BA-62-11.sxw 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.62 OF 2011 Iqbal Rafiquddin Shaikh ... Applicant V/s. State of Maharashtra, Thru’ Anti-Extortion Cell, DCB CID, Mumbai ... Respondent Mr. Prakash Shetty for the Applicant. Mr. K.V. Saste, APP, for the Respondent. API J.J. Kulkarni, Representative of the Investigating Officer, is present in person. CORAM:- A.M. THIPSAY, J. DATED :- 20 TH JULY, 2011. P.C. : 1. Heard. 2. The Applicant is an accused in M.C.O.C. Special Case No.20 of 2006 arising out of C.R. No.58 of 2006 of D.C.B. C.I.D, Mumbai. The charges against the Applicant (and other accused in the case) are in respect of offences punishable under Section 387 of the IPC read with Section 34 of the IPC and Section 120-B of the IPC, in addition to the charges of offences punishable under Sections 3(1), 3(2) and 3(4) of the M.C.O.C. Act. There are totally eight accused in the case. The present Applicant has been mentioned as the accused No.6 in the said case. 3. The Applicant was arrested on 19th September, 2006. Charge-Sheet was filed in October, 2006. The recording of evidence commenced on 18th June, 2008. I am informed that, so far, 48 witnesses have been examined. However, the trial is still not nearing its end. BA-62-11.sxw 2 Dixit 4. The present application has been made only on the ground of delay in holding the trial and on the ground of parity. It is submitted by Mr. Shetty, the learned Advocate for the Applicant, that a co-accused Mustak Akbar Shaikh - the accused No.4 in the said case - was released on bail by this Court (Criminal Application No.2400 of 2010, decided on 2nd December, 2010) (Coram : J.H. Bhatia, J.) on the ground of delay. I have gone through the said order, a copy of which is annexed to the present Bail Application. It appears that when the said Applicant had earlier applied for bail, a statement was made by the learned APP, on the instructions from the officer concerned with investigation, that 20 witnesses had already been examined and only 5 to 6 witnesses were to be examined. Therefore, the application came to be rejected. It was on 20th July, 2009. When the second application, i.e. Criminal Application No.2400 of 2010, was preferred, again the question as to how many witnesses were to be examined arose and, at that time, it was stated that, though 40 witnesses had already been examined, about 15 witnesses were still to be examined. This Court then considered that the said accused was in Jail for about four and a half years and a false statement had been made by the prosecution about the number of witnesses that were to be examined. The Court also observed that out of total eight accused persons, three were already granted bail, and, as aforesaid, granted bail to the said Applicant-the accused No.4- also. 5. Mr. Shetty, the learned Advocate for the Applicant, submits that, even now, the trial is not likely to see its end and the number of witnesses, which the prosecution claims as are yet to be examined, is very large. I had called for a report from the Special Court stating the position of the trial and, more particularly, the progress during the trial made within last six months. Accordingly, a report has been submitted by the trial Court. I have gone through the same. BA-62-11.sxw 3 Dixit 6. It appears that most of the adjournments, that were granted by the trial Court after 14th January, 2011, have been for no fault on the part of the present Applicant, or any other accused. 7. The report received from the Special Court indicates that there is no notification under Section 5 of the M.C.O.C. Act. The learned Judge was not empowered to proceed with the trial of the said case after 7th June, 2011. It is also stated that 49 witnesses have already been examined during the trial and about 48 are yet to be examined. 8. Mr. Saste, the learned APP for the Respondent, submitted that in view of the special provisions regarding bail contained in Section 21(4) of the M.C.O.C. Act, the Applicant cannot be granted bail without considering the merits of the matter. 9. I have carefully considered the matter. 10. The offence has been registered in the year 2006. API Kulkarni states that the Charge-Sheet has been filed in October, 2006. The Applicant is in custody since 19th September, 2006. As already observed, the trial has commenced on 18th June, 2008. It is not yet completed. Going by the speed of the trial, it would take another five years to complete the recording of evidence. This difficulty is compounded because, apparently, there has been no notification empowering the learned Judge to try cases under the M.C.O.C. Act. The trial has, thus, come to a stand still. 11. In my opinion, the procedure, which permits an accused to be detained for such a long time as an under-trial prisoner without there being any prospects of proceeding with the trial, is unfair and unjust. It cannot be called as a ‘procedure established by law’, which ought to be fair, just and reasonable. The requirements BA-62-11.sxw 4 Dixit of Section 21(4) of the M.C.O.C. Act are basically procedural and the question of restriction on the power of the Court to release an accused on bail arises only if the public prosecutor opposes the application. It cannot be suggested that even when the State is not in a position to expeditiously proceed with the trial, or that the Court is unable to hold the trial within a reasonable time, the opposition of the public prosecutor should be decisive; and that the accused can be detained indefinitely, as an under-trial prisoner. 12. Moreover, the order passed by this Court releasing the co-accused on bail on the ground of delay in the trial and misleading statements made by the prosecution about the time the trial would take for getting concluded, has not been challenged by the State on the ground that it does not meet the requirements of Section 21(4) of the M.C.O.C Act. There is not much distinction between the case of the present Applicant and that of the said co-accused. It would be, therefore, unfair to treat the present Applicant very differently from the said co-accused. 13. In any case, I have considered the seriousness of the allegation against the accused. The incident giving rise to the case has not resulted in death, or even causing any hurt to anyone, or in making any actual pecuniary gain, by the Applicant. 14. In my opinion, considering all the relevant aspects of the matter, it would be proper to release the Applicant on bail. Stringent conditions can be imposed upon the Applicant to reduce the chances, if any, of his absconding or committing similar offences while on bail. 15. The Bail Application is allowed. BA-62-11.sxw 5 Dixit 16. The Applicant is ordered to be released on bail in the sum of Rs.50,000/-, with one surety in like amount, or two sureties in the sum of Rs.25,000/- each, on the condition that the Applicant shall attend the office of the D.C.B., C.I.D., Anti- Extortion Cell everyday, except Sundays and Holidays, between 6:00 p.m. to 8:00 p.m., till the disposal of the case against him. [A.M. THIPSAY, J.]