Bombay High Court
Ajit Bhagwan Tiwde vs The State Of Maharashtra on 19 January, 2022
Bench: Prakash Deu Naik
BA-995-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 995 OF 2021
Ajit Bhagwan Tiwde
Aged about 26 years,
Residing at Plot No.11, Ruikar Colony,
Chandane Nagar, Kolhapur,
Dist. Kolhapur
(At present in judicial custody and lodged
at Kalamba Central Prison, Kolhapur) ...Applicant
Versus
State of Maharashtra ...Respondent
Mr. Nitin Sejpal a/w Ms. Akshata B. Desai, Advocate for the
Applicant.
Mr. Y. Y. Dabke, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
ORDER RESERVED ON : 29th SEPTEMBER, 2021
LISTED FOR CLARIFICATION ON : 7th JANUARY, 2022.
14th JANUARY, 2022.
ORDER PRONOUNCED ON : 19th JANUARY, 2022
ORDER :
1. This is an application for bail. The applicant is
arrested on 17th June, 2010 in connection with C.R. No. I - 85 of
2010, registered with Rajarampuri Police Station, Dist.
Kolhapur for offence punishable under Sections 302, 307, 147,
148, 149, 341, 323, 120-B and 427 of the Indian Penal Code (for
short "IPC").
Digitally
signed by
SAJAKALI
SAJAKALI LIYAKAT
LIYAKAT JAMADAR Sajakali Jamadar 1 of 36
JAMADAR Date:
2022.01.19
16:47:54
+0530
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2. During the pendency of investigation, the
provisions of Maharashtra Control of Organised Crime Act,
1999 ( for short "MCOC Act") were sought to be invoked and
prior approval was accorded on 31st August, 2010 for offences
under Sections 3(1)(i)(ii), 3(2) and 3(4) of MCOC Act, 1999.
Sanction was granted under Section 23(2) of MCOC Act, on 30 th
November, 2010. Pursuant to the sanction order, the charge-
sheet was filed against the accused.
3. Brief facts of the Prosecution's case are as under :
i. The Complainant Atul Patil is residing at Shahu Nagar,
Rajarampuri, Kolhapur.
ii. It is alleged by the Complainant that he was aware that
six months ago there was quarrel between Ajit Tiwde
(present Applicant), Nitin Vetal and Avdhut Salvi. Election of
Kolhapur Municipal Corporation was to be conducted in
October 2010.
iii. Avdhut Salvi had influence in area of Daulat Nagar.
iv. On 4th June 2010, the Complainant, Avdhut Salvi,
Mukund Palange and Javed Abdul Sayyed all residing at
Shahu Nagar left from Hotel Atithi at about 11.15 hours.
They were proceeding residences by Maruti Car No. MH-04
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LH-607. Vehicle was driven by Mukund Palange. Avdhut
Salvi was sitting next to him. Complainant and Javed Sayyed
were sitting on rear seat. It is alleged by the Complainant
that while their vehicle was passing through Sanmitra
Housing Society, one white colour TATA Sumo vehicle came
from behind and stopped in front of their car. Yogesh
Nalawade, Swapnil Jadhav, Nitin Vetal, Ajit Tiwde, Govind
Naidu and two unknown persons alighted from the said
TATA Sumo vehicle.
v. Yogesh Nalavade was armed with Koyata, applicant and
Nitin Vetal were armed with Sword. Swapnil Jadhav, Govind
Naidu and two unknown persons were armed with Iron
Pipes. The aforesaid persons caused damages to the vehicle
and started assaulting the Complainant and others. Javed
Sayyed somehow got out of the Car and ran away. He saw the
assault by hiding himself behind the tree. Accused forcibly
dragged the Complainant, Avdhut Salvi and Mukund out of
the vehicle. Ajit Tiwde assaulted by weapon and Nitin Vetal
assaulted Avdhut on his head. It is alleged that, Govind
Naidu assaulted Avdhut Salvi with Iron Pipe. Swapnil
Jadhav, Yogesh Nalawade, Mahesh Nalawade, Ganesh Shinde
and Amar Patil assaulted complainant on his head. Mukund
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was assaulted with iron pipe.
vi. Police Officers recorded Statement of complainant at CPR
Hospital on 5th June 2010. The said statement was treated
as First Information Report (for short "FIR") and offence
was registered vide F.I.R. No.I-85 of 2010 with Rajarampuri
Police Station.
vii. Complainant, Javed Sayyed, Mukund Palange and Govind
Padgaonkar are eye witnesses.
viii. Investigation was completed and charge-sheet was filed
on 11th December, 2010.
4. According to applicant, he had suffered cardiac
arrest, while in custody. He applied for bail on medical ground
before Special MCOC Court, Pune. He was admitted in Sasson
Hospital. By order dated 22nd November, 2013, the Special
Court directed that applicant be admitted in J.J. Hospital,
Mumbai. Coronary angioplasty was carried out on him. The
Special Court granted bail for three months by order dated 30 th
November, 2013 for treatment. The applicant took treatment
at private hospitals. He surrendered to jail on 2 nd March, 2014.
The applicant again preferred application for bail on medical
ground which was rejected by order dated 4 th December, 2014.
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The applicant had applied for bail before this Court on medical
ground viz. Bail Application No.834 of 2015 by order dated 29 th
July, 2015, it was observed that, the medical report of applicant
discloses that, he requires treatment for his heart ailment. The
medical treatment cannot be postponed and he has to be
treated at the earliest. The application for temporary bail was
allowed on medical ground for a short period i.e. one week
because as per the record, angioplasty is required and
applicant chose to get operated in private hospital at Kolhapur,
subject to condition that the applicant shall bear expenses of
escorts from police for one week. In the alternative it was
directed that, applicant can be shifted to J.J. Hospital for his
surgery. If the applicant is operated at J. J. Hospital, he cannot
be released on temporary bail. He will be taken to J.J.Hospital
as undertrial prisoner under escort of the state. Since the
expenses of police escort were not affordable to the applicant,
he preferred Criminal Application No.670 of 2015 for
modification of order dated 29th July, 2015. This Court by
order dated 14th August, 2015 directed that the applicant be
released on temporary bail from 21st August, 2015 to 14th
September, 2015 and he shall report Yerawada Cental Prison,
Pune on 14th September, 2015. The temporary bail is with
police escort. The applicant shall deposit escort charges. The
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police escort to bring back applicant to jail on 14 th September,
2015. If the charges of police escort are not deposited, he can
be operated at J.J. Hospital. The applicant could not deposit
escort charges.
5. The Applicant had earlier preferred Application for
Bail before the learned Special Judge in MCOC Special Case
No.4 of 2010. The said Application was rejected by order dated
3rd October, 2018.
6. The applicant had thereafter, preferred Criminal
Bail Application No.3384 of 2018 before this Court seeking bail.
It was urged that the prosecution has examined 17 witnesses.
The applicant is in custody for more than 8 years. The last
witness was examined on 30 th March, 2017. Thereafter, two
witnesses were examined in September, 2018. After examining
7 witnesses on 28th August, 2016, the prosecution had
submitted list of witnesses vide Exh.266 whereby prosecution
wanted to examine 90 witnesses. On 15 th March, 2017
prosecution submitted further list of 82 witnesses. The first
witness was examined on 16th February, 2016 after six years
and the 17th witness was examined on 30th March, 2017. The
said bail application was filed on 22nd December, 2018. This
Court noted that, applicant is in custody for more than 9 years.
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Application was rejected by order dated 11 th December, 2019.
While rejecting the application, the trial Court was directed to
conclude the trial within a period of six months. In the event
the trial is not concluded within the stipulated time, the
applicant was granted liberty to prefer fresh application for
bail.
7. Learned Advocate for applicant Mr. Sejpal
submitted as under :-
a) The applicant is in custody for more than 11 years. The
trial is proceeding at slow pace. The prosecution has
examined 21 witnesses. The charge-sheet provides list of
103 witnesses to be examined by prosecution.
b) There is inordinate delay in trial. The Hon'ble Supreme
and this Court has held in several decisions that
inordinate delay in trial violates Article 21 of the
Constitution of India.
c) The trial is not concluded even after directions to
expedite it given by this Hon'ble Court.
d) That there is absolutely no evidence of any nature
whatsoever to show that the Applicant is a member of
organized crime syndicate and therefore there is no scope
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to invoke charge under Section 3(4) of the MCOC Act,
1999.
e) The prosecution has submitted before the trial Court that
60 more witnesses are to be examined.
f) Co-accused Sanjay Waskar has been granted bail by this
Court by order dated 10th November, 2014.
g) Trial would not be concluded shortly. Prolonged custody
without trial violates Article 21 of the Constitution of
India.
8. Learned APP submitted that the previous
application for bail was rejected. No ground is made out to
grant bail. The trial could not be proceeded on account of
several reasons. He tendered Police report dated 20 th
September, 2021. The report mentions that, seven other cases
are registered against the applicant viz. C.R. No.67 of 2004
under Sections 394 & 395 of IPC registered with Gandhi Nagar
Police Station which has been closed after granting summary.
C.R. No.71 of 2006 registered with Rajarampuri Police Station
for offences under Sections 307, 147, 148 & 149 of IPC; C.R.
No.162 of 2007 registered with Miraj Police Station for offences
under Sections 392, 414, 34 of IPC; C.R. No.125 of 2007
registered with Rajarampuri Police Station for offences under
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Sections 326, 34 IPC; C.R. No.43 of 2008 registered with
Vishram Bag Police Station for offence under Section 302 of
IPC; C.R. No 24 of 2009 registered with Gandhi Nagar Police
Station for offences under Sections 3 & 25 of the Arms Act;
C.R. No.27 of 2014 registered with Shahupuri Police Station for
offence under Section 324 of IPC. The report further mentions
that the applicant may abscond. There is danger to life of
applicant from his opponents. He was involved in C.R. No.27 of
2014 registered with Shahupuri Police Station for offences
under Sections 324, 34 of IPC. There was attempt on life of
applicant on 18th February, 2011 and offence is registered
against the assailants vide C.R. No.31 of 2011 under Sections
307, 147 & 148 of IPC.
9. Learned Advocate for applicant tendered the
compilation of Judgment wherein applicant is acquitted in
cases registered against him. Learned Advocate for applicant
on instructions submitted that, except C.R. No.24 of 2009
registered with Gandhinagar Police Station under Sections
3 and 25 of the Arms Act and excluding present case, the
applicant has been acquitted in all the other cases. The
judgments tendered by Advocate for applicant relates to
C.R.No. 162 of 2007, C.R. No.43 of 2008 and C.R. No.27 of 2014.
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Learned Advocate for applicant has stated that the applicant
has been acquitted in all the cases registered against him
herein above. Thus excluding present case and one case
referred to above C.R. No.27 of 2014 relates to the offence
which was allegedly committed while on bail, is also resulted in
acquittal.
10. Learned Advocate for the Applicant relied upon the
following decisions.
i. Union of India Vs. K. A. Najeeb (2021) 3-SCC-713;
ii. Angela Harish Sontakke V/s. State of Maharashtra
delivered in Criminal Appeal No. 440 of 2016 passed by the
Hon'ble Supreme Court, vide order dated 4 th May, 2016
(2021) 3 SCC 723.
iii. Iqbal Ahmed Kabir Ahmed V/s. The State of
Maharashtra - Division Bench Judgment of Bombay High
Court in Criminal Appeal No.355 of 2021 decided on 13 th
August, 2021.
iv. Chintan Vidyasagar Upadhyay V/s. State of
Maharashtra passed by the Apex Court in Special Leave to
Appeal (Cri.) No.2543 of 2021 vide Order dated 17th
September, 2021.
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11. Undisputedly, the applicant is in custody from 17 th
June, 2010. He has undergone a period of about 11 years, 6
months in custody. In the previous application preferred by
the applicant it was urged that he is in custody for substantial
period of time and the trial is proceeding with snails pace. Vide
order dated 11th December, 2019 this Court took note to the fact
that the applicant is in custody for more than nine years.
Considering the fact that the prosecution has examined 19
witnesses. The trial Court was directed to conclude the trial
expeditiously within 6 months. Apparently only two more
witnesses were examined thereafter.
12. Right to speedy trial flows from right to life and
liberty under Article 21 of the Constitution of India.
13. In the case of Shaheen Welfare Association Vs.
Union of India and others (1996) 2 SCC 616, it was observed by
the Supreme Court that it was necessary to grant relief to those
persons who have been deprived of their personal liberty for a
considerable length of time without any prospect of trial being
concluded in the near future. Undoubtedly, the safety of the
community and of the nation needs to be safeguarded looking to
the nature of the offences these undertrials have been charged
with. But the ultimate justification for such deprivation of
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liberty pending trial can only be their being found guilty of the
offences for which they have been charged. If such a finding is
not likely to be arrived at within a reasonable time some relief
becomes necessary. The Court was dealing with the cases
registered under the provisions of TADA Act. The Court was
conscious of the fact that there is embargo for release of
prisoners prosecuted for the offences of TADA u/s.20(8) of the
said Act. The Supreme Court divided the undertrial prisoners
under TADA based on their role/hard core criminals into
various classes and by adopting pragmatic and just approach
relief was directed to be granted considering gravity of the
charges. The Courts were given discretion to consider
grant/refusal of bail based on antecedents and on conclusion
that there is no likelihood of harm to lives of complainant and
others in the event of their release.
14. In the case of Sanjay Chandra Vs. CBI AIR 2012 SC
830, it was observed that object of bail is to secure the
appearance of the accused person at his trial by reasonable
amount of bail. The object of bail is neither punitive nor
preventative. Deprivation of liberty must be considered a
punishment, unless it can be required to ensure that an
accused person will stand his trial when called upon. The
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courts owe more than verbal respect to the principle that
punishment begins after conviction, and that every man is
deemed to be innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that detention in
custody pending completion of trial could be a cause of great
hardship. Apart from the question of prevention being the
object of a refusal of bail, one must not lose sight of the fact that
any imprisonment before conviction has a substantial punitive
content and it would be improper for any Court to refuse bail as
a mark of disapproval of former conduct whether the accused
has been convicted for it or not or to refuse bail to an un-
convicted person for the purpose of giving him a taste of
imprisonment as a lesson. The grant or denial is regulated to a
large extent by the facts and circumstances of each particular
case. But at the same time, right to bail is not to be denied
merely because of the sentiments of the community against the
accused. The primary purposes of bail in a criminal case are to
relieve the accused of imprisonment, to relieve the State of the
burden of keeping him, pending the trial, and at the same time,
to keep the accused constructively in the custody of the Court,
whether before or after conviction, to assure that he will
submit to the jurisdiction of the Court and be in attendance
thereon whenever his presence is required.
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15. In the case of Thana Singh Vs. Central Bureau of
Narcotics (2013) 2 SCC 596, it was observed that the accused
was languishing in prison for more than 12 years and awaiting
his trial for the offences under the provisions of NDPS Act. He
was consistently denied bail. The maximum punishment for
the offence was 20 years and he remained in detention for the
period exceeding one half of the maximum period of
imprisonment. The Court issued directions on various issues,
which would be of assistance to conclude trials pending in
Courts expeditiously.
16. In the case of Hussain and another Vs. Union of
India (2017) 5 SCC 702, it was observed that the Supreme
Court has given directions in number of cases about speedy
conclusion of trials. Speedy trial is part of reasonable, fair and
just procedure guaranteed under Article 21 of Constitution of
India. Deprivation of personal liberty without ensuring speedy
trial is not consistent with Article 21. While deprivation of
personal liberty for some period may not be avoidable, period of
deprivation pending trial/appeal cannot be unduly long. While
a person in custody for a grave offence may not be released if
trial is delayed, trial has to be expedited or bail has to be
granted in such cases. The Court issued directions and one of
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them was, as a supplement to Section 436-A but consistent with
the spirit thereof, if an undertrial has completed period of
custody in excess of the sentence likely to be awarded if
conviction is recorded, such undertrial must be released on
personal bond. Such an assessment must be made by the Trial
Courts concerned from time to time. Timely delivery of justice
is a part of human rights. Denial of speedy justice is a threat to
public confidence in the administration of justice.
17. In Abdul Rehman Antulay Vs. R.R.Nayak (1992) 1-
SCC-225, while holding that speedy trial at all stages is part of
right under Article 21. In the case of Hussainara Khatoon Vs.
State of Bihar (1995)5-SCC-326, it was observed that general
orders for release of undertrials without reference to specific
fact situations in different cases may prove to be hazardous.
While there can be no doubt that undertrial prisoners should
not languish in jails on account of refusal to enlarge them on
bail, for want of their capacity to furnish bail, these are matters
to be dealt with on case to case basis keeping in mind guidelines
laid down by Court. Sympathy for undertrials who are in jail for
long time on account of the pendency of cases, has to be
balanced having regard to the impact of crime.
18. In Vivek Kumar Vs. State of U.P. (2000) 9-SCC-443,
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bail was granted to accused by Supreme Court on the ground
that it is quite a long period that he is in custody. In Babba Vs.
State of Maharashtra (2005)11-SCC-569, the accused was in
custody for a long period for offence under TADA Act. In
Paramjit Singh Vs. State (NCT of Delhi), the Supreme Court
granted bail. The accused was prosecuted under TADA Act.
Earlier the application was rejected and trial was expedited.
There was no progress in trial. In the case of Angela Sontakke
Vs. State of Maharashtra (supra), the Supreme Court granted
bail to the accused facing prosecution under UAPA Act on the
ground that accused is in custody for five years. In the case of
Chintan Vidyasagar Upadhyay (Supra), the Supreme Court
granted bail to the accused charged for the offence under
Section 302 of IPC which the trial was in progress, 28
witnesses were examined and 12 more were to be examined on
the ground that accused was in custody for 6 years.
19. The settled principle of law is that prolonged
custody affects fundamental rights under Article 21 of
Constitution of India. There is no debate that incarceration in
custody for long period without trial or completion of trial
affects personal liberty guaranteed under Article 21 of
Constitution of India.
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20. In relation to some offences under special
legislations, there are restrictions for granting bail. For
example, Section 37 of NDPS Act, Section 20(8) of TADA Act,
Section 21(4) of MCOC Act and Section 43-D(5) of Unlawful
Activities (Prevention) Act (UAPA Act). The present case
relates to offences under MCOC Act. Speedy trial is right of all
the undertrial prisoners. The decisions referred to herein
relates to grant of bail on the ground of prolonged custody in
different kind of offences including those wherein there are
statutory restrictions. In the recent decision in the case of
Union of India Vs. K.A.Najeeb (supra), the Hon'ble Supreme
Court was dealing with an appeal challenging bail granted to
the accused for the offence under UAPA Act and IPC. The
accused therein was granted bail by the High Court of Kerala,
for the offences under Sections 143, 147, 148, 120B, 341, 427,
323, 324, 326, 506, 201, 202, 153A, 212, 307, 149 IPC, u/s.31
of Explosive Substances Act and u/s.16, 18, 18B, 19 and 20 of
UAPA act, 1967. The accused had approached the High Court
for third time questioning the Special Court's order denying
bail. The High Court through the impugned order released the
accused on bail noting that trial is yet to begin, though the
respondent had been in custody for four years. Placing
emphasis on the mandate for an expeditious trial under the
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National Investigation Agency Act, 2008, the High Court held
that the undertrial-respondent could not be kept in custody for
too long when the trial was not likely to commence in the near
future, for not doing so would cause serious prejudice and
suffering to him. The accused had spent nearly five years and
five months in judicial custody. In the appeal before Supreme
Court, the contention of the appellants-Union of India was that
the High Court erred in granting bail without adverting to the
statutory rigours of Section 43-D(5) of UAPA Act. Relying upon
the judgment in the case of National Investigation Agency Vs.
Jahoor Ahmad Shah Watali (2019)5-SCC-1, it was highlighted
that bail proceedings under the special enactment were distinct
and the courts are duty bound to refuse bail where the suspect
is prima facie believed to be guilty. It was further contended
that in numerous prior rounds before the Special Court and the
High Court, there emerged enough reasons to believe that the
respondent was, prima facie, guilty of the accusations made
against him. The fact that the respondent had absconded for
years was pressed into aid as legitimate apprehension of his not
returning if set free. The NIA had filed an affidavit suggesting
to examine 276 witnesses and at the same time expecting to
conduct the trial on a day to day basis and complete it within a
year. The respondents, however, had contended that many co-
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accused had been acquitted and few had been convicted. They
were awarded sentence of not more than eight years. The
accused had suffered incarceration of five and half years
without trial having started. Relying on the decision in the case
of Shaheen Welfare Association (supra) and Hussain and
another (supra), it was argued that protracted incarceration
violates the respondent's right to speedy trial and access to
justice, in which case, Constitutional Courts could exercise
their powers to grant bail, regardless of limitations specified
under special enactments. In paragraph 10 it was observed
that it is a fact that the High Court in the said case has not
determined the likelihood of the respondent being guilty or not,
or whether rigours of Section 43-D(5) of UAPA Act are alien to
him. The High Court instead appears to have exercised its
power to grant bail owing to the long period of incarceration
and the unlikelihood of the trial being completed anytime in the
near future. The reasons assigned by the High Court are
apparently traceable back to Article 21 of Constitution, of
course without addressing the statutory embargo created by
Section 43-D(5) of UAPA Act. In paragraph 11 it is observed
that the High Court's view draws support from the batch of
decisions of Supreme Court including Shaheen Welfare
Association (supra) laying down that gross delay in disposal of
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such cases would justify the invocation of Article 21 of
Constitution and consequential necessity to release the
undertrial on bail. The Court quoted paragraph 10 of the
decision in the case of Shaheen Welfare Association (supra).
21. In paragraph 12 of the decision in Union of India Vs.
K.A.Najeeb, it was observed as follows :
"12. Even in the case of special legislations like the
Terrorist and Disruptive Activities (Prevention) Act,
1987 or the Narcotic Drugs and Psychotropic
Substances Act, 1985 (`the NDPS Act') which too have
somewhat rigorous conditions for grant of bail, this
Court in Paramjit Singh Vs. State (NCT of Delhi)
(1999)9-SCC-252, Babba Vs. State of Maharashtra
(2005)11-SCC-569 and Umarmia Vs. State of Gujarat
(2017)2-SCC-731 enlarged the accused on bail when
they had been in jail for an extended period of time with
little possibility of early completion of trial. The
constitutionality of harsh conditions for bail in such
special enactments, has thus been primarily justified on
the touchstone of speedy trials to ensure the protection
of innocent civilians."
22. The Supreme Court then referred to the orders
enlarging similarly situated accused under UAPA Act in Angela
Harish Sontakke Vs. State of Maharashtra (2021)3-SCC-723.
It was further observed that the Court in its earnest effort to
draw balance between the seriousness of the charges with the
period of custody suffered and the likely period within which
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the trial could be expected to be completed took note of the five
years incarceration and over 200 witnesses left to be
examined, and thus granted bail to the accused
notwithstanding Section 43-D(5) of UAPA Act. Reference was
made to the decisions in the case of Sagar Tatyaram Gorkhe Vs.
State of Maharashtra (SLP {Cri.} No.7947 of 2015, order
dtd.3.1.2017) wherein the accused under UAPA Act was
enlarged on bail since he was in custody for four years and
there were several witnesses to be unexamined. The Court
analyzed the factual aspects of the matter which were also
weighed in granting bail.
23. Observations in paragraphs 15 to 18 of the decision
in Union of India Vs. K.A.Najeeb needs to be looked upon which
are as follows:-
"15. This Court has clarified in numerous
judgments that the liberty guaranteed by Part III of the
Constitution would cover within its protective ambit
not only due procedure and fairness but also access to
justice and a speedy trial. In Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners) Vs.
Union of India, it was held that undertrials cannot
indefinitely be detained pending trial. Ideally, no
person ought to suffer adverse consequences of his acts
unless the same is established before a neutral arbiter.
However, owing to the practicalities of real life where to
secure an effective trial and to ameliorate the risk to
society in case a potential criminal is left at large
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pending trial, the courts are tasked with deciding
whether an individual ought to be released pending
trial or not. Once it is obvious that a timely trial would
not be possible and the accused has suffered
incarceration for a significant period of time, the courts
would ordinarily be obligated to enlarge them on bail.
16. As regards the judgment in NIA Vs. Zahoor
Ahmad Shah Watali, cited by the learned ASG, we find
that it dealt with an entirely different factual matrix.
In that case, the High Court had reappreciated the
entire evidence on record to overturn the Special
Court's conclusion of their being a prima facie case of
conviction and concomitant rejection of bail. The High
Court had practically conducted a mini-trial and
determined admissibility of certain evidence, which
exceeded the limited scope of a bail petition. This not
only was beyond the statutory mandate of a prima facie
assessment under Section 43-D(5), but it was
premature and possibly would have prejudiced the trial
itself. It was in these circumstances that this Court
intervened and cancelled the bail.
17. It is thus clear to us that the presence of
statutory restrictions like Section 43-D(5) of the UAPA
per se does not oust the ability of the constitutional
courts to grant bail on grounds of violation of Part III of
the Constitution. Indeed, both the restrictions under a
statute as well as the powers exercisable under
constitutional jurisdiction can be well harmonized.
Whereas at commencement of proceedings, the courts
are expected to appreciate the legislative policy against
grant of bail but the rigours of such provisions will melt
down where there is no likelihood of trial being
completed within a reasonable time and the period of
incarceration already undergone has exceeded a
substantial part of the prescribed sentence. Such an
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approach would safeguard against the possibility of
provisions like Section 43-D(5) of the UAPA being used
as the sole metric for denial of bail or for wholesale
breach of constitutional right to speedy trial.
18. Adverting to the case at hand, we are
conscious of the fact that the charges levelled against
the respondent are grave and a serious threat to
societal harmony. Had it been a case at the threshold,
we would have outrightly turned down the respondent's
prayer. However, keeping in mind the length of the
period spent by him in custody and the unlikelihood of
the trial being completed anytime soon, the High Court
appears to have been left with no other option except to
grant bail. An attempt has been made to strike a
balance between the appellant's right to lead evidence
of its choice and establish the charges beyond any
doubt and simultaneously the respondent's rights
guaranteed under Part III of our Constitution have been
well protected."
24. In paragraph 19 of the said decision, however, the
Supreme Court has noted that Section 43-D(5) of UAPA Act is
comparatively less stringent unlike Section 37 of NDPS Act.
However, in the earlier paragraph the Court has reiterated the
fact that even in cases where there are stringent provisions for
bail, on the ground of prolonged custody, bail has been granted.
Reference is made to several decisions of Apex Court.
25. Although it is not necessary to go deep into the
restrictions like Section 37 of NDPS Act, Section 20(8) of TADA
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Act and Section 21(4) of MCOC act, since the right to speedy
trial is supreme, it is required to be noted that above provisions
carrying embargo for grant of bail under TADA Act, NDPS Act
and MCOC Act are pari materia. It is true there is distinction in
embarto for bail, qua UAPA act. However, that should not be
hurdle in granting bail on the ground of infringement of Article
21 of Constitution of India. No decision has been brought to
notice of the Court wherein bail has been refused by Supreme
Court, in spite of accused being in prolonged custody on the
basis of such restrictions. It is also pertinent to note the extent
to which such rigours can be interpreted while granting bail. In
the case of Ranjitsingh Sharma Vs. State of Maharashtra and
another 2005-ALL.MR (Cri)-1538-(SC), it is observed in quoted
paragraphs as follows :
"28. Section 21 provides for modified application of
certain provisions of the Code of Criminal Procedure,
sub-section (4) whereof is as under :
(4) Notwithstanding anything contained in the
Code, no person accused of an offence punishable under
this Act shall, if in custody, be released on bail or on his
own bond, unless -
(a) the Public Prosecutor has been given an
opportunity to oppose the application of such release;
and
(b) where the Public Prosecutor opposes the
application, the Court is satisfied that there are
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reasonable grounds for believing that he is not guilty of
such offence and that he is not likely to commit any
offence while on bail."
45. The Act is deterrent in nature. It provides for
deterrent punishment. It envisages three to ten years
of imprisonment and may extend to life imprisonment.
Death penalty can also be imposed if somebody commits
a murder. Similarly, fines ranging between three to ten
lakhs can be imposed.
46. Presumption of innocence is a human right
(See Narendra Singh and another Vs. State of MP
(2004)10-SCC-699:2004 ALL MR (Cri)2557 (SC).
Para31). Article 21 in view of its expansive meaning
not only protects life and liberty but also envisages a
fair procedure. Liberty of a person should not ordinarily
be interfered with unless there exist cogent grounds
therefor. Sub-section (4) of Section 21 must be
interpreted keeping in view the aforementioned
salutary principles. Giving an opportunity to the public
prosecutor to oppose an application for release of an
accused appears to be reasonable restriction but Clause
(b) of sub-section (4) of Section 21 must be given a
proper meaning.
47. Does this statute require that before a person
is released on bail, the Court, albeit prima facie, must
come to the conclusion that he is not guilty of such
offence ? Is it necessary for the Court to record such a
finding ? Would there be any machinery available to the
Court to ascertain that once the accused is enlarged on
bail, he would not commit any offence whatsoever ?
48. Such findings are required to be recorded only
for the purpose of arriving at an objective finding on the
basis of materials on records only for grant of bail and
for no other purpose.
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49. We are furthermore of the opinion that the
restrictions on the power of the Court to grant bail
should not be pushed too far. If the Court, having regard
to the materials brought on record, is satisfied that in all
probability he may not be ultimately convicted, an order
granting bail may be passed. The satisfaction of the
Court as regards his likelihood of not committing an
offence while on bail must be construed to mean an
offence under the Act and not any offence whatsoever
be it a minor or major offence. If such an expansive
meaning is given, even likelihood of commission of an
offence under Section 279 of the Indian Penal Code may
debar the Court from releasing the accused on bail. A
statute, it is trite, should not be interpreted in such a
manner as would lead to absurdity. What would further
be necessary on the part of the Court is to see the
culpability of the accused and his involvement in the
commission of an organized crime either directly or
indirectly. The Court at the time of considering the
application for grant of bail shall consider the question
from the angle as to whether he was possessed of the
requisite mens rea. Every little omission or
commission, negligence or dereliction may not lead to a
possibility of his having culpability in the matter which
is not the sine qua non for attracting the provisions of
MCOCA. A person in a given situation may not do that
which he ought to have done. The Court may in a
situation of this nature keep in mind broad principles of
law that some acts of omission and commission on the
part of a public servant may attract disciplinary
proceedings but may not attract a penal provision.
55. The wording of Section 21(4), in our opinion,
does not lead to the conclusion that the Court must
arrive at a positive finding that the applicant for bail
has not committed an offence under the Act. If such a
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construction is placed, the court intending to grant bail
must arrive at a finding that the applicant has not
committed such an offence. In such an event, it will be
impossible for the prosecution to obtain a judgment of
conviction of the applicant. Such cannot be the
intention of the Legislature. Section 21(4) of MCOCA,
therefore, must be construed reasonably. It must be so
construed that the Court is able to maintain a delicate
balance between a judgment of acquittal and conviction
and an order granting bail much before commencement
of trial. Similarly, the Court will be required to record a
finding as to the possibility of his committing a crime
after grant of bail. However, such an offence in future
must be an offence under the Act and not any other
offence. Since it is difficult to predict the future conduct
of an accused, the court must necessarily consider this
aspect of the matter having regard to the antecedents of
the accused, his propensities and the nature and
manner in which he is alleged to have committed the
offence."
26. Thus, embargo under the provisions of Special Acts
shall not be an impediment in grant of bail by this Court on the
ground of incarceration of accused in custody for a long time,
more particularly in the light of various decisions of Supreme
Court.
27. The Division Bench in a recent decision delivered in
Criminal Appeal No.389 of 2020 in the case of NIA Vs. Areeb
Ejaz Majeed (supra) has dealt with a similar issue. The
respondent therein was prosecuted by NIA under the
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provisions of UAPA Act. He was arrested on 29th November
2014. He had preferred applications for bail which were
rejected. Subsequently he was granted bail by NIA Court. While
passing the order granting bail the Special Court proceeded on
two aspects, firstly that the pace of the trial was slow and there
was likelihood that there was long time for examining the
remaining witnesses. The NIA Court concluded that since law
laid down by Hon'ble Supreme Court in Shaheen Welfare
Association (supra) apply in favour of accused, the bail
application should be granted on the aspect of the matter. The
other aspect which was considered by the NIA Court was that
the witnesses were examined before the said Court and prima
facie case is not made out. The Court, therefore, held that even
taking recourse to Section 43-D(5) of NIA Act, the accused is
entitled to be released on bail. Other decisions of the Supreme
Court were placed for consideration before the Court. The
accused was in custody for a period of six years. About 107
witnesses were remained to be examined. The NIA Court
considered the decisions in the case of Union of India Vs.
K.A.Najeeb (supra) and Shaheen Welfare Association (supra).
Bail was granted on the ground that accused is in jail for six
years and also on the basis of evidence adduced before Trial
Court. Previous applications were rejected on merits and only
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on the basis of evidence which was recorded subsequently the
NIA Court came to the conclusion with regards to the prima
facie case against accused when the accusations had rendered
twice by rejecting previous applications for bail. The Division
Bench accepted the contention of appellant that in view of
previous rejection of bail application, on the basis of evidence
recorded by the Court, the Court could not have granted bail on
merits. The Division Bench also observed that case of the
accused on second aspect of the matter appears to be on firm
footing. In paragraph 29 it is observed as follows :
"29. 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 High Court
have consistently held that undertrials cannot be
allowed to languish for years together in jail while the
trial proceeds at the 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."
In paragraph 31 the Division Bench has observed that :
"In cases where the accused are facing charges under
special Acts like UAPA Act, parameters for grant of bail
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are more stringent as a consequence of which the
undertrials in such cases remain in custody while the
trials are pending. This is because they are accused in
serious and heinous offences and their rights are
required to be balanced with the rights of the society
and citizens at large. The Courts then are required to
perform a balancing act, so as to ensure that a golden
mean is reached between the rights of the individual
and those of the society at large."
In paragraph 32 the Court then referred to the decision
of Supreme Court in the case of Shaheen Welfare
Association (supra) wherein it was held that long time
taken by courts in disposal of the cases would justify
invoking Article 21 of Constitution of India to issue
directions to release the undertrials on bail. By
analyzing the facts of the case and considering the fact
that accused was in custody for a substantial period of
time, it was held that it cannot be said that the NIA
Court committed an error in granting bail to the
accused. The Court did not distinguish the order
granting bail on the basis that the effect of rigours under
Section 43-D(5) of UAPA Act is lesser than other Special
Laws.
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28. In the case of Union of India Vs. K.A.Najeeb (supra),
the Supreme Court has considered the stringent conditions for
grant of bail under Section 43-D(5) of UAPA Act. In the said
case the accused was in custody for the offences under UAPA
Act. In the case of The NIA Vs. Areeb Ejaz Majeed (supra), the
accused was tried for the offences under UAPA Act. In both the
cases, the accused was granted bail by High Court and NIA
Court on the ground that accused was in custody without trial
for long period of time, which affected his right under Article 21
of Constitution of India. Both the orders were confirmed by the
Appellate Courts.
29. The division bench of this Court in the case of Iqbal
Ahmed Kabir Ahmed (Supra) granted bail to the accused
charged for offences under the UAPA Act. It was contented that
the appellant was in custody for five years and it is very
unlikely that the trial would be concluded in reasonable time.
On this count of prolonged incarceration the accused deserves
to be released on bail, lest the constitutional guarantee of right
to life and personal liberty would be jeopardized. It was
observed that, right of accused to speedy trial, which flows from
the right to life, under Article 21 of the Constitution of India,
comes to the fore. This right to speedy trial, in the prosecutions
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where the Special enactments restrict the powers of the Court
to grant bail, faces a competing claim of the interest of society
and security of state. In such prosecutions, if the trials are not
concluded expeditiously, the procedure which deprives the
personal liberty for an inordinate period is then put to the test
of fairness and reasonableness, envisaged by Article 21 of the
constitution where the period of incarceration awaiting
adjudication of guilt become unduly long, the right to life and
the protection of fair and reasonable procedure, envisaged by
Article 21 are jeopardized. The Supreme Court has exposited
the legal position that the statutory restriction like Section
43-D (5) of UAPA per se does not operate as an impediment on
the powers of the constitutional Court to grant bail, if a case of
infringement of the constitutional guarantee of protection of
life and personal liberty is made out and the rigorous of such
statutory restrictions would melt down in the fact of long
incarceration of an under trial prisoner. In such a situation,
the prayer for bail on the count of prolonged delay in conclusion
of trial is required to be appreciated in the backdrop of period
of incarceration, the prospect of completion of trial in a
reasonable time, the gravity of the charge and attendant
circumstances.
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30. In the case of Supreme Court Legal Aid Committee
(supra), the Court had directed proviso for grant of bail that
benefit of direction in clause (ii) and (iii) shall not be available
to those persons who are in the opinion of the Trial Court for
the reasons to be stated in writing likely to tamper with
evidence or influence the prosecution witnesses. In the case of
Shaheen Welfare Association (supra), it was cautioned that bail
can be granted unless Court comes to conclusion that their
antecedents are such that releasing them may be harmful to
the lives of complainant, family members of complainant or
witnesses. In the case of Hussainara Khatoon, it was observed
that sympathy for undertrials who are in jail for long terms on
account of pendency of cases, has to be balanced having regard
to impact of crime. The Division Bench of this Court, in the case
of NIA Vs. Areeb Majeed has observed that in cases under
Special Acts, parameters for grant of bail are more stringent
and they remain in custody. The courts are required to perform
balancing act, so as to reach a golden mean in between the
rights of an individual and those of society at large. The court
has to look into those aspects while granting bail even on the
ground that the undertrial is in prolonged custody.
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31. In the light of observations of Supreme Court and
this Court as stated above, the Court has to perform balancing
act. The sympathy for undertrials who are in custody has to be
balanced with gravity/magnitude of crime, likelihood of threat
to witnesses. The analysis may be based on facts of each case.
32. Applying the principal enunciated herein above and
the facts of this case, it is required to be noted that the
applicant is in custody for more than 11 years and 6 months. It
is not clear as to when the trial would come to an end. The
prosecution has so far examined 21 witnesses. There is
proposed list of 62 more witnesses. The future picture is
unclear as to how long it would take to conclude the trial. While
the applicant had preferred previous application for bail, this
Court thought it fit to expedite the trial instead of granting bail.
The trial Court was directed to conclude the trial within a
period of six months vide order dated 11 th December, 2019. At
that time 19 witnesses were examined. Two years down the
line, two more witnesses were examined. 11 and half years is a
long period. There is passage of about two years from the
issuance of the said directions and apparently only two
witnesses are examined. Even before the declaration of lock-
down, there was no speed in the trial. The applicant cannot be
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incarcerated in custody for indefinite period. Prolonged custody
infringes Article-21 of the Constitution of India. Except
apprehension, there is no material that the applicant would
abscond or tamper with the evidence. Co-accused Sanjay
Bhairu Waskar has been granted bail by this Court vide order
dated 10th November, 2014. The said accused was involved in
other cases. Apart from merits of the case, this Court had
observed that, the said accused is in custody from 13 th June,
2010, for a period of about 4 and half years. Hence, case for
grant of bail is made out.
33. Hence, I pass the following order :
ORDER
i. Criminal Bail Application No. 995 of 2021 is
allowed;
ii. The applicant is directed to be released on bail in
connection with C.R. No. I - 85 of 2010, registered with
Rajarampuri Police Station, Dist. Kolhapur on executing
P.R. Bond in the sum of Rs.1,00,000/- (Rupees One Lakh
Only) with one or more sureties in the like amount;
iii. The applicant shall stay out of the Jurisdiction of
Rajarampuri Police Station, till further orders.
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iv. The applicant shall provide the details of place
where he would reside after release on bail to the trial
Court and concerned Police Station.
v. The applicant shall not leave India without prior
permission of the Special Court, under the MCOC Act;
vi. The applicant shall not tamper with the evidence;
vii. In the event, the applicant has passport, the same
shall be deposited with the trial Court. If he do not
possess any passport, he shall file an affidavit in that
regard before the trial Court;
viii. The applicant shall attend trial Court regularly on
the date of hearing unless exempted by the Court.
ix. Bail Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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