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Bombay High Court

NILESH MADHUKAR ARTEversusSTATE OF MAHARASHTRA

Decided
Disposal
Allowed

Holding

The Court granted bail to the applicant, subject to strict conditions.

Summary

The applicant, Nilesh Madhukar Arte, was arrested in July 2021 for alleged murder, conspiracy, arms offences and violations of the MCOCA Act, and has been in pre‑trial custody for over five years. The prosecution argued that he was part of a gang, participated in the crime, and posed a risk of tampering with evidence, urging denial of bail. The defence highlighted the applicant’s clean antecedent record, lack of specific incriminating evidence against him, and the excessive delay in trial, invoking the principle that bail is the rule and jail the exception. The Court examined extensive jurisprudence on bail, speedy trial, and the rights under Article 21, noting that the trial had progressed only marginally and further delay was likely. Balancing the gravity of the offences against the applicant’s prolonged detention and the absence of a clear role, the Court granted bail with stringent conditions. The bail order was issued on 30 September 2026, directing release on a personal bond and imposing reporting, residence, and non‑interference requirements.

Issues considered

  • Whether bail should be granted to an under‑trial accused charged with murder, conspiracy, arms offences and MCOCA violations after more than five years of pre‑trial detention.
  • Whether the applicant’s alleged participation in the crime and alleged gang affiliation justify denial of bail.
  • Whether the delay in trial and limited progress in witness examination warrant bail on the ground of speedy trial and Article 21 rights.
  • Whether the provisions of Section 439 CrPC and Section 483 BNSS apply in the present circumstances.

Legislation cited

Subjects

  • bail
  • under‑trial detention
  • speedy trial
  • Article 21
  • MCOCA
  • murder
  • conspiracy
  • arms offence
  • Criminal Procedure Code
  • Bharatiya Nagarik Suraksha Sanhita
  • rights of accused

Judgment

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Amberkar

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION


                           BAIL APPLICATION NO. 3633 OF 2026

           Nilesh Madhukar Arte                                    .. Applicant
                      Versus
           The State of Maharashtra                                .. Respondent
                                     ....................
            Mr. Tanmay Kate a/w Mr. Vipul Dushing & Mr. Yash Surana i/by Mr.
             Mayur Dodake, Advocates for Applicant
            Mr. Shishir Hiray, Chief Public Prosecutor a/w Mr. Shubham Joshi &
             Mr. Ankit Patil, Advocates for State
            Mr. Aniket Nikam a/w Mr. Shivraj Dubele, Advocate for
             Intervenor / Complainant
            Mr. Arun Jadhav, API, Loni-Kalbhor Police Station
                                         ...................
                                        CORAM : MILIND N. JADHAV, J.
                                        DATE          : SEPTEMBER 30, 2026
           P.C.

           1.     Heard Mr. Kate, learned Advocate for Applicant; Mr. Hiray, Chief

           Public Prosecutor appearing for State and Mr. Nikam, learned

           Advocate for Intervenor / Complainant.


           2.     The present Application under Section 439 of Cr.P.C / 483 of the

           Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is filed by the

           Applicant seeking regular bail on merits in C.R. No. 381/2021

           registered at Loni-Kalbhor Police Station, Pune for alleged offences

           punishable under Sections 302, 120-B read with 34 of IPC; under

           Sections 4 read with 25 of the Arms Act; under Sections 37(1)(3)

           read with 135 and 142 of the Maharashtra Police Act; under Sections 3


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and 7 of the Criminal Law Amendment Act and under Sections 3(1)(i),

3(2) and 3(4) of the Maharashtra Control of Organized Crimes Act,

1999 (MCOCA Act).


3.    There are total number of 11 accused persons in the present

crime. Applicant was arrested on 25.07.2021 and has completed more

than 5 years 3 months of pre-trial incarceration. Trial has commenced

as informed by learned Advocates at the Bar. 13 out of total 96

probable witnesses have been examined. Learned Chief Public

Prosecutor would persuade me to consider the fact that only        few

material witnesses remain to be examined and therefore considering

the gravity of the offence, bail be denied.


4.    Application for grant of bail is vehemently opposed by the

Complainant duly represented by Mr. Nikam as also by the Chief

Public Prosecutor on various grounds to which I will advert to

hereunder.


5.    Briefly stated, according to the prosecution case, the accused

persons hatched a plan for eliminating the deceased victim who was

having a business establishment of a hotel called Hotel Garwa next to

the business establishment and hotel of the Applicant and his family

members. Since both Hotel Ashoka and Hotel Garwa were next to each

other, the business of Hotel Ashoka was affected which led to the



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alleged motive for committing the crime according to the prosecution

case. Needless to state that since the trial has commenced, complicity

of the Applicant and all other accused persons shall undoubtedly be

proved in trial.


6.     Applicant has no antecedents. Four eyewitness statements

specifically having been recorded attribute no role to the Applicant.

However, according to the prosecution case, the Applicant was present

during the commission of the offense and had participated in the

conspiracy.


7.     Mr. Nikam, learned advocate appearing for the first informant -

Complainant would vehemently persuade me to consider the fact that

in view of the brutality of the crime, the provisions of MCOCA Act

have been applied in view of the gang leader who is accused No. 7

having several antecedents to his discredit. He would submit that the

present Applicant was an active member of the gang headed by

accused No. 7 even though he may not have any antecedents. He

would submit that medical report and eyewitness accounts prima facie

show the brutality of the bodily offense committed by the accused

persons collectively.


7.1.   In so far as the present Applicant is concerned, he would submit

that despite he having been externed during the time when the offense



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was committed, he disregarded the said order of externment and re-

entered the jurisdiction of the area where the offense was committed

from which he was barred, and participated in the commission of the

offense. He would submit that witness statements recorded relate to

direct evidence of presence of the Applicant at the scene of crime and

he having facilitated not only the offense but also the conspiracy in

question. He would also persuade the Court to allow the trial to be

completed in view of the Applicant being an active member of a

dreaded gang in Pune and he would be a menace to society if he is

released on bail in the present trial. He would therefore persuade me

to reject the Bail Application.


8.    Mr. Hiray, learned Chief Public Prosecutor would adopt and echo

the submissions made by Mr. Nikam and for the sake of brevity, they

are not reiterated. In addition, Mr. Hiray would submit that the order

dated 12.02.2026, copy of which is appended at page No. 1771 of the

Application, rejecting the previous bail application of the present

Applicant be considered by the Court in view of the specific condition

stated therein that Applicant would be entitled to make a fresh

Application for bail if there is no progress in trial. He would submit

that once that condition was granted, accepted by the Applicant and

fructified by the prosecution by commencing with the trial whereby 13




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witnesses have already been examined upto date, then the present

Application is not maintainable.


8.1.   He would draw my attention to two Supreme Court orders

dated 20.02.2026 and 27.04.2026 in the case of a co-accused arrayed

in the same crime. Both the orders are placed before me. He would

argue that the Supreme Court has not shown any leniency for grant of

bail to the co-accused person and has given certain directions in the

said orders. He would submit that those directions be considered by

the Court.


9.     I have perused the order dated 20.02.2026 which prima facie

states that the Trial Court to complete examination of four

eyewitnesses and such examination be done within a period of six

weeks which apparently appears to have been complied with and

hence, on a later date, the Supreme Court's second order dated

27.04.2026 states that fresh Bail Application is allowed to the co-

accused person after a period of four months on the premise that the

trial does not proceed expeditiously and such Bail Application to be

filed before the Trial Court. Though the same Applicant is not before

me and another co-accused person is before me, Mr. Hiray would still

persuade me to apply the directions contained in the Supreme Court

order to the Applicant before me       and reject the present Bail

Application.

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10.   I have considered the aforesaid two judicial orders which are

cited before me for rejection of the Application. Before I advert to the

merits which are argued by Mr. Hiray, it would be appropriate to

decipher the role of this Court as an Appellate Court. None of the

aforesaid orders preclude or prohibit me from hearing the present Bail

Application which is, in fact, an indefeasible right of the Applicant who

is an under-trial prisoner. On the contrary, I am of the opinion that the

directions given by the Supreme Court in the order dated 20.02.2026

for completing the evidence of the material witnesses named and

stated therein is in one way accruing to the benefit of the present

Applicant before me for seeking bail. Once those directions are

complied with and the material witnesses are examined, the Supreme

Court itself states that the matter be heard for bail after four months.

Be that as it may, the present Bail Application is undoubtedly heard on

its own merits because merits have been argued vociferously before

me.


11.   On merits, Mr. Hiray has persuaded me to consider the

panchanama at page No. 239, the conspiracy which is hatched at page

No. 250 to contend that the prosecution investigation has unearthed a

precise plan chalked out by the accused persons in eliminating the

deceased victim out of pure business rivalry which is prima facie

evident on reading of the aforesaid two documents. With his able


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assistance, I have perused both the documents. However, the trial is

underway and when witness action is going on, it would be prima

facie inappropriate for me to comment on both the aforesaid

documents since it would be a matter of evidence for the prosecution

and evidence in rebuttal for the defence to prove their respective

cases. There is much to say about the conspiracy plan at page No. 250

but I would refrain myself from doing so at this stage.


12.   Mr. Hiray would also vehemently support the submissions of Mr.

Nikam that the present Applicant is a gangster rather an associate of a

famous gang in Pune and therefore, there is every possibility of the

Applicant re-offending himself. Undoubtedly, this should not be a

reason or an impediment in the way of the Court to pass an order on

bail because bail orders are required to be passed on the basis of the

substantive right of the Applicant to see whether the Applicant will not

jump bail and present himself for trial. Mr. Hiray has also placed

before me a calendar of evidence for the present Applicant. I have

perused the same. However, the same cannot be gone into at the

threshold, lest it would affect the ongoing evidence and witness action

before the Trial Court.


13.   What persuades and impels me to consider the present

Application for Bail of the Applicant is the long incarceration of the

Applicant for a period of 5 years 3 months.     There is no doubt that

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the crime is brutal in nature and had an identified motive of business

rivalry, but it does not ipso facto mean that the Bail Application of one

of the co-accused persons before me who has no antecedents and more

importantly, where no specific role has been attributed by any of the

witness statements save and except his presence at the scene of crime

and he having allegedly facilitated the movement of the other co-

accused persons, I am inclined to consider the case of the Applicant for

grant of bail.


14. One of the theories which is propounded by the prosecution and

the first informant - Complainant is that if the Applicant is denied bail,

then in that case the society will be free of the societal impact that the

Applicant would otherwise have. I disagree with this primarily because

maintaining law and order in society is one of the principal occupation

of the State and the State can undoubtedly do it well. To allay the fear

of the prosecution undoubtedly stringent conditions can be imposed. If

such stringent conditions are broken or disobeyed, the prosecution can

undoubtedly seek cancellation of bail. After a hiatus of 5 years 3

months, if the trial has commenced but the Court finds that there is

absolutely no possibility of the trial being concluded in the near

foreseeable future as is the case before me, I am of the opinion that

the bail Court has to step in. Merely on ground that it is a brutal

offense cannot be considered by the Court, since prima facie


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observations and findings, as alluded to hereinabove have been given

by this Court to consider the Bail Application of the Applicant.


15.       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.”


16.       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

1     (2014) 16 SCC 623


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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.


17.   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?"


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

who has been incarcerated for 5 years 3 months, a situation impacting

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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.


19.       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

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

2     AIR 1931 ALL 356


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                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.”

20.       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
                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

3     (2022) 10 SCC 51


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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
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)


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“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
     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


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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
      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


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                 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
     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


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                         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.”



21.       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)



22.       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. Some of the

4     1978 (1) SCC 240


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important decisions of the Supreme Court and some of the High

Courts are discussed herein under:-


22.1.            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.


22.2. 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.”



22.3. 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


5   1978 (1) SCC 248
6   (1980) 1 SCC 81
7   1996 SCC (2) 616


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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.”


22.4. 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:-

               22.5.“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.”


23.      Applicant in present case has been in custody for 5 years 3

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

8   Criminal Appeal No. 98 of 2021


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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;
              (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)



9   1992 (1) SCC 225


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24.        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.


25.       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,
                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
10    (1995) 4 SCC 695


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                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.”

26.        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.


27.        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.


28.        In the case of Rup Bahadur Magar @ Sanki @ Rabin Vs. State of

West Bengal13, in a case under Sections 394, 395, 397, 307 readwith

120-B of IPC,                the Supreme Court granted bail to the accused

considering long incarceration undergone by him of 2 years and 9

months.




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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29.        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.


30.        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.

31.        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



14    Bail Application No.1819 of 2024 decided on 29.11.2024
15    (2024) 9 SCC 813
16    SLP (Crl.) No.8523 of 2024


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of completion of trial in the near future as also on parity with the co-

accused.


32.        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.


33.        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.


34.        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

years of pre-trial incarceration. Similarly in the case of Indrani Pratim

Mukerjea Vs. Central Bureau of Investigation 21 the Supreme Court in a


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.
21    SLP (Crl.) No.1627 of 2022.


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case under Section 302 of IPC granted bail to the accused, she having

undergone pre-trial incarceration of 6 and a half years.


35.   Applicant is incarcerated for 5 years 3 months pending trial.

There is no distinct possibility of the trial concluding in the near

foreseeable future. I am reluctant to rely on the assurance given by the

Chief Public Prosecutor about completion of trial exceptionally. In my

view it will not be so completed and will be protracted . Hence, 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 on bail

                 from prison in connection with C.R. No. 381/2021;

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

                 furnishing P.R. Bond of Rs. 50,000/- (Rs. Fifty

                 Thousand only) with one or two sureties in the like

                 amount;

          (iii) Applicant shall report to the Investigating Officer at

                 concerned 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

                 attend the Trial Court on all dates, unless specifically

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              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 enter into, visit, reside, or otherwise

              remain within the territorial jurisdiction of the districts

              of Pune, Satara, Kolhapur, Nashik, Ahilyanagar, Sangli,

              and Solapur without the prior written permission of the

              Court;

         (vii) Applicant shall not influence with any of the witnesses

              or tamper with the evidence in any manner;

         (viii)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

         (ix) Any infraction of the conditions shall entail cancellation

              of bail granted to the Applicant.

36.   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.




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           37.       Bail Application is allowed and disposed of in the above terms.



Amberkar                                            [ MILIND N. JADHAV, J. ]

                      Digitally signed
                      by RAVINDRA
           RAVINDRA MOHAN
                    AMBERKAR
           MOHAN    Date:
           AMBERKAR 2026.10.01
                      11:23:25
                      +0530




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