Prolonged pre-trial incarceration may justify bail if trial delay violates constitutional rights.

JUDGMENT :

A.S. Gadkari, J.

1) This is an Appeal under Section 21 (4) of the National Investigation Agency Act (for short NIA Act), by the original accused No.5, impugning Order dated 5^th February, 2022, passed below Exh.733 in MCOC Special Case Nos.11 of 2012 alongwith 14 of 2012, 5 of 2014, 5 of 2015, 15 of 2015 and 20 of 2016 arising out of CR No.28 of 2011 (Opera House), CR No.29 of 2011 (Zaveri Bazar) and CR No.30 of 2011 (Kabutarkhana Dadar West), (Bomb Blast Cases), Mumbai, by the learned Additional Sessions Judge & Special Judge Under MCOC/NIA/POTA Act, Greater Mumbai, rejecting his Application for bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.).

2) Heard Mr.Solkar, learned counsel for the Appellant and Mr.Bagade, learned Special P.P. for the Respondent-State. Perused entire record.

3) Mr.Solkar submitted that, the Appellant was initially arrested by the Delhi Police, Special Cell on 22^nd February, 2012. He was taken into custody and arrested by the ATS in this case on 19^th May, 2012, on the basis of transfer warrant duly issued by the learned Judge of the MCOCA Court, Mumbai. Mr.Solkar submitted that, the Appellant is canvassing his Appeal, inter alia his Application for bail under Section 439 of Cr.P.C. only on the ground of prolonged incarceration without trial and not on merits. He submitted that, as of today the Appellant has undergone more than 13 ½ years of actual imprisonment without trial. That, the prosecution is yet to examine 233 witnesses in the present case and the possibility of conclusion of trial in near future is remote. That, the Appellant as of today is aged about 65 years and is suffering from age related elements. He submitted that, speedy and expeditious trial is a facet of right to live as embodied under Article 21 of the Constitution of India. He submitted that, trial Court therefore has committed an error while rejecting his Application for bail. He therefore prayed that, impugned Order may be set aside and the appellant may be released on bail on suitable conditions.

4) Mr.Bagade learned Special P.P. opposed the Appeal. He submitted that, Mr. Deepak Pagare, Assistant Commissioner of Police, A.T.S. has filed his Affidavit dated 18^th July, 2022, in opposition to the Appeal. He submitted that, in pursuance of Orders passed by this Court the trial Court of the present case is being conducted thrice a week and if this Court further directs, the trial of the case can be conducted on day to day basis. He submitted that, the offence committed by the Appellant along-with co- accused is not only serious but also grievous in nature. That, the Appellant is one of the accused in triple bomb blast case which took place on 13^th July, 2011, in three different parts of the City. He submitted that, merely because the Appellant is behind bars for more than 13 years, cannot itself be a ground for granting him bail only on that count. Mr.Bagade placed reliance on the decisions of the Hon’ble Supreme Court and this Court namely ;

i) Shaheen Welfare Association Vs. Union of India , reported in (1996) 2 SCC 616.

ii) Ash Mohammad Vs. Shiv Raj Singh Alias Lalla Babu and Another , reported in (2012) 9 SCC 446.

iii) Chandrakeshwar Prasad Alias Chandu Babu Vs. State of Bihar and Another , reported in (2016) 9 SCC 443.

vi) Brijmani Devi Vs. Pappu Kumar and Another , reported in (2022) 4 SCC 497.

v) Gurwinder Singh Vs. State of Punjab and Another , reported in (2024) 5 SCC 403.

vi) Kailash Vs. State of Maharashtra , through the National Investigating Agency and Another, reported in 2024 SCC OnLine Bom 983.

vii) Mr. Mazin Abdul Rahman @ Mazin S/o. Ibrahim Rahmathulla and National Investigation Agency Be