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
- Code of Criminal Procedure — s. 439
- Indian Penal Code, 1860 — s. 115, 120B, 121, 121-A, 124-A, 153-A, 201, 34, 505(1)(b)
- National Investigation Agency Act, 2008 — s. 21(4)
- Unlawful Activities (Prevention) Act, 1967 — s. 13, 16, 17, 18, 18-A, 18-B, 20, 38, 39, 43-D(5)
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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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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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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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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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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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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(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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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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