Bombay High Court
Deepak Ramkrushna Ghanchekar @ ... vs The State Of Maharashtra Thr. Ps Hingna, ... on 21 August, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:9352
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (BA) NO. 427 OF 2024
Deepak Ramkrushna Ghanchekar @ Ghanchakkar
Vs.
State of Maharashtra
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Shri A. S. Mardikar, Senior Advocate a/w. Shri A. R. Rawlani,
Advocate for applicant.
Shri D. V. Chauhan, Senior Advocate and Public Prosecutor a/w. Shri N. B.
Jawade, APP for non-applicant/State.
Shri Anirudh Ananthakrishnan, Advocate for assist to Prosecution.
CORAM :- M. W. CHANDWANI, J.
DATED :- 21.08.2024
Heard.
2. By the present application, the applicant
seeks bail in connection with Crime No. 18/2023
registered with Police Station, Hingna, Nagpur for the
offence punishable under Sections 302, 142, 147, 148,
149, 504, 212, 109 and 323 read with 34 of the Indian
Penal Code (IPC); Sections 3, 7, 25 and 27 of the Arms
Act and Sections 37 and 135 of the Maharashtra Police
Act.
3. The prosecution case is that on 08.01.2023,
the applicant committed murder of deceased- Avinash
Ghumde by means of firearms. It is the case of the
prosecution that the deceased had suspected character of
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Shivani, the co-accused and wife of the applicant. During
the dispute at her house, Shivani called the applicant.
The applicant beat up the deceased and also fired Gun
shot on the deceased twice killing him in the house. The
applicant alongwith other co-accused fled away from the
spot i.e. from the house, leaving behind the dead body.
On information, the informant (the father of the
deceased), went to the house of the applicant and found
Avinash dead in the house of the applicant. The matter
was reported to the Police. The applicant and other co-
accused including Shivani were arrested and the charge-
sheet came to be filed.
4. Shri A. S. Mardikar, learned Senior Advocate
appearing on behalf of the applicant would submit that
the deceased- Avinash was a history-sheeter and various
cases had been registered against him. He was even
facing criminal cases including allegations of murder. All
the other co-accused have been released on bail either by
the Court of Sessions or by this Court. It is only the
applicant, who is behind the bar since the date of his
arrest i.e. since last one year and nine months. Even the
charge in the trial has not been framed till date.
According to him, though there are eye-witnesses to the
incident but, considering the fact that all other accused
have been released on bail and the circumstances in
which the incident occurred, the applicant is entitled for
bail.
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5. The learned Senior Advocate for the
applicant vehemently submitted that the applicant is in
custody since last one year and nine months and there is
a long period of incarceration, particularly when even the
trial has not commenced, the applicant has been deprived
of his right of speedy trial. According to him, it is the
duty of the State to protect the fundamental right of the
accused to have a speedy trial as enshrined under Article
21 of the Constitution of India. Considering the stage of
trial, which has not yet begin, the applicant is entitled for
bail.
6. To buttress his submission, he seeks to rely
on the recent decision of the Supreme Court in the case
of Manish Sisodia Vs. Directorate of Enforcement [2024
SCC Online SC 1920], wherein the Supreme Court, while
dealing with the bail application of ex-minister, who was
facing charges under the provisions of the Prevention of
Corruption Act, IPC as well as under the provisions of
Prevention of Money Laundering Act, 2002, has observed
that right of speedy trial and right to liberty are
sacrosanct rights. On denial of these rights, the Trial
Court and High Court ought to have given due weightage
to these factors. Reliance is also placed on the case of
Union of India Vs. K. A. Najeeb [(2021) 3 SCC 713] ,
wherein in para no. 15, the Supreme Court has held as
under:-
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"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. Union of India) (1994) 5 SCC 731, 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, 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."
7. It is further submitted that in the case of
Jalaluddin Khan Vs. Union of India [2024 SCC Online SC
1945], relied upon by the learned Senior Advocate
appearing for the applicant, the Supreme Court has held
that when a case is made out for grant of bail, the Court
should not have any hesitation to grant bail and
emphasized on the principle "Bail is the rule and jail is an
exception".
8. Conversely, Shri D. V. Chauhan, learned
Senior Advocate and Public Prosecutor appearing for the
State vehemently objected the application on the ground
that apparently, there is prima facie material on record,
which goes to suggest the complexity of the present
applicant. According to him, there is direct evidence,
which prima facie goes to suggest that the applicant was
actively involved in the crime. He submitted that there
are eye-witnesses to the alleged incident, who
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categorically stated the role played by the present
applicant i.e. he shot two bullets by firearms on the
deceased and killed him. According to him, the other co-
accused, who have been released on bail by the Court of
Sessions as well as by this Court, were having different
role, whereas, the charge-sheet shows that key role in
killing the deceased is played by the present applicant by
shooting him with firearms, as a result of which he died.
9. Countering the argument of the applicant
regarding his entitlement for bail on the ground of delay
in conducting the trial, Shri Chauhan, learned Senior
Advocate and Public Prosecutor vehemently submitted
that there is nothing on record which suggests that delay
has been caused by the prosecution and not by the
accused persons. According to him, there are almost 12
accused persons, who are put on trial. The allegations
against the applicant is of committing the grave offence
of murder, only 1½ year has passed and it is not the
case that the trial is not being proceeded for a substantial
period of 3/4 years. He further submitted that the
applicant was also involved in various criminal offences,
though he might have been acquitted in those offences.
According to him, there would be a threat to the society
as well to the witnesses if the applicant is enlarged on
bail. Therefore, he sought rejection of the bail.
10. Perusal of the First Information Report goes
to show that there is evidence of three eye-witnesses,
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who have in categorical terms stated that the applicant
shot firearms on the deceased, who sustained two bullet
injuries and died. There is recovery of a revolver and
blood stained clothes of the accused at his instance. The
post-mortem report also shows the cause of death as
firearm injury. Thus, there is ample material on record
against the applicant to connect him with the alleged
offence.
11. The ground of parity is also claimed by the
applicant. It is a matter of record that other accused
have been enlarged on bail either by the Court of
Sessions or by this Court. But, the fact remains that the
vital injury i.e. shooting by firearms is attributed only to
to the present applicant, as a result of which, the
deceased died. The applicant fails to point out similarity
between role played by him and the role attributed by the
prosecution to those accused. Rather, the record suggests
that the role assigned to the applicant is different than
the role assigned to the co-accused, who were already
released on bail.
12. It is true that under-trial cannot be
indefinitely detained pending the trial and the accused
has a right of speedy trial. If the accused had suffered
incarceration for a significant period of time then the
Court would ordinarily be obliged to enlarged him on
bail as held by the Supreme Court in the cases relied
upon by the learned Senior Advocate appearing on behalf
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of the applicant. However, nothing has been placed on
record to show that inspite of co-operation by the
accused/the applicant, the trial could not begin before
the Trial Court while applying for bail before it. That
apart, the question remains as to what is a significant
period for which the delay in trial would entitled the
accused to be released on bail. Certainly, it will depend
upon the fact of each case depending upon the nature of
allegations for which the accused is charged and the
severity of punishment. Reference can be made to the
case of Dilawar Vs. State of Haryana [(2016) 16 SCC
521], wherein the Supreme Court, in para no. 7 of the
decision, has observed as under:-
"7. It is not necessary to refer to all the decisions of this
Court articulating the mandate of the Constitution that
there is implicit right under Article 21 for speedy trial
which in turn encompasses speedy investigation, inquiry,
appeal, revision and retrial. To determine whether undue
delay has occurred, one must have regard to nature of
offence, number of accused and witnesses, workload of the
court and the investigating agency, systemic delays.
Inordinate delay may be taken as presumptive proof of
prejudice particularly when accused is in custody so that
prosecution does not become persecution. Court has to
balance and weigh several relevant factors. Though it is
neither advisable nor feasible to prescribe any mandatory
outer time limit and the court may only examine effect of
delay in every individual case on the anvil of Article 21 of
the Constitution, there is certainly a need for in-house
mechanism to ensure that there is no undue delay in
completing investigation. This obligation flows from the
law laid down by this Court inter-alia in Maneka Gandhi
versus Union of India (1978) 1 SCC 248, Hussainara
Khatoon (I) versus State of Bihar (1980) 1 SCC 81, Abdul
Rehman Antulay versus R.S. Nayak (1992) 1 SCC 225 and
P. Ramachandra Rao versus State of Karnataka (2002) 4
SCC 578."
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13. In the case of Manish Sisodia (supra), the
accused was facing charges under the provisions of the
Prevention of Corruption Act, 1988 and Prevention of
Money Laundering Act, in that scenario 17 months of
incarceration was treated as a significant period of
custody at the pre-trial stage. Whereas herein, the
applicant who is facing serious charges of committing
murder cannot claim 1½ year period as a significant
period to claim bail on account of delay in trial. Of
course, this will not be the authority for the prosecution
to claim that trial may not begin for 1½ years.
Obviously, endeavor should be made for timely trial as far
as possible, but just because the trial could not
commence for one or the other reason for 1½ year, the
accused facing charges of serious offence like murder,
should be released on bail solely on the ground that there
is a little delay in commencement of the trial. Thus, the
application fails on all counts.
14. Accordingly, the application is rejected with
liberty to the applicant to move the application for bail if
the trial does not commence within six months.
(M. W. CHANDWANI, J.)
Signed by: Mr. Rajnesh Jaiswal
RRToJaiswal
Designation: PA Honourable Judge
Date: 22/08/2024 19:34:15
