Created by Fuzzy Cloud

Bombay High Court

SANDIP SAMBHAJI BORADEversusTHE STATE OF MAHARASHTRA AND ANR

Decided
Disposal
Allowed

Holding

The Court granted bail to the applicant.

Summary

The Bombay High Court considered a bail application filed by Sandip Sambhaji Borade, who has been in custody for over seven years for alleged kidnapping, rape (IPC §§363, 376(1)) and a POCSO offence (Section 4). The prosecution alleged that the 17‑year‑old niece was taken to a lodge and assaulted, while the defence presented a medico‑legal report indicating a consensual relationship that had occurred repeatedly. The Court examined issues of consent of a minor, the absence of violence, the applicant’s clean antecedent, and the constitutional right to a speedy trial under Article 21 given the prolonged pre‑trial detention. Relying on several precedents that treat bail as the rule and consider long incarceration a punitive measure before conviction, the Court held that the applicant’s continued detention would amount to punishment before trial. Consequently, the Court granted bail with strict conditions.

Issues considered

  • Whether bail can be granted in a case involving alleged rape of a minor under the POCSO Act despite the statutory presumption of guilt.
  • Whether the consent of a minor aged 17 years is a mitigating factor for bail.
  • Whether the applicant's seven‑year pre‑trial detention violates the right to a speedy trial under Article 21.
  • Whether there is a risk of flight, witness tampering, or repeat offence that would justify denial of bail.

Legislation cited

Subjects

  • bail
  • undertrial
  • speedy trial
  • POCSO
  • consent of minor
  • kidnapping
  • rape
  • Article 21
  • presumption of innocence
  • long incarceration

Judgment

                                                                           36. BA-3309-26.odt


Amberkar

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                             BAIL APPLICATION NO. 3309 OF 2026

           Sandip Sambhaji Borade                                    .. Applicant
                      Versus
           The State of Maharashtra & Anr.                           .. Respondents
                                       ....................
            Mr. Sushant Tayade, Advocate for Applicant
            Ms. Shilpa G. Talhar, APP for State
            Ms. Priyanka B. Chavan, Advocate (appointed) for Respondent No.
             2
            Ms. Archana Gadhavi, API, Hadapsar Police Station, Pune
                                           ...................
                                          CORAM : MILIND N. JADHAV, J.
                                          DATE          : SEPTEMBER 7, 2026
           P. C.:

           1.       Heard Mr. Tayade, learned Advocate for Applicant; Ms. Talhar,

           learned APP for State and Ms. Chavan, learned Advocate (appointed)

           for Respondent No. 2.


           2.       This is an Application under Section 483 of Bharatiya Nagarik

           Suraksha Sanhita, 2023 seeking            Bail in connection with C.R. No.

           211/2019 registered with Hadapsar Police Station, Pune for the

           offences punishable under Sections 363 and 376(1) of the Indian

           Penal Code, 1860 (for short "IPC") and under Section 4 of the

           Protection of Children from Sexual Offences Act, 2012 (for short

           "POCSO Act").




                                                                                     1 of 32
                                                         36. BA-3309-26.odt


3.    The Applicant has been in custody for the past 7 years 4 months.

Trial has commenced. 2 out of the probable 16 witnesses which the

prosecution desires to examine have been examined by the Trial Court.

Age of the Applicant is 37 years at the time of commission of offense

whereas age of the prosecutrix is 17 years 3 months.


4.    Applicant and prosecutrix are related to each other as uncle and

niece. Prosecutrix is the daughter of the elder brother of the Applicant.

Case of the prosecution is on the basis that Applicant had taken both

children of his elder brother in his car on 03.03.2019 and proceeded

towards Solapur road. On the next day, first informant i.e. father of the

prosecutrix called upon the Applicant to return back with his two

children i.e. his son and daughter (prosecutrix). Applicant assured

him that he will bring back his children but only sent back his son in

an auto rickshaw at 3.30 p.m. Due to this, the first informant lodged a

complaint for kidnapping and under other provisions of law. Case of

the prosecution is that the Applicant took the prosecutrix victim to a

lodge called Rajhans Lodge in the intervening night of 03.03.2019 and

04.03.2019 and committed assault on her.


5.    Mr. Tayade, learned Advocate for Applicant would draw my

attention to page No. 81 which is the medico-legal history of the

prosecutrix recorded by the doctor on duty in Sassoon General

Hospital. Prima facie reading of the said medico-legal history, while

                                                                   2 of 32
                                                          36. BA-3309-26.odt


describing the incident, the prosecutrix victim has stated that on the

date of the incident that is 03.03.2019, they both stayed at a hotel and

had physical relationship with each other. She then goes on to state

that there has been a history of similar acts between them around 5 to

6 times in the past 3 months.       She has stated that thereafter she

returned back home along with the Applicant on the night of

04.03.2019.


6.    When the aforesaid statement is seen and more so in the light of

the statement of the first informant - father which is recorded, it is

prima facie seen that the family of the prosecutrix victim knew

beforehand that she had accompanied the Applicant who was her own

uncle. It is prima facie seen that the age of the Applicant is 37 years at

the time of incident whereas the age of the prosecutrix is 17 years 3

months.


7.    Though Ms. Chavan, learned Advocate appearing for the

Respondent No. 2 would vehemently argue that the victim was 17

years and 3 months old and studying in class 12th and Applicant has

taken undue advantage of the victim's age of consent and had forcibly

assaulted her, which is prima facie evident from the medico-legal

examination according to her, copy of which is appended at page 80 of

the Application, the act of the Applicant being heinous cannot be

pardoned and he should not be released on bail. She would submit

                                                                    3 of 32
                                                          36. BA-3309-26.odt


that consent of the prosecutrix in such a matter when she was below

the age of majority does not matter and therefore, this Court should

not show any leniency to the Applicant and release him on bail.


8.    Learned APP also echoes the submissions made by Ms. Chavhan.


9.    I have considered the submissions made by the learned

Advocates at the bar and perused the record of the case. At the outset

and threshold, it is seen that Applicant has been in custody for the past

more than 7 years 4 months and one of the grounds for consideration

is long incarceration notwithstanding the fact that Applicant has been

convicted for a grievous offense. The stage of trial is that only 2 out of

the 16 witnesses have been examined and therefore, the trial itself will

not be concluded in the near foreseeable future. Learned Advocate of

Applicant has invoked Article 21 of the Constitution of India and Right

to Speedy Trial


10.   Though Ms. Chavan and the learned APP persuade me to

consider passing directions for expeditious disposal of the trial, I am

not inclined to do so, prima facie for the reason that even if any

direction is passed to complete the trial within a time-bound program,

the learned Trial Court invariably approaches this Court for extension

of time regularly and therefore, I am inclined to consider the present

Application on merits as also on the basis of long incarceration.



                                                                    4 of 32
                                                        36. BA-3309-26.odt


11.   It is prima facie seen from the record emanating from the case

that there is a clear dichotomy with regard to the statement made in

the FIR vis-a-vis the statement of the prosecutrix which has been

recorded in her medico-legal examination.         The prosecutrix has

categorically admitted to the fact of having a relationship with the

Applicant for the past three months and has herself stated that she has

had a physical encounter with Applicant on at least five to six

occasions. That apart, considering the age of the prosecutrix, though

it is below 18 years, but she being 17 years 3 months old, I reckon that

it would be an age of understanding of the prosecutrix, who has

voluntarily gone along with the Applicant who was her own relative

without informing her parents and has been with him without

complaining about any force or violence used on her.


12.   It is seen that the date of the incident is 03.03.2019 when the

prosecutrix along with her brother left along with the Applicant at

12.00 noon without informing her parents or anyone else. It is seen

that on 04/03/2019, that is the following day, once again the

prosecutrix and her brother spent the entire day with the Applicant. It

is at 3:30 p.m. in the afternoon that brother of prosecutrix was sent

back home by rickshaw and he returned, but the prosecutrix

voluntarily continued to be in the company of the Applicant even on

04.03.2019. It is seen that it is only after the Applicant was contacted


                                                                  5 of 32
                                                                     36. BA-3309-26.odt


on his mobile phone by father of prosecutrix and all other relatives

that the Applicant left the prosecutrix with one of their                    relative,

namely, Popatbhai Shahu Borade at Manjari Budruk, Taluka Haveli,

District Pune from where the prosecutrix was thereafter brought home

by her father.


13.       As held by this Court in the case of Sunil Mahadev Patil Vs.

State of Maharashtra1 it is true that a wrong doer is to be punished,

guilty is to be convicted. However at the stage of bail, Court has to

consider prima facie under what circumstances the offences are

committed by the accused. The offence of rape can be distinguished

on the basis of the intention of the accused. In the aforesaid judgment

the learned Court summed up the ethos of relationship between young

boys and girls aptly in paragraph No.11 of the said judgment which

reads thus:-

               “11. Today teenagers are exposed to more sex related issues and
               lot of material is also available to them to know the sexual
               relationship between a man and a woman. Because of their
               impressionable age, girls and boys both may tend to get
               provoked and there can be a curious and very compelling
               demand of the body to get into such kind of relationship. Sexual
               urge differs from person to person and there cannot be any
               mathematical formula in respect of sexual behavioral pattern of
               teenagers, as biologically whenever the child turns into puberty,
               the child starts understanding his or her sexual needs. The
               nature of response depends on the upbringing, peer pressure,
               how civilized the environment is etc. Sex requires proper
               physical and emotional preparation, as it results in many
               physical and emotional consequences. This is all considered as a
               sexual maturation. Therefore, some sects with view to regularize
               sexual behaviour of the community have acknowledged this

1     BA No.1036 of 2015 – Decided on 03.08.2015

                                                                                   6 of 32
                                                                              36. BA-3309-26.odt


                  biological factor and therefore, the early age marriages are
                  performed in some religions or communities. Taking into
                  consideration this social and biological factors, the law makers
                  have considered the age of 15 as a age of consent when the
                  marriage is performed. Taking into consideration this
                  background, the trial Judge has to pass an order of bail in such
                  cases.”

14.          In the present case the age of prosecutrix is 17 years 3 months.

She is a college going student. Complicity of the prosecutrix and the

Applicant considering the age of the parties and the prosecutrix not

complaining either about their relationship, I am of the opinion that in

the above facts further incarceration of the Applicant in prison that too

after 7 years and 4 months would amount to giving him punishment

before conviction.


15.         The Applicant has made out a strong case in the present prima

facie facts and circumstances which are noted above for consideration.

It is also crucial to consider that the acts between the parties were

never violent or forced and that the offender has no antecedents.

Assistance for this is drawn from para Nos. 9 to 14 of a decision of this

Court in the case of Sajid Mehendi Hasan Khan Vs. The State of

Maharashtra and Anr.2 which is reproduced below for ease of

reference:-

                  “ 9.       In so far as offences punishable under Sections 4, 5,
                  and 6 of POCSO Act (special law) are concerned, it may be
                  stated that the provisions of this law are, though, stringent in
                  nature, however it would not deter the Court to grant or refuse
                  bail in order to secure the ends of justice more so when the trial
                  has not commenced despite a long hiatus and the case has been

2     Criminal Bail Application No.1101 of 2024 decided on 27 th March 2025



                                                                                        7 of 32
                                                                     36. BA-3309-26.odt


            pending trial before the trial Court for close to 5 years.
            10.        Assistance is drawn from the decision of the Supreme
            Court in the case of S. Varadarajan v. State of Madras3 wherein
            the Court in paragraph No.2 has held thus:-
                   “2. Where a minor girl alleged to be taken away by
                   the accused person, had left her father's protection
                   knowing and having capacity to know the full
                   import of what she was doing and voluntarily joined
                   the accused, it could not be said that the accused
                   had taken her away from the keeping of her lawful
                   guardian within the meaning of section 361 of the
                   Penal Code, 1860 (“IPC” for short). Something more
                   had to be done in a case of that kind, such as an
                   inducement held out by the accused person or an
                   active participation by him in the formation of the
                   intention either immediately prior to the minor
                   leaving her father protection or at some earlier
                   stage.”
             11.        Though the above referred case was decided well
             before the POCSO Act was enacted, this Court is well conscious
             of the presumption ingrained in Section 29 of the said Act and
             that argument on prosecutrix’s consent is irrelevant but prima
             facie if the statements of prosecutrix recorded are read, it is
             clearly borne out that she has been consenting to the actions
             which is gathered from the record of the case.
            12.        In the facts of the present case, attention is drawn to
            the decision of this Court (Coram: Mridula Bhatkar, J.) in the
            case of Sunil Mahadev Patil Vs. The State of Maharashtra 4 to
            contend that consensus of the prosecutrix who is below the age
            of 18 years is a mitigating circumstance for Trial Court to
            consider. In furtherance to the above, Court has laid down
            certain specific guidelines after taking into consideration
            relevant cases as also the ethos and development of the age of
            the young offenders in the Indian Society in general. Court in
            paragraph Nos.8, 9,11 and 12 has laid down certain principles
            which I find it apt to be reproduced herein below for
            consideration of bail in such Applications. Paragraph Nos.8, 9,
            11 and 12 read thus:-
                   “8. It is to be noted that the case of S. Varadarajan
                   was decided in the year 1967 when the women were
                   not enjoying the freedom which today the women
                   have. Albeit the Hon'ble Supreme Court then has
                   taken a pragmatic view and has acquitted
                   Varadarajan. Now we come across such cases
                   everyday. If a girl is a minor between the age group
                   of 15 to 18 years and if it can be safely inferred that

3   AIR 1965 942

4   Bail Application No. 1036 of 2015, decided on 03.08.2015.

                                                                                 8 of 32
                                                  36. BA-3309-26.odt


her consent was obvious, then it is a mitigating
circumstance. Some trial Courts dealing with such
Bail Applications, especially after Nirbhaya case,
started taking a strict approach and the accused are
denied the bail only on the ground that the
prosecutrix being minor below 18 years, her consent
is immaterial, therefore, in the case of rape on such
minor, no bail can be granted. This is a matter of
concern.
9. In view of the increasing offences against the
women especially of rape, the legislature and
judiciary both found it obligatory to deal these
offences with severe punishment and women can be
protected if the laws are made rigorous. Therefore,
report of Justice Verma Committee was accepted and
necessary and significant amendments were made in
these two sections. A wrong doer is to be punished,
guilty is to be convicted. However, at the stage of
bail, the Court has to consider prima facie under
what circumstances the offence is committed by the
accused. In the Criminal law, the Court cannot
ignore the intention or motive behind the act and
that is an important factor in the commission of
offence so also to decide the quantum of sentence at
the end of trial, so in the case of bail.
10. ...
11. Today teenagers are exposed to more sex
related issues and lot of material is also available to
them to know the sexual relationship between a
man and a woman. Because of their impressionable
age, girls and boys both may tend to get provoked
and there can be a curious and very compelling
demand of the body to get into such kind of
relationship. Sexual urge differs from person to
person and there cannot be any mathematical
formula in respect of sexual behavioral pattern of
teenagers, as biologically whenever the child turns
into puberty, the child starts understanding his or
her sexual needs. The nature of response depends
on the upbringing, peer pressure, how civilized the
environment is etc. Sex requires proper physical and
emotional preparation, as it results in many physical
and emotional consequences. This is all considered
as a sexual maturation. Therefore, some sects with
view to regularize sexual behaviour of the
community have acknowledged this biological
factor and therefore, the early age marriages are
performed in some religions or communities. Taking
into consideration this social and biological factors,
the law makers have considered the age of 15 as a
age of consent when the marriage is performed.



                                                            9 of 32
                                                                      36. BA-3309-26.odt


                    Taking into consideration this background, the trial
                    Judge has to pass an order of bail in such cases.

                    12. The overall considerations while deciding such
                    applications can be summed up as -
                    When a boy and a minor girl are in love with each
                    other and chose to live together without consent of
                    their parents, then the following factors are to be
                    considered:
                    (i) What is the age of the prosecutrix, who is minor.
                    (ii) Whether the act is violent or not.
                    (iii) Whether there are antecedents or not.
                    (iv) Whether the offender is capable of repeating
                    the Act or not.
                    (v) Whether there is likelihood of threats or
                    intimidation, if at all the boy is released.
                    (vi)Whether any chance of tampering with the
                    material witnesses when their statements are
                    recorded.
                    (vii) It is also to be taken into account in such cases
                    that a boy in his early 20's deserves to get
                    employment and to plan, stabilize and secure his
                    future.”
              13.       Next the decision of this Court (Coram: Sandeep K.
             Shinde, J.) in the case of Anirudha Radheshyam Yadav Vs. The
             State of Maharashtra5 is also relevant in the facts of the present
             case. Relevant paragraph No.4 is reproduced below for reference
             and reads thus:-
                    “4. …..The conduct of the victim is indicative of
                    the fact that she had left the home of her parents by
                    her own will and that she had surrendered to the
                    physical desires of the applicant out of her love and
                    affection for him. It is not the case of the
                    prosecution that the applicant had promised to
                    marry her. Additionally, it is also not a case where
                    under the misconception of the fact, she had served
                    herself to the desire of the applicant for physical
                    relations. No doubt, that the applicant, under the
                    preview of POCSO Act, is a minor, however, the
                    facts of the present case indicate that she had
                    sufficient knowledge and capacity to know full
                    import of what she was doing and had only
                    thereafter voluntarily joined the complainant
                    (applicant).”

5   Criminal Bail Application No.2632 of 2019 decided on 09.01.2020

                                                                               10 of 32
                                                                     36. BA-3309-26.odt


            14.         There is no doubt that presumption under Section 29
            exists but it is not an absolute presumption. This Court is of the
            opinion that presumption would come into play only when
            prosecution is able to bring on record facts that would prima
            facie form the foundation for the presumption. Otherwise, all
            that the prosecution would be required to do is to raise some
            allegation against the accused person and claim that the case
            projected by it is true. Court will have to be on guard to see that
            application of presumption without adverting to the essential
            facts shall not lead to injustice since we are at a prima facie
            stage and trial has not even begun. The presumption under
            Section 29 of the POCSO Act is not absolute. Attention in this
            regard is invited to the decision of High Court of Kerala in the
            case of Joy Vs. State of Kerela Represented through the Public
            Prosecutor6 in a similar case where age of prosecutrix as below
            18 years and a similar argument was made. The relevant
            paragraph Nos.9 to 11 are reproduced below:-
                   “9. Mere delay in reporting the matter to the
                   authorities concerned, especially sexual assault on a
                   minor girl, is immaterial and it would not be fatal to
                   the prosecution case. However, in the instant case, it
                   is not the delay alone that is significant. The
                   significant fact is that the complaint was given to the
                   authorities concerned only two weeks after the
                   mother received the lawyer notice from the
                   petitioner claiming a huge amount as professional
                   fees. This raises suspicion on the prosecution case
                   against the petitioner. When the victim had disclosed
                   the matter to her mother in July, 2018, one would
                   have expected the mother to report the matter to the
                   authorities concerned much earlier than 22.09.2018.
                   The fact that she reported the matter only after
                   receiving a lawyer notice from the petitioner
                   assumes significance.
                   10. This court is not oblivious to Section 29 of the
                   Act which contains a legislative mandate that the
                   court shall presume commission of the offences by
                   the accused unless the contrary is proved. Section
                   29 of the Act states that where a person is
                   prosecuted for committing or abetting or attempting
                   to commit any offence under Sections 3, 5, 7 and 9
                   of the Act, the Special Court shall presume, that
                   such person has committed or abetted or attempted
                   to commit the offence, as the case may be, unless
                   the contrary is proved. The court shall take into
                   consideration the presumption under Section 29 of
                   the Act while dealing with an application for bail
                   filed by a person who is accused of the aforesaid
                   offences under the Act (See State of Bihar v.

6   2019 SCC OnLine 783.

                                                                              11 of 32
                                                                36. BA-3309-26.odt


               Rajballav Prasad, (2017) 2 SCC 178 : AIR 2017 SC
               630).
               11. However, the statutory presumption under
               Section 29 of the Act does not mean that the
               prosecution version has to be accepted as gospel
               truth in every case. The presumption does not mean
               that the court cannot take into consideration the
               special features of a particular case. Patent
               absurdities or inherent infirmities or improbabilities
               in the prosecution version may lead to an irresistible
               inference of falsehood in the prosecution case. The
               presumption would come into play only when the
               prosecution is able to bring on record facts that
               would form the foundation for the presumption.
               Otherwise, all that the prosecution would be
               required to do is to raise some allegations against
               the accused and to claim that the case projected by
               it is true. The courts must be on guard to see that
               the application of the presumption, without
               adverting to essential facts, shall not lead to any
               injustice. The presumption under Section 29 of the
               Act is not absolute. The statutory presumption
               would get activated or triggered only if the
               prosecution proves the essential basic facts. If the
               accused is able to create serious doubt on the
               veracity of the prosecution case or the accused
               brings on record materials which would render the
               prosecution version highly improbable, the
               presumption would get weakened. As held by the
               Apex Court in Siddharam Satlingappa Mhetre v.
               State of Maharashtra, (2011) 1 SCC 694 : AIR 2011
               SC 312, frivolity in prosecution should always be
               considered and in the event of there being some
               doubt as to the genuineness of the prosecution, in
               the normal course of events, the accused is entitled
               to an order of anticipatory bail. No inflexible
               guidelines or straitjacket formula can be provided
               for grant or refusal of anticipatory bail. It should
               necessarily depend on facts and circumstances of
               each case in consonance with the legislative
               intention.”


16.   Considering the aforesaid facts and circumstances in the present

case, it is prima facie seen from the statement recorded of the brother

of the prosecutrix as also all other witnesses that there was no element

of abuse or violence whatsoever between the Applicant and the

                                                                         12 of 32
                                                                       36. BA-3309-26.odt


prosecutrix when they had spent two full days together.                              The

statement of the brother of the prosecutrix also shows that this was

not the first instance when they had accompanied the Applicant but

had in the past also gone out with the Applicant in a similar fashion,

which is prima facie seen from his Section 164 statement (appended at

page 147 of the application).               The Section 164 statement of the

prosecutrix also prima facie shows that despite the Applicant receiving

the call at 8.00 a.m.           in the morning from the grandfather of the

prosecutrix and asking him to bring back the prosecutrix, the

prosecutrix and the Applicant spent the entire day together and it is

only at 10.00 p.m. in the night of 04.03.2019 that the Applicant

entrusted the prosecutrix with her relative.


17.       In the case of Sandeep Kumar Bafna Vs. State of Maharashtra 7,

the Supreme Court in paragraph No.25 has observed the following:-


               “25.       The upshot of this analysis is that no vested right is
               granted to a complainant or informant or aggrieved party to
               directly conduct a prosecution. So far as the Magistrate is
               concerned, comparative latitude is given to him but he must
               always bear in mind that while the prosecution must remain
               being robust and comprehensive and effective it should not
               abandon the need to be free, fair and diligent. So far as the
               Sessions Court is concerned, it is the Public Prosecutor who
               must at all times remain in control of the prosecution and a
               counsel of a private party can only assist the Public Prosecutor in
               discharging its responsibility. The complainant or informant or
               aggrieved party may, however, be heard at a crucial and critical
               juncture of the Trial so that his interests in the prosecution are
               not prejudiced or jeopardized. It seems to us that constant or
               even frequent interference in the prosecution should not be
               encouraged as it will have a deleterious impact on its

7     (2014) 16 SCC 623


                                                                                13 of 32
                                                               36. BA-3309-26.odt


          impartiality. If the Magistrate or Sessions Judge harbours the
          opinion that the prosecution is likely to fail, prudence would
          prompt that the complainant or informant or aggrieved party be
          given an informal hearing. Reverting to the case in hand, we are
          of the opinion that the complainant or informant or aggrieved
          party who is himself an accomplished criminal lawyer and who
          has been represented before us by the erudite Senior Counsel,
          was not possessed of any vested right of being heard as it is
          manifestly evident that the Court has not formed any opinion
          adverse to the prosecution. Whether the Accused is to be
          granted bail is a matter which can adequately be argued by the
          State Counsel. We have, however, granted a full hearing to Mr.
          Gopal Subramanium, Senior Advocate and have perused
          detailed Written Submissions since we are alive to impact that
          our opinion would have on a multitude of criminal trials.”


18.    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. 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

which are required to be considered in such cases.


19.   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 be concluded

and prisons are also simultaneously overcrowded in some segments.

This Court regularly deals with Bail Applications of under-trials who

have been in custody for long incarceration, and is also equally aware

of the conditions of our prisons. To give an example in the city of

Mumbai, a Report dated 12.12.2024 made by the Superintendent of


                                                                        14 of 32
                                                           36. BA-3309-26.odt


Mumbai Central Prison addressed to the Chief Government Pleader

was placed before this Court 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. This situation is similar in almost all jails

in the State. Such an incongruity leads us to answer the proposition:

“How can Courts find a balance between the two polarities?"


20.        Argued before me is a case concerning liberty of an under-trial

who has been incarcerated for 7 years and 4 months, a situation

impacting the rights of the undertrial conferred by Article 21 of

Constitution to speedy justice as also personal liberty. In so far as the

power of high courts to grant bail is concerned, when the case is such

that involves a question of personal liberty of an undertrial who is

incarcerated for a very long period pending trial, 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 defense.


21.       In the case of Emperor Vs. H.L. Hutchinson8, 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

8     AIR 1931 ALL 356


                                                                    15 of 32
                                                                  36. BA-3309-26.odt


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.


21.1. Justice Mukerji writing for the Bench held as under:-


          “9.         Speaking for myself, I think it very unwise to make an
          attempt to lay down any particular rules for the guidance of the
          High Court, having regard to the fact that the legislature itself
          left the discretion of the Court entirely unfettered. The reason
          for this action on the part of the legislature is not far to seek.
          The High Court might be safely trusted in this matter and it goes
          without saying that it would act in the best interests of justice
          whether it decides in favour of the prosecution or the defence.
          The variety of cases that may arise from time to time cannot be
          safely classified and it will be 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.
             This being my reading of the law, I proceed to see whether this
          is a case in which the applicants ought to be let out on bail.
             On general principles, and on the principles on which sections
          496 and 497 (as amended in 1923) are framed, the grant of bail
          should be the rule and refusal of bail should be the exception. In
          the case of a bailable offence, the law expressly says that if the
          accused person applies for bail he shall be released (section
          496). Section 497 applies to cases of non-bailable offence and
          there it is said that the accused person shall be released on bail
          except where there appears to be a reasonable ground for
          believing that he has been guilty of a very heinous offence,
          namely one which may be punished by either death or by
          transportation for life : section 497(1). Again it is laid down that
          where, at any stage of the investigation or trial, there are not
          reasonable grounds for believing that the accused person has
          committed a non-bailable offence, but there are sufficient


                                                                            16 of 32
                                                                        36. BA-3309-26.odt


                grounds for further inquiry into his guilt, the accused shall be
                released on bail : section 497(2).
                   The principle to be deduced from sections 496 and 497 of the
                Criminal Procedure Code, therefore, is that grant of bail is the
                rule and refusal is the exception. (emphasis underlined) That
                this must be so is not at all difficult to see. An accused person is
                presumed under the law to be innocent till his guilt is proved. As
                a presumably innocent person he is entitled to freedom and
                every opportunity to look after his own case. It goes without
                saying that an accused person, if he enjoys freedom, will be in a
                much better position to look after his case and to properly
                defend himself than if he were in custody. One of the complaints
                made by the applicants in this case is that their letters sent from
                the custody have been opened and inspected and censored, and,
                therefore, they were not in a position to conduct their defence
                with the aid of such friends as may he outside the prison. As I
                have said, it is obvious that a presumably innocent person
                should have his freedom to enable him to establish his
                innocence.
                   This being the rule, there may, of course, be exceptions. I will
                not attempt to lay down any cases of exceptions, because these
                cases before us are not exceptions and I do not want to say
                anything which will be only in the nature of an obiter dictum.”


21.2. Justice Boys writing a concurrent view held as under:-

                “As to the object of keeping an accused person in detention during the
                trial, it has been stated that the object is not punishment; that to keep
                an accused person under arrest with the object of punishing him on the
                assumption that he is guilty, even if eventually he is acquitted, is
                improper. This is most manifest. The only legitimate purposes to be
                served by keeping a person under trial in detention are to prevent
                repetition of the offence with which he is charged, where there is
                apparently danger of such repetition, and to secure his attendance at
                the trial. The first of these purposes clearly to some extent involves an
                assumption of the accused's guilt, but the very trial itself is based on a
                prima facie assumption of the accused's guilt and it is impossible to
                hold that in some circumstances it is not a proper ground to be
                considered. The main purpose, however, is manifestly to secure the
                attendance of the accused.”

22.       In the case of Satender Kumar Antil Vs. Central Bureau of

Investigation9, in paragraph Nos.6 to 15 the Supreme Court considered

the prevailing situation of prisons in India, definition of trial and bail,


9     (2022) 10 SCC 51


                                                                                  17 of 32
                                                                  36. BA-3309-26.odt


principle of presumption of innocence and reiterated the well

recognized 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 judgment reads 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
          long incarceration 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
          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.

                                                                           18 of 32
                                                          36. BA-3309-26.odt


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
      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”

                                                                    19 of 32
                                            36. BA-3309-26.odt


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
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.”

                                                      20 of 32
                                                       36. BA-3309-26.odt


           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.’
                                 *      *       *
     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

                                                                21 of 32
                                                        36. BA-3309-26.odt


     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
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.”




                                                                 22 of 32
                                                                      36. BA-3309-26.odt


23.       The Supreme Court in a landmark decision of 1978 in the case

of Gudikanti Narasimhulu & Ors. Vs. Public Prosecutor, High Court of

Andhra Pradesh10 observed as under:-

                “6.        Let us have a glance at the pros and cons and the true
                principle around which other relevant factors must revolve. When the
                case is finally disposed of and a person is sentenced to incarceration,
                things stand on a different footing. We are concerned with the
                penultimate stage and the principal rule to guide release on bail should
                be to secure the presence of the applicant who seeks to be liberated, to
                take judgment and serve sentence in the event of the court punishing
                him with imprisonment. In this perspective…”        (emphasis supplied)

24.       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.


25.       In the landmark judgment of Maneka Gandhi Vs. Union of

India11, 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.


26.     In the case of Hussainara Khatoon Vs. Home Secy., State of
     12
Bihar 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

10    1978 (1) SCC 240
11    1978 (1) SCC 248
12    (1980) 1 SCC 81


                                                                               23 of 32
                                                                       36. BA-3309-26.odt


               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.”

27.       The Supreme Court in the case of Union of India v. K. A.

Najeeb13 while commenting upon the possibility of early completion of

trial and extended incarceration held as under:-

               “18.       Adverting to the case at hand, we are conscious of the
               fact that the charges levelled against the respondent are grave
               and a serious threat to societal harmony. Had it been a case at
               the threshold, we would have outrightly turned down the
               respondent's prayer. However, keeping in mind the length of the
               period spent by him in custody and the unlikelihood of the trial
               being completed anytime soon, the High Court appears to have
               been left with no other option except to grant bail. An attempt
               has been made to strike a balance between the appellant's right
               to lead evidence of its choice and establish the charges beyond
               any doubt and simultaneously the respondent's rights
               guaranteed under Part III of our Constitution have been well
               protected.”

28.       Applicant in present case has been in custody for 7 years and 4

months. 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

13    Criminal Appeal No. 98 of 2021


                                                                                24 of 32
                                                                         36. BA-3309-26.odt


of an accused in custody whose liberty is affected. In the case of Abdul

Rehman Antulay & Ors. Vs R.S. Nayak & Anr. 14 the Supreme Court

held as under:-

                “86.        In view of the above discussion, the following
                propositions emerge, meant to serve as guidelines. We must
                forewarn that these propositions are not exhaustive. It is difficult
                to foresee all situations. Nor is it possible to lay down any hard
                and fast rules. These propositions are:
                (1) Fair, just and reasonable procedure implicit in Article 21 of
                the Constitution creates a right in the accused to be tried
                speedily. Right to speedy trial is the right of the accused. The
                fact that a speedy trial is also in public interest or that it serves
                the societal interest also, does not make it any-the-less the right
                of the accused. It is in the interest of all concerned that the guilt
                or innocence of the accused is determined as quickly as possible
                in the circumstances.
                (2) Right to Speedy Trial flowing from Article 21 encompasses
                all the stages, namely the stage of investigation, inquiry, trial,
                appeal, revision and retrial. That is how, this Court has
                understood this right and there is no reason to take a restricted
                view.
                (3) The concerns underlying the Right to speedy trial from the
                point of view of the accused are:
                (a) the period of remand and pre-conviction detention should be
                as short as possible. In other words, the accused should not be
                subjected to unnecessary or unduly long incarceration prior to
                his conviction;
                (b) the worry, anxiety, expense and disturbance to his vocation
                and peace, resulting from an unduly prolonged investigation,
                inquiry or trial should be minimal; and
                (c) undue delay may well result in impairment of the ability of
                the accused to defend himself, whether on account of death,
                disappearance or non-availability of witnesses or otherwise.
                (4) – (11) -------x-------”           (emphasis supplied)


29.        The Supreme Court has also held in a series of judgments 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
14    1992 (1) SCC 225


                                                                                   25 of 32
                                                                      36. BA-3309-26.odt


commencing within the foreseeable future, Constitutional Courts can

exercise power to release the accused under-trial on bail, as bail is the

rule and jail is the exception.


30.       In     the     case   of   Supreme Court Legal Aid Committee

(Representing undertrial prisoners) Vs. Union of India 15, the Supreme

Court has held that:-

          "17. We are conscious of the fact that the menace of drug trafficking has to
          be controlled by providing stringent punishments and those who indulge in
          such nefarious activities do not deserve any sympathy. But at the same time
          we cannot be oblivious to the fact that many innocent persons may also be
          languishing in jails if we recall to mind the percentage of acquittals. Since
          harsh punishments have been provided for under the Act, the percentage of
          disposals on plea of guilt is bound to be small; the State Government
          should, therefore, have realised the need for setting up sufficient number of
          Special Courts immediately after the amendment of the Act by Amendment
          Act 2 of 1989. Even after the Division Bench of the Bombay High Court
          refused to grant en bloc enlargement on bail on 1-2-1993 in Criminal
          Application No. 3480 of 1992 and B.D. Criminal No. 565 of 1992, no
          substantial improvement in the pendency is shown since new cases
          continue to pour in, and, therefore, a one-time exercise has become
          imperative to place the system on an even keel. We also recommend to the
          State Government to set up Review Committees headed by a Judicial
          Officer, preferably a retired High Court Judge, with one or two other
          members to review the cases of undertrials who have been in jail for long
          including those released under this order and to recommend to the State
          Government which of the cases deserve withdrawal. The State Government
          can then advise the Public Prosecutor to move the court for withdrawal of
          such cases. This will not only. help reduce the pendency but will also
          increase the credibility of the prosecuting agency. After giving effect to this
          order the Special Court may consider giving priority to cases of those
          undertrials who continue in jail despite this order on account of their
          inability to furnish bail.”



31.       In so far as the offences punishable under Sections 4, 8 and 12

of POCSO Act (special law) are concerned, it may be stated that the

provisions of this law are though, stringent in nature, would not deter

15    (1995) 4 SCC 695


                                                                                26 of 32
                                                             36. BA-3309-26.odt


the Court to grant or refuse bail in order to secure the ends of justice

more so when the trial has just commenced and it will take a long time

to conclude also when under-trial accused is incarcerated for such long

period of more than 7 years and 4 months.


32.     In the case of Javed Gulam Nabi Shaikh Vs. State of

Maharashtra and Anr.16 in the context of delay in trial vis-a-vis speedy

trial as enshrined in Article 21 of the Constitution of India, the

Supreme Court has categorically held that 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 under Article 21 of the Constitution of India, then the

State or prosecuting agency should not oppose the plea for bail on the

ground that the crime committed is serious. The Supreme Court held

that Article 21 of the Constitution of India applies irrespective of the

nature of the crime. This is a very significant statement.


33.     While sitting as a Bail Court what I have experienced is that

public prosecutors oppose bail pleas vehemently even in the cases of

long incarceration pending trial under the mistaken impression that

the crime in question is serious and therefore the Court should not

grant bail to the accused person. This mindset and approach of the

prosecution needs to change.       It is observed that in cases under

16 (2024) 9 SCC 813

                                                                      27 of 32
                                                                  36. BA-3309-26.odt


POCSO, the statute itself provides a speedy trial within 1 year under

Section 35 of the POCSO Act, but that is seldom achieved. Even in

such cases where trials are pending over 5 years without even being

commenced, the prosecutors raise vehement objection to Bail

Applications on the ground of severity of the crime.


34.   The Supreme Court in the above case has hastened to add that

the accused person is still an under-trial prisoner and not a convict and

the overarching postulate of criminal jurisprudence that an accused is

presumed to be innocent until proven guilty cannot be brushed aside

lightly however stringent the law may be.


35.   Attention is invited to Section 309 of Cr.P.C. which reads thus :-

         “309. Power to postpone or adjourn proceedings.
         (1)        In every inquiry or trial the proceedings shall be
         continued from day-to-day until all the witnesses in attendance
         have been examined, unless the Court finds the adjournment of
         the same beyond the following day to be necessary for reasons to
         be recorded:Provided that when the inquiry or trial relates to an
         offence under section 376, [section 376A, section 376AB, section
         376B, section 376C, section 376D, section 376DA, section 376DB
         of the Indian Penal Code, the inquiry or trial shall] [Substituted
         by Criminal Law (Amendment) Act, 2013 ] be completed within
         a period of two months from the date of filing of the charge
         sheet.]

         (2)         If the Court, after taking cognizance of an offence, or
         commencement of trial, finds it necessary or advisable to
         postpone the commencement of, or adjourn, any inquiry or trial,
         it may, from time to time, for reasons to be recorded, postpone or
         adjourn the same on such terms as it thinks fit, for such time as it
         considers reasonable and may by a warrant remand the accused
         if in custody :

         Provided that no Magistrate shall remand an accused person to
         custody under this section for a term exceeding fifteen days at a


                                                                           28 of 32
                                                                 36. BA-3309-26.odt


         time :

         Provided further that when witnesses are in attendance, no
         adjournment or postponement shall be granted, without
         examining them, except for special reasons to be recorded in
         writing :

         Provided also that no adjournment shall be granted for the
         purpose only of enabling the accused person to show cause
         against the sentence proposed to be imposed on him.

         Provided also that- (a)no adjournment shall be granted at the
         request of a party, except where the circumstances are beyond
         the control of that party;

         (b)the fact that the pleader of a party is engaged in another
         Court, shall not be a ground for adjournment;

         (c)where a witness is present in Court but a party or his pleader
         is not present or the party or his pleader though present in Court,
         is not ready to examine or cross-examine the witness, the Court
         may, if thinks fit, record the statement of the witness and pass
         such orders as it thinks fit dispensing with the examination-in-
         chief or cross-examination of the witness, as the case may be.”



36.    The above is a statutory provision. In the present BNSS there

are similar statutory provisions. They are however seldom followed

due to various reasons. Undoubtedly Prosecution cannot be solely

blamed for protraction of trial as the reasons for delay are sometimes

beyond their control. Hence, I am of the opinion that facet of long

incarceration pending trial assumes significance in the realm of Article

21 and Article 22 (2) of the Constitution of India for consideration by

every Court deciding a bail Application.




                                                                          29 of 32
                                                         36. BA-3309-26.odt


37.   In view of the aforesaid facts emanating from record which

show consensualness of prosecutrix and also on the basis of long

incarceration of 7 years 4 months and the probability of the trial not

being concluded in the near future, as also in view of the prima facie

case made out by the learned Advocate for Applicant, I am inclined to

release the Applicant on bail.


38.   In view of my aforesaid Prima facie observations and judicial

pronouncements, Bail Application is allowed subject to the following

conditions:-:-


          (i)    Applicant is directed to be immediately released from

                 prison in connection with C.R. No. 211/2019;

          (ii) Applicant is directed to be released on bail on

                 furnishing P.R. Bond of Rs. 25,000/- (Rs. Twenty Five

                 Thousand Only) with one or two sureties in the like

                 amount;

          (iii) Applicant shall report to the Investigating Officer at

                 Hadapsar Police Station, Pune once every month on the

                 first Sunday of the month between 10:00 a.m. to 12:00

                 p.m.;

          (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

                                                                  30 of 32
                                                        36. BA-3309-26.odt


              adjournments, if he does so it will entitle the

              prosecution to apply for revocation of this order;

         (v) Applicant shall not leave the State of Maharashtra

              without prior permission of the Trial Court;

         (vi) Applicant shall not influence 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, as applicable;

         (viii)Applicant shall not attempt to contact the prosecutrix

              either physically or by any electronic devices / means

              until the trial is completed and the verdict is delivered

              by the Trial Court; and

         (ix) Any infraction of the conditions shall entail

              cancellation of bail granted to the Applicant.

39.   Needless to state that the above observations will not come in

the way of trial as they are prima facie in nature based on the

submissions made and the material placed before this Court.


40.   This Court appreciates the assistance rendered by Ms. Chavan,

learned Advocate appointed through the Legal Aid to espouse the

cause of Respondent No. 2. Her fees be paid by the High Court Legal


                                                                   31 of 32
                                                                                      36. BA-3309-26.odt


           Aid Services Authority as per rules on production of a server copy of

           this order and other compliances in accordance with the decision of

           this Court in the case of Sanjyot Nitin Telharkar v. The State of

           Maharashtra & Anr.17 and the Schedule under Regulation 18(1) of the

           Maharashtra State Legal Services Authority Rules, 1998.


           41.      Bail Application is allowed and disposed of in the above

           terms.


Amberkar                                                     [ MILIND N. JADHAV, J. ]

                     Digitally signed
                     by RAVINDRA
           RAVINDRA MOHAN
           MOHAN    AMBERKAR
           AMBERKAR Date:
                     2026.09.07
                     20:52:29 +0530




           17 Judgment dated 25.09.2024 passed in Misc. Civil Application No. 134 of 2024

                                                                                               32 of 32


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.