Wasima Shaikh vs the State of Maharashtra

Mr. Brian D’Lima a/w Mr. Prashant Trivedi, Mr. Aditya Sharma and Mr. Irfan Khan i/b Ms. Sudha Dwivedi, Advocates for Applicant in Bail Application No.1044 of 2025.

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Mr.Veerdhawal Deshmukh a/w Sarthak Shetty and Mr. Sagar Thakur, Advocates for Applicant in Bail Application No.848 of 2025.

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Ms. Megha S. Bajoria, APP for Respondent – State of Maharashtra in Bail Application No. 1044 of 2025.

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Ms. Rajeshree V. Newton, APP for Respondent – State of Maharashtra in Bail Application No. 848 of 2025.

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CORAM : MILIND N. JADHAV, J. DATE : MARCH 13, 2025

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P.C.:

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1. Heard Mr. D’Lima, learned Advocate for Applicant and Ms.

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Bajoria, learned APP for Respondent - State in Bail Application No.1044 of 2025; Mr. Deshmukh learned Advocate for Applicant and Ms. Newton, learned APP for Respondent – State in Bail Application No.848 of 2025.

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2. These are Applications under Section 439 of Code of

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Criminal Procedure, 1973 (for short ‘ Cr.P.C. ’) seeking Bail in connection with C.R. No.27 of 2017 registered with DCB CID Unit III for offences punishable under Sections 302, 120B, 201, 506(2) read with Section 34 of the Indian Penal Code, 1860 (for short ‘ IPC ’).

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3. These two Bail Applications are disposed by this common order considering that both Applicants are arraigned as accused in the same crime. The facts being absolutely identical save and except the designation and nomenclature of Applicants before me.

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4. Applicant in Bail Application No.1044 of 2025 is arraigned as accused No.3. She was a woman police constable of Byculla Women’s prison at the time of incident. Applicant in Bail Application No.848 of 2025 is arraigned as accused No.6. She was also a woman police constable. They are arraigned as accused and arrested on 01.07.2017. Both Applicants were on duty on the date of incident when when the deceased – victim, an inmate of the woman’s prison was found dead in suspicious circumstances as per prosecution case. Allegation against Applicants is that they dragged alongwith other 5 co-accused and beat up the victim inmate resulting in her death. Arraigned co-accused No.5 is another lady police constable who was also on duty with the present Applicants on that date. She has been granted bail by this Court in Bail Application No.4904 of 2024 on 10.12.2024. That order is appended at page No.171 of Bail Application No.1044 of 2025.

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accused Nos. 1 and 4 have also been granted bail by this Court by common order dated 26.02.2025 in Bail Application No. 19 of 2025 and Bail Application No. 5434 of 2024 appended at page No. 177 of the Bail Application No. 1044 of 2025.

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5. Prima facie, Mr. D’Lima and Mr. Deshmukh, learned Advocates for Applicants in Bail Application No.1044 of 2025 and Bail Application No. 848 of 2025 would persuade the Court to consider two submissions for grant of bail, apart from merits. They would rather persuade the Court not to enter into the arena of merits considering the present status of trial. They would fairly inform the Court that trial has commenced and prosecution has already examined 33 witnesses till date out of the probable 182 witnesses that it desires to examine as per the chargsheet.

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6. In that regard Mr. D’Lima and Mr. Deshmukh, learned Advocates for Applicants in Bail Application No.1044 of 2025 and Bail Application No. 848 of 2025 would therefore make submissions on two specific counts; firstly on long incarceration of Applicants for 7 years 8 months and 12 days in prison and secondly on the role of Applicants being identical to accused Nos. 4 and 5 who have been enlarged on bail by this Court by orders dated 10.12.2024 and 26.02.2025.

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7. That apart, both learned Advocates for Applicants would persuade me to consider that Applicants before the Court are women

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having been incarcerated for a substantially long period of time and would persuade me to consider the factum that trial would not be completed in the near foreseeable future at the current pace. Considering the submissions made by prosecution even today that they are yet to examine atleast 10 more prosecution witnesses, if not the original number of witnesses which were pegged by the prosecution at 182 in the charge-sheet at the outset, the Applications deserve consideration.

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8. In view of the aforesaid submissions, both learned Advocates have made out a case to persuade the Court for grant of bail on the basis of long incarceration of Applicants pending trial and on parity. I would refrain myself from entering into issue of merits considering the status of the trial at present so as not to influence the progress of trial. Hence, submissions advanced by Applicants as also, by learned prosecutors are limited only to the aforesaid aspects of long incarceration of 7 years 8 months and 12 days qua the status of trial at present and parity with co-accused.

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9. As observed by this Court while granting bail to accused Nos.1, 4 and 5 by orders dated 10.12.2024 and 26.02.2025, reliance is placed on position of law clarified by Supreme Court in recent judgements about the manner in which Bail Applications ought to be dealt with in said circumstances where accused under trial has suffered

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long incarceration.

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10. Though Ms. Bajoria and Ms.Newton, learned APPs have vehemently argued and submitted that considering the role and active involvement of Applicants before the Court as also gravity of the offence and prima facie material made available before the Court as appended in the charge-sheet appended to the Applications annexed, this Court may not allow the Applications. I have considered their submissions

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11. However as delineated and alluded to hereinabove, the twin issues of long incarceration and parity persuade me to consider the Applications and reject the submissions of the prosecution for dismissal of Bail Applications. There is one more reason to consider the present Bail Applications. It is an admitted fact that while determining and dismissing the previous Bail Application of one of the co-accused in 2023, this Court had indeed made observations on merits as also directed that trial be completed within one year at that time. However, progress of trial pursuant thereto and until today looking at the progress of the trial, I am least convinced that trial would be concluded in the near foreseeable future and therefore present Applications are considered.

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12. I have considered submissions made by the learned Advocates for Applicants and learned APPs for Respondent - State.

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13. The only reason which impels me to consider the present Applications is the long incarceration of the Applicants in prison since 01.07.2017. Without delineating any opinion on merits of the case, it is seen that the trial has commenced and 33 witnesses are examined till date. Undoubtedly the Covid-19 period would have to be taken into account in the interregnum for the delay but still justification for such long pendency of trial, long incarceration and no reasonable certainty of the trial being completed in the foreseeable future persuades me to consider the Applications of the Applicants for bail.

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14. 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 are required to be considered in such cases.

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15. It is seen that while dealing with Bail Applications the material available for consideration and adjudication is limited. It is brought to the notice of the Court that trials are taking perpetuity to conclude and prisons are also simultaneously overcrowded in some segments. This Court regularly deals with Bail Applications of undertrials who have been in custody for long period and is also equally aware of the conditions of our prisons. To give an example in the city

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of Mumbai, recently in one of the cases before me, a Report dated 12.12.2024 made by the Superintendent of Mumbai Central Prison addressed to the Chief Government Pleader was placed before me by the Public Prosecutor which stated that the Mumbai Central Prison (Arthur Road Jail) is overcrowded beyond its sanctioned capacity by more than 5 – 6 times and every barrack sanctioned to house 50 inmates as on date houses anywhere between 220 – 250 inmates. Such an incongruity leads us to answer the proposition: “How can Courts

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find a balance between the two polarities?"

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16. Argued before me is a case concerning liberty of the undertrials who have been incarcerated for 7 years 8 months and 12 days, a situation impacting the rights of under-trial conferred by Article 21 of Constitution to speedy justice as also personal liberty. In so far as the power of High Court to grant bail is concerned, when the case is such that involves a question of personal liberty of an under-trial who is incarcerated for a very long period, the powers are wide and unfettered by conditions, the principle rule being that bail is the rule and refusal is the exception, allowing accused persons to better prepare their defence.

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17. 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

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1 AIR 1931 ALL 356

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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. Justice Mukherji writing for the Bench in paragraph No.9 held as under:-

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“9. Speaking for myself, I think it very unwise to make an attempt to lay down any particular rules for the guidance of the 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.”

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18. 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 said judgement read as under:-

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2 (2022) 10 SCC 51

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“Prevailing situation

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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.

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Definition of trial

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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.

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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.

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Definition of bail

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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.

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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, 9^th Edn., p. 160 as:

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“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.”

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Wharton's Law Lexicon, 14^th Edn., p. 105 defines “bail” as:

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“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.”

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Bail is the rule

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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. Union of India, (2018) 11 SCC 1 : (2018) 2 SCC (Cri) 302] , held that : (SCC pp. 22-23 & 27, paras 19 & 24)

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“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)

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‘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. 47980 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

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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 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.

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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)

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“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.”

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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)

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“29. … There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the

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exercise of judicial discretion in granting or cancelling bail.”

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In American Jurisprudence (2nd Edn., Vol. 8, p. 806, para 39), it is stated:

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“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.”

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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.’

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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] .”

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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)

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“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.

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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.

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Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact 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.”

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Presumption of innocence

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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.

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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.”

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19. The Supreme Court in a landmark decision of 1978 in the

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case of Gudikanti Narasimhulu & Ors. Vs. Public Prosecutor, High Court of Andhra Pradesh³ observed as under :-

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“6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the

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3 1978 (1) SCC 240

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applicant who seeks to be liberated, to take judgment and serve sentence in the event of the court punishing him with imprisonment. In this perspective…” (emphasis supplied)

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20. Thereafter the Supreme Court in a plethora of judgements have discussed the rights conferred by Article 21 qua grant of bail and that such rights cannot be taken away unless the procedure is reasonable and fair and in cases where there is unreasonable delay in trial it would undoubtedly impact the rights of an undertrial. Some of the important decisions of the Supreme Court and some of the High Courts are discussed herein under:-

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20.1. In the landmark judgement of Maneka Gandhi Vs. Union of

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India⁴ , the Supreme Court held that the right to life and personal liberty under Article 21 is not limited to mere physical existence but includes the right to live with dignity. The court emphasized that the procedure established by law must be fair, just, and reasonable, and it cannot be arbitrary, oppressive, or unreasonable.

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20.2. In the case of Hussainara Khatoon Vs. Home Secy., State of Bihar⁵ the Supreme Court held as under:-

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“Now obviously procedure prescribed by law for depriving a person of liberty cannot “reasonable, fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean

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4 1978 (1) SCC 248

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5 (1980) 1 SCC 81

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reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21.”

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20.3. The Supreme Court in the case of Shaheen Welfare Association Vs. Union Of India⁶ dealing with a Public Interest Litigation seeking relief for under-trial prisoners charged under the Terrorist and Disruptive Activities (Prevention) Act, 1987 due to gross delay in disposal of cases qua Article 21 of the Constitution of India held as

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under:-

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“10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh’s case (supra), on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.”

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20.4. The Supreme Court in the case of Union of India v. K. A. Najeeb⁷ while commenting upon the possibility of early completion of trial and extended incarceration held as under:-

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“18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt

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6 1996 SCC (2) 616

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7 Criminal Appeal No. 98 of 2021

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has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.”

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21. Both Applicants in present case have been in custody for 7 years 8 months and 12 days. There is no possibility of the trial concluding in the near future. Detaining an under-trial prisoner for such an extended period further violates his fundamental right to speedy trial flowing from Article 21 of the Constitution. At this juncture I deem it appropriate to list certain observations of the Supreme Court shedding light on concerns underlying the “Right to speedy trial” from the point of view of an accused in custody whose liberty is affected. In the case of Abdul Rehman Antulay & Ors. Vs R.S. Nayak & Anr.⁸ the Supreme Court held as under:-

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“86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:

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(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

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(2) Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view.

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8 1992 (1) SCC 225

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(3) The concerns underlying the Right to speedy trial from the point of view of the accused are:

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(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;

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(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

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(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.

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(4) – (11) -------x-------” (emphasis supplied)

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22. The Supreme Court has also held in a series of judgements

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and orders that in situations where the under-trial-prisoner / accused persons have suffered incarceration rather long incarceration for a considerable period of time and there is no possibility of the trial being completed within the foreseeable future, Constitutional Courts can exercise power to release the accused under-trial on bail, as bail is the rule and jail is the exception.

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23. In the case of Supreme Court Legal Aid Committee (Representing undertrial prisoners) Vs. Union of India⁹ , the Supreme Court has held that:-

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“17. We are conscious of the fact that the menace of drug trafficking has to be controlled by providing stringent punishments and those who indulge in such nefarious activities do not deserve any sympathy. But at the same time we cannot be oblivious to the fact that many innocent persons may also be languishing in jails if we recall to mind the percentage of acquittals. Since harsh punishments have been provided for under the Act, the percentage of disposals on plea of guilt is bound to be small; the State Government should, therefore, have realised the need for setting up sufficient number of

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9 (1995) 4 SCC 695

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Special Courts immediately after the amendment of the Act by Amendment Act 2 of 1989. Even after the Division Bench of the Bombay High Court refused to grant en bloc enlargement on bail on 1-2-1993 in Criminal Application No. 3480 of 1992 and B.D. Criminal No. 565 of 1992, no substantial improvement in the pendency is shown since new cases continue to pour in, and, therefore, a one-time exercise has become imperative to place the system on an even keel. We also recommend to the State Government to set up Review Committees headed by a Judicial Officer, preferably a retired High Court Judge, with one or two other members to review the cases of undertrials who have been in jail for long including those released under this order and to recommend to the State Government which of the cases deserve withdrawal. The State Government can then advise the Public Prosecutor to move the court for withdrawal of such cases. This will not only. help reduce the pendency but will also increase the credibility of the prosecuting agency. After giving effect to this order the Special Court may consider giving priority to cases of those undertrials who continue in jail despite this order on account of their inability to furnish bail.”

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24. In the case of Avinash Ashok Torane Vs. The State of Maharashtra¹⁰ , this Court (Coram: N.J. Jamadar, J.) while dealing with a bail application for offence under Section 302 of IPC considering parity with another co-accused who was enlarged on bail considered the unlikelihood of completion of trial coupled with the period of long incarceration of 1 year 3 months of the Applicant and enlarged him on bail.

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25. In the case of Sonu Parmeshwar Jha Vs. The State of Maharashtra¹¹ this Court (Coram: M.S. Karnik, J.) was dealing with a bail application for offences under Sections 302 and 304(b) of IPC and considering circumstantial evidence against the accused as well as long incarceration of accused of 1 year 7 months enlarged him on bail.

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10 Bail Application No.3535 of 2023 decided on 08.01.2024

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11 Bail Application No.4122 of 2021 decided on 18.01.2023

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26. In the case of Rup Bahadur Magar @ Sanki @ Rabin Vs.

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State of West Bengal¹² , in a case under Sections 394, 395, 397, 307 readwith 120-B of IPC, the Supreme Court granted bail to the accused considering long incarceration undergone by him of 2 years and 9 months.

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27. In the case of Santosh Ramprasad Hairijan Vs. The State of

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Maharashtra¹³ , in a case under Section 302 of IPC this Court taking into account long period of incarceration undergone by accused of 3 years 4 months granted him bail.

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28. In the case of Javed Gulam Nabi Shaikh Vs. State of

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Maharashtra and Anr.¹⁴ , the Supreme Court while granting bail to accused incarcerated for 4 years in paragraph Nos.16 and 17 held as

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under:-

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“16. Criminals are not born but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

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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. Article

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12 Criminal Appeal No.4144 of 2024 decided on 04.10.2024

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13 Bail Application No.1819 of 2024 decided on 29.11.2024

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14 (2024) 9 SCC 813

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21 of the Constitution applies irrespective of the nature of the crime.”

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29. In the case of Balwinder Singh Vs. State of Punjab and Anr.¹⁵ ,

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in a case under Sections 302 and 307 of IPC the Supreme Court granted bail to the accused who was behind bars for 4 years citing unlikelihood of completion of trial in the near future as also on parity with the co-accused.

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30. In the case of Roland Victor Monterio Vs. State of Maharashtra¹⁶ , this Court (Coram: N.J. Jamadar, J.) in a case under Sections 302, 304-B and 498-A of the IPC granted bail to the accused on account of his long incarceration of 4 years. Similarly in the case of Naresh Harishchandra Mali Vs. The State of Maharashtra¹⁷ , this Court (Coram: N.J. Jamadar, J.) in a case under Sections 302 and 307 of IPC granted bail to the accused as he was in prison for a period of more than 5 years.

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31. Recently, the Delhi High Court in the case of Raghvendr Singh Vs. State of NCT of Delhi¹⁸ granted bail to the Accused who was indicted for offence of murder citing his long incarceration for a period of 5 and half years and enlarged him on bail.

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32. In the case of Chintan Vidyasagar Upadhyay Vs. The State of

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15 SLP (Crl.) No.8523 of 2024

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16 Bail Application No.1981 of 2023 decided on 11.01.2024

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17 Bail Application No.3858 of 2022 decided on 27.07.2023

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18 2025 SCC Online Del 21

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Maharashtra¹⁹ , in a case under Sections 302 and 396 of IPC the Supreme Court granted bail to the accused who had undergone 6 years of pre-trial incarceration. Similarly in the case of Indrani Pratim Mukerjea Vs. Central Bureau of Investigation²⁰ the Supreme Court in a case under Section 302 of IPC granted bail to the accused, she having undergone pre-trial incarceration of 6 and a half years.

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33. In view of the above decisions and considering the long incarceration of the Applicants, I would like to highlight one more important issue which persuades me to consider the present case and that is the effect of long incarceration. Long incarceration can have many negative effects on a person's mental and physical health. Long incarceration can lead to post-incarceration syndrome which can include depression, anxiety and poor self-esteem. It can promote unhealthy behaviours like drug abuse. Inmates face social stigma which can disrupt relationships with family and friends. Incarceration persons often suffer long-term consequences from having been subjected to pain, deprivation and extremely atypical patterns and norms of living and interacting with others. Prima facie incarceration rather long incarceration exposes under-trial accused to carceral environment which can be inherently damaging to the mental health of the under-trial accused coupled with the appalling conditions in the

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prisons. Researchers have even theorized that incarceration can lead

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19 SLP (Crl.) No.2543 of 2021 decided on 17.09.2021

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20 SLP (Crl.) No.1627 of 2022

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to Post-Incarceration Syndrome, a syndrome similar to PTSD.

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34. The period of incarceration in the present case i.e. 7 years 8 months and 12 days is therefore considered as the ground for releasing the Applicants on bail. Hence, present Applications are allowed in terms of prayer clauses (a) & (b) subject to the following terms and conditions:-

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(i) Applicants are directed to be released on bail on furnishing P.R. Bond in the sum of Rs.50,000/- each with one or two sureties in the like amount;

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(ii) Applicants are permitted to furnish provisional cash bail of Rs.50,000/- each for their release immediately and file undertaking that they will provide one or two sureties in the like amount of Rs.50,000/- each within a period of four weeks after their release which shall be accepted by the Trial Court. Applicants shall provide sureties as directed;

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(iii) Before their actual release from jail, Applicants shall furnish their address where they propose to reside after their release from jail to the concerned Police Station and also to the trial Court;

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(iv) After their release from jail, Applicants shall report to

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the Investigating Officer as and when called for;

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(v) Applicants shall attend the trial Court on third Saturday of every month between 11.00 a.m. and 1.00 p.m. to mark their presence. If the third Saturday of the said month falls on a holiday and / or non Court working day, the Applicants shall mark presence on the next working day;

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(vi) Applicants shall co-operate with the conduct of trial and attend the trial Court on all dates unless specifically exempted and will not take any unnecessary adjournments, if they do so, it will entitle the prosecution to apply for cancellation of this order;

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(vii) Applicants shall not leave the State of Maharashtra without prior permission of the Trial Court;

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(viii) Applicants shall not influence with any of the witnesses or tamper with the evidence in any manner; and

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(ix) In case of any infraction of the above conditions and / or two consecutive defaults in marking his attendance before trial Court, it shall attract the provisions of Section 439(2) of Cr.P.C. i.e. for cancellation of bail.

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35. It is clarified that the observations made in this order are

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limited for the purpose of granting Bail only and I have not made any 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 herein above in this order.

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36. Both Bail Applications are allowed and disposed.

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H. H. SAWANT

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[ MILIND N. JADHAV, J. ]

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Digitally signed by HARSHADA HARSHADA HANUMANT HANUMANT SAWANT SAWANT Date: 2025.03.13 20:37:28 +0530

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Wasima Shaikh v. the State of Maharashtra

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Wasima Shaikh v. the State of Maharashtra

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