Article 21 Applies Irrespective Of Nature Of Crime, Accused Cannot Be Kept Behind Bars Indefinitely Without Progress In Trial: Bombay HC

The Nagpur bench of the Bombay High Court recently granted bail to a man booked in a rape case observing that Article 21 of the Constitution of India will apply irrespective of the nature of the crime.

Single-judge Justice Urmila Joshi-Phalke in her order passed on August 6 noted that the accused was arrested on December 15, 2021, and was in custody since then.

The judge further noted that an earlier bail application was withdrawn by the applicant with liberty to file a fresh plea if the trial did not commence within six months. 

"Now, already one year has been passed and there is no progress in the trial. The present application is filed by the present applicant on the ground of delay in trial," the judge noted in the order.

The bench further took into account the 'certified' copy of the trial court's roznama, which showed that on several occasions the accused was not produced before the Court by the jail authority and therefore the charge was not framed.

"From the roznama, it appears that Special Court has not taken the efforts to secure the presence of the accused before the Court to proceed with the trial," the bench observed.

The single-judge referred to the observations of the Supreme Court in Javed Gulam Nahi Shaikh vs State of Maharashtra held that if the State or the prosecuting agency including the court has no wherewithal to protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution of India, 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. Long incarceration with the unlikelihood of the trial being completed in the near future is a good ground to grant bail, "Justice Joshi-Phalke observed

In the present case, the judge observed that the applicant has been behind bars since December 15, 2021, and from the certified copy of the rojnama it revealed the trial has not commenced merely because the accused was not produced before the Court and the charge was not framed.

"The Special Court has not taken any efforts to secure the presence of the accused before the Court as well as the prosecution has not taken any efforts to secure the presence of the accused before the Court. Thus, in view of the observations made by the Supreme Court, 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," the judge observed.

The judge stated that though the crime committed was serious, in view of the observations of the Supreme Court and Article 21 of the Constitution, the applicant cannot be kept behind bars for an indefinite period.

The court, therefore, granted bail to the applicant on a surety of Rs 50,000.

Appearances:

Advocate AD Bhate appeared for the Applicant.

Assistant Public Prosecutor SS Dhote represented the State.

Advocate CA Joshi appeared for the Complainant.

Case Title: Dattatray Shrikrushna Shejole vs State of Maharashtra (BA/429/2024)

Click Here To Read/Download Order