Criminal Appeal No. 63 of 2024 · Bombaybench High Court
Case Details
935-APEAL-63-2024+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 63 OF 2024Kiran Mohan AjabeVERSUSThe State Of Maharashtra And Others...Mr. S. S. Jadhav h/f Mr. A. N. Barhate Patil, Advocatefor AppellantMr. S. B. Narwade, APP for RespondentsMs. S. G. Sonawane, Advocate for Respondent No. 3WITHCRIMINAL APPEAL NO. 489 OF 2024Rupesh Ashok WadekarVERSUSThe State Of Maharashtra And Another…Mr. S. S. Gangakhedkar, Advocate for AppellantMr. S. B. Narwade, APP for RespondentsMs. S. G. Sonawane, Advocate for Respondent No. 2***CORAM:R.M. JOSHI, JDATE:OCTOBER 25, 2024PER COURT : 1.These appeals are for regular bail inconnection with Crime No. 103/2015 registered at ShirdiPolice Station, District Ahmednagar for offencespunishable under Sections 364, 302, 201, 143, 147, 149of Indian Penal Code and under Sections 3(1)(III)(X),3(2)(V) of Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act.UmeshPAGE 1 OF 10
Legal Reasoning
935-APEAL-63-2024+.odt2.These appeals are filed essentially on theground that the appellants are incarcerated for overperiod of 9 years without their trial being concluded.Learned counsel for the appellants have drawn attentionof the Court to the fact that Division Bench of thisCourt by order dated 28.06.2022 passed in CriminalAppeal No. 415/2022 had directed trial against thepresent appellants and the co-accused to be completedwithin a period of 5 months. Inspite of the same,trial was not concluded in time. Another order came tobe passed on 07.06.2023, wherein it is stated that inall 79 witnesses are to be examined and only onewitness was examined by then. In view of this,direction was issued for day to day conducing of thetrial to be completed before December 2023. It istheir submission that the prosecution has not proceededwith the trial and due to the same, the appellantsherein are languishing in jail for almost 10 years.3.They relied upon judgment of Hon’ble SupremeCourt in case of Javed Gulam Nabi Shaikh vs. State ofUmeshPAGE 2 OF 10 935-APEAL-63-2024+.odtMaharashtra and another, AIROnline 2024 SC 497 tocontend that the accused has a right to speedy trialand that bail cannot be withheld as punishment. It istheir submission that the Hon’ble Supreme Court even incases where there is conviction recorded againstaccused and where the accused are incarcerated overperiod of 10 years or more, bail is granted andtherefore, appellants cannot be kept behind barswithout conviction.4.They drew attention of the Court to theobservations recorded by the trial court as well as bythis Court indicating no effort being taken by theSpecial Public Prosecutor to conduct said trialexpeditiously and to complete the trial at least in areasonable period of time. It is submitted that thepresent appeals are filed in May 2024 and since then,at the instance of prosecution, under the assurancethat three eye-witnesses would be examined withinstipulated period, time was sought by the prosecutionas well as from the side of the informant. It is theircontention that on the basis of making such misguidingUmeshPAGE 3 OF 10 935-APEAL-63-2024+.odtstatement, on one hand, prosecution is neithercompleting the trial and nor allowing the applicationto be heard. It is also argued that the intention ofthe prosecution in delaying the trial can beascertained from the fact that the application inrespect of acceptance of CCTV footage which wasrejected by trial Court and against which Writ Petitionis pending before this Court, is reagitated before thetrial Court to kill time. They also relied upon orderof Hon’ble Supreme Court in Criminal Appeal No.4164/2024 in case of Rup Bahadur Magar @ Sanki @ Rabinvs. State of West Bengal.5.Learned counsel for informant opposed grant ofbail on the ground that the offence is of murder andappellants have criminal history behind them. It isalso alleged that during the grant of temporary bail,they have committed other offences. It is also claimedthat if the appellants are released on bail they arelikely to tamper with the evidence.6.Learned APP opposed the appeal by citingUmeshPAGE 4 OF 10 935-APEAL-63-2024+.odtseriousness of crime. It is contended that delay isnot attributable to the prosecution solely. He submitson instructions from the Special Public Prosecutorappearing before the Trial Court that the trial wouldbe concluded in a short period of time. He relied uponjudgment of Hon’ble Supreme Court in case of NarayanGhosh @ Natu vs. State of Orissa, 2008 DGLS(SC) 154, tooppose appeals.7.This Court is conscious of the fact thatthough there is right of the accused guaranteed underArticle 21 of the Constitution of India of speedy trialbut at the same time, the right of the prosecution andinformant/victim needs to be considered and balanced.It is necessary to note that these appeals are pendingsince May 2024. Only on the assurance given byprosecution of completing examination of eye witnessesin stipulated period, this Court did not pass any orderof grant of bail keeping in mind the interest of theprosecution and need of a fair trial. It is however,painful to note that the prosecution is not serious incompleting the trial expeditiously despite ofUmeshPAGE 5 OF 10 935-APEAL-63-2024+.odtdirections of Division Bench of this Court to conductthe trial on day to day basis. Even statements madebefore this Court are not adhered to. As recorded inorder dated 02.08.2024, the Special Public Prosecutorwas absent on 19 occasions during period from20.07.2023 to 19.12.2023. Even the order passed by thetrial Court indicates that Special Public Prosecutorused to remain absent on various dates of hearing andwhich has resulted in non-prosecution of the trial.This clearly indicates that there is total disregard tothe directions issued by Division Bench of this Courtto conduct trial on day to day basis. Ordinarily, theCourts incline to grant time to the prosecutionprovided such request is bonafide. The statements madebefore this Court seem to be not made with seriousnessbut aimed at seeking postponement of hearing. ThisCourt, therefore, now finds no reason to accept thecontention of the prosecution about the trial to becompleted in short period of time.8.There are total 79 witnesses to be examined,out of which, still 30 witnesses remained to have beenUmeshPAGE 6 OF 10 935-APEAL-63-2024+.odtexamined. Thus, there is no possibility of the trialbeing getting over in reasonable time. The right ofaccused/appellants of speedy trial are violated. 9.In case of Javed Gulam Shaikh (supra), theHon’ble Supreme Court has discussed the manner in whichprosecution agency has infringed the right of theaccused to have speedy trial which violates Article 21of the Constitution. It was therefore held thataccused therein was entitled for bail. As far asjudgment relied upon by learned APP in case of Narayan(supra) it is pertinent to note that the accusedtherein were arrested on 30.03.2007 for offnecepunishable under Section 302 read with 34 of IndianPenal Code and the order passed by the Hon’ble SupremeCourt is on 04.02.2008. However, in the instant case,the appellants are arrested in June 2015. Inrespectful view of this Court, the said judgmenttherefore does not help the prosecution in any manner.10.As recorded hereinabove, while considering theright of speedy trial of the accused, possibility ofUmeshPAGE 7 OF 10 935-APEAL-63-2024+.odttampering evidence also needs to be considered. Suchapprehension can be taken care of by imposing stringentconditions by preventing the entry of the appellants inAhmednagar district till conclusion of trial. Furtherdirection can be issued that the appellants shallrecord their presence before the concerned policestation while entering the area for the purpose ofattending the trial and that they can be directed torecord attendance even while leaving the district.Further direction can be issued to the PI of theconcerned police station to ensure that while theappellants attend the trial, a police personnel toaccompany them to ensure that there is no any actcommitted by them causing interference in the evidenceof the prosecution.11.Hence appeals are allowed with followingorder :-O R D E R(i)Appellants in both Appeals in connection withC.R. No. 103/2015 registered with ShirdiPolice Station, Dist. Ahmednagar for theoffences punishable under Sections 364, 302,UmeshPAGE 8 OF 10 935-APEAL-63-2024+.odt201, 143, 147, 149 of the Indian Penal Codeand Sections 3(1)(iii)(x), 3(2)(v) of theScheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, they shall bereleased on bail on executing PB and SB ofRs. 30,000 (Rupees Thirty Thousand Only) eachwith one solvent surety in the like amount.(ii)They shall attend the concerned policestation as and when required.(iii)They are prevented from entering Ahmednagardistrict till conclusion of trial in SessionsCase No. 62/2015, except for attending thedates of hearing before the trial Court. (iv)If accused remain absent before trial Court,and/or they involve themselves in any othercrime, this order of bail shall standcancelled without reference to the Court.(v)Appellants are directed to appear before theconcerned police station before attending thetrial before the Special Court and PI of thesaid police station is directed to ensurethat the appellants are accompanied byatleast one police personnel till the timethey return to the police station, beforeleaving area.(vi)Appellants to forthwith leave the districtforthwith after recording their attendance inpolice station.(vii)They shall not contact the witnesses directlyor indirectly.(viii)They shall not interfere with the evidencein any manner whatsoever.UmeshPAGE 9 OF 10 935-APEAL-63-2024+.odt(ix)If any conditions of this order is found tobe breached, it will result into cancellationof bail of these Appellants. (R.M. JOSHI, J.) UmeshPAGE 10 OF 10