Bombay High Court
PINTOO SARJU GAUTAMversusSTATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Disposed Off
Holding
Given the lack of substantive evidence beyond the ‘last seen’ theory and the applicant’s right to liberty, the Court granted bail.
Summary
The High Court considered a bail application under Section 439 of the CrPC filed by Pintoo Sarju Gautam, accused of offences including murder, kidnapping, and sexual assault against a 16‑year‑old deaf boy. The prosecution’s case relied solely on a “last seen” theory, with no direct or circumstantial evidence linking the accused to the crime. The Court noted the applicant’s young age, the four‑year pre‑trial detention, and the lack of material to establish guilt, emphasizing the presumption of innocence and the principle that bail is the rule, not the exception. Citing numerous precedents, the Court held that the seriousness of the alleged offences alone does not justify denial of bail absent clear risk of tampering or flight. Consequently, the Court granted bail with strict conditions, while reserving the right to cancel it for any breach.
Issues considered
- The adequacy of the prosecution’s ‘last seen’ theory as a basis to deny bail
- Whether the seriousness of the offences (IPC 302, 364, 201, 376, 377) warrants denial of bail in absence of substantive evidence
- Risk of witness tampering or evidence manipulation by the accused
- Impact of prolonged pre‑trial detention on the accused’s right to liberty under Article 21
- Application of bail principles under Section 439 CrPC to a young offender charged under POCSO and other special statutes
Legislation cited
- Code of Criminal Procedure, 1973 — s. 309, 439, 496, 497
- Indian Penal Code, 1860 — s. 201, 302, 364, 376, 377
- Protection of Children from Sexual Offences Act, 2012 — s. 4, 6
- Rights of Persons with Disabilities Act, 2016 — s. 92
Subjects
- bail
- presumption of innocence
- Section 439 CrPC
- pre‑trial detention
- youth offender
- POCSO
- rights of disabled persons
- witness tampering
- speedy trial
- Article 21
Judgment
42.BA.704.2026.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 704 OF 2026
Pintoo Sarju Gautam .. Applicant
Versus
State of Maharashtra and Anr. .. Respondents
....................
Ms. Indrayanee Pandit a/w. Mr. Satyavrat Joshi, Advocates for
Applicant.
Ms. Shilpa G. Talhar, APP for Respondent No.1 – State.
Ms. Isha Kakesh Singh a/w. Neel Paralikar, Advocates for
Respondent No.2.
PSI – Medabalmewar, Kothrud Police Station present.
......…...........
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 08, 2026.
P.C.:
1. Heard Ms. Pandit, learned Advocate for Applicant; Ms.
Talhar, learned APP for Respondent No.1 – State and Ms. Singh,
learned Advocate for Respondent No.2.
2. This is an Application under Section 439 of the Criminal
Procedure Code, 1973 seeking bail in connection with C.R.No.77 of
2022 registered with Kothrud Police Station, District Pune for the
offences punishable under Sections 302, 364, 201, 376 and 377 of the
Indian Penal Code, 1860 (for short ‘IPC’); Section 92 of the Rights of
Persons with Disabilities Act, 2016; Sections 75 and 85 of the Juvenile
Justice (Care and Protection of Children) Act, 2025 and Sections 4 and
6 of the Protection of Children from Sexual Offences Act, 2012.
1 of 22
42.BA.704.2026.doc
3. The Applicant, at the time of commission of the offence was
a young offender aged 21 years. The victim was 16 year old boy. The
victim was deaf and had a hearing disability. Both were neighbours
and knew each other well. The material placed on record indicates that
there was nothing amiss if the victim accompanied the Applicant on his
two-wheeler an Activa scooter and went out with him as they were
friends.
4. On the fateful day of the incident, according to prosecution,
on 24.03.2012, the victim left with the Applicant on his scooter at
about 05:00 p.m.. One of the witnesses, who was a cousin of the
victim has recorded statement that he had seen the victim leave with
the Applicant on his scooter and going somewhere. Since the victim
did not return home on the evening of the same day, a search was
launched by his family members. Upon making inquiries with the
Applicant, they were informed that both of them had been together
after 05:00 p.m. and after that the Applicant had dropped the victim at
Mahotba Ground and thereafter the Applicant claimed to have had no
knowledge of where the victim had gone.
5. The case of the prosecution is based on the “last seen” theory
only wherein the Applicant and the victim were allegedly seen leaving
together at 05:00 p.m.. On the same night, information was received
about a body having been found dumped in a gunny bag at a nearby
2 of 22
42.BA.704.2026.doc
place near Mahotba Ground. The prosecution Advocate and the
learned Advocate appearing for Respondent No.2 – victim/First
Informant have vehemently submitted that the “last seen” theory
coupled with the fact that Applicant and the victim were seen together
would ultimately lead to the inevitable conclusion that Applicant was
involved in the incident in question and therefore present Application
for bail be rejected.
6. As regards the motive ascribed to the crime qua the
Applicant, neither the prosecution nor the learned Advocate for First
Informant has been able to throw any light, save and except to state
that Applicant may have taken advantage of the vulnerability of the
victim who was disabled and may have committed the crime. Save and
except the “last seen” theory, there is no other direct or even
circumstantial evidence brought forth by the prosecution. The
statements recorded by the prosecution also prima facie lend support
to the statement of the Applicant which states that after they both left,
he had left the victim near Mahotba Ground. This memorandum
statement prima facie indicates that the body was found near Mahotba
Ground where the clothes of the victim were also found concealed and
subsequently seized.
7. Undoubtedly, the nature of the offence is very heinous as
argued by the learned Advocate for Respondent No.2 – First Informant.
3 of 22
42.BA.704.2026.doc
An apprehension is also expressed that if the Applicant is released on
bail, there is a possibility that he may tamper with the witnesses and
pressurize them.
8. With the able assistance of the learned Advocates at the bar,
I have perused the entire material placed on record.
9. The learned Advocate for the Applicant has referred to
several decisions of this Court, inter alia, stating that there is no overt
act other than the “last seen” theory brought forth by the prosecution
to establish the direct or indirect involvement of the Applicant due to
any motive in the present case. Prima facie, in this regard, the
prosecution has not brought forth any material and therefore the
learned Advocate for the Applicant may be correct. There has to be
some material placed on record to lead the Court towards that
direction for consideration.
10. Applicant has also referred to and relied upon the decision in
the case of Rupesh Tukaram Kondhalkar Vs. State of Maharashtra and
Anr. delivered by this Court on 23.04.2025, reported in 2025 SCC
OnLine Bom 1772 with regard to the applicability of the DNA report
and also the statutory presumption envisaged under Section 29 of the
POCSO Act, because the victim in the present case happens to be a
minor boy below the age of 18 years. However, apart from the last
seen theory, there is nothing incriminating brought on record even
4 of 22
42.BA.704.2026.doc
from the Medical Report to show assualt.
11. At the cost of repetition, I would state that, apart from the
“last seen” theory, there is no material brought forth by the
prosecution, save and except to state that since the offence is heinous
in nature, bail should be denied. The Applicant being a young offender
as noticed hereinabove has already been incarcerated for more than 4
years and 4 months. This itself is a humongous period of
incarceration. The trial is yet to commence and the prospect of the trial
not being completed or concluded in the near foreseeable future is
quite palpable.
12. Even if I am to accept the submissions made by the learned
Prosecutor that the trial should be expedited in view of the gravity of
the offence, my experience as the Bail Court has shown that the
prosecution invariably does not complete the trial within the time
bound period decided by the Court and continues to seek extension of
time repeatedly. The prosecution cannot be blamed for this delay
either because conducting trial before the Trial Court is dependent on
several factors and on most occasions the prosecution is completely
helpless with regard to the timeline to be complied with within which
the trial has to be completed. The presence of witnesses, their
examination and cross-examination and the recording of evidence itself
constitutes a long process in conducting the trial with several
5 of 22
42.BA.704.2026.doc
exigencies.
13. It is settled law that a Court while deciding a Bail Application
has to keep in mind the principal rule of bail which is to ascertain
whether the accused is likely to appear before the court for trial. There
are other broad parameters also like gravity of offence, likelihood of
accused repeating the offence while on bail, whether he would
influence the witnesses and tamper with the evidence, his antecedents
which are required to be considered in such cases.
14. In the case of Emperor Vs. H.L. Hutchinson1, 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.
14.1. Justice Mukerji writing for the Bench held as under:-
“9. Speaking for myself, I think it very unwise to make an
attempt to lay down any particular rules for the guidance of the
1 AIR 1931 ALL 356
6 of 22
42.BA.704.2026.doc
High Court, having regard to the fact that the legislature itself
left the discretion of the Court entirely unfettered. The reason
for this action on the part of the legislature is not far to seek.
The High Court might be safely trusted in this matter and it
goes without saying that it would act in the best interests of
justice whether it decides in favour of the prosecution or the
defence. The variety of cases that may arise from time to time
cannot be safely classified and it will be dangerous to make an
attempt to classify the cases and to say that in particular classes
a bail may be granted but not in other classes.
This being my reading of the law, I proceed to see whether
this is a case in which the applicants ought to be let out on bail.
On general principles, and on the principles on which sections
496 and 497 (as amended in 1923) are framed, the grant of bail
should be the rule and refusal of bail should be the exception. In
the case of a bailable offence, the law expressly says that if the
accused person applies for bail he shall be released (section
496). Section 497 applies to cases of non-bailable offence and
there it is said that the accused person shall be released on bail
except where there appears to be a reasonable ground for
believing that he has been guilty of a very heinous offence,
namely one which may be punished by either death or by
transportation for life : section 497(1). Again it is laid down
that where, at any stage of the investigation or trial, there are
not reasonable grounds for believing that the accused person
has committed a non-bailable offence, but there are sufficient
grounds for further inquiry into his guilt, the accused shall be
released on bail : section 497(2).
The principle to be deduced from sections 496 and 497 of the
Criminal Procedure Code, therefore, is that grant of bail is the
rule and refusal is the exception. (emphasis underlined) That
this must be so is not at all difficult to see. An accused person is
presumed under the law to be innocent till his guilt is proved.
As a presumably innocent person he is entitled to freedom and
every opportunity to look after his own case. It goes without
saying that an accused person, if he enjoys freedom, will be in a
much better position to look after his case and to properly
defend himself than if he were in custody. One of the complaints
made by the applicants in this case is that their letters sent from
the custody have been opened and inspected and censored, and,
therefore, they were not in a position to conduct their defence
with the aid of such friends as may he outside the prison. As I
have said, it is obvious that a presumably innocent person
should have his freedom to enable him to establish his
innocence.
This being the rule, there may, of course, be exceptions. I will
not attempt to lay down any cases of exceptions, because these
cases before us are not exceptions and I do not want to say
anything which will be only in the nature of an obiter dictum.”
7 of 22
42.BA.704.2026.doc
14.2. Justice Boys writing a concurrent view held as under:-
“As to the object of keeping an accused person in detention during the
trial, it has been stated that the object is not punishment; that to keep
an accused person under arrest with the object of punishing him on the
assumption that he is guilty, even if eventually he is acquitted, is
improper. This is most manifest. The only legitimate purposes to be
served by keeping a person under trial in detention are to prevent
repetition of the offence with which he is charged, where there is
apparently danger of such repetition, and to secure his attendance at
the trial. The first of these purposes clearly to some extent involves an
assumption of the accused's guilt, but the very trial itself is based on a
prima facie assumption of the accused's guilt and it is impossible to
hold that in some circumstances it is not a proper ground to be
considered. The main purpose, however, is manifestly to secure the
attendance of the accused.”
15. In the case of Satender Kumar Antil Vs. Central Bureau of
Investigation2, 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.
2 (2022) 10 SCC 51
8 of 22
42.BA.704.2026.doc
Definition of trial
7. The word “trial” is not explained and defined under the
Code. An extended meaning has to be given to this word for the
purpose of enlargement on bail to include, the stage of
investigation and thereafter. Primary considerations would
obviously be different between these two stages. In the former
stage, an arrest followed by a police custody may be warranted
for a thorough investigation, while in the latter what matters
substantially is the proceedings before the court in the form of a
trial. If we keep the above distinction in mind, the consequence
to be drawn is for a more favourable consideration towards
enlargement when investigation is completed, of course, among
other factors.
8. Similarly, an appeal or revision shall also be construed as
a facet of trial when it comes to the consideration of bail on
suspension of sentence.
Definition of bail
9. The term “bail” has not been defined in the Code, though
is used very often. A bail is nothing but a surety inclusive of a
personal bond from the accused. It means the release of an
accused person either by the orders of the court or by the police
or by the investigating agency.
10. It is a set of pre-trial restrictions imposed on a suspect
while enabling any interference in the judicial process. Thus, it
is a conditional release on the solemn undertaking by the
suspect that he would cooperate both with the investigation and
the trial. The word “bail” has been defined in Black's Law
Dictionary, 9th Edn., p. 160 as:
“A security such as cash or a bond; esp., security required
by a court for the release of a prisoner who must appear in
court at a future time.”
11. Wharton's Law Lexicon, 14th Edn., p. 105 defines “bail” as:
“to set at liberty a person arrested or imprisoned, on
security being taken for his appearance on a day and at a
place certain, which security is called bail, because the
party arrested or imprisoned is delivered into the hands of
those who bind themselves or become bail for his due
appearance when required, in order that he may be safely
protected from prison, to which they have, if they fear his
escape, etc. the legal power to deliver him.”
Bail is the rule
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.
9 of 22
42.BA.704.2026.doc
Union of India, (2018) 11 SCC 1 : (2018) 2 SCC (Cri) 302] ,
held that : (SCC pp. 22-23 & 27, paras 19 & 24)
“19. In Gurbaksh Singh Sibbia v. State of Punjab
[Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 : 1980 SCC (Cri) 465] , the purpose of granting bail is
set out with great felicity as follows : (SCC pp. 586-88,
paras 27-30)
‘27. It is not necessary to refer to decisions which
deal with the right to ordinary bail because that
right does not furnish an exact parallel to the right
to anticipatory bail. It is, however, interesting that
as long back as in 1924 it was held by the High
Court of Calcutta in Nagendra Nath Chakravarti, In
re [Nagendra Nath Chakravarti, In re, 1923 SCC
OnLine Cal 318 : AIR 1924 Cal 476] , AIR pp. 479-
80 that the object of bail is to secure the attendance
of the accused at the trial, that the proper test to be
applied in the solution of the question whether bail
should be granted or refused is whether it is
probable that the party will appear to take his trial
and that it is indisputable that bail is not to be
withheld as a punishment. In two other cases which,
significantly, are the “Meerut Conspiracy cases”
observations are to be found regarding the right to
bail which deserve a special mention. In K.N.
Joglekar v. Emperor [K.N. Joglekar v. Emperor,
1931 SCC OnLine All 60 : AIR 1931 All 504] it was
observed, while dealing with Section 498 which
corresponds to the present Section 439 of the Code,
that it conferred upon the Sessions Judge or the
High Court wide powers to grant bail which were
not handicapped by the restrictions in the preceding
Section 497 which corresponds to the present
Section 437. It was observed by the court that there
was no hard-and-fast rule and no inflexible principle
governing the exercise of the discretion conferred by
Section 498 and that the only principle which was
established was that the discretion should be
exercised judiciously. In Emperor v. H.L. Hutchinson
[Emperor v. H.L. Hutchinson, 1931 SCC OnLine All
14 : AIR 1931 All 356] , AIR p. 358 it was said that
it was very unwise to make an attempt to lay down
any particular rules which will bind the High Court,
having regard to the fact that the legislature itself
left the discretion of the court unfettered. According
to the High Court, the variety of cases that may arise
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
10 of 22
42.BA.704.2026.doc
sections in the Criminal Procedure Code was that
grant of bail is the rule and refusal is the exception.
An accused person who enjoys freedom is in a much
better position to look after his case and to properly
defend himself than if he were in custody. As a
presumably innocent person he is therefore entitled
to freedom and every opportunity to look after his
own case. A presumably innocent person must have
his freedom to enable him to establish his
innocence.
28. Coming nearer home, it was observed by
Krishna Iyer, J., in Gudikanti Narasimhulu v. Public
Prosecutor [Gudikanti Narasimhulu v. Public
Prosecutor, (1978) 1 SCC 240 : 1978 SCC (Cri) 115]
that : (SCC p. 242, para 1)
“1. … the issue [of bail] is one of liberty,
justice, public safety and burden of the public
treasury, all of which insist that a developed
jurisprudence of bail is integral to a socially
sensitised judicial process. … After all, personal
liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of
“procedure established by law”. The last four
words of Article 21 are the life of that human
right.”
29. In Gurcharan Singh v. State (Delhi Admn.)
[Gurcharan Singh v. State (Delhi Admn.), (1978) 1
SCC 118 : 1978 SCC (Cri) 41] it was observed by
Goswami, J., who spoke for the Court, that : (SCC p.
129, para 29)
“29. … There cannot be an inexorable formula
in the matter of granting bail. The facts and
circumstances of each case will govern the
exercise of judicial discretion in granting or
cancelling bail.”
30. In American Jurisprudence (2nd Edn., Vol. 8,
p. 806, para 39), it is stated:
“Where the granting of bail lies within the
discretion of the court, the granting or denial
is regulated, to a large extent, by the facts and
circumstances of each particular case. Since
the object of the detention or imprisonment of
the accused is to secure his appearance and
submission to the jurisdiction and the
judgment of the court, the primary inquiry is
whether a recognizance or bond would effect
that end.”
11 of 22
42.BA.704.2026.doc
It is thus clear that the question whether to
grant bail or not depends for its answer upon a
variety of circumstances, the cumulative effect
of which must enter into the judicial verdict.
Any one single circumstance cannot be treated
as of universal validity or as necessarily
justifying the grant or refusal of bail.’
* * *
24. Article 21 is the Ark of the Covenant so far as the
Fundamental Rights Chapter of the Constitution is
concerned. It deals with nothing less sacrosanct than the
rights of life and personal liberty of the citizens of India
and other persons. It is the only article in the Fundamental
Rights Chapter (along with Article 20) that cannot be
suspended even in an emergency [see Article 359(1) of the
Constitution]. At present, Article 21 is the repository of a
vast number of substantive and procedural rights post
Maneka Gandhi v. Union of India [Maneka Gandhi v.
Union of India, (1978) 1 SCC 248] .”
13. Further this Court in Sanjay Chandra v. CBI [Sanjay
Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 :
(2012) 2 SCC (L&S) 397] , has observed that : (SCC p. 52, paras
21-23)
“21. In bail applications, generally, it has been laid down
from the earliest times that the object of bail is to secure
the appearance of the accused person at his trial by
reasonable amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of liberty must be
considered a punishment, unless it is required to ensure
that an accused person will stand his trial when called
upon. The courts owe more than verbal respect to the
principle that punishment begins after conviction, and that
every man is deemed to be innocent until duly tried and
duly found guilty.
22. From the earliest times, it was appreciated that
detention in custody pending completion of trial could be a
cause of great hardship. From time to time, necessity
demands that some unconvicted persons should be held in
custody pending trial to secure their attendance at the trial
but in such cases, “necessity” is the operative test. In this
country, it would be quite contrary to the concept of
personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon
which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty upon
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
12 of 22
42.BA.704.2026.doc
that any imprisonment before conviction has a substantial
punitive content and it would be improper for any court to
refuse bail as a mark of disapproval of former conduct
whether the accused has been convicted for it or not or to
refuse bail to an unconvicted person for the purpose of
giving him a taste of imprisonment as a lesson.”
Presumption of innocence
14. Innocence of a person accused of an offence is presumed
through a legal fiction, placing the onus on the prosecution to
prove the guilt before the court. Thus, it is for that agency to
satisfy the court that the arrest made was warranted and
enlargement on bail is to be denied.
15. Presumption of innocence has been acknowledged
throughout the world. Article 14(2) of the International
Covenant on Civil and Political Rights, 1966 and Article 11 of
the Universal Declaration of Human Rights, 1948 acknowledge
the presumption of innocence, as a cardinal principle of law,
until the individual is proven guilty.”
16. Considering Applicant’s age, if he is enlarged on bail Court is
hopeful that his family will undoubtedly do their duty to make every
effort and attempt to reform and aid the Applicant in leading a
reformed life while on bail rather than keep him in prison and expose
him to criminal outlook and life in prison. However on the flip side, if a
chance is given to the Applicant because of his young age by enlarging
him on bail, there is a possibility that he will be remorseful and repent
in retrospect. This is a chance required to be taken by the Court
because punishment has to be believed to be inflicted for a reformative
result rather than being punitive in nature.
17. Undoubtedly the trial will determine the complicity of
Applicant in the offence. While considering Bail Application in such
facts, Court feels that reform and rehabilitation of the under trial
13 of 22
42.BA.704.2026.doc
accused needs to be considered especially when age of the accused
person is young so that he gets an opportunity / or is given an
opportunity to reform, rehabilitate and earn his livelihood honorably
from the perspective of social integration. This is a chance which the
Court must take considering the young age of accused person. The age
of the Applicant is very young. If the Applicant is incarcerated in prison
further, there is every possibility that he might lose faith in the
institution and society at large and may tread the path of criminality or
would waste his life. Incarceration in prison exposes many youth to
abuse as is shown statistically.
18. There are several harms of incarceration which are inflicted
disproportionately on the youth. This is the reason why Court feels that
any / every semblance of a chance towards a reformative approach in
punishment should be adopted, especially in the case of young
offenders. Hence every opportunity or to that extent risk should be
constructively taken by the Court in the case of young offenders –
accused before committing such accused to further custody and give
such accused an opportunity to become a good citizen in the Society.
These observations are only in the view of the young age of the
Applicant before me and it is only a means to explore an alternative to
incarceration so that the Applicant can become a good citizen.
14 of 22
42.BA.704.2026.doc
19. In the case of Amit Agrawal Vs. State of NCT Delhi3 the Delhi
High Court in paragraph No.13 of the said decision has given a quick
overview of the principles of bail jurisprudence by the Supreme Court
which are necessary for consideration by a bail Court considering the
right of speedy trial of an under-trial accused. These principles are
enumerated therein as follows:-
“13.1. An undertrial is required to post bail in order to secure
his presence at the trial, for which purpose an undertrial is
handed-over from the custody of the court to the custody of an
appropriate surety. The effect of granting bail is not to set an
undertrial completely at liberty but to release him from the
custody of law and entrust him to the custody of his surety; and
the surety is bound to ensure his production at the trial.
13.2. Bail may be denied if the court is not satisfied that an
accused would remain available to face trial; or the court is of
the view that he would intimidate witnesses or tamper with
evidence or otherwise interfere in the course of justice. The
‘operative’ test that a court must apply for grant or denial of bail
is the test of ‘necessity’, namely to answer why it is necessary to
detain an undertrial in custody.
13.3. The purpose of pre-trial custody is neither ‘punitive’ nor
‘preventative’, meaning that an accused cannot be held in
custody only with the intention of punishing him for an offence
which is yet to be proved against him; nor is bail to be denied
on the presumption that he would commit an offence if enlarged
from custody (except where additional twin conditions
prescribed by the Legislature under certain special statutes).
13.4. Pertinently, bail must not be denied as a mark of
disapproval of the alleged conduct of an accused; nor should it
be denied for giving to an accused the taste of imprisonment as a
lesson. This is a common pitfall since oftentimes courts get
swayed by the allegations contained in an FIR or a chargesheet
and tend to proceed on the textual gravity of the offences
alleged, meaning that courts get blinded by the multitude of
penal sections foisted against an accused by the prosecution,
which builds a textual narrative in the FIR or in the chargesheet.
It is important therefore, for a court to look into the specific
allegations against a particular accused, and how, if at all, those
allegations are supported by the material or evidence available
on record.
3 Bail Appln 4475/2024 decided on 01.05.2025
15 of 22
42.BA.704.2026.doc
13.5. It is extremely important to appreciate that the
consequences of pre-trial detention are grave : an accused, who
is otherwise presumed innocent until proven guilty, is subject to
psychological and physical deprivations of jail life; and is even
prevented from contributing to the preparation of his defense.
13.6. ….
13.7. It would therefore be sacrilege for a court to disregard the
presumption of innocence which enures to the benefit of an
accused, while on the other hand failing to ensure speedy trial.
The right to speedy trial is the flip-side of the presumption of
innocence. It has been held that the right to speedy trial is
implicit in the broad-sweep of Article 21 of the Constitution; and
a procedure prescribed by law that deprives a person of liberty
can only be said to be reasonable, fair and just on the anvil of
Article 21 if it also ensures speedy trial.”
20. It is seen that role of the Judge in a trial assumes a lot of
importance. The Trial Judge should enquire with the prosecution as to
why they intend to examine the witness if such witness is going to
depose the very same thing which such a witness might have deposed
earlier. This is in the context of considering the issue of delay in trial
for grant of bail. The Supreme Court in the case of Tapas Kumar Palit
Vs. State of Chhattisgarh4 has held that if an accused is to get a final
verdict after incarceration of 6 – 7 years in jail as an under-trial
prisoner, then definitely it could be said that his right to have a speedy
trial has been infringed. The Supreme Court held that stress of long
trial on accused persons who remain innocent until proven guilty can
also be significant. The Supreme Court held that accused persons are
not financially compensated for what might be a lengthy period of pre-
trial incarceration. In the bargain, they may also have lost a job or
accommodation, experienced damage to personal relationships while
4 Criminal Appeal No.738 of 2025 – Decided on 14.02.2025.
16 of 22
42.BA.704.2026.doc
in long incarceration and spent a considerable expense on legal fees.
The Supreme Court held that if an accused person is not found guilty,
they have likely endured many months of being stigmatized and
ostracized and will have to rebuild their lives with their own available
resources. The Supreme Court held that delay in trial is bad for the
accused and extremely bad for the victims as also for the Indian
Society and for the credibility of our justice system which is valued.
21. In the case of Javed Gulam Nabi Shaikh Vs. State of
Maharashtra and Anr.5, in the context of delay in trial vis-a-vis speedy
trial as enshrined in Article 21 of the Constitution of India, the
Supreme Court has categorically held that if the State or any
prosecuting agency including the Court concerned has no wherewithal
to provide or protect the fundamental right of an accused to have a
speedy trial under Article 21 of the Constitution of India, then the
State or prosecuting agency should not oppose the plea for bail on the
ground that the crime committed is serious. The Supreme Court held
that Article 21 of the Constitution of India applies irrespective of the
nature of the crime. This is a very significant statement.
22. While sitting as a Bail Court what I have experienced is that
public prosecutors oppose bail pleas vehemently even in the cases of
long incarceration pending trial under the mistaken impression that
the crime in question is serious and therefore the Court should not
5 (2024) 9 SCC 813
17 of 22
42.BA.704.2026.doc
grant bail to the accused person. This mindset and approach of the
prosecution needs to change. It is observed that in cases under
POCSO, the statute itself provides a speedy trial within 1 year under
Section 35 of the POCSO Act, but that is seldom achieved. Even in such
cases where trials are pending over 5 years without even being
commenced, the prosecutors raise vehement objection to Bail
Applications on the ground of severity of the crime.
23. The Supreme Court in the above case has hastened to add
that the accused person is still an under-trial prisoner and not a convict
and the overarching postulate of criminal jurisprudence that an
accused is presumed to be innocent until proven guilty cannot be
brushed aside lightly however stringent the law may be.
24. Attention is invited to Section 309 of Cr.P.C. which reads
thus :-
“309. Power to postpone or adjourn proceedings.
(1) In every inquiry or trial the proceedings shall be continued
from day-to-day until all the witnesses in attendance have been
examined, unless the Court finds the adjournment of the same
beyond the following day to be necessary for reasons to be
recorded:Provided that when the inquiry or trial relates to an
offence under section 376, [section 376A, section 376AB, section
376B, section 376C, section 376D, section 376DA, section 376DB
of the Indian Penal Code, the inquiry or trial shall] [Substituted
by Criminal Law (Amendment) Act, 2013 ] be completed within
a period of two months from the date of filing of the charge
sheet.]
(2) If the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or trial,
it may, from time to time, for reasons to be recorded, postpone
18 of 22
42.BA.704.2026.doc
or adjourn the same on such terms as it thinks fit, for such time
as it considers reasonable and may by a warrant remand the
accused if in custody :
Provided that no Magistrate shall remand an accused person to
custody under this section for a term exceeding fifteen days at a
time :
Provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded in
writing :
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show cause
against the sentence proposed to be imposed on him.
Provided also that- (a)no adjournment shall be granted at the
request of a party, except where the circumstances are beyond
the control of that party;
(b)the fact that the pleader of a party is engaged in another
Court, shall not be a ground for adjournment;
(c)where a witness is present in Court but a party or his pleader
is not present or the party or his pleader though present in
Court, is not ready to examine or cross-examine the witness, the
Court may, if thinks fit, record the statement of the witness and
pass such orders as it thinks fit dispensing with the examination-
in-chief or cross-examination of the witness, as the case may be.”
25. The above is a statutory provision. In the present BNSS there
are similar statutory provisions. They are however seldom followed
due to various reasons. Undoubtedly Prosecution cannot be solely
blamed for protraction of trial as the reasons for delay are sometimes
beyond their control. Hence, I am of the opinion that facet of long
incarceration pending trial assumes significance in the realm of Article
21 and Article 22 (2) of the Constitution of India for consideration by
every Court deciding a bail Application.
19 of 22
42.BA.704.2026.doc
26. Applicant in the present case is a young offender. He is
incarcerated for a period of 4 years and 4 months. In that view of the
matter, considering the aforesaid prima facie observations, findings
and judicial pronouncements and the prospect of the trial not being
completed or for that matter concluded in the near foreseeable future,
I am impelled to consider the case of the Applicant, both on the ground
of long incarceration and also on merits which have been prima facie
discussed hereinabove and accordingly grant bail to the Applicant in
the present matter.
27. Hence, Bail Application of Applicant is allowed subject to the
following terms and conditions:-
(i) Applicant – Pintoo Sarju Gautam is directed to be
immediately released from prison in connection with
CR. No.77 of 2022;
(ii) Applicant is directed to be released on bail on
furnishing P.R. Bond of Rs.25,000/- (Rs. Twenty Five
Thousand only) with one or two sureties in the like
amount;
(iii) Applicant shall report to the Investigating Officer at
Kothrud Police Station, once every month, on the first
Monday of the month between 10:00 a.m. to 12:00
p.m. until commencement of trial and thereafter shall
20 of 22
42.BA.704.2026.doc
attend all dates of hearing before the Trial Court;
(iv) Applicant shall cooperate with the conduct of the trial
and remain present before the Trial Court on all dates,
unless specifically exempted. Applicant shall not seek
unnecessary adjournments. Any such conduct shall
entitle the prosecution to apply for cancellation of bail;
(v) Applicant shall not leave the State of Maharashtra
without prior permission of the Trial Court;
(vi) Applicant shall not influence any of the witnesses or
tamper with the evidence in any manner;
(vii) Applicant shall keep the Investigating Officer informed
of their current residential address and mobile
telephone number and shall forthwith inform the
Investigating Officer of any change in their residential
address or mobile telephone number, as and when such
change occurs; and
(viii)Any breach or infraction of any of the aforesaid
conditions shall entail cancellation of the bail granted to
the Applicant.
28. It is clarified that the observations made in this order are
limited for the purpose of granting bail only and I have not made any
21 of 22
42.BA.704.2026.doc
observations on merits of the case. The trial shall be adjudicated on
the strength of the evidence led and strictly on its own merits being
uninfluenced with any of the prima facie observations made
hereinabove in this order.
29. This Court appreciates the valuable assistance rendered by
both Ms. Pandit, learned Advocate for the Applicant and Ms. Singh,
learned Advocate appointed through the Legal Aid to espouse the
cause of Respondent No. 2. Ms. Singh’s fees be paid by the High Court
Legal Aid Services Authority as per rules on production of a server copy
of this order and other compliances in accordance with the decision of
this Court in the case of Sanjyot Nitin Telharkar Vs. The State of
Maharashtra & Anr.6 and the Schedule under Regulation 18(1) of the
Maharashtra State Legal Services Authority Rules, 1998.
30. Bail Application is allowed and disposed in the above terms.
[ MILIND N. JADHAV, J. ]
Ajay
Digitally signed
by AJAY
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.09.08
20:41:17 +0530
6 Judgment dated 25.09.2024 passed in Misc. Civil Application No. 134 of 2024
22 of 22
Checking your session…