High Court

Legal Reasoning

1 928-BA-1707-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO. 1707 OF 2024Bal @ Balasaheb Jagannath Bothe,Age 54 years,Occu. Service as Executive Editor,R/o. Jidda Bungalow, Dena Bank Colony,Near Premdan Chowk, Savedi,Ahmednagar..Applicant(Original Accused No.6)VersusThe State of MaharashtraThrough the Police Station Officer,Supa Police Station,District Ahmednagar..RespondentWITHCRIMINAL APPLICATION NO. 4333 OF 2024 IN BA/1707/2024Smt. Sindhubai wd/o. Sukhdeo Waykar,Age 68 years, Occu. Household,R/o. Mali Babhulgaon, Tq. Pathardi,District Ahmednagar..Applicant (Original Informant)Versus1.Bal @ Balasaheb Jagannath Bothe,Age 54 years,Occu. Service as Executive Editor,R/o. Jidda Bungalow, Dena Bank Colony,Near Premdan Chowk, Savedi,Ahmednagar (Original Accused No.6)2.The State of MaharashtraThrough the Police Station Officer,Supa Police Station,District Ahmednagar..RespondentsAdvocate for Applicant : Mr. Nitin Bhavar Patil Llp Advocate And Legal Consultancy;A.P.P. for Respondent : Mr. A. S. Shinde;Advocate for Informant : Mr. Rajendra P. Phatake 2 928-BA-1707-24.odtCORAM :S. G. MEHARE, J.DATE:24-10-2024PER COURT :-1.Heard the learned counsel for the applicant and the learnedA.P.P. for the respondent.2.The applicant seeks bail on the ground of delay caused forspeedy trial, in C.R.No.I-0478 of 2020 registered with PoliceStation, Supa, District Ahmednagar, for the offences punishableunder Sections 302, 120B and 212 read with Section 34 of theIndian Penal Code (for short “IPC”).3.In so far as the merits of the case, this Court has alreadytaken a view that the applicant has no case on merit. However, asper the last order of this Court, 19 witnesses were examined inaddition to the 5 witnesses already examined. The learned trialCourt was directed to conclude the trial within a specific period.However, considering the serious controversy and habit of notturning a single stone unturned, the trial could not be concludedwithin the time frame.4.This Court (Coram: Sanjay A. Deshmukh, J.), by order dated23.01.2024 again rejected the bail application. There wereallegations about district administration about the transfer of theJudicial Officers and allotment of the work to another Court. Toavoid delay on the part of the Judicial District administration, this 3 928-BA-1707-24.odtCourt also directed the learned Principal District and SessionsJudge, Ahmednagar, to transfer the case from one court to anothercourt or he himself may conduct the case.5.The Court reminded the district judiciary that sessionsmeans once the trial is commenced it shall not be stopped till itsend. It was further observed that therefore, the concerned Courtshall conduct the case on day to day basis except the contingencyarises and in that case he should record the reasons. It wasobserved in paragraph No.16 of order dated 23rd January, 2024,which reads thus;“16.It is expected that the trial court shall concluderecording of the oral evidence of all witnesses by theend of April 2024 and thereafter, proceed further withthe trial so that it shall be concluded before 31.08.2024.If the trial is not concluded within remaining sevenmonths, all concern including the trial court to note thatthis court will have no option than to release theapplicant on bail. The applicant may move this Court forbail on the ground of delay and right to speedy trial.”6.The submissions of the respective learned counsels revealthat from the date of the above order, around 19 witnesses wereexamined. In all 24 witnesses have been examined. Both partiesare blaming each other for either not calling the witnesses in timeor not cross-examining the witnesses on the ground that theundertrial prisoners were not produced before the Court. It is also 4 928-BA-1707-24.odta matter of record that the lawyers representing the presentapplicant and other undertrial prisoners flatly denied the cross-examination of the witnesses on the ground that the accused wasnot produced from jail. It is also one of the grounds that one of thewitnesses, Prosecution Witness No.22 was not appearing forevidence before the Court for his cross-examination. Theendeaviors of the trial Court must be appreciation, though hiscross-examination was not completed, he proceeded to examinefurther witnesses.7.The report of the learned A.P.P. appearing for the State in thetrial Court gives an account of the stages and the way ofattempting to conclude the trial as early as possible. In sum andsubstance, he would submit that sometimes the trial wasadjourned due to transfers of the Judicial Officer and there was alittle bit of delay in the execution of administration orders.8.He tried to bring to the notice of this Court that sincereattempts were made to respect the order of this Court and therewas no deliberate delay. The matter is complicated. Soexamination of witnesses is essential. Since the case is basedupon the conspiracy, around 13 to 14 panchnamas are to beproved and the examination of panch witnesses is essential. Someof the eyewitnesses are also to be examined. It is also reportedthat on a few dates, the witnesses were present in the Court. 5 928-BA-1707-24.odtHowever, the counsel for the accused sought adjournment. Hence,this witness could not be examined. Considering the copies ofRoznama placed on record by the learned counsel for theapplicant, it cannot be said that there was absolutely no progressin the trial and no sincere efforts have been made by the trialcourt and the prosecution. It seems to be a serious contestbetween the accused and the victim. Hence, they are not leaving asingle stone unturned.9.The learned counsel for the applicant has vehementlyargued that there is a series of the s judgments of the HonourableSupreme Court on a snail’s speed trial and a right to a speedy trial.He has specifically argued that the applicant had at no point intime protracted the trial deliberately. When the accused could notbe blamed for the delay in the trial he should be be granted bail.10.To bolster his arguments, the learned counsel for theapplicant has relied on Manish Sisodiya versus Director ofEnforcement, Criminal Appeal No. …. of 2024 [Arising outof SLP (Criminal) No.8781 of 2024] dated August 09, 2024.In Manish (supra), the Honourable Supreme Court in paragraphNos.46 and 47 observed thus;“46. It could further be seen that, though it has beensubmitted on behalf of the ED that hundreds ofapplications have been filed for supply of "un-relied upondocuments", the record would not substantiate the said 6 928-BA-1707-24.odtposition. Though various applications have been filed bydifferent accused persons, insofar as the presentappellant is concerned, he has filed only 13 applications inthe CBI matter and 14 in the ED matter. It would revealthat some of the applications are for seeking permissionto meet his wife or permission to file vakalatnama, to putsignature on the documents, seeking permission to sign acheque etc. Most of the applications are for supply ofmissing documents and legible copies under Section207/208 Cr.P.C. Some of the applications are forinspection of the "un-relied upon documents". It ispertinent to note that all these applications have beenallowed by the learned trial court. It is further pertinent tonote that some of these orders were also challengedbefore the High Court wherein stay was granted. However,a statement was made on behalf of the prosecutionbefore this Court when the first order was passed that thesaid petitions filed under Section 482 Cr.P.C would bewithdrawn. The said statement is recorded in paragraph27 of the first order of this Court. We may state that,when we specifically asked the learned ASG to point outany order wherein the learned trial judge found any of theapplications of the appellant to be frivolous, not a singleorder could be pointed out.47. In that view of the matter, we find that the finding ofthe learned trial judge that it is the appellant who isresponsible for delaying the trial is not supported by therecord. The learned Single Judge of the High Courtendorses the finding of the trial court on the ground thatthe accused persons have taken three months' time from19th October 2023 to 19th January 2024 for inspection of"un-relied upon documents" despite repeated directions 7 928-BA-1707-24.odtfrom the learned trial court to conclude the sameexpeditiously. It is to be noted that there are around69,000 pages of documents involved in both the CBI andthe ED matters. Taking into consideration the hugemagnitude of the documents involved, it cannot be statedthat the accused is not entitled to take a reasonable timefor inspection of the said documents. In order to avail theright to fair trial, the accused cannot be denied the rightto have inspection of the documents including the "un-relied upon documents”.11.As regards this, the learned A.P.P. has submitted that thiswas the case, wherein charge was not framed, though the timewas granted to commence the trial. He submits that in this casethe bail was granted on the ground that there were noexpectations of a speedy trial on its fact. The facts of this case athand are altogether different. After the direction of this Court,there was material progress in the trial. The trial was posted day-to-day. He would submit that in this case material is before theCourt, that when the witnesses were present, the counsel for theundertrials accused flatly denied proceeding with the matter onlyfor the reason that the accused were not been produced from jail.Had the accused interested to conclude the trial speedily, hewould have allowed his lawyer to proceed his trial by attending thecourt through video conferencing. However, the counsel for theaccused denied to cross-examine the witnesses for not producingthe applicant physically before the Court. He would submit that it 8 928-BA-1707-24.odthappened many times. Video conference facility is made availableto each Court. The object behind such a facility was to expeditethe trials, avoid the burden of the exchequer, find a solution to theshortage of police guards and utilize and enhance the efficiency ofthe Judicial Officers. He also added in the above case, themaximum punishment was only seven years. Probably, Section436-A of the Criminal Procedure Code might have been borne inmind. He argued that the object of speedy trial is to beunderstood between the lines. Such case laws cannot be reliedupon as a straight jacket formula to seek bail on indefiniteincarceration.12.The learned counsel for the applicant further relied on thecase of Indrani Pratim Mukerjea versus Central Bureau ofInvestigation & Anr., Petition(s) for Special Leave to Appeal(Crl.) No(s).1627/2022 (Arising out of impugned final judgmentand order dated 16-11-2021 in CRLBA No.986/2020 passed by theHigh Court of Judicature At Bombay), dated 18.05.2022. In thiscase, around 237 witnesses were cited, out of which 68 wereexamined. The Presiding Officer was on a long leave. The accusedwas incarcerated for six and a half (6½) years. In this case, theHonourable Supreme Court did not comment on the merits of thecase observing that it may be detrimental to the interest of eitherthe prosecution or the defence. The Honourable Supreme Court 9 928-BA-1707-24.odtgranted bail by observing that taking into account the fact that thepetitioner has been in custody for 6½ years and even if 50% of theremaining witnesses are given up by the prosecution, the trial willnot be complete soon. Again, the Honourable Supreme Courtconsidered peculiar facts of the case and the possibility ofconclusion of the trial within a reasonable period.13.The learned counsel for the applicant has further relied onthe case of Rup Bahadur Magar @ Sanki @ Rabin vs. State ofWest Bengal, Criminal Appeal No.4144 of 2024 [Arising outof S.L.P. (Criminal) No.11589 of 2024] dated 04.10.2024. In thiscase, also the accused had undergone incarceration for a periodof 2 years and 9 months. Initially, 72 witnesses were named, out ofwhich only 3 were examined. The statement was made before theCourt that the witnesses would be brought down to 22 to 24. TheHonourable Supreme Court recorded the findings that the trial hasbeen delayed considerably. When there are no antecedents, therewas no reason for the High Court to deny the bail. Under thesepremise the bail was granted.14.The learned counsel for the accused tried to argue that oncethis court directed the trial Court to conclude the trial within a timeframe and expressed an opinion that if the trial is not concluded intime, the Court will have no option except for granting the bail tothe applicant, now the Court could not deny him bail. 10 928-BA-1707-24.odt15.In the case of Rup Bahadur (supra), the HonourableSupreme Court has referred to the judgment, in the case of HighCourt Bar Association, Allahabad vs. State of U.P. & Ors.,(2024) 6 SCC 267, in which the Constitution Bench observedthat the orders directing the disposal of trials within a timeschedule, put the undue pressure on the Trial Courts which arealready flooded with a lot of work. Unless the factual situation isextraordinary and exceptional, the High Courts should refrain frompassing such orders.16.By stretch of imagination it could be said that if the trial isnot concluded in a time frame as per the Court’s order, theapplicant gets a right to bail. If such an interpretation is acceptedthere would be havoc in society and the provisions granting bail onthe basis of facts, the gravity and brutality and the effect of suchcrimes on society would be frustrated. That apart, the doctrine of‘the change in the circumstances’ would also become redundant. Itis made clear that the Court does not intend to say that suchorders of the Higher Court should not be taken seriously. Suchorders must be respected. That apart, the orders of the HighCourts without recording the reasons for extraordinary factualsituations passing such orders are held contrary to the law laiddown in the case of High Court Bar Association (supra). 17.The learned counsel for the applicant also relied on the case 11 928-BA-1707-24.odtof Mukesh Kumar vs. The State of Rajasthan and Anr., inPetition for Special Leave to Appeal (Crl.) No.11714 of 2022[Arising out of impugned final judgment and order dated 27-09-2022 in SBCRBCA No.96 of 2021 passed by the High Court ofJudicature for Rajasthan at Jaipur] decided on 15.02.2023. 18.In the above case, the accused were facing trial for thecharge under Sections 143, 307, 452, 323, and 504 of the IPC. Therole attributed to the accused were also discussed. There werecross complaints and both side persons suffered injuries It was thecase of a single blow on the head of the deceased with a danda(Bamboo). The applicant/accused was arrested on 08.06.2020 andhe was released by the trial Court on regular bail on 22.06.2021.However, the High Court had cancelled his bail by order dated27.09.2022. After the cancellation of bail by the High Court, heagain surrendered on 16.11.2022. 19.The Honourable Supreme Court considered his incarcerationfor more than 14 months, examining the crucial witnesses and nolikelihood of tampering with the evidence and consideration timeto conclude the trial, again in this case the Hon’ble Supreme Courtconsidered the factum of the case and in this peculiar facts,granted bail expressing opinion that trial may take its time.However, there was no data before the Hon’ble Supreme Court,on how many witnesses remained were cited and remained to becited. In the peculiar circumstances the discretion was exercised. 12 928-BA-1707-24.odt20.The learned counsel for the applicant also relied on the caseof the Bombay High Court in Shishirkumar GopalchandraPadhy vs. State of Maharashtra, Bail Application No.2145 of2023, dated 12.09.2023. In the earlier of this Court this case wasconsidered and bail was refuse. In this case, the applicant wasarrested on 18.01.2016. He was facing the charges of Sections302, and 452 of the IPC. He was incarcerated from the date of hisarrest. Five witnesses were examined and ten were intended to beexamined. The trial was directed to conclude within six months.The Court has observed and specifically directed the concernedJudge shall endeavor to fix the trial on a day-to-day basis andconclude the same. Upon the order being passed, the trial Courttook note of the direction issued by the High Court dated19.10.2022 and fixed the trial not on day-to-day basis, but spreadover by a period of about a week or so. The counsel for theapplicant had placed the Roznama of the proceedings before theCourt. The Court recorded remark, that on most of the occasionsthe witnesses are absent and on some of the remaining dateswhen the witness was present, the accused was not produced fromjail custody. The net result of the fact, the trial has not progressedat all and it remained at standstill at the same stage where it wason 30.09.2022, merely a year after the order was passed. TheBombay High Court considered the expectancy of the life of thetrial and his incarceration for almost seven years. The Court also 13 928-BA-1707-24.odtobserved that not a single positive step was taken by the in-chargeCourt to ensure the presence of witnesses and also to secure thepresence of the accused on the concerned dates. Some adverseobservations were recorded against the judicial officer. Since not asingle witness was examined for one year, the Court expressed itsinability to conclude as to who should be blamed. Under thisscenario, the Court granted bail.21.The learned counsel for the applicant also relied on the caseof Rabi Prakash versus The State of Odisha, 2023 LiveLaw(SC) 533. In that case, also the accused was behind the bar formore than three and a half years and only 1 out of 19 witnesseswere examined. The conclusion of the trial will, thus, take somemore time. Under this premise, the Court granted bail.22.The learned counsel for the applicant relied on the case ofModh. Enamul Haque vs. Directorate of Enforcement,Criminal Appeal No.3984 of 2024 (@ SLP(CRL.) No.11129 of2024, dated 23.09.2024. In that case also, the accused wasincarcerated for a period of nearly four years and the trial was notcommenced. Hon’ble Supreme Court granted bail to the accusednot only on the grounds of parity but also for the reason that thetrial is yet to commence and the applicant/accused wasincarcerated for more than two and a half (2½) years. 14 928-BA-1707-24.odt23.The learned counsel for the applicant relied on the followingorders of this Court:-(i) Bhagwan Bapurao Parve vs. The State of Maharashtra, BailApplication No.1196 of 2024, dated 09.09.2024;(ii)Mohan Suresh Lashkare and others vs. The State ofMaharashtra, Bail Application No.1681 of 2024, dated09.10.2024;(iii)Vijay Balasaheb Kharde vs. vs. The State of Maharashtra,Bail Application No.1502 of 2024, dated 10.10.2024.24.In Bhagwan (supra), the directions of this Court have notbeen strictly followed. The case was listed for the recording ofevidence. In sum and substance, the trial was not commenced andin that peculiar circumstances, bail was granted.25.In Mohan (supra), the accused/applicants No.3 and 5 werein jail since 2013, applicant No.2 was in jail since 2015 andapplicants No.1 and 4 were in jail since 2018. In this peculiarcircumstance, though the case was posted for the recording of thestatement under Section 313 of the Cr.P.C., the bail was granted.26.In Vijay (supra), the accused were languishing in jail since2020 and the charges were not framed. Under that premise, thebail was granted.27.Lastly, the learned counsel for the applicant relied on the 15 928-BA-1707-24.odtcase of Javed Gulam Nabi Shaikh versus State ofMaharshtra, Criminal Appeal No.2787 of 2024 (Arising out ofSLP (Crl) No.3809 of 2024), dated 03.07.2024. In that case, also,the accused was apprehended on 09.02.2020 and since then hewas behind bar. The crucial question, in that case, was, whetherArticle 21 of the Constitution would apply only to general offencesunder the IPC or also to the offences under the Special Act. TheHonourable Supreme Court answered that Article 21 of theConstitution applied irrespective of the nature of the crime. In thatcase, the charges were not framed. Then, the HonourableSupreme Court passed the order. Under this premise, the Courtgranted the benefits to the accused of Article 21 of theConstitution of India and directed to release him.28.The learned A.P.P. and the learned counsel for the victimhave vehemently opposed the application and mainly on theground argued that in most of these cases there was absolutely noprogress in the trial and nor the charges were framed. In one ofthe cases, Shishirkumar (supra), the trial was not opened andconcluded within a specific time though there were directions fromthe High Court to list the case for hearing day-to-day.29.The learned A.P.P. submits that the right to a speedy trial isto be protected and bail for indefinite incarceration should begranted. In the cases where there is no hope of concluding the trial 16 928-BA-1707-24.odtwithin a reasonable time, and particularly, for a long period therewas no progress, even if the charges were not framed, grantingbail is justifiable. In some of the cases, the Honourable SupremeCourt has conceded the large number of witnesses and theexpected time to conclude the trial. A bulky chargesheet was alsoconsidered. They would submit that this is not the case like. Thecharges were framed and to date, 24 witnesses have beenexamined. The orders of this Court to expedite the trial wasfollowed and attempts to conclude the trial were sincerely made.They also vehemently argued that the accused are also equallyresponsible to protract the trial. The accused or their counsels didnot support the Court to proceed with the trial by appearingthrough video conferencing. Sometimes, the witnesses werepresent, but due his non production of the jail and the counsel forhim, the matter could not be proceeded. The direction of fixing thetrial on day-to-day basis was strictly followed by the trial Court,though there were transfers of Judicial Officers and time was spentin transferring the matter to the newly posted Judicial Officer. Thisis not the case only to blame the prosecution and the Court andalso equally the accused.30.The learned A.P.P. expressed the opinion that if the trial islisted day-to-day, it may be concluded at least within five to sixmonths, subject to the cooperation of the accused and do notinsist for his physical presence on each date. 17 928-BA-1707-24.odt31.The learned A.P.P. relied on the case of Amit Kumar vs.Union of India, The Gauhati High Court, Case No. BailApplication No.1044 of 2024, dated 26.07.2024, in which theHon’ble Supreme Court has observed, instead of incarceration ofthe accused, the benefit of incarceration in jail should not begranted for the offences which are grave and serious. 27. In theabove case the case of Satyajit Banergee Vs State of WestBengal and ors (2005) 1 SCC 115 was referred to. In this case,the Hon’ble Supreme Court pointed out the subtle distinctionbetween a Speedy trial and a fair trial. It has been observed that “Speedy trial” and “ fair trial” to a person accused of a crime areintegral parts of Article 21. There is, however, a qualitativedifference between the right to speedy trial and the accused’sright to a fair trial. Unlike the accused’s right to a fair trial,deprivation of the right to a speedy trial does not per se prejudicethe accused in defending himself. The right to a speedy trial is inits very nature relative. It depends upon diverse circumstances.Each case of delay in the conclusion of a criminal trial has to beseen in the facts and circumstances of such case. A mere lapse ofseveral years since the commencement of prosecution by itselfmay not justify the discontinuance of prosecution or dismissal ofindictment. The factors concerning the accused’s right to a speedytrial have to be weighed vis-a-vis the impact of the crime onsociety and the confidence of the people in the judicial system. A 18 928-BA-1707-24.odtspeedy trial secures the rights of an accused but does not precludethe rights of public justice. The nature and gravity of crime,persons involved, social impact and societal needs must beweighed along with the right of accused to a speedy trial and if thebalance tilts in favour of the former the long delay on conclusion ofcriminal trial should operated against the continuation ofprosecution and if the right of the accused in the facts andcircumstances of the case and exngencies of situation tilts in hisfavoure, the prosecution may be brought to end. It was alsoobserved that from the principles laid down in many authorities ofthis Court, it is clear as crystal that no time limit can be stipulatedfor the disposal of the criminal trial. The delay caused has to beweighed on the factual score, regard being had to the nature ofthe offence and concept of social justice and the cry of thecollective.32.The learned A.P.P. and the learned counsel for the victimhave vehemently argued that since the witnesses are threatened,they are afraid of coming to the Court. P.W.No.22 had anapprehension. Hence, the Court granted him police protection. Thefamily members of the applicant are threatening the witnesses.Therefore, it would not be safe to grant him bail.33.Per contra, the learned counsel for the applicant hasvehemently argued that many cases are pending against 19 928-BA-1707-24.odtP.W.No.22. So, probably he might have not been attending theCourt of apprehension of his arrest. No threats, as such, weregiven. However, to create a ground to oppose bail application,false non-cognizable cases were registered.34.The offence of this case was of murder. It is a grave offence.The serious allegations levelled against the accused wereweighted in all his bail applications and he was refused bail. Theconduct of the applicant not supporting the system has also beenobserved above. The facts of the case could be summarized thatafter this Court had directed to expedite the trial, around 19witnesses were examined and 5 witnesses were already examined.To date, 24 witnesses have been examined. A large number of 19witnesses were examined and only a few formal witnesses are tobe examined. There are two panch witnesses to one panchnama.The second one is to be examined only if the first is hostile. If thefirst panch supports the prosecution, the second panch witnessmay be dropped. So that may reduce the number of witnesses.That apart, the trial is not stalled. It was listed today for cross-examination of the witnesses. So, it cannot be said that there wasno progress in the trial at all. The learned trial Court and theprosecution are sincerely attempting to conclude the trial, but dueto administrative difficulties, the Court could not proceed with thematter. For administration difficulties, no one should be blamed.Transfer and new posting are the regular processes of the system. 20 928-BA-1707-24.odtSo, when the matters were transferred some time would be spent.35.Considering the facts of this case and the material progressin the trial, the Court is of the opinion that the case laws reliedupon by the learned counsel for the applicant, would not assisthim. There was satisfactory progress in the trial as per thedirections of this Court. Hence, it cannot be stated that theapplicant’s right to a speedy trial has been seized and there are nohopes of disposal of the trial in the near future.36. For the above reasons, the bail application stands dismissed.37.The Criminal Application No.4333 of 2024 stands disposed of. ( S. G. MEHARE ) JUDGErrd