Niklesh Prakash Patil v. The State of Maharashtra

9. The term “bail” has not been defined in the Code, though is used very often. A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the court or by the police or by the investigating agency.

10. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial. The word “bail” has been defined in Black's Law Dictionary, 9th Edn., p. 160 as: “A security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time.”

11. Wharton's Law Lexicon, 14th Edn., p. 105 defines “bail” as: “to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc. the legal power to deliver him.” Bail is the rule

12. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India. This Court in Nikesh Tarachand Shah v. Union of India [Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1: (2018) 2 SCC (Cri) 302], held that: (SCC pp. 22-23 & 27, paras 19 & 24) “19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565: 1980 SCC (Cri) 465], the purpose of granting bail is set out with great felicity as follows: (SCC pp. 586-88, paras 27-30) 6 of 39 ‘27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318: AIR 1924 Cal 476], AIR pp. 479- 80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the “Meerut Conspiracy cases” observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60: AIR 1931 All 504] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14: AIR 1931 All 356], AIR p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have 7 of 39 his freedom to enable him to establish his innocence.

28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240: 1978 SCC (Cri) 115] that: (SCC p. 242, para 1) “1. … the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. … After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right.”

29. In Gurcharan Singh v. State (Delhi Admn.) [Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118: 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that: (SCC p. 129, para 29) “29. … There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.”

30. In American Jurisprudence (2nd Edn., Vol. 8, p. 806, para 39), it is stated: “Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.” It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.’ * * * 8 of 39

24. Article 21 is the Ark of the Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248].”

13. Further this Court in Sanjay Chandra v. CBI [Sanjay Chandra v. CBI, (2012) 1 SCC 40: (2012) 1 SCC (Cri) 26: (2012) 2 SCC (L&S) 397], has observed that: (SCC p. 52, paras 21-23) “21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.” 9 of 39 Presumption of innocence

14. Innocence of a person accused of an offence is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the court. Thus, it is for that agency to satisfy the court that the arrest made was warranted and enlargement on bail is to be denied.

15. Presumption of innocence has been acknowledged throughout the world. Article 14(2) of the International Covenant on Civil and Political Rights, 1966 and Article 11 of the Universal Declaration of Human Rights, 1948 acknowledge the presumption of innocence, as a cardinal principle of law, until the individual is proven guilty.”

10. The Supreme Court in a landmark decision of 1978 in the case of Gudikanti Narasimhulu & Ors. Vs. Public Prosecutor, High Court of Andhra Pradesh[3] observed as under:-

11. Thereafter the Supreme Court in a plethora of judgements have discussed the rights conferred by Article 21 qua grant of bail and that such rights cannot be taken away unless the procedure is reasonable and fair and in cases where there is unreasonable delay in trial it would undoubtedly impact the rights of an undertrial. Some of the important decisions of the Supreme Court and some of the High Courts are discussed herein under:- 3 1978 (1) SCC 240 10 of 39

11.1. In the landmark judgement of Maneka Gandhi Vs. Union of India[4], the Supreme Court held that the right to life and personal liberty under Article 21 is not limited to mere physical existence but includes the right to live with dignity. The court emphasized that the procedure established by law must be fair, just, and reasonable, and it cannot be arbitrary, oppressive, or unreasonable.

11.2. In the case of Hussainara Khatoon Vs. Home Secy., State of Bihar[5] the Supreme Court held as under:- “Now obviously procedure prescribed by law for depriving a person of liberty cannot be“reasonable, fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21.”

11.3. The Supreme Court in the case of Shaheen Welfare Association Vs. Union Of India[6] dealing with a Public Interest Litigation seeking relief for under-trial prisoners charged under the Terrorist and Disruptive Activities (Prevention) Act, 1987 due to gross delay in disposal of cases qua Article 21 of the Constitution of India held as under:-

11 of 39

11.4. The Supreme Court in the case of Union of India v. K. A. Najeeb[7] while commenting upon the possibility of early completion of trial and extended incarceration held as under:-

12. Applicant in present case has been in custody for 7 years 8 months 2 days in prison pending trial. There is no possibility of the trial concluding in the near foreseeable future. Detaining an under-trial prisoner for such an extended period further violates his fundamental right to speedy trial flowing from Article 21 of the Constitution. At this juncture I deem it appropriate to list certain observations of the Supreme Court shedding light on concerns underlying the “Right to speedy trial” from the point of view of an accused in custody whose

7 Criminal Appeal No. 98 of 2021 12 of 39 liberty is affected. In the case of Abdul Rehman Antulay & Ors. Vs R.S. Nayak & Anr.[8] the Supreme Court held as under:-

13. The Supreme Court has also held in a series of judgements and orders that in situations where the under-trial-prisoner / accused persons have suffered incarceration rather long incarceration for a considerable period of time and there is no possibility of the trial being completed within the foreseeable future, Constitutional Courts can

14. In the case of Supreme Court Legal Aid Committee (Representing undertrial prisoners) Vs. Union of India[9], the Supreme Court has held that:-

15. It is observed by the Delhi High Court in the case of Sandeep Tilwani Vs. State Govt. of NCT of Delhi10 that endless incarceration

10 Bail Application No.4648 of 2022[4] decided on 24.12.2024 14 of 39 without trial being completed in the near foreseeable future falls foul of Article 21 of the Constitution of India. The Court held that if Accused is suffering a prolonged incarceration without a timely trial in the case, Courts would ordinarily be obligated to release the Accused on bail. This is in context of Article 21 of the Constitution of India which deals with right to life and personal liberty. Court held that law in such cases preferred “bail over jail” aiming to balance right of Accused with the requirement of criminal justice system and even though if offence was serious, long incarceration was a relevant factor. Court held that object of bail was to secure appearance of Accused during the trial.

16. The Supreme Court in the case of Ankur Chaudhary Vs. State of Madhya Pradesh11 while considering a similar situation on the facet of long incarceration granted bail under the NDPS Act despite the Accused therein not meeting the stringent criteria of Section 37 of the NDPS Act by holding that long incarceration due to undue trial delays contradicts the fundamental right under Article 21 of the Constitution of India thus allowing conditional liberty to supersede the statutory restrictions in such cases.

17. In the case of Mohd. Muslim Vs. State (NCT of Delhi)12, and Rabi Prakash Vs. State of Odisha (2023)13 Supreme Court held that

15 of 39 when Accused faces prolonged incarceration conditional liberty can supersede the statutory restrictions outlined in Section 27 of the NDPS Act which implies that if trial experiences undue delay it can serve as a valid ground for granting bail to Accused despite the stringent provisions of Section 37 of the NDPS Act. In the said decision, the Supreme Court has referred to a piece authored by Donald Clemmer titled ‘The Prison Community’ in 1940, to highlight the dangers of unjust imprisonment. Quoting the author and a decision of the Kerala High Court, the Supreme Court has flagged the risk of ‘prisonisation’, that is the risk of an under-trial losing his identity; coming to be known only by a number; losing his personal possessions and personal relationships; status, dignity and autonomy over his personal life, all of which affects his self-perception. It has also been highlighted that if an under-trial belongs to the weaker economic strata of society, imprisonment leads to immediate loss of livelihood, scattering of families and alienation from society. The Supreme Court has observed that Courts must be sensitive to these aspects, since in the event of acquittal, these losses would be irreparable.

18. Considering the above pronouncements, I recently came across an article / blog dedicated to under-trials prisoners languishing in prisons of India titled “Proof of Guilt” written by two under-trial accused persons detained in prison since long. Considering long incarceration a question was posed in the article which in my opinion 16 of 39 is relevant to answer if any Court is considering the facet of long incarceration pending trial for grant of bail. At the outset, I need to clarify that mere long incarceration is not an absolute proposition for grant of bail as Court will have to also consider and hear the prosecution objections, but it is an important, rather most important issue which needs consideration if raised considering right to speedy trial. The question posed in the article is “How long is too long a period of incarceration as an under-trial for a Court to conclude that the right to speedy trial is defeated?” The paradox in the aforesaid question is relevant prima facie and there cannot be one definite answer.

19. It is seen that this question was raised by the Delhi High Court in the case of Mohamed Hakim Vs. State (NCT of Delhi)14 in the context of grant of bail to an under-trial prisoner. In this case a Division Bench of Delhi High Court has urged Courts to act as doctors instead of coroners to highlight that it is crucial for a Court to recognise and be conscious of the right of an accused to speedy trial and to prevent that right from getting defeated, rather than wake up much too late and lament that such right has been defeated. The Court has held that a Court seized of a bail must assess the pace at which the trial is proceeding and to not wait for too long by which time the Article 21 right of an accused is already trampled upon.

20. In the case of Mohamed Hakim (supra) in an exhaustive paragraph the Court has referred to the seminal ruling in the case of

22. In the same judgement, paragraph No.30 is also relevant wherein the Court has reiterated the foundational principles of bail in the masterful words of the apotheosis of jurisprudence, Justice V.R. Krishnaiyer as being never out of place. Paragraph No.30 reads thus:- “30. A reminder of the foundational principles of bail, in the masterful words of the apotheosis of jurisprudence, Justice V.R. Krishna Iyer, is never out of place. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh as upheld in a subsequent decision in Babu Singh v. State of UP, the Hon'ble Supreme Court said in the opening para: ““Bail or jail?” — at the pre-trial or post-conviction stage — belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on 26 of 39 occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right. “2. The doctrine of police power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.”

23. It is seen that detaining an under-trial person in prison for a long period only serves to legitimise the award of “Surrogate Punishment” to that person without trial which amounts to pre-trial punishment. It is argued by one author that if presumption of innocence is one of the corner stone of criminal jurisprudence then would long incarceration be also considered as legitimate.

24. The facet of long incarceration is also sought to be argued vis-a-vis the concept of “bail not jail” being adopted by Courts in India. Undoubtedly on the flip side the prosecution can always argue the consequences of enlargement on bail qua the impending trial which in some deserving cases needs consideration. Reference is also made to the case of In re: UTP Dipak Joshi @ Jaisi @ Jaishi17 when the undertrial accused came out of prison / correctional home after a staggering 41 years following intervention of the Calcutta High Court which in itself is an eye opener to all of us on the facet of long incarceration. 17 WPA (P) 27 of 2021 decided on 17.03.2021 27 of 39

25. Similarly in a judgement of the Supreme Court in the case of News Item “38 yrs in Jail without trial” published in Hindustan Times Vs. Union of India18 it is seen that a news item was published on 14.10.2009 mentioning that one Machal Lalung, a resident of Assam continued to languish in prison in its psychiatric hospital for a period of 38 years even after he was declared fit in 1967. It is held in the judgement that series of orders were passed and he was directed to be released by the Supreme Court.

26. In the case of Amit Agrawal Vs. State of NCT Delhi19 the Delhi High Court in paragraph No.13 of the said decision has given a quick overview of the principles of bail jurisprudence by the Supreme Court which ae necessary for consideration by a bail Court considering the right of speedy trial of an under-trial accused. These principles are enumerated therein as follows:- “13.1. An undertrial is required to post bail in order to secure his presence at the trial, for which purpose an undertrial is handed-over from the custody of the court to the custody of an appropriate surety. The effect of granting bail is not to set an undertrial completely at liberty but to release him from the custody of law and entrust him to the custody of his surety; and the surety is bound to ensure his production at the trial.

13.2. Bail may be denied if the court is not satisfied that an accused would remain available to face trial; or the court is of the view that he would intimidate witnesses or tamper with evidence or otherwise interfere in the course of justice. The ‘operative’ test that a court must apply for grant or denial of bail is the test of ‘necessity’, namely to answer why it is necessary to detain an undertrial in custody.

13.3. The purpose of pre-trial custody is neither ‘punitive’ nor ‘preventative’, meaning that an accused cannot be held in

19 Bail Appln 4475/2024 decided on 01.05.2025 28 of 39 custody only with the intention of punishing him for an offence which is yet to be proved against him; nor is bail to be denied on the presumption that he would commit an offence if enlarged from custody (except where additional twin conditions prescribed by the Legislature under certain special statutes).

13.4. Pertinently, bail must not be denied as a mark of disapproval of the alleged conduct of an accused; nor should it be denied for giving to an accused the taste of imprisonment as a lesson. This is a common pitfall since oftentimes courts get swayed by the allegations contained in an FIR or a chargesheet and tend to proceed on the textual gravity of the offences alleged, meaning that courts get blinded by the multitude of penal sections foisted against an accused by the prosecution, which builds a textual narrative in the FIR or in the chargesheet. It is important therefore, for a court to look into the specific allegations against a particular accused, and how, if at all, those allegations are supported by the material or evidence available on record.

13.5. It is extremely important to appreciate that the consequences of pre-trial detention are grave: an accused, who is otherwise presumed innocent until proven guilty, is subject to psychological and physical deprivations of jail life; and is even prevented from contributing to the preparation of his defense.

13.6. ….

13.7. It would therefore be sacrilege for a court to disregard the presumption of innocence which enures to the benefit of an accused, while on the other hand failing to ensure speedy trial. The right to speedy trial is the flip-side of the presumption of innocence. It has been held that the right to speedy trial is implicit in the broad-sweep of Article 21 of the Constitution; and a procedure prescribed by law that deprives a person of liberty can only be said to be reasonable, fair and just on the anvil of Article 21 if it also ensures speedy trial.”

27. It is seen that role of the Judge in a trial assumes a lot of importance. The Trial Judge should enquire with the prosecution as to why they intend to examine the witness if such witness is going to depose the very same thing which such a witness might have deposed earlier. This is in the context of considering the issue of delay in trial for grant of bail. The Supreme Court in the case of Tapas Kumar Palit 29 of 39 Vs. State of Chhattisgarh20 has held that if an accused is to get a final verdict after incarceration of 6 – 7 years in jail as an under-trial prisoner, then definitely it could be said that his right to have a speedy trial has been infringed. The Supreme Court held that stress of long trial on accused persons who remain innocent until proven guilty can also be significant. The Supreme Court held that accused persons are not financially compensated for what might be a lengthy period of pretrial incarceration. In the bargain, they may also have lost a job or accommodation, experienced damage to personal relationships while in long incarceration and spent a considerable expense on legal fees. The Supreme Court held that if an accused person is not found guilty, they have likely endured many months of being stigmatized and ostracized and will have to rebuild their lives with their own available resources. The Supreme Court held that delay in trial is bad for the accused and extremely bad for the victims as also for the Indian Society and for the credibility of our justice system which is valued.

28. In the case of Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Anr.21 in the context of delay in trial vis-a-vis speedy trial as enshrined in Article 21 of the Constitution of India, the Supreme Court has categorically held that if the State or any prosecuting agency including the Court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a

30 of 39 speedy trial under Article 21 of the Constitution of India, then the State or prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. The Supreme Court held that Article 21 of the Constitution of India applies irrespective of the nature of the crime. This is a very significant statement.

29. While sitting as a Bail Court what I have experienced is that public prosecutors oppose bail pleas vehemently even in the cases of long incarceration pending trial under the mistaken impression that the crime in question is serious and therefore the Court should not grant bail to the accused person. This mindset and approach of the prosecution needs to change. It is observed that in cases under POCSO, the statute itself provides a speedy trial within 1 year under Section 35 of the POCSO Act, but that is seldom achieved. Even in such cases where trials are pending over 5 years without even being commenced, the prosecutors raise vehement objection to Bail Applications on the ground of severity of the crime.

30. The Supreme Court in the above case has hastened to add that the accused person is still an under-trial prisoner and not a convict and the overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly however stringent the law may be. 31 of 39

31. Attention is invited to Section 309 of Cr.P.C. which reads thus:- “309. Power to postpone or adjourn proceedings. (1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:Provided that when the inquiry or trial relates to an offence under section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB of the Indian Penal Code, the inquiry or trial shall] [Substituted by Criminal Law (Amendment) Act, 2013 ] be completed within a period of two months from the date of filing of the charge sheet.] (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Provided also that- (a)no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b)the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c)where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination- 32 of 39 in-chief or cross-examination of the witness, as the case may be.”

32. The above is a statutory provision. In the present BNSS there are similar statutory provisions. They are however seldom followed due to various reasons. Undoubtedly Prosecution cannot be solely blamed for protraction of trial as the reasons for delay are sometimes beyond their control. Hence, I am of the opinion that facet of long incarceration pending trial assumes significance in the realm of Article 21 and Article 22 (2) of the Constitution of India for consideration by every Court deciding a bail Application.

33. In the following cases, the Supreme Court and this Court has considered long incarceration pending trial as a principal ground for granting bail to an under-trial accused in view of his right to speedy trial and personal liberty emanating from Article 21 of the Constitution of India.

33.1. In the case of Avinash Ashok Torane Vs. The State of Maharashtra22, this Court (Coram: N.J. Jamadar, J.) while dealing with a bail application for offence under Section 302 of the IPC considering parity with another co-accused who was enlarged on bail considered the unlikelihood of completion of trial coupled with the period of long incarceration of 1 year 3 months of the Applicant therein and enlarged him on bail.

33.2. In the case of Sonu Parmeshwar Jha Vs. The State of Maharashtra23 this Court (Coram: M.S. Karnik, J.) was dealing with a bail application for offences under Sections 302 and 304(b) of IPC and considering the circumstantial evidence against the accused as well as his long incarceration of 1 year 7 months enlarged him on bail.

33.3. In the case of Rup Bahadur Magar @ Sanki @ Rabin Vs. State of West Bengal24, in a case under Sections 394, 395, 397, 307 read with 120-B of IPC, the Supreme Court granted bail to the accused considering long incarceration undergone by him of 2 years and 9 months.

33.4. In the case of Santosh Ramprasad Hairijan Vs. The State of Maharashtra25, in a case under Section 302 of IPC this Court taking into account long period of incarceration undergone by the accused of 3 years 4 months granted him bail.

33.5. In the case of Javed Gulam Nabi Shaikh (Supra) the Supreme Court while granting bail to an accused incarcerated for 4 years in paragraph Nos.16 and 17 held as under:-

33.6. In the case of Balwinder Singh Vs. State of Punjab and Anr.26, in a case under Sections 302 and 307 of IPC the Supreme Court granted bail to the accused who was behind bars for 4 years citing unlikelihood of completion of trial in the near future as also on parity with the co-accused.

33.7. In the case of Roland Victor Monterio Vs. State of Maharashtra27, this Court (Coram: N.J. Jamadar, J.) in a case under Sections 302, 304-B and 498-A of the IPC granted bail to the accused on account of his long incarceration of 4 years. Similarly in the case of Naresh Harishchandra Mali Vs. The State of Maharashtra28, this Court (Coram: N.J. Jamadar, J.) in a case under Sections 302 and 307 of IPC granted bail to the accused as he was in prison for a period of more than 5 years.

33.8. This Court in the case of Ganesh Madhukar Mendarkar Vs. The State of Maharashtra29 while referring to an article dated 26 SLP (Crl.) No.8523 of 2024 27 Bail Application No.1981 of 2023 decided on 11.01.2024

28 Bail Application No.3858 of 2022 decided on 27.07.2023 29 Bail Application No.597 of 2025 decided on 14.02.2025 (Bombay HC) 35 of 39 01.05.2018 “How prison changes people” 30 written by Dr. Christian Jarret, Editor of British Psychological Society's Research Digest published on BBC discussed the negative effects on a person's mental and physical health due to long incarceration and granted bail to the Accused who suffered incarceration of more than 9 years in a matter under 302 of IPC. Paragraph No.29 of the judgment is relevant and reads as under:-

34. In view of the above judicial pronouncements vis-a-vis the long incarceration of Applicants for more than 7 years 8 months and 2 days pending trial and other two co-accused having being released on bail further persuades me to consider Applicant’s case on the ground of parity also. Considering the prospect of the trial being completed in the near foreseeable future being a distinct impossibility, I am of the

30 Available at https://www.bbc.com/future/article/20180430-the-unexpected-ways-prison-time-changespeople 36 of 39 opinion that Applicant can be released on bail.

35. Hence, Bail Application is allowed on the following terms and conditions:-

(i) Applicant is directed to be released on bail on furnishing P.R. Bond in the sum of Rs.25,000/- with one or two sureties in the like amount;

(ii) Applicant is permitted to furnish provisional cash bail of

Rs.25,000/- for his release immediately and file undertaking that he will provide one or two sureties in the like amount of Rs.25,000/- within a period of four weeks after his release which shall be accepted by the Trial Court. Applicant shall provide sureties as directed;

(iii) After his release from jail, Applicant shall report to the

(iv) Applicant shall attend the trial Court on first Monday of every month between 11.00 a.m. and 1.00 p.m. to mark his presence. If the first Monday of the said month falls on a holiday and / or non Court working day, the Applicant shall mark presence on the next working day;

(v) Applicant shall co-operate with the conduct of trial and attend the trial Court on all dates unless specifically 37 of 39 exempted and will not take any unnecessary adjournments, if he does so, it will entitle the prosecution to apply for cancellation of this judgment;

(vi) Applicant shall not leave the State of Maharashtra without prior permission of the Trial Court;

(vii) Applicant shall not influence with any of the witnesses or tamper with the evidence in any manner; (viii)Before his actual release from jail, Applicant shall furnish his address where he proposes to reside after his release from jail, to the concerned Police Station and also to the trial Court;

(ix) In case of any infraction of the above conditions and / or two consecutive defaults in marking his attendance before trial Court, it shall attract the provisions of Section 439(2) of Cr.P.C. i.e. for cancellation of bail.

36. It is clarified that the above observations in this judgment are limited for the purpose of granting bail only and I have not made any observations on the merits of the case and the trial shall be adjudicated on the basis of the evidence led by parties uninfluenced by the present judgment and strictly in accordance with law.

37. Bail Application is allowed and disposed. 38 of 39

38. I would like to express my appreciation to Mr. Shriganesh S. Sawalkar, learned Advocate practicing at the bar who has assisted the Court in placing on record compendium of decisions / judgments of the Supreme Court and the High Courts, inter alia, pertaining to long incarceration and right to speedy trial of under-trial prisoners to enable the Court to pass the present judgment. [ MILIND N. JADHAV, J. ] Ajay