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JUDGMENT
909. BA-597-2025.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO. 597 OF 2025 Ganesh Madhukar Mendarkar.. Applicant
VERSUS
The State of Maharashtra.. Respondent.................... Mr. B.L. Jagtap i/by Mr. Ashish Jagtap & Ms. Anushka Jagtap for Applicant Ms. Megha S. Bajoria, APP for State Retired ACP Mr. Anavarkar & PSI Mr. Desai................... CORAM: MILIND N. JADHAV, J. DATE: FEBRUARY 14, 2025 JUDGMENT: "Day after day, year after year, imagine having no space to call your own, no choice over who to be with, what to eat, or where to go. There is threat and suspicion everywhere. Love or even a gentle human touch can be difficult to find. You are separated from family and friends..."
1. This extract in the article dated 01.05.2018 "How prison changes people 1 " written by Dr. Christian Jarret, Editor of British Psychological Society's Research Digest published on BBC resonates when a case of an under-trial accused being in incarceration for more than 9 years pending trial comes before the Court. The present case is one such case.
2. Heard Mr. Jagtap, learned Advocate for Applicant and Ms. Bajoria, learned APP for State.
3. Applicant - accused has filed the present Application for regular bail under Section 439 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.") in connection with Crime No. 45/2016 registered with Dindoshi Police Station, Mumbai for the offences punishable under Sections 302, 397 and 34 of the Indian Penal Code, 1960 (for short, "IPC"); Sections 4 and 25 of Indian Arms Act, 1959 and Sections 37(1) and 135 of the Maharashtra Police Act, 1951.
4. Applicant is at present 51 years old and he is in custody since 20.01.2016 i.e. for 9 years and 25 days. There are four accused in the crime and the other three accused have all been granted bail. Trial has commenced in 2018. As per the list of the witnesses filed by prosecution, there are 36 witnesses out of which witness action of the informant and three panch witnesses is over.
5. Mr. Jagtap would submit that he would press the present Application on two specific grounds i.e. (i) long incarceration of the Applicant and (ii) Applicant is suffering from HIV and is admittedly undergoing treatment from various institutions from the prison.
6. Ms. Bajoria, learned APP has taken instructions pursuant to the directions contained in the order dated 13.02.2025. Investigating Officer is present in Court. Ms. Bajoria on instructions would submit that all endeavours shall be made by the prosecution to complete the trial within a period of three months. However she would fairly submit 2 of 21 that though the prosecution has given list of 36-37 witnesses, prosecution would not be examining all of them and therefore considering the gravity of crime, it would be the only consideration for the Court to reject the present Application, hence the Court should consider the request made by the prosecution.
7. I have considered the submissions made by Mr. Jagtap, learned Advocate for Applicant and Ms. Bajoria, learned APP for Stae and with their able assistance perused the record of the case.
8. The only reason which impels me to consider the present Application is the long incarceration of the Applicant in prison since 20.01.2016. Without delineating any opinion on merits of the case, the trial has commenced from 2018 onwards but till date except the informant and three panch witnesses, witness action has not proceeded further at all. Undoubtedly the Covid-19 period would have to be taken into account in the interregnum for the delay but still justification for such long pendency of trial, long incarceration and no reasonable certainty of the trial being completed in the foreseeable future persuades me to consider the Application of the Applicant for bail.
9. It is settled law that a Court while deciding a Bail Application has to keep in mind the principal rule of bail which is to ascertain whether the Accused is likely to appear before the Court for trial. 3 of 21 There are other broad parameters also like gravity of offence, likelihood of Accused repeating the offence while on bail, whether he would influence the witnesses and tamper with the evidence, his antecedents are required to be considered in such cases.
10. It is seen that while dealing with Bail Applications the material available for consideration and adjudication is limited. It is brought to the notice of the Court that trials are taking perpetuity to conclude and prisons are also simultaneously overcrowded in some segments. This Court regularly deals with Bail Applications of undertrials who have been in custody for long period and is also equally aware of the conditions of our prisons. To give an example in the city of Mumbai, recently in one of the cases before me, a Report dated 12.12.2024 made by the Superintendent of Mumbai Central Prison addressed to the Chief Government Pleader was placed before me by the Public Prosecutor which stated that the Mumbai Central Prison (Arthur Road Jail) is overcrowded beyond its sanctioned capacity by more than 5 – 6 times and every barrack sanctioned to house 50 inmates as on date houses anywhere between 220 – 250 inmates. Such an incongruity leads us to answer the proposition: “How can Courts find a balance between the two polarities?"
11. Argued before me is a case concerning liberty of an undertrial who has been incarcerated for 9 years and 25 days, a situation 4 of 21 impacting the rights of under-trial conferred by Article 21 of Constitution to speedy justice as also personal liberty. In so far as the power of High Court to grant bail is concerned, when the case is such that involves a question of personal liberty of an under-trial who is incarcerated for a very long period, the powers are wide and unfettered by conditions, the principle rule being that bail is the rule and refusal is the exception, allowing accused persons to better prepare their defence.
12. In the case of Emperor Vs. H.L. Hutchinson[2], the Allahabad High Court, as far back as in the year 1931 held that power of granting bail conferred on High Court is entirely unfettered by any conditions. It held that legislature has given the High Court and the Court of Session discretion unfettered by any limitation other than that which controls all discretionary powers vested in a Judge, viz. that the discretion must be exercised judiciously. The Court has given primacy to the fact that accused person if granted bail will be in a much better position to defend himself. In this very case, it was delineated that grant of Bail is the Rule and refusal is an exception. This was in the famous Meerut Conspiracy case. Justice Mukherjea writing for the Bench in paragraph No.9 held as under:-
13. In the case of Satender Kumar Antil Vs. Central Bureau of Investigation[3], in paragraph Nos.[6] to 15 the Supreme Court considered the prevailing situation of prisons in India, definition of trial and bail, principle of presumption of innocence and reiterated the well recognised principle that bail is the rule and jail is the exception in bail jurisprudence on the touchstone of Article 21 of the Constitution of India. Paragraph Nos.[6] to 15 of the said judgement read as under:- “Prevailing situation
6. Jails in India are flooded with undertrial prisoners. The statistics placed before us would indicate that more than 2/3rd of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offence, being charged with offences punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offence being inherited by many of them. As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the investigating agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other. Definition of trial
7. The word “trial” is not explained and defined under the Code. An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter. Primary considerations would
6 of 21 obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors.
8. Similarly, an appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence. Definition of bail
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 7 of 21 set out with great felicity as follows: (SCC pp. 586-88, paras 27-30) ‘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 8 of 21 to freedom and every opportunity to look after his own case. A presumably innocent person must have 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.’ 9 of 21 * * *
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.” Presumption of innocence 10 of 21
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.”
14. The Supreme Court in a landmark decision of 1978 in the case of Gudikanti Narasimhulu & Ors. Vs. Public Prosecutor, High Court of Andhra Pradesh[4] observed as under:-
15. 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:- 4 1978 (1) SCC 240 11 of 21
15.1. In the landmark judgement of Maneka Gandhi Vs. Union of India[5], the Supreme Court held that the right to life and personal liberty under Article 21 is not limited to mere animal 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.
15.2. In the case of Hussainara Khatoon Vs. Home Secy., State of Bihar[6] the Supreme Court held as under:- “Now obviously procedure prescribed by law for depriving a person of liberty cannot “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.”
15.3. The Supreme Court in the case of Shaheen Welfare Association Vs. Union Of India[7] 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:-
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15.4. The Supreme Court in the case of Union of India v. K. A. Najeeb[8] while commenting upon the possibility of early completion of trial and extended incarceration held as under:-
16. Applicant in present case has been in custody for 9 years and 25 days. There is no possibility of the trial concluding in the near 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 liberty is affected. In the case of Abdul
8 Criminal Appeal No. 98 of 2021 13 of 21 Rehman Antulay & Ors. Vs R.S. Nayak & Anr.[9] the Supreme Court held as under:-
17. 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
18. In the case of Supreme Court Legal Aid Committee (Representing undertrial prisoners) Vs. Union of India10, the Supreme Court has held that:-
19. In the case of Avinash Ashok Torane Vs. The State of Maharashtra11, this Court (Coram: N.J. Jamadar, J.) while dealing with a bail application for offence under Section 302 of IPC considering
11 Bail Application No.3535 of 2023 decided on 08.01.2024 15 of 21 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 and enlarged him on bail.
20. In the case of Sonu Parmeshwar Jha Vs. The State of Maharashtra12 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 circumstantial evidence against the accused as well as long incarceration of accused of 1 year 7 months enlarged him on bail.
21. In the case of Rup Bahadur Magar @ Sanki @ Rabin Vs. State of West Bengal13, in a case under Sections 394, 395, 397, 307 readwith 120-B of IPC, the Supreme Court granted bail to the accused considering long incarceration undergone by him of 2 years and 9 months.
22. In the case of Santosh Ramprasad Hairijan Vs. The State of Maharashtra14, in a case under Section 302 of IPC this Court taking into account long period of incarceration undergone by accused of 3 years 4 months granted him bail.
23. In the case of Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Anr.15, the Supreme Court while granting bail to
16 of 21 accused incarcerated for 4 years in paragraph Nos.16 and 17 held as under:-
24. In the case of Balwinder Singh Vs. State of Punjab and Anr.16, 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.
25. In the case of Roland Victor Monterio Vs. State of Maharashtra17, 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 16 SLP (Crl.) No.8523 of 2024 17 Bail Application No.1981 of 2023 decided on 11.01.2024 17 of 21 Naresh Harishchandra Mali Vs. The State of Maharashtra18, 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.
26. Recently, the Delhi High Court in the case of Raghvendr Singh Vs. State of NCT of Delhi19 granted bail to the Accused who was indicted for offence of murder citing his long incarceration for a period of 5 and half years and enlarged him on bail.
27. In the case of Chintan Vidyasagar Upadhyay Vs. The State of Maharashtra20, in a case under Sections 302 and 396 of IPC the Supreme Court granted bail to the accused who had undergone 6 years of pre-trial incarceration. Similarly in the case of Indrani Pratim Mukerjea Vs. Central Bureau of Investigation21 the Supreme Court in a case under Section 302 of IPC granted bail to the accused, she having undergone pre-trial incarceration of 6 and a half years.
28. In view of the above decisions and considering the long incarceration of the Applicant, I would like to highlight one more important issue which persuades me to consider the present case and that is the effect of long incarceration. Long incarceration can have many negative effects on a person's mental and physical health. Long
20 SLP (Crl.) No.2543 of 2021 decided on 17.09.2021 21 SLP (Crl.) No.1627 of 2022 18 of 21 incarceration can lead to post-incarceration syndrome which can include depression, anxiety and poor self-esteem. It can promote unhealthy behaviours like drug abuse. Inmates face social stigma which can disrupt relationships with family and friends. Incarceration persons often suffer long-term consequences from having been subjected to pain, deprivation and extremely atypical patterns and norms of living and interacting with others. Prima facie incarceration rather long incarceration exposes under-trial accused to carceral environment which can be inherently damaging to the mental health of the under-trial accused coupled with the appalling conditions in the prisons. Researchers have even theorized that incarceration can lead to Post-Incarceration Syndrome, a syndrome similar to PTSD.
29. The period of incarceration in the present case i.e. 9 years and 25 days is therefore considered as the sole ground for releasing the Applicant on bail. Hence, present Application is allowed in terms of prayer clauses (a) & (b) subject to the following terms and conditions:-
(i) Applicant is directed to be released on bail on furnishing P.R. Bond in the sum of Rs. 50,000/- with one or two sureties in the like amount;
(ii) Applicant is permitted to furnish provisional cash bail of
Rs. 50,000/- (Rs. Fifty Thousand Only) for his release immediately and file undertaking that he will provide 19 of 21 one or two sureties in the like amount of Rs. 50,000/within a period of two months after his release which shall be accepted by the Investigating Officer. The Applicant shall provide the sureties as directed;
(iii) Applicant shall report to the Investigating Officer of concerned Police Station once every month on the third Saturday between 10:00 a.m. to 12:00 p.m. for three months or as and when called;
(iv) Applicant shall co-operate with the conduct of trial and attend the Trial Court on all dates unless specifically exempted and will not take any unnecessary adjournments, if he does so, it will entitle the prosecution to apply for cancellation of this order;
(v) Applicant shall not leave the State of Maharashtra without prior permission of the Trial Court;
(vi) Applicant shall not influence with any of the witnesses or tamper with the evidence in any manner;
(vii) Applicant shall keep the Investigating Officer informed of his current address and mobile contact number and / or change of residence or mobile details, if any, from time to time; 20 of 21
(viii) Any infraction of the above conditions shall entail cancellation of this order.
30. It is clarified that the observations in this order are limited for the purpose of granting Bail only and I have not made any observations on merits of the case.
31. Bail Application stands allowed and disposed. Amberkar [ MILIND N. JADHAV, J. ] 21 of 21 MOHAN AMBERKAR