The Bombay High Court while granting bail observed that the seriousness of an offence and it’s heinous nature may be one aspect, which deserve a consideration while exercising the discretion to release an accused on bail, but at the same time, the factor of long incarceration of an accused as under-trial prisoner also deserve its due weightage.
A Single Bench of Justice Justice Bharati Dangre passed this order while hearing a Criminal Misc Bail Application filed by Akash Satish Chandalia.
The Applicant came to be arrested on 25/09/2015 in case of registration with Lonavala Police Station, which invoked Sections 302, 364, 342, 201, 120-B of the IPC. On completion of investigation, a charge-sheet was filed against him on 14/12/2015 and, presently, he is facing a trial before the Sessions Court, Pune.
This is the application for bail filed by him for the second time on two counts; the first being the long incarceration of the Applicant and till date of seven and half years and the second being, the release of co-accused by this Court, who is attributed a similar role as to that of the Applicant.
The Applicant faces a charge under Section 302 of IPC and the manner in which the alleged offence has taken place is undisputedly serious in nature. The Complainant on 20/07/2015 gave a report about his son going missing, when he was in company of one Rajesh. The information was received that one Kisan Pardeshi had kidnapped her son Akshay and Rajesh and, hence the case was registered under Section 363 of the IPC.
However, subsequently the dead bodies of these persons were found near Tamhani Ghat and, hence, Sections 302, 364, 201 and 120-B were added.
The prosecution case is, Accused-Kisan, a notorious gangster and his associates, on removing their clothes had beaten them mercilessly for 4 to 5 hours, on the night when they were kidnapped and they succumbed to the injuries and, thereafter, their dead bodies were thrown, which were traced. As far as the Applicant is concerned, he is assigned a role of assault and the statements of the witnesses record his presence on the spot along with co-accused, who collectively assaulted Akshay and Rajesh, which caused their death.
Vikas @ Gogya Suresh Gaikwad, who is also assigned the similar role, is released on bail on 25/11/2022, upon his second bail application being entertained on the ground of delay in trial and parity, as the co-accused was released on bail on the ground of delay in trial.
Recording that the Applicant was in custody since 17/09/2015 and the trial was delayed and not likely to conclude in near future, Yasmin was released on bail.
The Court observed that,
The seriousness of an offence and its heinous nature may be one aspect, which deserve consideration while exercising the discretion to release an accused on bail, but at the same time, the factor of long incarceration of an accused as under-trial prisoner also deserve its due weightage. Pending the trial, a person cannot be kept in custody for an indefinite period of time and it clearly violates the fundamental right enshrined in the Constitution and time and again, has been considered to be a justiciable ground to exercise the discretion to release an accused. Various orders/judgments from the highest Court are placed before me which have directed release of an accused on the ground of long incarceration and the impossibility of conclusion of trial in a time bound manner.
Despite directions being issued to conclude the trial in a time bound manner, has not yielded any result and in such circumstances, there is no option than to release an accused on bail. A balancing act, therefore, will have to be struck between the gravity and seriousness of the charges, which the Applicant has to face and the long time consumed for conclusion of the trial, as the question of great significance, which all the stakeholders in the system must ponder is, after this long period of trial, if the accused is acquitted, how shall the system compensate him.
“Deprivation of personal liberty, without ensuring speedy trial is not in consonance with Article 21 of the Constitution. Access to justice and speedy trial has been well recognised as hallmark of liberty guaranteed in Part III of the Constitution and when a timely trial is not possible, the accused cannot be made to suffer further incarceration, if he has already undergone significant period of the proposed sentence and in such circumstances, the Court would ordinarily be obligated to enlarge him on bail, keeping aside the seriousness of the accusations faced by him”, the Court further observed while allowing the application.
In the wake of the above, the Court granted bail by the following order:-
(1) Applicant -Akash Satish Chandalia shall be released on bail in connection with C.R.No 130 of 2015 registered with Lonavala City Police Station on furnishing P.R Bond to the extent of Rs 20,000/- with one or more sureties in the like amount.
(2) The Applicant shall attend the trial on a regular basis and two consecutive non-appearance in the trial Court would entitle the prosecution to seek cancellation of his bail.
(3) The Applicant shall mark his attendance before the concerned police station on every Monday between 5.00 p.m. to 6.00 p.m.
(4) The Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence.
(5) On being released on bail, the Applicant shall furnish his contact number and residential address to the Investigating Officer and shall keep him updated, in the event of any change therein.