1 CAGO-3513.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE - CRIMINAL CRIMINAL APPLICATION NO.3513 OF 2010 WITH CRIMINAL APPLICATION NO.3514 OF 2010 Mohd Arshad Mohd Tahir Shaikh .... Applicant Vs. State of Maharashtra .... Respondent Shri Milan Desai i/b Ms Saeeda Shaikh for the Applicant. Ms P.P. Shinde, APP, for the State. Shri Subhash Jha for the original Complainant. CORAM: R.C. CHAVAN, J. RESERVED ON : SEPTEMBER 29, 2010 PRONOUNCED ON: OCTOBER 18, 2010 ORDER: 1. On 27-2-1990 one Ghanshyam Sunderdas Bhatija was murdered by shooting him. His brother Inder Bhatija, who witnessed this incident, gave a report to the police and thereupon an offence was registered vide Crime No.48 of 1990 at Vitthalwadi Police Station. This led to filing of charge-sheet which upon commitment came to be numbered as Sessions Case No.219 of 1999 before the Court of Sessions at 2 CAGO-3513.10 Kalyan. In that case, the applicant has been arrayed as one of the accused persons. Criminal Application No.3514 of 2010 is for bail in this Sessions Case No.219 of 1999. 2. Thereafter, on 28-4-1990 the said Inder Bhatija was shot dead in Inder s office whereupon Crime No.89 of 1990 was registered. Investigation in that case was also carried out and on completion of the investigation charge- sheet was sent up and the same has been numbered as Sessions Case No.218 of 1999. In this case also the applicant is arrayed as an accused. The applicant was arrested on 3-12-1992. Criminal Application No.3513 of 2010 is for bail in Sessions Case No.218 of 1999. 3. The prosecution had sought to apply the provisions of the Terrorist and Disruptive Activities Act but that has been set aside. In both these cases number of witnesses have been examined. It was stated that in Sessions Case No.218 of 1999 only one witness remains to be examined and in Sessions Case No.219 of 1999 only a few witnesses remain to be examined. In Sessions Case No.218 of 1999, except the applicant and one Bacchi Pande, all the other accused have been bailed out. 3 CAGO-3513.10 4. In possibly connected Crime No.I-290 of 1990 Baba Gabriel was admitted to bail by this Court by order (Shri V.M. Kanade, J.) in Criminal Application No.5065 of 2009 and Sitlaprasad Bacchi Pandey was also admitted to bail by order dated 17-2-2010 (Smt. V.K. Tahilramani, J.) in Criminal Application No. 5621 of 2009 on the ground that accused should not be kept as under-trial prisoner indefinitely, recognising his right under Article 21 of the Constitution, to a speedy trial. Baba Gabriel was likewise admitted to bail in Crime No.48 of 1990 (Sessions Case No. 219 of 1999) by order dated 24-2-2010 in Criminal Application No.5563 of 1990 (Shri D.G. Karnik, J.). The prosecution applied in one of the Sessions Cases for being permitted to use confessional statement of Baba Gabriel and Bacchi Pandey recorded in some other case under TADA. The Sessions Court had rejected the application. A writ petition (Writ Petition No. 354 of 2006) was filed before this Court challenging the said order and the State too preferred a revision (Criminal Application No. 298 of 2006) questioning the said order of the learned Addl. Sessions Judge. This Court rejected both the petitions by judgment dated 4 CAGO-3513.10 29-9-2006 and the matter was taken to the Supreme Court. The Supreme Court called for the R & P. In the proceedings in the Supreme Court bearing Criminal Appeal No.1222 of 2006 Baba Gabriel filed an interim application for bail which was granted on 18-12-2009. The appeal itself was dismissed on 31-3-2010. While disposing of the appeal the Supreme Court directed that bail bonds, if any, shall stand cancelled. On 20-8-2010 the Supreme Court clarified that the words that bail bonds were to be cancelled were to be deleted and the record was directed to be sent back to the trial Court. According to the applicant, since the R & P had not been received by the trial Court, there was no likelihood of trial proceeding further. 5. From enquiry made by the Registry of this Court, the R & P had been received by the trial Court on 23-9-2010 but the Court had no Presiding Officer. Therefore, directions have been issued to the Registry to ensure that the post is filled and also to the learned Sessions Judge to ensure that the case is assigned to an Additional Sessions Judge so that it can proceed. 5 CAGO-3513.10 6. Baba Gabriel filed Criminal Writ Petition No.1168 of 2009 before this Court pointing out that in Sessions Case No.218 of 1999, after two witnesses were examined, the matter was stalled, as the record had been called by the Supreme Court. A Division Bench of this Court had observed that since the matter was pending in the Supreme Court and the record had been summoned by the Supreme Court, this Court would be helpless. (Now as noted in the preceding paragraph the record has been received back by the trial Court on 23-9-2010). In the same writ petition, presumably in respect of the other Sessions Case the Division Bench directed the Addl. Sessions Judge to complete the trial on a day-to-day basis. The Court had also directed that it would be the duty of the prosecution to produce the accused before the Court on each day of hearing and if the prosecution failed to produce the accused, it shall pay costs of Rs.2000/- for each day of delay. This order was passed on 10-9-2009. In another Criminal Writ Petition No.2746 of 2009, filed by the present applicant, this Court noted that proceedings in Sessions Case No.219 of 1999 are stayed. The petition (presumably for speedy trial) is admitted. It is the grievance of the applicant that in spite of 6 CAGO-3513.10 this there is no progress in both his cases pending before the Sessions Court at Kalyan. In Criminal Writ Petition No.3040 of 2009 this Court had refused interim relief, presumably stay of the proceedings to the petitioner Kamal Sunderdas Bhatija and had also refused to call for the record and proceedings. This order dated 4-12-2009 was questioned by the said Kamal Sunderdas Bhatija by filing SLP (Criminal) No.10187 of 2009 before the Supreme Court in which further proceedings in Sessions Case No.219 of 1999, before the Sessions Court at Kalyan, were stayed by order dated 7-1-2010 in SLP (Criminal) No.10187 of 2009. 7. The learned counsel for the applicant submitted that speedy trial is a basic right of the applicant and, therefore, since the applicant is languishing in jail for last 18- years and end of the trial does not seem to be in sight, he should be admitted to bail. In support of all these contentions, he has relied on the judgments of the Supreme Court in Kadra Pahadiya and others v. State of Bihar [(1983) 2 SCC 104 = AIR 1981 SC 939], Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna [AIR 1979 SC 1360 and 1369], Abdul Rehman Antulay v. R.S. Nayak [AIR 1992 SC 1701], 7 CAGO-3513.10 Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and others [(1994) 6 SCC 731], Common Cause (A Registered Society) v. Union of India [1996 4 SCC 33], Rama Murthy v. State of Karnataka [AIR 1997 SC 1739], Raj Deo Sharma v. State of Bihar [AIR 1998 SC 3281], Satya Brat Gain v. State of Bihar [2000 (9) SCC 398], Smt. Akhtari Bi v. State of M.P. [AIR 2001 SC 1528] and P. Ramchandra Rao v. State of Karnataka [AIR 2002 SC 1856]. 8. There can be no doubt about the principle enunciated in these judgments about the right of the accused to speedy trial and to be bailed out if the trial does not make progress. In Pankaj Kumar v. State of Maharashtra [2008 AIR Bom.R (5) 422], the Supreme Court observed in para 17 as under:- (17.) IT is, therefore, well settled that the right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to 8 CAGO-3513.10 any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial. (emphasis supplied) 9. The two judgments, namely, one of the Supreme Court in Gurcharan Singh and others v. State (Delhi Administration) [(1978) 1 SCC 118] and another of this Court in Mohanlal S/o Nandram Choudhari v. State of Maharashtra [2007 (4) Mh.LJ 9], cited by Advocate Shri Jha, appearing for the victims relations, are on different questions  like meaning of expression `bought before the court , for the 9 CAGO-3513.10 purpose of Sections 437 and 439 of the Criminal Procedure Code and considerations while granting anticipatory bail respectively. 10. For applying the principles enunciated in judgments about right to speedy trial, it may be useful to recount some relevant facts: (i) The applicant is facing two murder trials and has been in jail since 3-12-1992. (ii) Significantly he claims to have chosen not to seek bail for all these 18 years. (iii) In both the Sessions Cases trials have commenced and a number of witnesses have been examined. One of the trials is nearing completion. (iv) Record and proceedings in one of the Sessions Cases which was called by the Supreme Court has been returned to the trial Court. Steps to have a Presiding Officer appointed for that Court or to assign the trial to another Additional Sessions Judge have been ordered and there may be no impediment in completion of that trial. 10 CAGO-3513.10 (v) Proceedings in the other Sessions Case have been stayed by the Supreme Court. (vi) Co-accused Baba Gabriel has been ordered to be bailed out in Sessions Case No. 219 of 1999 by this Court and in Sessions Case No.218 of 1999 by the Apex Court. (vii) By order in Writ Petitions, Division Benches of this Court have already ordered expeditious trials. 11. Considering the observations in para 17 of the judgment in Pankaj Kumar s case (supra) quoted above, a balancing act will have to be performed. Considering the significant abstinence by the applicant in not seeking bail for all these 18 years, the following order disposing of both the applications should ensure a speedy trial for the applicant and also ensure that he is not unnecessarily incarcerated: (i) The prosecution shall ensure that the hearing in Sessions Case No.218 of 1999 recommences promptly by moving appropriate authorities like this Court and the Sessions Judge and by ensuring that the witnesses are 11 CAGO-3513.10 kept present on the dates fixed. (ii) If the trial does not recommence within a month of this order or is not concluded within three months of this order due to any lapse or adjournment sought on the part of the prosecution (including the victims family members) the applicant shall be released on P.R. Bond in the sum of Rs.50,000/- with one or more solvent sureties in the aggregate sum of Rs.50,000/-, on the conditions which follow. (iii) If the trial recommences and is concluded within the stipulated time and the applicant s being in custody any further in Sessions Case No.218 of 1999 is not warranted on account of final orders passed, and the trial of Sessions Case No.219 of 1999 does not recommence by then and is not concluded within three months of recommencement for reasons unattributable to the applicant, the applicant shall also be released on bail in Sessions Case No.219 of 1999 on P.R. Bond in the sum of Rs. 50,000/- with one or more solvent sureties in the aggregate sum of Rs.50,000/-. (iv) If as a result of final orders passed in Sessions Case No.218 of 1999 the applicant 12 CAGO-3513.10 is required to suffer any further sentence and trial of Sessions Case No.219 of 1999 does not recommence before such term of imprisonment expires or is not concluded within three months of recommencement after term of imprisonment expires, the applicant would likewise be entitled to be released on bail in terms of (iii) above. (v) If bailed out in any of the above contingencies, the applicant shall report at the Vitthalwadi Police Station on every Sunday in between 10:00 a.m. and 1:00 p.m. for the first three months and on the first Sunday of every month thereafter till the trials are over. 12. Both the applications accordingly stand disposed of. Sd/- 181010 (R.C. CHAVAN, J.)