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
- Arms Act — s. 4 read with 25
- Bharatiya Nagarik Suraksha Sanhita — s. 483
- Code of Criminal Procedure, 1973 — s. 439
- Criminal Law Amendment Act — s. 3, 7
- Indian Penal Code — s. 120-B read with 34, 302
- Maharashtra Control of Organized Crimes Act — s. 3(1)(i), 3(2), 3(4)
- Maharashtra Police Act — s. 37(1)(3) read with 135 and 142
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
29. CRI WP-3633-26.odt
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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