Naresh Harishchandra Mali vs The State Of Maharashtra
2023 Latest Caselaw 7461 Bom

2023:BHC-AS:21023

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION
                                 BAIL APPLICATION NO.3858 OF 2022

            Naresh Harischandra Mali                               ...        Applicant
                    versus
            The State of Maharashtra,
            at the instance of Revdanda Police Station             ...        Respondent

            Ms. Mayuri D. Hatle with Mr. Mandar Surve for Applicant.
            Mr. P.H.Gaikwad, APP for State.
            Mr. Prashant Raut, for Org. Complainant.

                                    CORAM        :    N.J.JAMADAR, J.

                                    DATE         :    27 JULY 2023

            P.C. :

1. The Applicant has preferred this second bail application to enlarge him

on bail.

2. The Applicant, along-with eight co-accused, has been arraigned in

C.R.No.48 of 2018 registered with Revdanda Police Station for the offences

punishable under Sections 302, 307, 324. 323, 143, 147, 148, 149 of Indian Penal Code,

1860 read with Section 37(1) (3) of the Maharashtra Police Act, 1951, for having

committed murder of Prakash Gaikar, deceased, attempted to commit murder of

Umesh Patil, the first informant, and Dharma Gaikar, injured and hurt to other injured

in prosecution of the common object of the unlawful assembly.

3. The gravamen of indictment against the Applicant and the co-accused is

that on 7 June 2018 the applicant had initially assaulted the first information by means

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of a wooden log and when he and his maternal uncle Prakash Gaikar, deceased, grand

father Dharma Gaikar, injured, and others went to question the accused, the applicant

gave a blow by means of wooden log on the head of the deceased. The Applicant also

assaulted the first informant and injured Dharma Gaikar. When the deceased and the

injured were being shifted to the hospital by Vasant Bhure, the Applicant and the co-

accused pulled Vasant Bhure out of the car and assaulted him as well.

4. The Applicant had preferred Criminal Bail Application No.540 of 2020.

By an order dated 30 October 2021 this Court had rejected the Bail Application as

specific role has been attributed to the Applicant. In the intervening period, the

Applicant again preferred an application for bail before the learned Sessions Judge and

the same came to be rejected. Hence, this second bail application.

5. I have heard Ms. Hatle, learned Counsel for the Applicant, Mr.

P.H.Gaikwad, APP for the State and Mr. Prashant Raut, learned Counsel for the first

informant at some length.

6. Ms. Hatle, learned Counsel for the Applicant, submitted that even if the

prosecution case is taken at par, it cannot be said that the assault attributed to the

Applicant was pre-mediated. In any event, there was no intention to kill the deceased.

In fact, it was the informant party who had charged upon the Applicant. Secondly,

Ms. Hatle would urge that the prolonged period of incarceration of more than five

years without even a charge having been framed, renders further detention of the

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Applicant as an under-trial prisoner, is wholly unwarranted. Rest of the accused are on

bail. The prosecution proposes to examine 36 witnesses. It is very unlikely that the

trial can be commenced and completed in near future. Therefore, the prolonged

period of incarceration, without the prospect of trial, in itself, furnishes a ground for

bail.

7. To lend support to this submission, Ms. Hatle placed reliance on the

orders of the Supreme Court in the cases of Neeraj V/s. The State of Uttar

Pradesh1, Chintan Vidyasagar Upadhyay V/s. The State of Maharashtra 2 Indrani

Pratim Mukerjea V/s. CBI and Anr.3, and the orders of this Court in Rushikesh

Ramdas Patil V/s. The State of Maharashtra4 and Rohit Dinesh Salekar V/s. The

State of Maharashtra5

8. In opposition to this, Mr. Gaikwad, learned APP submitted that there is

no change in the circumstances since the rejection of the first bail application by this

Court. Since this Court has rejected the bail application on merits, there is no

justifiable ground to again entertain the application for bail. Secondly, on the aspect of

the delay in the commencement of the trial, banking upon the Roznama of the sessions

case, the learned APP would submit that the delay is primarily attributable to the

dilatory tactics adopted by the Applicant and the co-accused. The Applicant preferred

1 Spl. Leave to Appeal (Cri.) No.11450 of 2022 dt. 16 Jan. 2023 2 Spl. Leave to Appeal (Cri.) No.2543 of 2021 dt. 17 Sept. 2021 3 Spl. Leave to Appeal (Cri.) No.1627 of 2022 dt. 18 May 2022 4 Cri. B.A. 742 of 2023 dt. 28 June 2023 5 Cri. B.A. 1295 of 2022 dt. 28 Feb. 2023

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bail application and sought time to advance submissions. The Co-accused filed

discharge applications and did not prosecute those applications diligently.

Resultantly, the learned Judge could not frame charge, though the prosecution has

tendered draft charge. The learned APP submitted that as all the discharge

applications have now been decided, this Court may direct the Sessions Court to

expeditiously conclude the trial within a stipulated period.

9. On the merits of the matter, it would be suffice to note that in the order

dated 30 October 2021 in the earlier bail application which was passed after

considering the charge-sheet and the documents annexed therewith, I had recorded

reasons which weighed with this Court in declining to exercise the discretion in favour

of the Applicant. Thus, on merits of the matter, I do not find any justifiable reason to

take a different view of the matter.

10. On the aspect of the long period of detention of the Applicant as an

under-trial prisoner, the submission on behalf of the Applicant deserves consideration.

In the decisions and orders referred to above, on which reliance has been placed by

Ms. Hatle, in the facts of the respective cases where the trial had either not

commenced or having commenced it was unlikely to conclude in a reasonable time,

and the period already spent by the accused therein as an under-trial prisoner, the

Supreme Court and this Court exercised the discretion in favour of the accused.

11. It is trite a prolonged period of incarceration as an under-trial prisoner

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without the prospect of the trial being completed brings in the element of

infringement of the fundamental right to life and liberty. 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 of India. Where the period of incarceration awaiting

adjudication of guilt becomes unduly long, the right to life and the protection of fair

and reasonable procedure, envisaged by Article 21, are jeopardized.

12. The Courts are often called upon to balance the gravity of the accusation

and the period of incarceration suffered as an under-trial prisoner. Even in cases

where there are statutory restrictions in the matter of grant of bail, the Courts have

balanced the competing claims of interest of society and the rights of the accused.

13. The observations of the Supreme Court in the case of Union of India

V/s. K.A.Najeeb6 are instructive and, hence, extracted below :

"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) V/s. Union of India7 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

6 (2021) 3 SCC 713 7 (1994) 6 SCC 731

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criminal is left at large pending trial, 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, Courts would ordinarily be obligated to enlarge them on bail.

17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, 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 approach would safeguard against the possibility of provisions like Section 43-D(5) of 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."

14. In the case of Ashim @ Asim Kumar Haranath Bhattacharya @

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Aseem Kumar Bhattacharya V/s. National Investigation Agency 8 following the

aforesaid pronouncement, the Supreme Court enunciated the position as under :

"10. This Court has consistently observed in its numerous judgments that the liberty guaranteed in 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 is imperative and the undertrials cannot indefinitely be detained pending trial. 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 him on bail.

11. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial /appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice."

15. In the affidavit in Reply on behalf of the prosecution, an endeavour is

made to demonstrate that the investigating agency had filed the charge-sheet on 31

August 2018 and, thereafter, the matter was adjourned from time to time at the

instance of the accused, who preferred applications for discharge and that there were

other reasons for not framing the charge. The learned APP submitted that the

Applicant himself had filed an application for bail and on 25 July 2022 had sought an

adjournment to advance submissions in the said bail application. The learned APP

submitted that since the Applicant and the co-accused were responsible for delay in

8 (2002) 1 SCC 695

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commencement of trial, the Applicant cannot be permitted to urge long period of

incarceration as a ground for bail.

16. The material on record, especially the Roznama in Sessions case No.104

of 2018, indicates that the discharge applications preferred by the co-accused, awaited

adjudication for long. However, the fact remains that the Applicant has been in

custody as an under-trial prisoner for more than five years. The trial is yet to

commence. The prosecution proposes to examine 36 witnesses. The submission on

behalf of the prosecution that the prosecution would now make an endeavour to

expeditiously conduct the trial is required to be appreciated in the light of the

extremely tardy progress in the trial since the date of the filing of the charge-sheet.

The Court cannot loose sight of the fact that rest all the accused are released on bail.

The endeavour of the prosecution to expeditiously conduct the trial would hinge upon

the co-operation of rest of the accused.

17. The aforesaid situation, in my view, is required to be considered in the

light of the fact that the deceased has suffered a single external injury i.e. large

Hematoma over left cheek extending from the lateral border of left orbit to border of

mandible. In the circumstances, especially in the light of the fact that the Applicant

has been in custody for more than five years and the charge has yet not been framed, I

am inclined to exercise the discretion in favour of the Applicant.

18. Hence, the following order :

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                                                                            BA 3858 OF 2022.doc

                                          ORDER

                (i)     The Application stands allowed.

                (ii)    The Applicant be released on bail in connection with

C.R.No.C.R.No.48 of 2018 registered with Revdanda Police Station for the offences

punishable under Sections 302, 307, 324. 323, 143, 147, 148, 149 of Indian Penal Code,

1860 read with Section 37(1) (3) of the Maharashtra Police Act, 1951, on furnishing a

PR bond of Rs.25,000/- and one or two sureties in the like amount to the satisfaction

of the learned Sessions Court.

(iii) The Applicant shall attend Revdanda Police Station on the 1 st

Saturday of every month in between 10.00 a.m. to 11.00 a.m. to mark his presence

only, for a period of one year from the date of his release.

(iv) The Applicant shall not tamper with the prosecution evidence or

give threat or inducement to or contact the first informant, witness/es or any other

person concerned with the prosecution.

(v) The Applicant shall not enter the limits of Village Talavali, Post

Sudkoli, Tal. Alibag, Raigad, for a period of six months from the date of his release.

(vi) The Applicant shall co-operate in the conduct of the trial and

attend the proceedings in the Sessions case regularly.

(vii) The Applicant shall inform his place of residence and contact

details during the said period of six months immediately after being released on bail

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and also keep Investigating Officer informed about the subsequent change in address

and contact details.

(viii) In the event of two consecutive defaults either in attending the

police station or in appearing before the trial court or breach of any of the aforesaid

conditions, the prosecution will be at liberty to apply for cancellation of bail.

                (ix)    The Application stands disposed.




                                                           ( N.J.JAMADAR, J. )




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