Dismissed

Chintan Upadhyay v. the State of Maharashtra

Bombay HC21 Dec 2020BA/3615/2019

Case brief

AI extract

What is this about?

The Bombay High Court rejected an application for bail filed by an accused in a murder and dacoity case. The Court held that since the Supreme Court rejected an extension of time application by the victim, the nine-month trial limit imposed on the accused had not been violated. Consequently, the earlier refugee to apply for bail was not activated, and the application on merits was dismissed given

What did the court decide?

Bail applications No.3615 of 2019 and Interim Application No.2006 of 2020 were rejected; Sessions Court directed to conclude evidence recording on or before 30th April 2021.

Chintan Upadhyay Vs the State of Maharashtra — Bail and Remand | Bombay HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL BAIL APPLICATION NO.3615 OF 2019
WITH
INTERIM APPLICATION (ST) NO.2006 OF 2020
IN
CRIMINAL BAIL APPLICATION NO.3615 OF 2019

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Chintan Vidyasagar Upadhyay…Applicant
V/s.
State of Maharashtra…Respondent

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Mr. Raja Thakare, Senior Senior i/b. Mr. Bharat K. Manghani, for the
Applicant.

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Mr. Anil. G. Lalla for the Intervenor.

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Mr. Vaibhav Bagade, Special Public Prosecutor a/w Ms. P.P. Shinde, APP for
the Respondent - State.

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CORAM :SMT. SADHANA S. JADHAV, J. DATED : 21^st DECEMBER 2020.

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P.C. :

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1.The applicant herein is an accused in Crime No.444 of

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2015 registered at Kandivali Police Station for the offence punishable
under sections 302, 396, 201, 109, 120-B r/w 34 of Indian Penal Code.
The applicant herein had filed an application before this Court bearing
Criminal Bail Application No.2371 of 2016. After considering the
charge sheet in detail and after hearing the learned counsel for the
applicant at length, this Court, upon evaluation of the material

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collected by the investigating agency, had rejected the application vide
order dated 2nd February 2017.

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2.The applicant had then subsequently renewed his prayers
for being enlarged on bail by filing Bail Application No.2830 of 2017.
At that stage, it was demonstrated before this Court that the
statements of three witnesses were recorded on 23rd December 2015
but did not find place in the compilation of charge sheet. It was also
submitted that the original co-accused No.2 Pradeep Rajbhar had
retracted the confession and it was prayed that this Court shall
consider the statements of the three witnesses viz. Sanjeev Khandekar,
Vaishali Narkar and Arun Gurav. The said statements were in favour of
the present applicant. The statements of all the three witnesses were
considered by this Court. The contention of the three witnesses and the
submission of the counsel was taken into consideration and in view of
the observations made in the earlier order, more particularly in
paragraph nos.14 to 17 of the order dated 6th August 2018, the
application was rejected.

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3.Being aggrieved by the said order, the applicant herein had
approached the Supreme Court by filing SLP No.179 of 2019. The
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Supreme Court had observed on merits as follows :

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“Having heard the learned counsel for both the sides, we
are of the view that bail needs to be rejected at this stage.”

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4.The State had filed a counter affidavit before the Supreme
Court and had submitted that the prosecution would conclude the trial
within a period of nine months. The Supreme Court, in those
circumstances, had observed that,

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“if the trial is not so concluded within a period of nine
months, it will be open to the petitioner to apply for bail
afresh.”

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5.In fact, on 14th February 2019, the Special Public
Prosecutor was not even appointed when the State had the audacity to
submit before the Supreme Court that they would conclude the trial
within a period of nine months. The Supreme Court had further
directed that the Special Public Prosecutor be appointed within one
week from 14th February 2019.

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6.The learned counsel Mr. Vaibhav Bagade was appointed as
the Special Public Prosecutor on 22nd March 2019. It is admitted that
the charge was framed against the accused on 6th May 2019.

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7.The applicant had then filed Criminal Bail Application
No.3615 of 2019 seeking enlargement on bail pursuant to the liberty
granted by the Supreme Court to approach the Court afresh in the
eventuality that the trial is not concluded within nine months. This
Court, in the order dated 21st February 2020, has observed that the
applicant had approached this Court for bail afresh before nine months
from the date of framing of charge. On 21st February 2020, the
prosecution had examined 7 witnesses. At that stage, the learned APP,
upon instructions from the Special Public Prosecutor, had informed this
Court that the prosecution will conclude the recording of evidence
within six months from 21st February 2020.

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8.That, in the first week of March, lock-down was declared
by the Central Government and thereafter, unfortunately, due to the
outbreak of pandemic situation in view of Covid-19, the functioning of
the Courts had almost come at standstill.

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9.The daughter of the victim had approached the Supreme
Court by filing Misc. Application No.934 of 2020 in SLP No.179 of
2019 seeking extension of time to conclude the trial. The Supreme

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Court, by order dated 2nd June 2020, has rejected the application by
observing as follows :-

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“We find no merit in the Miscellaneous Application, which
is accordingly dismissed.”

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10.The learned senior counsel for the applicant submits that in
view of the fact that the Supreme Court had rejected the application
seeking extension of time, it is more than clear that it was expected
that the trial ought to have been concluded within nine months and
pursuant to the liberty granted by the Supreme Court, the applicant is
seeking enlargement on bail.

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11.The learned senior counsel on behalf of the applicant

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submits as follows :-

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(i) That the applicant is in custody since 2016;

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(ii)That after rejection of second bail application, the
applicant had approached the Supreme Court. Although
the Supreme Court has not interfered with the order of
rejection of bail. Supreme Court had directed that the trial
be concluded within nine months and in the eventuality,
that the trial is not concluded within nine months, the

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applicant was granted liberty to approach the High Court
to apply for bail afresh. In view of this, the applicant had
approached the High Court. However, since it was filed
within 7 months, the application was rejected.

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12.In fact, this Court had kept the application pending only to
see that the trial is proceeding expeditiously as per the orders of the
Supreme Court, however, in the meanwhile, the application seeking
extension of time is rejected.

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13.In the order dated 21st October 2020, this Court had
observed that the prosecution has examined 10 witnesses, P.W.11 was
in the box but he had tested positive and therefore, trial could not
proceed. Similarly, the Special Prosecutor was also reported to have
some symptoms of Covid-19 and he was not expected to attend the
Court.

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14.On 27th November 2020, this Court had been apprised by
the learned APP that in the course of recording evidence of P.W.11 it
was noticed that the Tempo which was seized in the course of
investigation was handed over to one Mr. Ram Adhar Rajbhar, father of

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the accused no.1 i.e. Vijay Rajbhar and then Mr. Rajbhar had created
third party interest.

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15.At that stage, the learned senior counsel for the applicant
had submitted that the prosecution has proposed to examine more
than 100 witnesses and the same would result into delay in concluding
the trial. As of today, this Court has verified from the Special Public
Prosecutor Mr. Bagade who submits that the prosecution proposes to
examine 48 witnesses excluding 11 witnesses whose evidence is
already recorded.

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16.The learned counsel for the applicant as well as the learned
Special Public Prosecutor have submitted before this Court that in fact,
Advocate Mr. Mooman who is representing accused no.1 Vijay Rajbhar
seeks adjournment on one or the other ground. It is seen from the
records that on few occasions in 2019, the accused nos.1 to 4 were not
produced from Thane Jail before the Court and therefore, the matter
was being adjourned. On 21st June 2019, the Court had further
ordered that the application seeking adjournment would not be
entertained as on that day also accused nos.1 to 4 were not produced
from Thane Jail. On 11th July 2019, the application was filed for
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withdrawing vakalatnama. At present, the accused are attending the
trial through video conferencing. The learned Special Public Prosecutor
is seeking extension of time to conclude the trial in the change of
circumstance i.e. due to outbreak of Covid-19. In any case, application
filed by the victim is rejected by the Supreme Court and therefore, the
question of considering the application for ‘extension of time’ does not
arise.

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17.The learned senior counsel for the applicant submits that in
the above-mentioned circumstances, the applicant would be entitled to
be enlarged on bail. The learned senior counsel emphasized that the
Supreme Court in Criminal Appeal No.742 of 2020 has observed that
“Liberty across human eras is as tenuous as tenuous can be. Liberty
survives by the vigilance of her citizens, on the cacophony of the media
and in the dusty corridors of courts alive to the rule of (and not by)
law. Yet, much too often, liberty is a casualty when one of these
components is found wanting.”

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18This observation may not be applicable in the present case.
In the present case, the application seeking enlargement on bail was
also rejected by the Supreme Court and, therefore, it would not be

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appropriate for this Court to consider a subsequent application seeking
enlargement on bail. It is seen from the records that on 2nd February
2017 while deciding Criminal Bail Application No.2371 of 2016, this
Court had considered the merits of the matter and had rejected the
application seeking enlargement on bail. The Supreme Court has
rejected the prayer seeking enlargement on bail on merits of the case
and after perusing the order passed by this Court it was not held fit to
interfere with the said order.

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19.In the present case, this Court had specifically observed
that there is incriminating material against the applicant and therefore,
bail was rejected on merits. The case of the applicant cannot be
separated from original accused nos.1, 2 and 3. It is reported that
accused Vidyadhar Rajbhar is still absconding and he is one of the
perpetrators of crime. That the prosecution has examined 11 witnesses
and the delay is mainly on account of the adjournments being sought
by the Advocate representing accused no.1. Upon inquiry, it is reported
that Advocate Mr. Mooman is present in the Court premises, however,
he is not willing to proceed with the cross-examination of the
witnesses and he indulges into lengthy cross-examination as a matter

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of his right to defend the accused in a fair manner. However, a duty is
cast upon the Court to curtail lengthy cross-examination and restrict
the defence counsel to subject any witness to cross-examination to the
point and mainly on the basis of the material collected in the course of
investigation and his evidence in the examination-in-chief. The learned
Sessions Court i.e. Court No.13 shall not grant any adjournment to
either side in view of the fact that the Supreme Court has expedited
the trial. With these observations, the Bail Application No.3615 of
2019 stands rejected.

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20.The applicant had also filed Interim Application No.2006 of
2020 seeking emergency bail on the ground of the pandemic situation,
however, in October 2020, the said application was withdrawn. Interim
Application No.2006 of 2020 was filed. The said application was not
pressed since the main application seeking enlargement on bail on the
ground of delay in trial was pending before this Court. In view of
rejection of the main application, nothing survives in Interim
Application No.2006 of 2020 and the same is accordingly rejected.

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21.The Sessions Court seized with Sessions Case No.136 of
2016 is hereby directed to conclude the recording of evidence of
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witnesses, in any case, on or before 30th April 2021.

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Digitally signed by Pallavi M. Pallavi M. Wargaonkar Wargaonkar Date: 2020.12.22 16:49:00 +0530

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(SMT. SADHANA S. JADHAV, J)

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Chintan Upadhyay v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Chintan Upadhyay v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

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