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TMI Blog2022 (1) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... mily members of complainant or witnesses. In the case of Hussainara Khatoon [ 1995 (8) TMI 345 - SUPREME COURT ], it was observed that sympathy for under trials who are in jail for long terms on account of pendency of cases, has to be balanced having regard to impact of crime. The Division Bench of this Court, in the case of NIA Vs. Areeb Majeed. [ 2021 (2) TMI 1380 - BOMBAY HIGH COURT] has observed that in cases under Special Acts, parameters for grant of bail are more stringent and they remain in custody. The courts are required to perform balancing act, so as to reach a golden mean in between the rights of an individual and those of society at large. The court has to look into those aspects while granting bail even on the ground that the under trial is in prolonged custody. In the light of observations of Supreme Court and this Court as stated above, the Court has to perform balancing act. The sympathy for under trials who are in custody has to be balanced with gravity/magnitude of crime, likelihood of threat to witnesses. The analysis may be based on facts of each case. It is required to be noted that the applicant is in custody for more than 11 years and 6 months. It is not cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution's case are as under: i. The Complainant Atul Patil is residing at Shahu Nagar, Rajarampuri, Kolhapur. ii. It is alleged by the Complainant that he was aware that six months ago there was quarrel between Ajit Tiwde (present Applicant), Nitin Vetal and Avdhut Salvi. Election of Kolhapur Municipal Corporation was to be conducted in October 2010. iii. Avdhut Salvi had influence in area of Daulat Nagar. iv. On 4th June 2010, the Complainant, Avdhut Salvi, Mukund Palange and Javed Abdul Sayyed all residing at Shahu Nagar left from Hotel Atithi at about 11.15 hours. They were proceeding residences by Maruti Car No. MH-04 LH-607. Vehicle was driven by Mukund Palange. Avdhut Salvi was sitting next to him. Complainant and Javed Sayyed were sitting on rear seat. It is alleged by the Complainant that while their vehicle was passing through Sanmitra Housing Society, one white colour TATA Sumo vehicle came from behind and stopped in front of their car. Yogesh Nalawade, Swapnil Jadhav, Nitin Vetal, Ajit Tiwde, Govind Naidu and two unknown persons alighted from the said TATA Sumo vehicle. v. Yogesh Nalavade was armed with Koyata, applicant and Nitin Vetal were armed with Swo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of escorts from police for one week. In the alternative it was directed that, applicant can be shifted to J.J. Hospital for his surgery. If the applicant is operated at J.J. Hospital, he cannot be released on temporary bail. He will be taken to J.J. Hospital as under trial prisoner under escort of the state. Since the expenses of police escort were not affordable to the applicant, he preferred Criminal Application No. 670 of 2015 for modification of order dated 29th July, 2015. This Court by order dated 14th August, 2015 directed that the applicant be released on temporary bail from 21st August, 2015 to 14th September, 2015 and he shall report Yerawada Central Prison, Pune on 14th September, 2015. The temporary bail is with police escort. The applicant shall deposit escort charges. The police escort to bring back applicant to jail on 14th September, 2015. If the charges of police escort are not deposited, he can be operated at J.J. Hospital. The applicant could not deposit escort charges. 5. The Applicant had earlier preferred Application for Bail before the learned Special Judge in MCOC Special Case No. 4 of 2010. The said Application was rejected by order dated 3rd October, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The trial could not be proceeded on account of several reasons. He tendered Police report dated 20th September, 2021. The report mentions that, seven other cases are registered against the applicant viz. C.R. No. 67 of 2004 under Sections 394 & 395 of IPC registered with Gandhi Nagar Police Station which has been closed after granting summary. C.R. No. 71 of 2006 registered with Rajarampuri Police Station for offences under Sections 307, 147, 148 & 149 of IPC; C.R. No. 162 of 2007 registered with Miraj Police Station for offences under Sections 392, 414, 34 of IPC; C.R. No. 125 of 2007 registered with Rajarampuri Police Station for offences under Sections 326, 34 IPC; C.R. No. 43 of 2008 registered with Vishram Bag Police Station for offence under Section 302 of IPC; C.R. No. 24 of 2009 registered with Gandhi Nagar Police Station for offences under Sections 3 & 25 of the Arms Act; C.R. No. 27 of 2014 registered with Shahupuri Police Station for offence under Section 324 of IPC. The report further mentions that the applicant may abscond. There is danger to life of applicant from his opponents. He was involved in C.R. No. 27 of 2014 registered with Shahupuri Police Station for offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life and liberty under Article 21 of the Constitution of India. 13. In the case of Shaheen Welfare Association Vs. Union of India and others (1996) 2 SCC 616, it was observed by the Supreme Court that it was necessary to grant relief to those persons who have been deprived of their personal liberty for a considerable length of time without any prospect of trial being concluded in the near future. Undoubtedly, the safety of the community and of the nation needs to be safeguarded looking to the nature of the offences these under trials have been charged with. But the ultimate justification for such deprivation of liberty pending trial can only be their being found guilty of the offences for which they have been charged. If such a finding is not likely to be arrived at within a reasonable time some relief becomes necessary. The Court was dealing with the cases registered under the provisions of TADA Act. The Court was conscious of the fact that there is embargo for release of prisoners prosecuted for the offences of TADA u/s. 20(8) of the said Act. The Supreme Court divided the under trial prisoners under TADA based on their role/hard core criminals into various classes and by adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um punishment for the offence was 20 years and he remained in detention for the period exceeding one half of the maximum period of imprisonment. The Court issued directions on various issues, which would be of assistance to conclude trials pending in Courts expeditiously. 16. In the case of Hussain and another Vs. Union of India (2017) 5 SCC 702, it was observed that the Supreme Court has given directions in number of cases about speedy conclusion of trials. Speedy trial is part of reasonable, fair and just procedure guaranteed under Article 21 of Constitution of India. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. While a person in custody for a grave offence may not be released if trial is delayed, trial has to be expedited or bail has to be granted in such cases. The Court issued directions and one of them was, as a supplement to Section 436-A but consistent with the spirit thereof, if an under trial has completed period of custody in excess of the sentence likely to be awarded if convict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. 20. In relation to some offences under special legislations, there are restrictions for granting bail. For example, Section 37 of NDPS Act, Section 20(8) of TADA Act, Section 21(4) of MCOC Act and Section 43-D(5) of Unlawful Activities (Prevention) Act (UAPA Act). The present case relates to offences under MCOC Act. Speedy trial is right of all the under trial prisoners. The decisions referred to herein relates to grant of bail on the ground of prolonged custody in different kind of offences including those wherein there are statutory restrictions. In the recent decision in the case of Union of India Vs. K.A. Najeeb (supra), the Hon'ble Supreme Court was dealing with an appeal challenging bail granted to the accused for the offence under UAPA Act and IPC. The accused therein was granted bail by the High Court of Kerala, for the offences under Sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506, 201, 202, 153A, 212, 307, 149 IPC, u/s. 31 of Explosive Substances Act and u/s. 16, 18, 18B, 19 and 20 of UAPA act, 1967. The accused had approached the High Court for third time questioning the Special Court's order denying bail. The High Court through the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Act are alien to him. The High Court instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of Constitution, of course without addressing the statutory embargo created by Section 43-D(5) of UAPA Act. In paragraph 11 it is observed that the High Court's view draws support from the batch of decisions of Supreme Court including Shaheen Welfare Association (supra) laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of Constitution and consequential necessity to release the under trial on bail. The Court quoted paragraph 10 of the decision in the case of Shaheen Welfare Association (supra). 21. In paragraph 12 of the decision in Union of India Vs. K.A. Najeeb, it was observed as follows: "12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act') which too have somewhat rigorous conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail. 16. As regards the judgment in NIA Vs. Zahoor Ahmad Shah Watali, cited by the learned ASG, we find that it dealt with an entirely different factual matrix. In that case, the High Court had reappreciated the entire evidence on record to overturn the Special Court's conclusion of their being a prima facie case of conviction and concomitant rejection of bail. The High Court had practically conducted a mini-trial and determined admissibility of certain evidence, which exceeded the limited scope of a bail petition. This not only was beyond the statutory mandate of a prima facie assessment under Section 43-D(5), but it was premature and possibly would have prejudiced the trial itself. It was in these circumstances that this Court intervened and cancelled the bail. 17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not be hurdle in granting bail on the ground of infringement of Article 21 of Constitution of India. No decision has been brought to notice of the Court wherein bail has been refused by Supreme Court, in spite of accused being in prolonged custody on the basis of such restrictions. It is also pertinent to note the extent to which such rigours can be interpreted while granting bail. In the case of Ranjitsingh Sharma Vs. State of Maharashtra and another 2005-ALL.MR (Cri)-1538-(SC), it is observed in quoted paragraphs as follows: "28. Section 21 provides for modified application of certain provisions of the Code of Criminal Procedure, sub-section (4) whereof is as under: (4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless- (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organized crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite means rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision. 55. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix years. About 107 witnesses were remained to be examined. The NIA Court considered the decisions in the case of Union of India Vs. K.A. Najeeb (supra) and Shaheen Welfare Association (supra). Bail was granted on the ground that accused is in jail for six years and also on the basis of evidence adduced before Trial Court. Previous applications were rejected on merits and only on the basis of evidence which was recorded subsequently the NIA Court came to the conclusion with regards to the prima facie case against accused when the accusations had rendered twice by rejecting previous applications for bail. The Division Bench accepted the contention of appellant that in view of previous rejection of bail application, on the basis of evidence recorded by the Court, the Court could not have granted bail on merits. The Division Bench also observed that case of the accused on second aspect of the matter appears to be on firm footing. In paragraph 29 it is observed as follows: "29. There is no dispute about the fact that right to fair and speedy trial is a right recognized under Article 21 of the Constitution of India. The Hon'ble Supreme Court and various High Courts including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial for long period of time, which affected his right under Article 21 of Constitution of India. Both the orders were confirmed by the Appellate Courts. 29. The division bench of this Court in the case of Iqbal Ahmed Kabir Ahmed (Supra) granted bail to the accused charged for offences under the UAPA Act. It was contented that the appellant was in custody for five years and it is very unlikely that the trial would be concluded in reasonable time. On this count of prolonged incarceration the accused deserves to be released on bail, lest the constitutional guarantee of right to life and personal liberty would be jeopardized. It was observed that, right of accused to speedy trial, which flows from the right to life, under Article 21 of the Constitution of India, comes to the fore. This right to speedy trial, in the prosecutions where the Special enactments restrict the powers of the Court to grant bail, faces a competing claim of the interest of society and security of state. In such prosecutions, if the trials are not concluded expeditiously, the procedure which deprives the personal liberty for an inordinate period is then put to the test of fairness and reasonableness, envisaged b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials who are in custody has to be balanced with gravity/magnitude of crime, likelihood of threat to witnesses. The analysis may be based on facts of each case. 32. Applying the principal enunciated herein above and the facts of this case, it is required to be noted that the applicant is in custody for more than 11 years and 6 months. It is not clear as to when the trial would come to an end. The prosecution has so far examined 21 witnesses. There is proposed list of 62 more witnesses. The future picture is unclear as to how long it would take to conclude the trial. While the applicant had preferred previous application for bail, this Court thought it ft to expedite the trial instead of granting bail. The trial Court was directed to conclude the trial within a period of six months vide order dated 11th December, 2019. At that time 19 witnesses were examined. Two years down the line, two more witnesses were examined. 11 and half years is a long period. There is passage of about two years from the issuance of the said directions and apparently only two witnesses are examined. Even before the declaration of lock-down, there was no speed in the trial. The applicant cannot be incarcerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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