Not only heinousness of crime, time spent in jail deserves to be seen when granting bail: Bombay high court – Times of India

MUMBAI: Not just the heinousness of crime but even the long incarceration of an undertrial prisoner deserves due weightage when deciding a plea for grant of bail, the Bombay high court has said while releasing one accused of double murder in a 2015 Lonavala case.
The accused was behind bars for eight years.
“Pending the trial, a person cannot be kept in custody for an indefinite period of time and it clearly violates the fundamental right enshrined in the Constitution and time and again, has been considered to be a justiciable ground to exercise the discretion to release an accused,” held the HC single judge bench of Justice Bharati Dangre in a September 26 order, while observing that the accused did face serious charges.
Akash Chandalia who was arrested on September 25, 2015 is facing trial in a Pune court.
On July 20, 2015 police received two missing persons’ complaint and later both were found dead near Tamhani ghat, having been allegedly beaten up mercilessly for five hours by a “notorious gangster” a co-accused in the case and his associate after removing their clothes.
Chandalia was accused of assaulting the duo.
His lawyer Sana R Khan argued for bail on the prolonged incarceration, delayed trial and also cited the bail granted last November to Vikas Gaikwad, a co-accused alleged to have played a similar role.
Additional public prosecutor SR Agarkar opposed the plea citing the gravity of the charges faced and the fact that trial had commenced with 15 witnesses having deposed so far and 15 to go.
The HC noted that another co-accused Yasmin Sayyed was also granted bail by it last November without going into merits but noting that the trial may take three years to conclude and the accused are rarely produced in trial court from Yerwada jail.
Justice Dangre saw no reason why similar benefits should not be given to Chandalia.
She observed, that a “a balancing act, therefore, will have to be struck between gravity and seriousness of the charges, which the applicant has to face and the long time consumed for conclusion of the trial, as the question of great significance, which all the stakeholders in the system must ponder is, after this long period of trial, if the accused is acquitted, how shall the system compensate him.”
“Deprivation of personal liberty, without ensuring speedy trial is not in consonance with Article 21 (right to life and liberty) of the Constitution,” stressed Justice Dangre and concluded,“ Access to justice and speedy trial has been well recognised as hallmark of liberty guaranteed in Part III of the Constitution and when a timely trial is not possible, the accused cannot be made to suffer further incarceration if he has already undergone significant period of the proposed sentence and in such circumstances, the court would ordinarily be obligated to enlarge him on bail, keeping aside the seriousness of the accusations faced by him.”
The accused will be released on a PR bond of Rs 20,000 with condition that failure to attend trial twice consecutively would entitle state to seek cancellation of bail.
In another case of murder, the Supreme Court recently granted bail to a convict Dinesh Khajekar who was incarcerated for over 11 years, pending appeal.
The SC bench of Justices Abhay Oka and Pankaj Mithal on September 25 observed, “In fact, the high court ought to have granted relief under Section 389 of the Code of Criminal Procedure, 1973 to the appellant. Accordingly, the appellant shall be enlarged on bail pending the final disposal of the appeal before the high court.”
Khajekar’s counsel Sana Raees Khan had before the SC argued that he was convicted and sentenced to life imprisonment but his appeal was pending before the HC for six years and argued on merits he has a case but the SC considering his years behind bars, secured his liberty by directing his release on bail.