Deepak Laxman Waghri v. State Of Maharashtra
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO. 2214 OF 2024 Deepak Laxman Waghri ...
Applicant.
V/s.
The State of Maharashtra ...
Respondent.
------------------- Mr Edgar Percy Braganza, Advocate for Applicant Mr Shreeram S. Chaudhari, APP for the State.
PSI B.P. Dube, Virar Police Station.
--------------------- by RAJIV BABARAOJI RAUT Date: 2024.08.29 10:42:35 +0530 RAJIV BABARAOJI RAUT
CORAM
:
ANIL S. KILOR, J.
DATED :
AUGUST 28, 2024.
PC:
1. Heard.
2. By this application under Section 439 of the Code of Criminal Procedure the applicant is seeking bail in Crime No.I-463 of 2016, registered with Virar Police Station, District : Palghar for the offences punishable under Sections 302, 376, 510, 109, 120-B of the Indian Penal Code.
3. In the present matter, the applicant is languishing in jail from last 8 years and in last more than 11⁄2 years no witness was examined. The last witness No.12 was examined on 11/11/2022
out of total 28 witnesses and as such 16 witnesses are remained to be examined. It is apparent on the face of the record that the pace with which the trial is proceeding there is no end of the trial in sight in near future. There are no antecedents against the applicant.
4. The Hon'ble Supreme Court of India in the case of Sheikh Javed Iqbal @ Ashfaq Ansari @ javed Ansari vs. State of Uttar Pradesh , reported in (2024) SCC OnLine SC 1755 has observed thus: "23. This Bench in a recent decision dated 03.07.2024 in Javed Gulam Nabi Shaikh Vs. State of Maharashtra, Criminal Appeal No. 2787 of 2024, has held that howsoever serious a crime may be, an accused has the right to speedy trial under the Constitution of India. That was also a case where fake counterfeit Indian currency notes were seized from the accused-appellant. He was investigated by the National Investigating Agency (NIA) under the National Investigating Agency Act, 2008 and was charged under the UAP Act alongwith Sections 489B and 489C IPC. He was in custody as an undertrial prisoner for more than four years. The trial court had not even framed the charges. It was in that context, this Court observed as under:
9. Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.
23.1. After referring to various other decisions, this Court further observed as follows:
19. 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 speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.
20. We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.
21. We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution.
24. ...
25. ...
26. Angela Harish Sontakke Vs. State of Maharashtra is a case where the accusedappellant was charged under various provisions of the UAP Act as well as under the IPC. He sought for bail. This Court observed that, undoubtedly, the charges are serious but the
seriousness of the charges will have to be balanced with certain other facts like the period of custody suffered and the likely period within which the trial can be expected to be completed. In that case, it was found that the appellantaccused was in custody since April, 2011 i.e. for over five years. The trial was yet to commence. A large number of witnesses were proposed to be examined. It was in that context that the appellant-accused was directed to be released on bail.
27 to 30. ...
30.1. Thereafter, this Court held as follows: 7.1. We are dealing with a case of the accused whose guilt is yet to be established. So long as he is not held guilty, the presumption of innocence is applicable. He cannot be deprived of all his rights guaranteed under Article 21.....
32. This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that
under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us."
5. Thus, considering the observations made by the Hon'ble Supreme Court of India and the fact that the applicant is languishing in jail from last eight years, coupled with the fact that there is no end of the trial in sight, I pass the following order: i) The Criminal Application is allowed.
ii) It is directed that the applicant shall be released on bail in connection with Crime No.I-463 of 2017, registered with Virar Police Station for the offences punishable under Sections 302, 376, 510, 109, 120-B of the Indian Penal Code, on furnishing P.R.Bond in the sum of Rupees Twenty Five Thousand with one solvent surety in the like amount; iii) The applicant shall attend the concerned Police Station on first and sixteenth day of each month between 12:00 noon to 01:00 pm till conclusion of the trial, except on the date of the trial.
iv) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, as also not tamper with the evidence;
v) Liberty is granted to the State to apply for cancellation of bail if the applicant commits similar offence or breaches any condition for grant of bail.
vi) The applicant shall attend the trial before the trial Court regularly on every date unless exemption is granted by the trial Court.
The Criminal Application is disposed of accordingly. (ANIL S. KILOR, J)