High Court
Legal Reasoning
BA-2364-2024+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO. 2364 OF 2024Pravin s/o Popat Kharchand,Age: 30 years, Occ: Nil,R/o: Mula Colony, Newasa Phata,Tq. Newasa, Dist. Ahmednagar.… ApplicantVersusState of Maharashtra… RespondentWITHCRIMINAL APPLICATION NO. 530 OF 2025Asif Khan s/o Ilayat KhanAge : 44 years, Occu – Agri,R/o Newasa, Tq. Newasa,Dist Ahmednagar.… ApplicantVersus1.The State of Maharashtra,Through Newasa Police Station,Tq. Newasa, Dist. Ahmednagar.2.Pravin Popat Kharchand,Age: 31, Occ: Nil,R/o: Mulla Colony, Newasa Phata,Tq. Newasa, Dist. Ahmednagar.… Respondents…..Mr. S. G. Ladda, Advocate for the Applicant in Bail Application No. 2364 of 2024 and Respondent No.2 in Criminal Application No. 530 of 2025 (through video conference).Mr. S. S. Dande, APP for Respondent State in both applications.Mr. G. R. Syed, Advocate for the Applicant in Criminal Application No. 530 of 2025...... BA-2364-2024+-2- CORAM :ABHAY S. WAGHWASE, J. Reserved on: 18.02.2025Pronounced on: 21.02.2025ORDER : 1.Criminal Application No. 530 of 2025 is at the instance of theinformant, praying therein to permit him to assist learned APP and tooppose the bail application. For the reasons mentioned in theapplication, the same is allowed in terms of prayer clause (B) anddisposed off accordingly.2.Vide instant bail application, applicant is seeking enlargementon regular bail on account of his arrest in crime no. 0222 of 2013registered at Newasa Police Station, District Ahmednagar for offencepunishable under Sections 302, 120-B, 201, 143, 147, 148, 149 ofIPC, Section 3/25 of the Arms Act and Sections 37(1)(3) and 135 ofthe Maharashtra Police Act.3.Pointing to the date of arrest of the applicant as 26.11.2013,learned counsel also pointed out that in fact, FIR is of 16.09.2013. Hewould emphasize and amplify that, going by the above date of arrest,applicant is behind bars since almost 12 years. He would submit thatin above crime, investigation is already over and investigating
Legal Reasoning
BA-2364-2024+-3- machinery has already filed charge sheet in December 2013 itself. Hepointed out that initially, Sessions Case bearing no. 1 of 2014 was onthe file of learned Additional Sessions Judge, Shrirampur, butsubsequently, at the instance of prosecution, Sessions Case wastransferred to Ahmednagar and it was re-numbered. He furtherpointed out that prosecution opened the trial by examining PW1 on12.07.2017 and by 11.09.2018, prosecution could examine only fivewitnesses. He pointed out that as on today, prosecution couldexamine only 29 witnesses. According to him, it took almost a decadefor prosecution to examine above strength of witnesses. 4.Learned counsel also laid heavy stress on the age of applicantand submitted that he was barely 19 years of age. Moreover, being ofyoung age and almost a teen, he also is gripped with health issues likeanal bleeding and he is passing through a very difficult phase withoutany chances of trial coming to an end. 5.Learned counsel pointed out that other accused, namely Sopan,Chourangi, Abaji @ Rameshwar, Mohan, Pawan, Sachin, Sadiq andAshok are already beneficiaries of bail at the hands of the Hon’bleApex Court and this Court respectively. Learned counsel took thisCourt through the observations of the Hon’ble Apex Court and this BA-2364-2024+-4- Court while granting bail and would emphasize that the aspect oflong incarceration is what weighed on both, Hon’ble Apex Court aswell as this Court. Consequently, he submitted that even applicantdeserves similar treatment.6.Learned counsel further submitted that in spite of matterhaving reached the stage of recording statement under Section 313 ofCr.P.C., erroneous procedure has been adopted in framing questionsand therefore, in the interest of justice, defence was required to objectto the questions framed therein and was constrained to apply for re-framing or deletion of certain questions which, according to him,were not at all incriminating. He pointed out that in above processalso, learned trial court is not expeditiously dealing with the stageand is rather adjourning the matter on the count of non-production ofaccused. Learned counsel took this Court through the rozanama andwould submit that there is hardly any scope to blame defence for thepace with which trial is being conducted. He pointed out that on oneor the other count matter is getting adjourned, either for want ofproduction of accused or for say of some of the accused. Ultimately,he submitted that present applicant is the sufferer. That, he has beendeprived of the right of speedy trial which is apparently gettingtrampled. That, even recent report of the learned trial court does not BA-2364-2024+-5- suggest that there are any immediate prospects of matter gettingconcluded. He pointed out that, after recording of statements ofeleven accused under Section 313 Cr.P.C. is over, defence also intendsto examine three witnesses. Moreover, now accused no.2, even towhom present learned counsel was representing, as did not attendcourt and as NBW was issued against him, vakilpatra of accused no.2has been withdrawn. For the more reason, he submits that there areno immediate chances of accused no.2 being apprehended andbrought before the court, to answer questions under Section 313Cr.P.C. 7.Thus, according to the learned counsel, in the light of the abovecircumstances, further indefinite incarceration would defeatapplicant’s right of bail as well as speedy trial as, according to him,until proven guilty, every prisoner is presumed to be innocent. For allabove reasons, he seeks relief of bail.8.Learned APP as well as learned counsel who is permitted toassist learned APP, have both objected on the ground that presentapplicant is the main accused. He has used the fire arms. Threerounds were fired by him in broad day light. That, he was hired. That,other accused had engaged him. They both submit that now, in view BA-2364-2024+-6- of the report of the very trial Judge, matter itself would come to anend soon and hence, they seek rejection of bail application.9.Heard. Principal and fundamental ground for grant of regularbail in this matter is long pre-trial incarceration. Equal thrust is onage as well as alleged health issues of accused. Pointing to the date ofoccurrence and arrest, learned counsel would submit that, applicant isshown to be 19 years of age. That, now almost over 12 years havepassed since his arrest, but there are no chances of trial gettingconcluded. Another ground pressed into service is, co-accused areenlarged on bail by the Hon’ble Apex Court as well as by this Courtand orders to that extent are annexed herewith. 10.Perused the papers. Admittedly, above crime is reported on16.09.2013 by one Asif Ilayat Khan who informed Newasa police that,his maternal cousin Riyaz (deceased) was shot in front of the office ofSub-Registrar, Newasa by present applicant. Informant claims thatdeceased had deposed in another murder trial. That, out of anger andannoyance, present applicant along with Mohan, Rameshwar,Chourangi, Pawan, Sachin, and Sadiq conspired and committedmurder of Riyaz. On such report, Newasa Police registered crimebearing No. 222 of 2013. FIR shows that crime is registered for BA-2364-2024+-7- offence under Sections 302, 120-B, 143, 147, 148, 149 of IPC andSections 3/25 of Arms Act and 37(1)(3)/135 of the MaharashtraPolice Act. In said crime, applicant is said to be arrested on26.11.2013. 11.Synopsis to the bail application shows that State engagedspecial prosecutor who caused appearance on 12.07.2017 and there isno dispute that even trial had commenced. By now, prosecution hadallegedly examined 29 witnesses. Papers annexed with the bailapplication show that after rejection of bail application of accusedSopan and Chourangi by order dated 13.04.2023 of this Court, theyapproached Hon’ble Apex Court and by order dated 08.11.2023, theseaccused are granted bail by the Hon’ble Apex Court. Whereas,accused Abaji @ Rameshwar Gade, Mohan Suresh Lashkare, PawanSomnath Narula, Sachin Chandrakant Chavan, Sadiq Bashir Shaikhand Ashok Jalindar Jagtap are also granted regular bail by this Courtby orders dated 20.08.2024 and 09.10.2024 respectively.Consequently, only applicant Pravin is currently in jail. 12.Though learned counsel forcefully submitted that he is sufferingfrom anal bleeding, there is no supportive document. BA-2364-2024+-8- 13.Present application was on the board of this Court on07.02.2025 and this Court, after hearing submissions advanced thenthat matter is stuck up at the stage of recording statement underSection 313 Cr.P.C. since long, thought it fit to call report from thelearned trial Judge, who is seized with the case, as to why matter isnot proceeding ahead in spite of sessions case being of the year 2018.14.In response to above communication through registry, learnedSessions Judge vide communication dated 12.02.2025 conveyed thattrial was pending before District Judge-1 and Additional SessionsJudge, Ahmednagar and case was subsequently transferred to learnedSessions Judge on 09.12.2024, and matter is posted for statementunder Section 313 Cr.P.C. Apart from conveying so, learned SessionsJudge also gave dates of the matter and particulars of the courtbusiness. The same demonstrates that matter is getting adjourned onthe count of either accused are not present, or under-trial prisoner notproduced, or accused absent or accused applying for bail. Then, on09.12.2024, matter is transferred to the court of learned SessionsJudge and Principal District Judge and then again, since 12.12.2024accused nos. 1 and 2 are not produced before the court. On12.12.2024, through accused no.1 (present applicant), applicationsExhibits 760 and 761 for deletion of part statement under Section 313 BA-2364-2024+-9- Cr.P.C. were filed. Again on 13.01.2025, application Exhibit 765 wasfiled for deletion of proposed questions to be put to the accused underSection 313 Cr.P.C. Finally, on 29.01.2025 accused (presentapplicant) is shown to be produced whereas accused no.2 was absentand shown to have filed application for exemption vide Exhibit 767.Further, learned Sessions Judge was also pleased to convey that nowstatements under Section 313 Cr.P.C. are ready and same are verifiedby learned Special Prosecutor as well as defence Advocates. Some ofthe accused remained absent on the earlier dates and thoughstatement is ready, answers under Section 313 of Cr.P.C. could not berecorded. Court has assured that it is ready to record the sameprovided all accused persons are present and matter is not adjournedby way of any other application filed by defence and absence ofaccused. In the concluding para, it is informed that 29 witnesses arealready examined by the court and court has not adjourned recordingof statement of accused, but due to applications filed by defence anddue to absence of accused, it could not be recorded. That, even incase of non production of under trial prisoner, the court can recordstatement on video conferencing and sent it to jail to get it signed bythe accused if the defence advocates cooperate, and that matter isposted on 15.02.2025. BA-2364-2024+-10- 15.Again, this court is in receipt of another report from the learnedSessions Judge dated 15.02.2025 reiterating therein the earlier courtbusiness since 28.08.2024 to 29.01.2025 and further adding courtbusiness dated 15.02.2025 that, jail authority has not producedaccused no.1 i.e. present applicant as he was sick. Concerned policehas produced report Exhibit 773 on that count. It is further remarkedthat defence counsel filed application Exhibit 771 to delete somequestions. Said application and earlier application Exhibit 765 bothare decided. Accused no.2 is absent. Counsel representing accusedno.2 withdrew vakalatnama of such accused no.2 vide Exhibit 772and hence NBW has been issued against accused no.2. On same date,learned Sessions Judge has conveyed that, on oral request of learneddefence counsel, matter is adjourned and posted on 01.03.2025 forrecording statement under Section 313 Cr.P.C. and it is reiterated thatcourt is ready with the set of questions under Section 313 Cr.P.C.However, again it is further reported to this court that, for abovesituation, statement of accused could not be recorded. That, the courtis ready with the set of questions. As vakalatnama of accused no.2 iswithdrawn, NBW having been issued against accused no.2, it wouldfurther affect the speedy disposal of trial if accused no.2 is not tracedout. BA-2364-2024+-11- 16.Thus, what is emerging from above discussion is that, in spite ofmatter having reached to the stage of recording statements underSection 313 Cr.P.C., this stage is not getting completed for variousreasons like accused not produced; re-framing / re-casting questionsunder Section 313 Cr.P.C., on objections being raised by defence;some of the accused remaining absent and seeking exemption andfinally, on 15.02.2025, NBW has been issued against accused no.2 ascounsel representing such accused has withdrawn his vakalatnama.Resultantly, above report shows that, it all percolates down to the re-arrest of accused no.2 in response to NBW issued by the court on15.02.2025. Most of the dates, as are appearing from the report oflearned Sessions Judge, are non production of accused for trial by thejail authorities. This is also a matter of serious concern. Now it is forthe police machinery to respond to the non bailable warrant andproduce accused no.2 as early as possible. Apparently, from the reportof learned Sessions Judge, now statement under Section 313 Cr.P.C.is finally ready. Applications questioning the statements under Section313 Cr.P.C. framed by court, in which there has to be participation ofboth, prosecution as well as defence, are also shown to be now finallysettled and now it is a matter of posing questions to the accused. Oncourt query, learned counsel informed this Court that after statementsunder Section 313 Cr.P.C., defence would examine three witnesses BA-2364-2024+-12- from their side. This would be followed by arguments and ultimatelyfollowed by judgment. 17.Therefore, considering the reports of learned Sessions Judge,this Court reposes trust on the learned Sessions Court and believesthat it will keep both, prison authorities as well as police authorities,on toes and of course on co-operation of defence counsel, remainingaccused also should respond to the call of court to appear and answerquestions under Section 313 Cr.P.C.. This should positively work outas the matter is already on the verge of conclusion. From the report oflearned Sessions Judge and the dates reproduced in the report, trialcannot be said to be protracted at the end of the court. Here,apparently, prison authorities, who are not producing under trialprisoner on given dates, and even absence of some of the accused arecontributing factors for the delayed trial. Be it so. Now, learnedSessions Judge has assured that it is ready with the set of questionsunder Section 313 Cr.P.C. Accused no.2 having remained absent,NBW has been issued against him, and therefore, it is now entirely onthe police machinery to trace him and produce him before the courtas early as possible or to take the blame. Learned Sessions Judge toappraise top police officers about requirement of production ofaccused no.2. BA-2364-2024+-13- 18.Taking the assurance of learned Sessions Judge intoconsideration that it is ready to consider recording of statement ofaccused under Section 313 Cr.P.C. on video conference if so required,this Court is inclined to request learned Sessions Court to fix atimeline, to which all stake holders need to respond, and help inconclusion of trial. In case, if there is no progress of the matter withintwo months from today, then applicant is at liberty to move afresh forbail. With above directions, the bail application is disposed off. [ABHAY S. WAGHWASE, J.]vre