, 421,
120-B read with Section 34 of the
Indian Penal Code, under Section 3 of
the Maharashtra Protection of Interest
of Depositors Act (MPID) and Section
45-iA, 45-S punishable under Section
58-B of the Reserve Bank of India Act,
1934, (MPID Case No. 3/2013,
pending on the file of Special Judge,
Nagpur), as well as in connection with
Crime No.219/2013 registered with
Khadan Police Station, Akola for the
offence punishable under Sections
406, 409, 420, 465, 467, 468, 471,
472, 201 120-B read with Section 34
of the Indian Penal Code and under
Section 3 of the Maharashtra
Protection of Interest of Depositors
Act, (MPID Case No. 73/2014,
pending on the file of Special Judge,
Akola), on his furnishing P.R. Bond of
Rs. 1,00,000/- in each crime, with one
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surety in the like amount.
(iii) The applicant/accused shall not
directly or indirectly make any
inducement, threat or promise to any
person acquainted with the facts of the
case, as also shall not tamper with the
evidence.
(iv) The applicant/accused shall not
abscond and provide his residential
address and cell number to concerned
Investigating Officer and shall not
change his place of residence without
prior intimation to the concerned
Investigating Officer.
(v) The applicant/accused shall surrender
his passport to the investigating officer
within one week of his release, and
shall not leave the Country without
prior permission of the trial Court.
(vi) The applicant/accused shall attend
each and every date of hearing of the
proceedings before the concerned
Court.
(vii) Breach of any of the above condition,
would give liberty to the prosecution
to move the Court for cancellation of
bail.
JUDGE
Rgd.
