Prolonged incarceration without substantial evidence constitutes pre-trial punishment, warranting bail under Section 439 of the Code of Criminal Procedure.

JUDGMENT :

AMIT BORKAR, J.

1. This is an application preferred by the applicant under Section 439 of the Code of Criminal Procedure, 1973, seeking his release on bail in connection with Crime No. 488 of 2021 registered at Vile Parle Police Station. The applicant is facing charges under Sections 302 and 397 read with Section 34 of the INDIAN PENAL CODE , 1860, for the alleged offence of murder and robbery committed in furtherance of common intention.

2. The case of the prosecution, in brief, is as under: On 22nd June 2021, a report came to be lodged by the informant. It was stated therein that on the previous day, i.e. 21st June 2021 at about 8:30 p.m., one Urmila and Lucky Singh—friends of the victim Jigar—met the informant and told him that Jigar had left the house at around 12 noon and had not returned since then. Lucky Singh further informed that Jigar, being under the influence of some intoxicant, was believed to be sleeping inside a dilapidated building at Vile Parle.

3. Upon receiving this information, the informant, along with Lucky Singh, Jigar's younger brother Hitesh, and two other friends —Bhavesh and Pankaj—proceeded to the said building in search of Jigar. They noticed Jigar’s motorcycle (bearing registration number MH-03-DR-3853) parked outside the building. Lucky Singh led them to the fourth floor and stated that Jigar was sleeping there. However, Jigar was not found at that spot. Instead, they observed bloodstains in the area. Due to poor lighting and the unavailability of Jigar, they went to the police station and narrated the entire incident. The police then accompanied them back to the building and, upon further search, Jigar was found in a severely injured condition on the ground floor. He was immediately shifted to Cooper Hospital, where he was admitted to the ICU. Unfortunately, despite receiving treatment, Jigar succumbed to his injuries during the course of medical treatment.

4. On the basis of the informant’s complaint, initially an offence under Section 307 of the IPC was registered against unknown persons. However, after the death of the victim, Section 302 came to be added. During the course of investigation, the applicant was arrested on 27th June 2021 and has remained in judicial custody since then.

5. Learned advocate appearing on behalf of the applicant submitted that the prosecution material is insufficient and inconclusive. It was contended that even according to the informant’s version, the spot where the incident occurred was dark, and therefore, proper identification of the assailants at that time was not possible. It was further argued that the statements of the witnesses do not clearly establish the role of the applicant in the crime. The applicant has been in custody since 27th June 2021, and the prosecution has cited as many as 32 witnesses. The charge has already been framed, but the trial is yet to commence and is not likely to conclude in the near future. It was therefore urged that continued incarceration of the applicant would amount to pre-trial punishment, and hence, he be released on bail.

6. On the other hand, the learned APP opposed the bail application and submitted that there is sufficient material on record to show that the applicant was present at the scene of offence. It was submitted that during the investigation, the applicant has been duly identified in the Test Identification Parade (TIP) conducted in accordance with law. The identification of the applicant by prosecution witnesses lends weight to the prima facie case against him. Therefore, it was argued that the applicant does not deserve to be released on bail at this stage.

7. I have heard the learned counsel appearing for