Bombay High Court Criticizes Maharashtra Govt For Its "Mindset" To Curtail Liberty Of Undertrial

The Bombay High Court on Thursday criticised the Maharashtra Police for its "mindset" to curtail the liberty of undertrials, who have served more than half of the possible maximum punishment they may be handed over after conviction.

A division bench of Justices Ajay Gadkari and Dr Neela Gokhale said in a democracy the police cannot give an impression that it is a Police State.

The observations were made while granting bail to one Kartik Prasad, booked under charges of fraud, forgery and the relevant provisions of the Maharashtra Protection of Interests of Depositors (In Financial Establishments) (MPID) Act. The bench was irked with the State for urging the court to stay its bail order for four weeks so that it can appeal against the same in the Supreme Court.

"We are disheartened to note that despite the consistent view of the Apex Court on the subject of pre-trial bail, the State exhibits a mindset and intent to continue to curtail the liberty of the Petitioner despite having undergone the maximum punishment in majority of the offences alleged against him," the bench said.

The judges underscored, "To assail the correctness of our Order in the Apex Court is a constitutional right, but in a democracy, there can never be an impression that it is a Police State as both are conceptually opposite to each other."

According to the prosecution case, the petitioner along with his wife duped the complainant, a doctor by profession, and his friends to the tune of Rs 35 crores after luring them to invest in long and short term maturity schemes which offered over 180 per cent returns. However, the petitioner and his wife defaulted paying the amounts. The complainant alone was duped of more than Rs 9 crores.

Appearing for the petitioner, Advocate Subhash Jha argued that even a single day of further incarceration would amount to gross violation of his client's right to life and liberty. He pointed out that the MPID Act being a special statute, provides for imprisonment for a term which may extend to six years and thus the quantum of punishment cannot exceed six years. He even pointed out that the MPID Act does not have any embargo in granting bail as is prescribed under other special statutes.

Special Public Prosecutor Sandeep Karnik for the State highlighted that Prasad was arrested in February 2017 but granted bail in December 2017 itself with a condition that he should deposit the entire amount involved in the case, in the court, however, he failed to do so. Further he sought to modify the said order but his plea for the same was rejected by the special court in February 2018. The prosecutor further detailed the history of the case as to how the bail applications and appeals filed by the petitioner were rejected by the special court, the High Court and also the Supreme Court.

Having heard the contentions, the bench while referring to various judgments of the Supreme Court on the very issue, observed that it is a settled principle that prolonged incarceration without trial amounts to infringement of Article 21 of the Constitution of India.

"In the case at hand, admittedly the Petitioner has already undergone incarceration of seven and half years. There is a list of 37 witnesses given by the prosecution agency to be examined during the trial. It is unlikely that the trial will be expeditiously completed in near future," the judges noted.

To the aspect of the petitioner not being able to deposit the amount ordered by the special court while granting him bail, the bench said, "Much water had flown under the bridge and the Petitioner has undergone a further detention of seven years thereafter. The Petitioner has thus suffered additional incarceration for failing to deposit the entire amount. We do not find substance in this submission of the State."

The bench, therefore, granted bail to the petitioner on a surety of Rs one lakh.

Appearance:

Advocates Subhash Jha, Samir Vaidya, Neha Balani, Komol Thakur and Apeksha Sharma, instructed by Law Global Advocates appeared for the Petitioner.

Special Public Prosecutor Sandeep Karnik along with Assistant Public Prosecutor VN Sagare represented the State.

Case Details:

Kartik Mohan Prasad vs State of Maharashtra (Criminal Writ Petition 2421 of 2023)

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