1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1922 of 2010 Kishor Maniram Dhurve ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Tumsar, Dist. Bhandara. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R.M.Daga, Advocate for the applicant. Mrs. A.R.Taywade, A.P.P. for the respondent-State. CORAM : Prasanna B. Varale, J. DATED : 22 nd Decem ber , 2010 . Heard. The applicant by the present applicant under Section 439 of Cr.P.C. is seeking his enlargement on bail in Crime No. 65/2008 registered with Police Station, Tumsar, Dist. Bhandara for the offences punishable under Sections. 147, 148, 452, 307, 302 R/w Sec.149 of I.P.C. Mr. Daga, learned Advocate for the applicant submitted that the report was lodged in the year 2008. The applicant was arrested on 01/4/2008 and since then he is behind the bars i.e. since 2 ½ years. Learned Advocate further submitted that though the applicant has approached the Sessions Court for his enlargement on bail, the learned Sessions Judge rejected the application on the ground that there is ample material against the applicant and there is no change in the circumstances. Learned Advocate further submitted that the trial is pending against the applicant and there are remote chances that the trial would commence in near future. He invited my attention to the order passed by this Court in Criminal Application No. 1785/2010 (Murli Maniram Dhurve .vs. State of Maharashtra), 2 dated 24/11/2010 and submitted that the Murli Dhurve is co-accused in this crime. Inspite of directions of this Court, there is no progress in the trial nor there is any sign for commencement of trial in near future. By observing all these facts, this Court had allowed the application of Murli Dhurve. Learned Advocate for the applicant has further invited my attention to the observations made in the order on the application of Murli Dhurve, wherein it is stated that as per the instructions of learned APP the trial pending before the Addl. Sessions Judge, Bhandara is fixed on 24/11/2010. In this backdrop, learned advocate by referring to the reply filed by the State in the present application and annexure to the reply, submitted that even though a month is elapsed, there is no sign of commencement of trial, on the contrary, the communication dated 16/12/2006, annexed to the reply filed by learned APP shows that the next date is 22/12/2010, but the trial is still not proceeded further as one of the accused is absconding. Learned Advocate for the applicant relying on the judgment of this Court in case of Rajdev Kumar Mathura Yadav @ Papu .vs. State of Maharashtra, reported in 2010 All M.R. (Cri.) 1466, as well as the judgment of the Apex Court in case of Smt. Akhtari Bi .vs. State of M.P., reported in AIR 2001 Supreme Court 1528 , submitted that it is now settled position of law that the right of speedy trial cannot be jeopardized on the ground that the trial is not commenced. He further submitted that a constant view is taken by the Apex Court as well as this Court that if there is prolonged delay in disposal of the trial and appeal for no fault of accused, it confers right for consideration of bail. In Rajdev Kumar Yadav’s case, this Court was pleased to observe that there was a considerable delay in the trial, which was attributable to the prosecution or to the State of Maharashtra, which has resulted in infringement of fundamental right 3 of the applicant for speedy trial. This court has further observed that in the circumstances, irrespective of the merits of the case, the applicant is entitled to be released on bail. In Rajdev’s case, this court has also observed the calender of the trial. Learned Advocate for the applicant submitted that the facts in Rajdev Kumar’s case are squarely applicable to the case in hand. Per contra, Mrs. Taywade, learned APP has strongly opposed the application. She submitted that there is strong material against the applicant to show that the applicant was actively involved in commission of the offence. She further submitted that as the offence is serious, the applicant may not be enlarged on bail. On consideration of the submissions of learned Advocate for the parties, I am of the opinion that in the present case there is prolonged delay in commencement of the trial. It is not in dispute that inspite of directions of this Court, till today the trial has not been commenced. On the contrary, it seems that it will take further time to commence the trial. As per the communication annexed to the reply filed by the State , it reveals that one of the accused is absconding and for the delay in commencement of the trial, the applicant is not at fault. In view of above discussion and in view of the judgment of this Court in Rajdev Kumar’s case as well as judgment of Apex Court in Smt. Akhtari Bi’s case, I am of the opinion that a case is made out by the applicant for releasing him on bail. In the result, the application is allowed. The applicant be released on bail on furnishing P.R. bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one solvent surety in the like amount, on the following conditions. a] The applicant to cooperate with the investigating agency 4 and attend the police station, Tumsar, Dist. Bhandara every 1st and 3rd Sunday between 9.00 a.m. to 12.00 noon. b] The applicant shall not tamper with the prosecution evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. c] The applicant to submit his residential address and his contact numbers such as phone/mobile numbers to the investigating agency. d] In case the applicant is moving out of the area of police station, Tumsar, he shall inform the police station about his visit to other place. In case of breach of these conditions, the prosecution agency to take necessary steps in accordance with the provisions of law. JUDGE Diwale