Sunday, 25 August 2024

Whether the court should grant bail to accused prosecuted for rape if his right to speedy trial is violated?

The present

application is filed by the present applicant on the

ground of delay in trial. Learned counsel for the

applicant pointed out that initially the bail application

No. 1257 of 2022 was filed by the present applicant

which was withdrawn with liberty to file afresh, if the

trial is not commence within six months. Now, already

one year has been passed and there is no progress in the

trial. Certified copy of the roznama placed on record

shows 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 Hon’ble Apex

Court in the case of Javed Gulam Nabi Shaikh Vs. State

of Maharashtra and another (supra), 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 21 of the Constitution applies

irrespective of the nature of the crime. In Sheikh Javed

Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of

Uttar Pradesh (supra), wherein also the issue regarding

the speedy trial was considered by the Court and it is

held by the Apex Court that this Court thereafter

proceeded to hold that Section 43D(5) of the UAP Act

does not oust the ability of the constitutional courts to

grant bail on grounds of violation of Part III of the

Constitution. Long incarceration with the unlikelihood

of the trial being completed in the near future is a good

ground to grant bail.

7. Here in the present case also the applicant is

behind the bar since 15th December, 2021. From the

certified copy of the rojnama it reveals the trial was

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 Hon’ble

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.

Admittedly, the crime committed is serious but in view

of the observations of the Hon’ble Supreme Court and

in view of the Article 21 of the Constitution, the

applicant cannot be kept behind the bar for indefinite

period. In that view of that, the application deserves to

be allowed. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

Criminal Application (BA) No. 429 of 2024

Dattatray Shrikrushna Shejole Vs The State of Maharashtra 

CORAM : URMILA JOSHI-PHALKE, J.

DATED : 6th AUGUST, 2024.

The applicant came to be arrested on 15th

December, 2021 in connection with Crime No. 437 of

2021 registered at Khamgaon Rural Police Station,

District Buldhana for the offence punishable under

Sections 366, 376, 376(AB), 504, 506 of Indian Penal

Code and Sections 4, 6, 7 and 8 of the Protection of

Children from Sexual Offences Act.

2. As per the allegation made by the mother of

the victim girl that victim is 7 years old and on 10th

December, 2021 at about 6 pm when she returned

home and after victim disclosed to her that she was

subjected for sexual assault by the present applicant.

On the basis of the same, the police have registered the

crime.

3. Learned counsel for the applicant submitted

that as far as the statement of the victim is concerned,

which is not substantiated by the Medical Certificate.

Investigation is already completed, the applicant is

behind the bar since 15th December, 2021 and despite

the directions given by this Court, the trial was not

progressed. He points out that by order dated 14th June,

2023, this Court has granted the liberty to the present

applicant to file an application if the trial is not

commenced within six months. Now, one year has

already been passed and there is no progress in the trial.

The applicant cannot be detained for the indefinite

period. In view of that, he be released on bail. In

support of his contention, he placed reliance on Sheikh

Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State

of Uttar Pradesh in Criminal Appeal no. 2790 of 2024

decided on 18th July, 2024 and Javed Gulam Nabi

Shaikh Vs. State of Maharashtra and another in

Criminal Appeal No. 2787 of 2024 decided on 3rd July,

4. On the other hand, learned Additional

Public Prosecutor strongly opposed the application and

submitted that seven years girl was subjected for sexual

assault by the present applicant. The contention of the

victim is substantiated by the medical evidence as

hymen was torn and the two fingers test was found

positive. In view of that the application deserves to be

rejected.

5. Learned counsel for the victim strongly

opposed the application on the ground that small girl of

7 years old was subjected for sexual assault. The

informant has already moved to the Sessions Court for

speedy disposal. In view of that the application deserves

to be rejected.

6. After hearing learned counsel for the

applicant, learned Additional Public Prosecutor for the

non-applicant/State as well as learned counsel for the

victim, perused the investigation papers from which it

reveals that the allegation against the present applicant

is that he has subjected to the victim girl for sexual

assault who is seven years of age. As far as the statement

of the victim is concerned, which is substantiated by the

medical evidence also as during the investigation it

reveals that hymen was torn, healed rounded edges, and

admit two fingers. Thus, not only the oral evidence but

also the medical evidence substantiates the allegations

levelled against the present applicant. The present

application is filed by the present applicant on the

ground of delay in trial. Learned counsel for the

applicant pointed out that initially the bail application

No. 1257 of 2022 was filed by the present applicant

which was withdrawn with liberty to file afresh, if the

trial is not commence within six months. Now, already

one year has been passed and there is no progress in the

trial. Certified copy of the roznama placed on record

shows 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 Hon’ble Apex

Court in the case of Javed Gulam Nabi Shaikh Vs. State

of Maharashtra and another (supra), 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 21 of the Constitution applies

irrespective of the nature of the crime. In Sheikh Javed

Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of

Uttar Pradesh (supra), wherein also the issue regarding

the speedy trial was considered by the Court and it is

held by the Apex Court that this Court thereafter

proceeded to hold that Section 43D(5) of the UAP Act

does not oust the ability of the constitutional courts to

grant bail on grounds of violation of Part III of the

Constitution. Long incarceration with the unlikelihood

of the trial being completed in the near future is a good

ground to grant bail.

7. Here in the present case also the applicant is

behind the bar since 15th December, 2021. From the

certified copy of the rojnama it reveals the trial was

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 Hon’ble

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.

Admittedly, the crime committed is serious but in view

of the observations of the Hon’ble Supreme Court and

in view of the Article 21 of the Constitution, the

applicant cannot be kept behind the bar for indefinite

period. In that view of that, the application deserves to

be allowed. Accordingly, I proceed to pass the following

order.

i. The criminal application is allowed.

ii. The applicant - Dattatray Shrikrushna

Shejole shall be released on bail in connection with

Crime No. 437 of 2021 registered at Khamgaon Rural

Police Station, District Buldhana for the offence

punishable under Sections 366, 376, 376(AB), 504,

506 of Indian Penal Code and Sections 4, 6, 7 and 8 of

the Protection of Children from Sexual Offences Act on

executing a PR Bond in the sum of Rs.50,000/- with

one solvent surety in the like amount.

iii. The applicant shall not enter into the

vicinity of Pimpala, Taluka Khamgaon, District

Buldhana till the culmination of the trial.

SKNair

 7 31-ba-429-24.odt

iv. The applicant shall not induce, threat or

promise to any witnesses who are acquainted with the

facts of the present case.

v. The applicant shall attend the proceedings

before the Special Court without seeking any exemption

unless there are any exceptional circumstances.

vi. On contravention any of the condition

imposed by this Court, the bail granted to the present

applicant deserves to be cancelled.

 [URMILA JOSHI-PHALKE, J.]

SKNair

Signed by: Mr. S.K. NAIR

Designation: PA To Honourable Judge

Date: 08/08/2024 17:10:27

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