Prolonged incarceration without trial violates the right to speedy trial under Article 21, warranting bail as the rule and refusal as the exception.

JUDGMENT :

P. C . :

1. Heard Mr. Salunke, learned Advocate for Applicant and Mr.Dedhia, learned APP for State.

2. Applicant - accused has filed the present Application for regular bail under Section 439 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.") in connection with Crime No. I 229/2015 registered with Ulhasnagar Police Station for the offences punishable under Sections 302, 386, 201 & 120(B) of the Indian Penal Code, 1860 (for short "IPC"); under Sections 3, 25, 7 and 37 of the Arms Act, 1959; under Sections 37(1) and 135 of the Maharashtra Police Act, 1951 and under Sections 3(1)(i), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (for short "MCOC Act").

3. FIR dated 11.09.2015 is lodged by the first informant stating that on that date of incident at about 3.30 p.m. outside the office of the cable operator near Gol Maidan, Ulhasnagar Applicant before me committed offence by firing from a weapon at the victim fatally. Conspiracy is alleged pursuant to which 13 accused were apprehended and arrested including the present Applicant. Applicant has been in incarceration from 15.09.2015 and as of today he has undergone a period of detention for 9 years 5 months & 17 days pending trial. All other co-accused have been granted bail either by the Sessions Court or by this Court.

4. Mr. Salunke, learned Advocate for Applicant has fairly submitted that despite the Applicant having antecedents, he would persuade the Court to consider his long incarceration in prison pending trial coupled with the fact that till date charge has not been framed as grounds for enlarging him on bail. He would submit that Applicant's incarceration for 9 years 5 months and 17 days pending trial is certainly with respect to non-commencement of trial and the fact that the trial will not be commenced and / or completed in the near foreseeable future thereby impacting upon his right to speedy trial and personal liberty enshrined under Article 21 of the Constitution of India.

4.1. On the issue of merits, he would fairly concede that Applicant is identified by one eye witness having seen him open fire upon the victim and there is CCTV footage to that effect but he would submit that Applicant's case be considered on parity, considering that the gang leader i.e. co-accused in the present crime who immediately followed the Applicant near Gol Maidan, Ulhasnagar after which the firing took place has been granted bail by this Court (Coram : S.M. Modak, J.) by order dated 25.07.2023 passed in Bail Application No.1236/2021.

5. Per contra, Mr. Dedhia, learned APP has drawn my attention to the affidavit in reply dated 06.01.2025 filed by Mr. Amol Vilas Koli, Assistant Commissioner of Police presently attached to Ulhasnagar Division, Thane City, Dist. Thane as directed by this Court vide order dated 19.12.2024. He would persuade this Court to consider antecedents of the Applicant which are appended at page No. 15 of the affidavit in reply in paragraph No. 23 and would submit that Applicant is a member of the gang headed by the co-accused who has prima facie more number of antecedents than the present Applicant before me. He has however been enlarged on bail. Be that as it may, it is prima facie seen that the co-accused and the Applicant came on a motorcycle and entered the office of the victim upon which the co-accused bolted the door and locked it and the present Applicant who was carrying a firearm fired a bullet at the victim.

5.1. Next Mr. Dedhia would fairly submit that the charge is not framed but the only reason for indicting the Applicant is the CCTV footage which clearly shows that the Applicant had fired from the firearm on the victim.

6. I have considered the submissions advanced by both the learned Advocates and perused the record of the case.

7. What has impelled this Court to entertain the present Application despite the gravity of the crime of Applicant having fired the bullet at the victim is the prolonged period of his incarceratio