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Bombay High Court

SAGAR TATYARAMA GORKHE AND ANR.versusSTATE OF MAHARASHTRA AND ANR.

Decided
Disposal
Allowed

Holding

The High Court held that prolonged pre‑trial incarceration without a reasonable prospect of a speedy trial violates Article 21, and therefore bail must be granted notwithstanding the stringent provisions of the UAPA.

Summary

The appellants, accused of offences under the IPC and UAPA for delivering provocative speeches, were arrested in September 2020 and have been in pre‑trial detention for over five years without charge being framed. They sought bail on the ground of parity and prolonged incarceration, arguing that co‑accused had been released on bail. The NIA opposed bail, emphasizing the seriousness of the alleged conspiracy and citing statutory restrictions under the UAPA. The High Court examined Supreme Court precedents emphasizing the constitutional right to a speedy trial under Article 21 and the principle of parity, noting that the trial was unlikely to conclude soon and that the appellants had been detained for a substantial period. Applying these principles, the Court set aside the trial court’s order and granted bail with conditions, holding that prolonged detention without trial violates constitutional rights despite the stringent bail provisions of the UAPA.

Issues considered

  • Whether the appellants are entitled to bail despite the stringent bail provisions of the UAPA and the seriousness of the alleged offences.
  • Whether prolonged pre‑trial incarceration without a reasonable prospect of a speedy trial violates Article 21 of the Constitution.
  • Whether the principle of parity requires granting bail when co‑accused have been released.

Legislation cited

Subjects

  • bail
  • pre‑trial detention
  • parity
  • prolonged incarceration
  • Article 21
  • speedy trial
  • UAPA
  • NIA
  • constitutional rights
  • special legislation

Judgment

P.H. Jayani                                                 43 APEAL294.2022.doc


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL APPEAL NO. 294 OF 2022

1)            Sagar Tatyarama Gorkhe
              Aged 35 years, occu: Singer,
              PMC Colony No.10, Near Bafna Transport,
              Gurunanak Nagar, Bhavani Peth,
              Pune – 411042

2)            Ramesh Murlidhar Gaichor
              Aged 39 years, occu: Singer,
              Both undertrials lodged in
              Taloja Central Prison, Navi Mumbai,

              Maharashtra.
              Survey Number 14, Jai Jawan,
              Gurudwara Road, Yerwada,
              Pune City, Pune – 411006.                     …. Appellants
                    V/s.
1)            The State of Maharashtra

2)            National Investigation Agency
              through its Investigating Officer,
              having his office at Cambala Hills,
              Peddar Road, Mumbai                            …. Respondents
                             _______________________________

Mr. Mihir Desai, Sr. Advocate a/w. Mr. Neeraj Yadav, Ms. Deepa Punjani and
Ms. Rishika Agarwal i/b. Mr. Nihalsing Rathod for the Appellants.

Mr. Anil Singh, The Additional Solicitor General of India a/w.
Mr. Chintan Shah, Mr. Sandeep Sadawarte, Mr. Prasanna Bhangale and
Mr. Adarsh Vyas for the Respondent – NIA.

Smt. M.M. Deshmukh, Acting P.P. a/w. Mr. Ajay Patil, APP for the
Respondent – State.

Mr. Vishal Gaikwad, Dy. SP, NIA, Mumbai. `

Mr. Subhash Ingle, Head Constable, NIA, Mumbai.
                    _______________________________


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                                CORAM:      A.S. GADKARI AND
                                            SHYAM C. CHANDAK, JJ.

                         RESERVED ON : 19th JANUARY, 2026
                      PRONOUNCED ON : 23rd JANUARY, 2026

JUDGMENT : [PER : SHYAM C. CHANDAK, J.] :-

1)            This is an Appeal under Section 21(4) of the National

Investigation Agency Act, 2008 (for short ‘NIA Act’) by the Original Accused

Nos.13 and 14 impugning the Order dated 14th February 2022, passed

below Exh.490 in NIA Special Case No.414 of 2020, by the learned Special

Judge, NIA, City Civil and Sessions Court, Greater Mumbai.

1.1)          By the impugned Order, the Application for bail filed by the

Appellants under Section 439 of the Code of Criminal Procedure (‘Cr.P.C.’)

for the offences punishable under Sections 121, 121-A, 124-A, 153-A,

505(1)(b), 115, 120B, 201 read with 34 of the Indian Penal Code, 1860

(‘I.P.C.’) and Sections 13, 16, 17, 18, 18-A, 18-B, 20, 38 and 39 of the

Unlawful Activities (Prevention) Act, 1967 (for short ‘UA(P) Act’) has been

rejected by the trial court.

1.2)          The NIA has opposed the Appeal with its Affidavit-in-reply

dated 23rd June, 2022.

2)            Heard Mr. Desai, the learned senior counsel for Appellants, Mr.

Singh, the Additional Solicitor General of India for the Respondent – NIA,

Smt. M.M. Deshmukh, the learned Acting PP and Mr. Patil, the learned APP

for the Respondent – State. Perused the record.


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3)            The facts giving rise to this Appeal are as under :-

3.1)          That, on 8th January, 2018, FIR bearing Crime No.4 of 2018

was registered at Vishrambaug Police Station, Pune under Sections 153A,

505(1)(b), 117 read with 34 of the Indian Penal Code (“I.P.C.”). Offence

under Section 120B of I.P.C. was added to the crime on 6 th March, 2018. On

19th May, 2018 offences under Sections 13, 16, 17, 18, 18-A, 18-B, 20, 38,

39 & 40 of Unlawful Activities (Prevention) Act, 1967 (“UA(P) Act”) were

also added by the Investigating Agency. The FIR alleges that the accused

persons had delivered provocative speeches, spreading hatred, presented

misleading history, provocative songs and street plays which ultimately led

to the violence. After taking into consideration the gravity of the offence,

subsequently by an Order of the Government of India, the investigation

of the present crime was transferred to the NIA i.e. the Respondent

No.2. The investigation culminated into filing of charge-sheet.

4)            Mr. Desai, learned senior counsel, at the outset, submitted that,

although the bail is prayed for on various grounds, the Appellants are

seeking bail mainly on the ground of parity and prolonged incarceration

without trial and not on merits. He submitted that, the Appellants were

arrested on 07/09/2020 and since then, they are languishing in jail. So far,

no charge has been framed in the case and even if charge is framed, the

possibility of completion of the hearing and trial in the said case in the near

future, is very bleak. He therefore urged that the Appellants may be


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P.H. Jayani                                                      43 APEAL294.2022.doc


released on bail as the co-accused in the said case have been granted bail by

the Apex Court and this Court on the ground of prolonged incarceration.

5)                   Mr. Anil Singh, learned Additional Solicitor General of India

strongly opposed the Appeal. He submitted that, pursuant to the criminal

conspiracy and direction from CPI (Maoist), a gathering was organized to

commemorate the celebration of 200 th Shourya Diwas (Bravery Day) at

Bhima-Koregaon. During that gathering, hatred speech was delivered in

different ways thereby promoting enmity between different groups and to

create hatred against the Government. He submitted that there is

considerable material against the accused showing their involvement in the

crime. Therefore, charge-sheet was filed against the accused including the

Appellants. He submitted that the offence is of serious nature. He submitted

that, the said case could not be proceeded further for various reasons which

may not be attributable to the prosecution. As such, the bail may be

rejected. To support these submissions, Mr. Anil Singh, learned ASG has

relied upon the following decisions :-

              (i)    Arvind Dham v/s. Directorate of Enforcement reported in 2026
                     SCC OnLine SC 30

              (ii)   Gulfisha Fatima v/s. State (Govt. of NCT of Delhi) reported in
                     2026 SCC OnLine SC 10

6)                   In Gulfisha Fatima v/s. State (Govt. of NCT of Delhi) [2026

SCC OnLine SC 10], in paragraph 422, the Hon’ble Supreme Court held

that, “Once bail has been granted to co-accused who stand on the same

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P.H. Jayani                                                       43 APEAL294.2022.doc


factual       and   legal   footing   in   terms   of   alleged    roles,    meetings,

communications, and purported execution on the ground, continued

incarceration of the Appellant violates the settled principle of parity.”

7)              Perusal of record reveals that, the Appellants have been

arrested on 7th September 2020 and are in pre-trial incarceration for

more than five years as of today. Perusal of charge-sheet indicates that,

in the list of witnesses annexed thereto, the prosecution has cited

approximately 363 witnesses in support of its case. Admittedly, till date

the charge has not been framed, rather it is yet to be framed and the

chances of completing the trial in near future are bleak. The Orders of

granting bail to the co-accused cited by Mr. Desai to support the ground

of parity, are conceded by Mr. Singh.

8)              A three Judge Bench of the Hon’ble Supreme Court in the

case of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713, in

paragraph Nos.10, 11, 12, 15 and 17 has held as under :-

                “ 10. It is a fact that the High Court in the instant case has
                not determined the likelihood of the respondent being guilty
                or not, or whether rigours of Section 43-D(5) of UAPA 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 our Constitution, of course without addressing the
                statutory embargo created by Section 43- D(5) of UAPA.

                11.    The High Court’s view draws support from a batch of

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P.H. Jayani                                               43 APEAL294.2022.doc


              decisions of this Court, including in Shaheen Welfare Assn.
              v. Union of India, (1996) 2 SCC 616, laying down that
              gross delay in disposal of such cases would justify the
              invocation of Article 21 of the Constitution and
              consequential necessity to release the undertrial on bail. It
              would be useful to quote the following observations from
              the cited case: (SCC p.622, para 10)

                    “ 10. Bearing Bearing in mind the nature of the
                    crime and the need to protect the society and the
                    nation, TADA has prescribed in Section 20(8)
                    stringent provisions for granting bail. Such
                    stringent provisions can be justified looking to the
                    nature of the crime, as was held in Kartar Singh
                    case [(1994) 3 SCC 569 ] , on the presumption that
                    the trial of the accused will take place without
                    undue delay. No one can justify gross delay in
                    disposal of cases when undertrials perforce remain
                    in jail, giving rise to possible situations that may
                    justify invocation of Article 21.”
                                              (emphasis supplied)

              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
              for grant of bail, this Court in Paramjit Singh v. State (NCT of
              Delhi) (1999) 9 SCC 252 : 1999 SCC (Cri) 1156, Babba v.
              State of Maharashtra (2005) 11 SCC 569 : (2006) 2 SCC
              (Cri) 118 and Umarmia v. State of Gujarat (2017) 2 SCC
              731 : (2017) 2 SCC (Cri) 114 enlarged the accused on bail
              when they had been in jail for an extended period of time
              with little possibility of early completion of trial. The
              constitutionality of harsh conditions for bail in such special
              enactments, has thus been primarily justified on the
              touchstone of speedy trials to ensure the protection of
              innocent civilians.

              15. This Court has clarified in numerous judgments that
              the liberty guaranteed by Part III of the Constitution would
              cover within its protective ambit not only due procedure and
              fairness but also access to justice and a speedy trial. In
              Supreme Court Legal Aid Committee (Representing

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P.H. Jayani                                               43 APEAL294.2022.doc


              Undertrial Prisoners) v. Union of India, it was held that
              undertrials cannot indefinitely be detained pending trial.
              Ideally, no person ought to suffer adverse consequences of his
              acts unless the same is established before a neutral arbiter.
              However, owing to the practicalities of real life where to
              secure an effective trial and to ameliorate the risk to society
              in case a potential criminal is left at large pending trial, the
              courts are tasked with deciding whether an individual 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.

              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 constitutional courts to grant bail on
              grounds of violation of Part III of the Constitution. Indeed,
              both the restrictions under a statue as well as the powers
              exercisable under constitutional jurisdiction can be well
              harmonised. Whereas at commencement of proceedings,
              courts are expected to appreciate the legislative policy
              against grant of bail but the rigours of such provisions will
              melt down where there is no likelihood of trial being
              completed within a reasonable time and the period of
              incarceration already undergone has exceeded a substantial
              part of the prescribed sentence. Such an approach would
              safeguard against the possibility of provisions like Section 43-
              D(5) of the UAPA being used as the sole metric for denial of
              bail or for wholesale breach of constitutional right to speedy
              trial. ”

9)            The principles of law enunciated by the Hon’ble the

Supreme Court in the case of Union of India Vs. K.A. Najeeb (supra) have

been consistently followed by it in subsequent decisions. It is thus by now

a settled and recognized principle of law that, the prolonged

incarceration without trial amounts to infringement of right of an

accused enshrined under Article 21 of the Constitution of India. The

prolonged incarceration and unlikelihood of the trial being completed in

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P.H. Jayani                                                 43 APEAL294.2022.doc


reasonable time or near future, necessitates a consequential release of the

undertrial on Bail.

10)            As noted above, the Appellants are already in pre-trial

incarceration for more than five years as of today. Taking into

consideration the ratio laid by the Hon’ble Supreme Court enunciated in

Union of India Vs. K.A. Najeeb (Supra), in our opinion, the Appellants

can be enlarged on bail during the pendency of his trial.

11)           Hence the following Order :-

              (i)     The impugned Order dated 14th February, 2022 passed
              below Exh.490 in Special Case No.414 of 2020, is set aside.

              (ii)    Appellants are directed to be released on bail in Special
              Case No.414 of 2020 arising out of C.R. No.4 of 2018
              originally registered with Vishrambaug Police Station, Pune
              and subsequently investigated by Respondent N.I.A. pending
              on the file of learned Special Judge, NIA, City Civil and
              Sessions Court, Greater Mumbai on their executing P.R. bond
              in the sum of Rs.1,00,000/- each with one or more solvent
              local sureties to make up the amount.

              (iii)   Before their release from jail, the Appellants shall
              inform the     NIA, Mumbai so also to the trial Court, their
              prospective place of residence.

              (iv) Appellants shall surrender their passport, if having or in
              their possession, before the trial Court, before their release
              from Jail.




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P.H. Jayani                                                43 APEAL294.2022.doc


              (v)     Appellants shall also provide their mobile and/or
              landline number to NIA, Mumbai and to the trial Court, on
              which they can be contacted.


              (vi)    Till   the   Appellants   comply   with     the   aforesaid
              conditions No.(ii) to (v), the Appellants are permitted to
              furnish cash surety of Rs.1,00,000/- each before the trial
              Court.


              (vii)    After the Appellants comply with the afore-noted
              condition Nos. (ii) to (v) above, the Appellants are entitled
              for return of the said cash security amount from the trial
              Court.


              (viii) After their release from jail, the Appellants shall attend
              the office of NIA, Mumbai on every first Monday of every
              calender month between 11.00 a.m. and 1.00 p.m. and shall
              mark their presence till the conclusion of trial.


              (ix) Appellants shall not leave the territorial jurisdiction of
              this Court without prior permission of the learned Special
              Judge, NIA, City Civil and Sessions Court, Greater Mumbai
              seized of Special Case No.414 of 2020.


              (x)     Appellants shall attend all the dates before the trial
              Court unless precluded on medical grounds.


              (xi) Appellants shall not tamper with the prosecution
              witnesses and/or evidence in any manner.



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                 P.H. Jayani                                                    43 APEAL294.2022.doc


                 12)                Appeal is allowed in the aforesaid terms.

                 13)                It is to be noted here that, the Appellants are enlarged

                 on bail only on the ground of prolonged incarceration without trial and

                 not on merits involved in the Appeal.



                               (SHYAM C. CHANDAK, J.)                    (A.S. GADKARI, J.)
  PREETI
  HEERO
  JAYANI
Digitally signed by
PREETI HEERO
JAYANI
Date: 2026.02.11
18:59:12 +0530




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