Prolonged pre-trial detention and parity in co-accused's bail merits granting bail under Section 439 CrPC.

CORAM : AMIT BORKAR, J.

DATED : JULY 28, 2025 P.C.:

1. This is an application under Section 439 of the Code of Criminal Procedure , 1973, whereby the applicant seeks his release on regular bail in connection with Crime No. 32 of 2022 registered with Ulhasnagar Police Station. The offences alleged are serious in nature and include Sections 302 (murder), 307 (attempt to murder), 324, 323, 143, 146, 147, 148, and 149 of the Indian Penal Code , 1860.

2. The prosecution's case, briefly stated, is that the deceased was running a small shop in Chellaram Market, Ulhasnagar, and would usually stay overnight at the shop. On the night of 21st/22nd January 2022, between 3:24 a.m. and 3:32 a.m., it is alleged that the applicant, along with co-accused persons, entered the market with an intention to commit theft. After allegedly committing theft in one of the shops, the group is said to have encountered the deceased, who was sleeping inside his shop.

3. It is further alleged that the accused persons, including the present applicant, demanded water and tobacco bidi from the deceased. Upon his refusal, the applicant and others allegedly assaulted him with kicks, fists, and a waist belt. The injuries allegedly sustained during this incident led to the death of the deceased after about seven days. The applicant came to be arrested on 26th January 2022.

4. Learned counsel appearing for the applicant submitted that co-accused Magan has already been granted bail by this Court in Criminal Bail Application No. 1943 of 2024, vide order dated 18th June 2024. It is submitted that the role attributed to the applicant is similar in nature to that of the said co-accused Magan. Therefore, on the ground of parity, and also considering the fact that the trial has not yet commenced despite passage of more than two years, it is prayed that the applicant be enlarged on bail.

5. On the other hand, learned APP has opposed the bail application and submitted that the role of the applicant is not on the same footing as that of co-accused Magan. It is pointed out that the CCTV footage clearly shows the applicant in the company of main accused Manoj, who was allegedly carrying the waist belt used in the assault. It is, therefore, argued that the applicant had active participation in the assault which ultimately caused the death of the victim.

6. I have carefully considered the submissions advanced by both sides and perused the material placed on record. At the outset, it is to be noted that the co-accused, Magan, has already been released on bail by this Court by a reasoned order dated 18th June 2024. The prosecution has not placed any material to show that the role of the present applicant is significantly different from that of co-accused Magan so as to deny him the benefit of parity.

7. The incident, as alleged, took place in the early hours of 22nd January 2022. The role attributed to the applicant is that he, along with others, assaulted the deceased using fists, kicks, and a waist belt. It is further alleged that he was accompanying co- accused Manoj, who was carrying the waist belt. However, it is not specifically the case of the prosecution that the fatal blow was dealt by the applicant himself. There is also no recovery of any weapon from the applicant. The CCTV footage, though relied upon, does not conclusively establish individual acts of assault by each accused. The cause of death is stated to be cumulative injuries and not any singular fatal act.

8. The applicant has been in custody since 26th January 2022 and has undergone more than two and a half years of incarceration. The trial has not commenced