Bombay High Court
Kiran Nirgun Bodke vs The State Of Maharashtra on 27 April, 2023
Bench: Bharati Dangre
2023:BHC-AS:12928
(4)BA-985-2022.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.985 OF 2022
Kiran Nirgun Bodke ] .. Applicant
vs.
State of Maharashtra ] .. Respondent
Mr.Ashok Mundargi, Senior Counsel, h/f Rohan Hogle for the Applicant.
Ms.P.N. Dabholkar, APP for the State.
CORAM : BHARATI DANGRE, J
DATE : 27th April, 2023.
P.C.
1] On 26.07.2021, on examining the material compiled in the
charge-sheet, which charged the accused in CR No.600/2019, under
Section 302, 143, 147, 149 of the Indian Penal Code, I refused to
entertain the Application. Upon such disinclination being expressed,
the learned counsel for the Applicant had withdrawn the Application.
2] This is the second time, when the Applicant has again knocked
the doors of this Court and the learned senior counsel Mr.Mundargi
would fairly concede to the fact that the Court had considered the
merits of the Bail Application and weighing the most relevant factor, the
gravity of the accusations, expressed its disinclination to release him on
bail. The learned senior Counsel Mr. Mundargi, by placing on record
the order sheet of Sessions Case No.1035/2019 would submit that
there is no progress at all in the case and it is almost four years, but
even the charge has not been framed.
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3] The charge-sheet placed on record reveal that the prosecution
has cited 44 witnesses and one can just speculate the time which
would be consumed in concluding the trial. When the order sheet
placed before me is perused and particularly after the period of lock
down, it is noticed that, from 03.02.2021, at least 41 times the matter is
fixed for framing charge, but the accused is not produced.
4] It is shocking to note that, a person who is incarcerated as under-
trial, is not produced before the Court, despite listing of case before the
Court on almost 40-50 occasions. The offence against the Applicant is
of committing murder and prima-faice the charge-sheet has compiled
material against him, which may preferably sufficient enough to indict
him for the charge. However, the question that arise for consideration
is that how long shall we keep the accused incarcerated as under-trial
prisoner.
5] In the case of Union of India vs. K.A. Najeeb, (2021)3 SSC
713, the relevant observations of their Lordship read thus :
"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 f Prisoners) v. Union of India15, 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 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."
It may be true that the charges levelled against the Appellant are
grave and the prosecution may be able to secure his conviction for
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committing such a grave offence, however, since down the line for
years from his arrest, the charge is yet to be framed with 44-45
witnesses being cited by the prosecution, he deserve his freedom since
the trial has not yet commenced.
While striking balance between the gravity of accusation and
right to a fair trial, it is necessary to give importance to the liberty
available to every citizen by Article 21 and though he may undergo trial
and face conviction on its conclusion, but he cannot be indefinitely kept
incarcerated awaiting the trial.
6] As stated above, on earlier occasion I had rejected the
application on merits, on the second count accepting that the Applicant
is facing serious charge of murder and there is sufficient evidence, I
deem it appropriate to secure him his liberty only on the ground of
abnormal delay in framing of the charge.
With almost 42-44 witnesses to be examined, one cannot
speculate how much further time the trial would take for its conclusion.
But till date, it would be traversity of justice keeping him further
incarcerated. He may undergo sentence on being convicted by the
competent Court and appropriate penalty may be imposed upon him,
but pending the trial he deserve liberty.
Though I am inclined to release him on bail, I deem it
appropriate to impose strict condition of he not entering the jurisdiction
of Pune city till the trial commences, except for marking his attendance
in Talegaon Dabhade Police Station and for attending the dates of trial
He shall not in any way influence the prosecution witnesses and if any
such incident is reported, the prosecution would be at liberty to request
for curtailing the liberty.
Hence, following order :
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ORDER
(a) Application is allowed.
(b) Applicant - Kiran Nirgun Bodke shall be released on
bail in connection with Sessions Case No.1035/2019,
registered at Talegaon Dabhade Police Station on furnishing
P.R. bond to the extent of Rs.25,000/- with one or two
sureties of the like amount.
(c) The applicant shall report to the concerned Police
Station on first Saturday of every month between 2.00 p.m.
to 5.00 p.m.
(d) The Applicant shall regularly attend trial, on every
date, unless exempted.
(e) The Applicant shall not enter the jurisdiction of Pune
city till the trial commences, except for marking his
attendance in Talegaon Dabhade Police Station, as directed
above, and for attending the trial Court, if directed.
(f) The applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
facts of case so as to dissuade him from disclosing the facts
to Court or any Police Officer and should not tamper with
evidence.
[BHARATI DANGRE, J]
