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which was withdrawn with liberty to file afresh, if the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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