Bombay High Court
ARIF AJIJ KURESHIversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
The court granted bail to the applicant, holding that prolonged pre‑trial detention violates his constitutional right to speedy trial and that bail is the rule.
Summary
The applicant, Arif Ajij Kureshi, has been in custody for more than three years and ten months for alleged murder under Section 302 read with Section 34 of the IPC, based largely on a single circumstantial witness. He sought bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, arguing that the trial is delayed and prison overcrowding violates his Article 21 right to speedy trial. The State opposed bail, contending the seriousness of the offence and risk of witness tampering. The Court examined precedents emphasizing that bail is the rule, jail the exception, and that prolonged pre‑trial detention infringes constitutional rights. Considering the lack of direct evidence, the applicant’s long incarceration, and the need to protect personal liberty, the Court granted bail with conditions.
Issues considered
- Whether bail should be granted to an under‑trial accused of murder who has been detained for over three years and ten months.
- Whether the principles of bail as a rule, the right to speedy trial under Article 21, and prison overcrowding compel the court to release the accused.
- Whether the prosecution’s circumstantial evidence and alleged risk of witness tampering justify denial of bail.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
- Indian Penal Code, 1860 — s. 302, 34
Subjects
- bail
- under‑trial
- speedy trial
- Article 21
- presumption of innocence
- prison overcrowding
- Section 302 IPC
- Section 483 B.N.S. 2023
- murder
Judgment
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Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3449 OF 2026
Arif Ajij Kureshi .. Applicant
Versus
The State of Maharashtra .. Respondent
....................
Mr. Raj Bannewala, Advocate for Applicant
Ms. Rajeshree V. Newton, APP for Statement
L. Unde, Police Hawaldar, Manchar Police Station, Pune
...................
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 9, 2026
P. C.:
1. Heard Mr. Bannewala, learned Advocate for Applicant and Ms.
Newon, learned APP for State.
2. This is an Application under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 2023 seeking Bail in connection with C.R. No.
398/2022 registered with Manchar Police Station, Pune for the for
offence punishable under Section 302 r/w 34 of the Indian Penal
Code, 1860 (for short "IPC").
3. Applicant is behind bar for more than 3 years 10 months after
his arrest on 20.10.2022.
4. Applicant is indicted in the present crime for committing murder
along with two other co-accused persons. The date of the incident is
the intervening night of 16.10.2022 and 17.10.2022 at the midnight.
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There is no direct eyewitness of the incident and prosecution evidence
is pure circumstantial. The principal incident happened at 6.00 p.m. in
the evening, where one of the eyewitnesses whose statement is
recorded and appended at page No. 44 had noticed a squabble
between the victim and the three accused persons. The said statement,
prima facie, records that two of the accused persons including the
Applicant before me specifically warned the victim not to argue with
them, despite which the victim persisted and continued arguing. The
said witness thereafter left the said place. The incident has occurred at
midnight in the intervening night of 16.10.2022 and 17.10.2022. The
same witness has thereafter stated that he saw that the Applicant and
other co-accused persons were still quarreling late in the midnight, but
then he went back to sleep. Save and except this statement, role of
Applicant is alleged to the extent of he having inflicted fist and kick
blows as per this sole witness statement.
5. Ms. Newton, leraned APP has vehemently opposed the present
Bail Application and persuaded the Court not to grant bail to the
Applicant.
6. Applicant is incarcerated for the past more than 3 years ad 10
months in prison. Trial has commenced, but the progress of that trial is
abysmally slow. In that view of the matter, solely on the ground of
prolonged incarceration, and the agony of the trial not being
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completed or for that matter concluded in the near future or
foreseeable future, I am inclined to allow the present Application and
release the Applicant on bail.
7. In the case of Sandeep Kumar Bafna Vs. State of Maharashtra 1,
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
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.”
8. 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
1 (2014) 16 SCC 623
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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.
9. 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
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?"
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10. Argued before me is a case concerning liberty of an under-trial
who has been incarcerated for more than 3 years and 10 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.
11. In the case of Emperor Vs. H.L. Hutchinson2, 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
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
2 AIR 1931 ALL 356
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Conspiracy case. Justice Mukherjea writing for the Bench in paragraph
No.9 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.”
12. In the case of Satender Kumar Antil Vs. Central Bureau of
Investigation3, in paragraph Nos.6 to 15 the Supreme Court considered
the prevailing situation of prisons in India, definition of trial and bail,
principle of presumption of innocence and reiterated the well
recognised 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
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
3 (2022) 10 SCC 51
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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.
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
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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”
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
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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.”
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
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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
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
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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.”
13. The Supreme Court in a landmark decision of 1978 in the case
of Gudikanti Narasimhulu & Ors. Vs. Public Prosecutor, High Court of
Andhra Pradesh4 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)
14. Thereafter the Supreme Court in a plethora of judgements have
discussed the rights conferred by Article 21 qua grant of bail and that
4 1978 (1) SCC 240
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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. Some of the
important decisions of the Supreme Court and some of the High
Courts are discussed herein under:-
14.1. In the landmark judgment of Maneka Gandhi Vs. Union
of India5, 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.
14.2. In the case of Hussainara Khatoon Vs. Home Secy., State of
Bihar6 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
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.”
5 1978 (1) SCC 248
6 (1980) 1 SCC 81
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14.3. The Supreme Court in the case of Shaheen Welfare Association
Vs. Union Of India7 dealing with a Public Interest Litigation seeking
relief for undertrial prisoners charged under the Terrorist and
Disruptive Activities (Prevention) Act, 1987 due to gross delay in
disposal of cases qua Article 21 of the Constitution of India held as
under:-
10. 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’s case (supra), 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.”
14.4. The Supreme Court in the case of Union of India v. K. A. Najeeb8
while commenting upon the possibility of early completion of trial and
extended incarceration held as under:-
14.5.“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.”
7 1996 SCC (2) 616
8 Criminal Appeal No. 98 of 2021
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15. Applicant in present case has been in custody for more than 3
years and 10 months. There is no possibility of the trial commencing 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 of an accused in custody whose liberty is affected. In the case
of Abdul Rehman Antulay & Ors. Vs R.S. Nayak & Anr. 9 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;
9 1992 (1) SCC 225
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(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)
16. 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 being
completed 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.
17. In the case of Supreme Court Legal Aid Committee
(Representing undertrial prisoners) Vs. Union of India 10, 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,
10 (1995) 4 SCC 695
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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.”
18. In the case of Avinash Ashok Torane Vs. The State of
Maharashtra11, this Court (Coram: N.J. Jamadar, J.) while dealing with
a bail application for offence under Section 302 of IPC considering
parity with another co-accused who was enlarged on bail considered
the unlikelihood of completion of trial coupled with the period of long
incarceration of 1 year 3 months of the Applicant and enlarged him on
bail.
19. In the case of Sonu Parmeshwar Jha Vs. The State of
Maharashtra12 this Court (Coram: M.S. Karnik, J.) was dealing with a
bail application for offences under Sections 302 and 304(b) of IPC and
considering circumstantial evidence against the accused as well as
long incarceration of accused of 1 year 7 months enlarged him on bail.
20. In the case of Rup Bahadur Magar @ Sanki @ Rabin Vs. State of
West Bengal13, in a case under Sections 394, 395, 397, 307 readwith
11 Bail Application No.3535 of 2023 decided on 08.01.2024
12 Bail Application No.4122 of 2021 decided on 18.01.2023
13 Criminal Appeal No.4144 of 2024 decided on 04.10.2024
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120-B of IPC, the Supreme Court granted bail to the accused
considering long incarceration undergone by him of 2 years and 9
months.
21. In the case of Santosh Ramprasad Hairijan Vs. The State of
Maharashtra14, in a case under Section 302 of IPC this Court taking
into account long period of incarceration undergone by accused of 3
years 4 months granted him bail.
22. In the case of Javed Gulam Nabi Shaikh Vs. State of
Maharashtra and Anr.15, the Supreme Court while granting bail to
accused incarcerated for 4 years in paragraph Nos.16 and 17 held as
under:-
"16. Criminals are not born but made. The human potential in
everyone is good and so, never write off any criminal as beyond
redemption. This humanist fundamental is often missed when
dealing with delinquents, juvenile and adult. Indeed, every saint
has a past and every sinner a future. When a crime is
committed, a variety of factors is responsible for making the
offender commit the crime. Those factors may be social and
economic, may be, the result of value erosion or parental
neglect; may be, because of the stress of circumstances, or the
manifestation of temptations in a milieu of affluence contrasted
with indigence or other privations.
17. If the State or any prosecuting agency including the court
concerned has no wherewithal to provide or protect the
fundamental right of an accused to have a speedy trial as
enshrined under Article 21 of the Constitution then the State or
any other prosecuting agency should not oppose the plea for bail
on the ground that the crime committed is serious. Article 21 of
the Constitution applies irrespective of the nature of the crime.
14 Bail Application No.1819 of 2024 decided on 29.11.2024
15 (2024) 9 SCC 813
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23. In the case of Balwinder Singh Vs. State of Punjab and Anr. 16, in
a case under Sections 302 and 307 of IPC the Supreme Court granted
bail to the accused who was behind bars for 4 years citing unlikelihood
of completion of trial in the near future as also on parity with the co-
accused.
24. In the case of Roland Victor Monterio Vs. State of Maharashtra 17,
this Court (Coram: N.J. Jamadar, J.) in a case under Sections 302,
304-B and 498-A of the IPC granted bail to the accused on account of
his long incarceration of 4 years. Similarly in the case of Naresh
Harishchandra Mali Vs. The State of Maharashtra18, this Court (Coram:
N.J. Jamadar, J.) in a case under Sections 302 and 307 of IPC granted
bail to the accused as he was in prison for a period of more than 5
years.
25. Recently, the Delhi High Court in the case of Raghvendr Singh
Vs. State of NCT of Delhi19 granted bail to the Accused who was
indicted for offence of murder citing his long incarceration for a period
of 5 and half years and enlarged him on bail.
26. In the case of Chintan Vidyasagar Upadhyay Vs. The State of
Maharashtra20, in a case under Sections 302 and 396 of IPC the
Supreme Court granted bail to the accused who had undergone 6
16 SLP (Crl.) No.8523 of 2024
17 Bail Application No.1981 of 2023 decided on 11.01.2024.
18 Bail Application No.3858 of 2022 decided on 27.07.2023.
19 2025 SCC Online Del 21.
20 SLP (Crl.) No.2543 of 2021 decided on 17.09.2021.
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years of pre-trial incarceration. Similarly in the case of Indrani Pratim
Mukerjea Vs. Central Bureau of Investigation 21 the Supreme Court in a
case under Section 302 of IPC granted bail to the accused, she having
undergone pre-trial incarceration of 6 and a half years.
27. Applicant is incarcerated for more than 3 years and 10 months
pending trial. There is no distinct possibility of trial commencing
and / or for that matter concluding in the near foreseeable future. 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. 398/2022;
(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
Machar Police Station, 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
21 SLP (Crl.) No.1627 of 2022.
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attend the Trial Court on all dates, unless specifically
exempted and will not take any unnecessary
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; and
(viii) Any infraction of the conditions shall entail
cancellation of bail granted to the Applicant.
28. 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.
29. 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:
2026.09.10
15:01:41 +0530
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