Bombay High Court
Nilesh Suryakant Netake vs State Of Maharashtra on 5 August, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:33611 9-BA-2228-2025.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.2228 OF 2025
Nilesh Suryakant Netake ...Applicant
Versus
The State of Maharashtra & Anr. ...Respondents
Mr. Chaitanya Purankar, for the Applicant.
Mr. D. J. Haldankar, APP, for the Respondent No.1-State.
Ms. Shanice Mansukhani, for the Respondent No.2.
Mr. Ajay Murlidhar Pataskar, Police Hawaldar, attached to Haveli
Police Station, Pune, present.
CORAM: MADHAV J. JAMDAR, J.
DATED : 5th AUGUST 2025
JUDGMENT:
–
1. Heard Mr. Purankar, learned Counsel appearing for the
Applicant, Mr. Haldankar, learned APP appearing for the
Respondent No.1-State and Ms. Mansukhani, learned Counsel
appointed to represent the Respondent No.2.
2. This regular Bail Application is preferred under Section 439
of the Code of Criminal Procedure, 1973 (“CrPC“) seeking that
Applicant be enlarged on bail in connection with C.R. No.275 of
2021 dated 22nd December 2021 registered with the Haveli Police
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Station, Pune. The said FIR has been lodged alleging commission
of the offence punishable under Sections 377 and 506(II) read
with 34 of the Indian Penal Code, 1860 (“IPC“) and under Sections
3, 4, 5(g), 6, 7, 8, 9(g), 10, 11(ii), 12, 13, 14, 15 and 16 of the
Protection of Children from Sexual Offences Act, 2012 (“POCSO
Act“) and Section 67-B of the Information Technology Act, 2000.
3. It is the main contention of Mr. Purankar, learned Counsel
appearing for the Applicant that the Applicant was merely present
when the incident took place and he has not played any role in the
incident in question. He further submits that the Applicant has
been arrested on 22nd December 2021 and till date there is no
progress in the trial and therefore, the Applicant be enlarged on
bail on the ground of long incarceration.
4. On the other hand, Mr. Haldankar, learned APP appearing
for the Respondent No.1-State and Ms. Mansukhani, learned
Counsel appointed to represent the Respondent No.2 strongly
opposed the Bail Application. Both of them submitted that the
material on record shows that the Applicant has played major role
in the commission of crime and as the offence is very serious and
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heinous the Applicant be not enlarged on bail. Both of them
submitted that as the victims, other witnesses and the accused are
staying in the same vicinity, there is very high possibility of accused
pressurizing the witnesses and therefore, the Applicant be not
enlarged on bail.
5. At the outset, it is required to be noted that this is a second
Bail Application and the first Bail Application bearing Bail
Application No.3551 of 2023 was allowed to be withdrawn by
order dated 11th March 2024 passed by this Court. In the said order
dated 11th March 2024, it has been specifically observed that as
this Court was not inclined to grant bail, the Applicant has
withdrawn the Bail Application. Thus, in effect the first Bail
Application has been dismissed on merits. However, as contentions
are raised by the learned Counsel appearing for the Applicant even
on merits the same are considered.
6. Before considering the merits, it is required to set out
parameters inter alia required to be taken into consideration by the
Court while considering prayer for grant of bail. The said
parameters are as follows :-
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a) Nature and gravity of circumstances in which offence was
committed;
b) Position and status of accused with reference to the victim and
the witnesses;
c) Likelihood of accused fleeing from justice;
d) Likelihood of accused tampering with witnesses;
e) History of the case as well as of its investigation.
It is also a settled legal position that the Court is not
required to enter into a detailed analysis of the evidence at the
stage of consideration of Bail Application.
7. The Hon’ble Supreme Court in the decision of Ram Govind
Upadhyay vs. Sudarshan Singh1 has held as follows :
“4. Apart from the above, certain other which may
be attributed to be relevant considerations may also
be noticed at this juncture, though however, the1 (2002) 3 SCC 598
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9-BA-2228-2025.DOCsame are only illustrative and not exhaustive,
neither there can be any. The considerations being:
(a) While granting bail the court has to keep in
mind not only the nature of the accusations, but the
severity of the punishment, if the accusation entails
a conviction and the nature of evidence in support
of the accusations.
(b) Reasonable apprehensions of the witnesses
being tampered with or the apprehension of there
being a threat for the complainant should also
weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire
evidence establishing the guilt of the accused
beyond reasonable doubt but there ought always to
be a prima facie satisfaction of the court in support
of the charge.
(d) Frivolity in prosecution should always be
considered and it is only the element of genuineness
that shall have to be considered in the matter of
grant of bail, and in the event of there being some
doubt as to the genuineness of the prosecution, in
the normal course of events, the accused is entitled
to an order of bail.”
(Emphasis addded)
8. If the present case is to be considered on the touchstone of
the above parameters, then it is required to consider the material
on record for considering prima facie case against the Applicant.
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9. In the incident in question, there are two victims
(Hereinafter those two victims are referred as “A” and “B”). The FIR
has been lodged by the father of victim “A”. He has inter alia stated
in the FIR as under:
ßvkt fn- 21/12/2021 jksth jk=h 01:00 ok P;k lqekjkl
ek>s ojhy jkgrs ?kjh iksyhl vkys o R;kauh eyk lgdkjuxj
iksyhl LVs’ku] iq.ks ;sFkqu vkY;kps lkaxqu eyk R;kapsdMhy
vlysY;k eksckbZy e/khy ,d fOgfMvks nk[kfoyk- rks fOgfMvks eh
ikghyk vlrk R;ke/;s vkeP;k xkoke/khy ekÖ;k vksG[khph eqys
ukes dq.kky jkts’k Hkkaxjs o fuys’k lq;Zdkar usVds gs ek>k eqyxk
“A” ;kps lkscr tcjnLrhus R;kl [kksyhr dksaMwu R;kph diMs
dk<qu R;kpsoj vuSlfxZd laHkksx djr vlrkuk fnlys- Eg.kqu eh
iksyhlkauk ekÖ;k eqyk’kh vls d`R; dj.kk&;k blekaoj dkjokbZ
Ogkoh ;kdfjrk ldkGh lgdkjuxj iksyhl LVs’kuyk ;sowu rdzkj
nsrks vls lkaxhrys-Þ(Emphasis added)
English translation of the above is as under:
“Today, on the date 21.12.2021, at or around 01:00
O’clock in the night, Police came to my aforesaid
residential house and by telling me that they had
come from Sahakar Nagar Police Station, Pune,
showed me one video available in the mobile phone
that they had in their possession. I saw that video.
In the said video, I saw that Kunal Rajesh Bhangre
and Nilesh Suryakant Netke, the boys from our
village to whom I know, had forcibly detained my
son by name “A” in one room, removed his clothes
and had an unnatural sex with him. Therefore, in
order that an action should be taken against those
persons who had committed such an act with myPage 6
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9-BA-2228-2025.DOCson, I told the Police that I would come to Sahakar
Nagar Police Station in the morning to lodge my
complaint.”
10. The victim “A” in his statement recorded on 25 th December
2021 has stated as follows:
ßfnokGhps osGh uDdh vkBor ukgh eh nqdkukr [kk;yk vk.kk;yk
pkyyks gksrks- rsOgk eyk nkn;k ¼oSHko iokj½ ;kus tkM;k
nkn;kP;k ¼bZ’oj f’kans½ ?kjkps f[kMdhrqu Hkks&;k bdMs ;s vls
Eg.kkyk- Eg.kqu eh tkM;k nkn;kP;k ¼bZ’oj½ P;k ?kjkr pIiy
dk<qu xsyks- ?kjkr ‘kssafMokyk nknk ¼fuys’k usVds½] vkf.k ngkforys
nksu nknk ¼oSHko iokj] vkse xk;dokM½ gs gksrs- gs loZ ekÖ;k
leksj vkysoj eh vksG[k.kkj- tkM;k nknkus eyk ika<&;k [kqphZr
cloys] eh cksyyks dkjs nknk dk; nqdkukr tk;p dk\ rks
Eg.kyk uk;- “B” nknk vxksnjp ?kjkr gksrk- tkM;k nknk “B” yk
Eg.kkyk rq diMs dk<\ ukghrj y; gkuhu rsOgk “B” us R;kph
lxGh diMs dk<yh- ‘ksaMhoky;k nknkus ek>h lxGh diMs
dk<yh- eh y; jMr gksrks- lksMuk nknk lksM Eg.kr gksrks- jMr
gksrks y; eh] oSHko nknkus f[kMdh ykoyh] tkM;k nknkus “B”yk
ek:u R;kph ‘kqph tkxk ekÖ;k ‘khP;k tkxsr ?kkyk;yk ykoyh-
eh jMr gksrks eyk fdaphr nq[ky- rsOgk tkM;k nknkus Qksu d:u
ofdy yodj ;s] ofdy yodj ;s vls Eg.kkyk Hkk&;k tkbZy]
rsOgk ek>h diMs ?kkryh gksrh- Qksu dsY;koj ofdy nknk yxspp
rsFks vkyk- R;kus eyk diMs dk<k;yk lkafxryh] eh diMs dk<yh
ukgh] Eg.kqu ‘kssaMhokY;k nknkus ek>h diMs dk<yh- ‘ksafMokY;k
nknkuh ek> Mksd R;kps ekaMhr tksjkr nkcqu /kjy] tkM;k nknku
fOg-Mh-vks- pkyq dsyh] ek>k nkr ‘ksaMhokY;k nknkP;k ekaMhyk
ykxyk] ofdy nknkus ek>h ‘khph tkxk ykac d:u R;kph ‘kqph
tkxk Vkdyh- eyk ‘khP;k tkxsoj tksjkr nq[ky rjh R;ku Vkdyp-
eh tksjkr vksjMyks Eg.kqu ‘ksaMhokY;k nknkus ekÖ;k rksaMkr ek>k Vh
‘kVZ dkascyk- eyk ‘okl ?ksrk ;sbZuk rsOgk R;kauh eyk lksMy]
Eg.kqu ‘ksaMhokY;k nknkus eyk lksMy o ijr ofdy nknkus ekÖ;k
rksaMkr R;kph ‘kqph tkxk Vkdyh- R;kP;k ‘kqP;k tkxsruq nksunk
[kkyh ika<j ik.kh iMy- ofdy nknk eyk djr gksrks rsOgk “B”
yk f[kMdhr Fkkacoy- uarj eyk tkM;k nknkuh diMs ?kkyk;yk
ykoyh vkf.k “B”yk cksykoy- eh diMs ?kkryh tkM;k nknk eyk
?ksouq ckFk:e/;s xsyk- eyk MksGs iqlk;yk ykoy] ckFk:ee/;s
vkrqu dMh ?kkryh- CkkFk:ee/;s eh y; jMr gksrks- rsOgk tkM;k
nknkuh R;kph ‘kqph tkxk ekÖ;k rksaMkr fnyh o ekxs iq<s dsy- e
tkM;k nknku R;kp ika<j ik.kh [kkyh iMy- eyk myVh ;sr gksrh-
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9-BA-2228-2025.DOCngkohrY;k R;k nksu nknkauk eyk oMkiko vk.kk;yk ykoyk-
‘ksaMhokY;k nknku eyk vkf.k “B”yk ‘kstkjh ‘kstkjh cloy-
‘ksaMhokY;k nknku eyk dkBhu FkksM ek:u oMkiko [kk;yk ykoyk-
oMkiko [kkoqu >kY;koj ‘ksaMhokY;k nknkus ekÖ;k f[k’kkr iS’ks
Vkdys- gs dks.kkyk lkafxry rj rqEgkyk ekjhu] oM;kr Qsdqu
nsbZy] Mqcoqu Vkdhu vls Eg.kkyk- e eh rqFkqu nqdkukr xsyks vkf.k
rsFkqu ?kjh xsyk-Þ(Emphasis added)
English translation of the said statement, reads as under:
“I do not recollect the exact time, but it was the
time of Diwali Festival. I was going to a shop to
purchase something to eat. At that time, ‘Dadya’
(Vaibhav Pawar) called me from the window of the
house of ‘Jadya Dadya’ (Ishwar Shinde), saying,
“Bhorya, come here”. Therefore, I removed my
footwear and entered the ‘Jadya Dadya’s’ (Ishwar)
house. The ‘Shendiwala Dada’ (Nilesh Netke) and
two ‘Dada’ (Vaibhav Pawar, Om Gaikwad), studying
in tenth standard, were present there. I will
identify all of them if they come before me. The
‘Jadya Dadya’ made me to sit in a white coloured
chair. I said to him, “Dada, do you want me to go to
a shop?”, to which he said “No”. “B” ‘Dada’ was
already present there in the house. ‘Jadya Dada’
said to “B”, “you remove your clothes, otherwise I
will beat you a lot”. Therefore, “B” removed all his
clothes. The ‘Shendiwala Dada’ removed all my
clothes. I was crying a lot and was requesting him,
saying, “Leave, Dada, leave me”. I was crying a lot.
Vaibhav ‘Dada’ closed the window. ‘Jadya Dada’
beat “B” and made him to insert his penis in my
anus. I was crying. I suffered a little pain. At that
time, ‘Jadya Dada’ made a telephone call and said,
“Vakil, come early; Vakil, come early, Bharya will
go”. At that time, I had worn my clothes. ‘Vakil
Dada’ immediately came there on making aPage 8
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9-BA-2228-2025.DOCtelephone call to him. He asked me to remove my
clothes. However, as I did not remove my clothes,
‘Shendiwala Dada’ removed my clothes. The
‘Shendiwala Dada’ held my head tightly between
his thighs. ‘Jadya Dada’ started a video. My tooth
touched to the thigh of ‘Shendiwala Dada’. ‘Vakil
Dada’ opened my anus wide and inserted his penis
therein. Despite it hurt me a lot in my anus, he still
inserted his penis. As I screamed loudly,
‘Shendiwala Dada’ stuffed my T-shirt in my mouth.
When I could not breathe, they left me. Therefore,
”Shendiwala Dada’ left me and thereafter, again, the
‘Vakil Dada’ inserted his penis in my mouth. Then,
a white water fell from his penis twice. When the
‘Vakil Dada’ was committing the act with me, “B”
was made to stand near the window. Thereafter,
‘Jadya Dada’ asked me to wear my clothes and
called “B”. After I wore my clothes, ‘Jadya Dada’
took me to the bathroom, asked me to wipe my eyes
and bolted the bathroom from inside. I was crying
a lot in the bathroom. At that time, the ‘Jadya Dada’
inserted his penis in my mouth and he moved
himself back and forth. Then ‘Jadya Dada’ released
his white water down. I had a vomiting sensation.
The two ‘Dada’ who were studying in tenth
standard were asked to go and bring ‘Vada-Pav’ for
me. The ‘Shendiwala Dada’ made me and the “B”
sit next to each other. The ‘Shendiwala Dada’ beat
me a little with a stick and made me have a ‘Vada-
Pav’. After I ate the ‘Vada-Pav’, the ‘Shendiwala
Dada’ put some money in my pocket and threatened
me saying, “if you tell this to anyone, I will thrash
you, I will throw you into the stream, I will drown
you”. Then, from there, I went to a shop and from
there to my home.”
(Emphasis added)
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11. The victim “B” in his statement recorded on 25 th December
2021 has stated as follows:
ßfnokGhps osGh uDdh vkBor ukgh eh ek>s ?kjkps ekxs ek>k fe=
vkse dqj.ks R;kps ?kjkpk LYkWc ikgk;yk xsyks gksrk- ¼eh dks.kkP;k
lkscr rsFks xsys gs eyk vkrk vkBor ukgh-½ rsFks vkeps xkaokrhy
ek>s vksG[khpk fuys’k usVds rsFks vkyk- R;kus ek>k gkr /k:u
eyk bZ’ojP;k ?kjh ?ksoqu xsyk- rsFks bZ’oj] dq.kky Hkkaxjs ¼odhy½
gksrs- rs nks?kst.k rsFks clys gksrs- R;kosGh “A”s jLR;kus R;kps ?kjh
pkyyk gksrk- rsOgk dks.khrjh R;kyk gkd ek:u bZ’ojP;k ?kjkr
cksyoqu ?ksrys- R;kuarj dks.khrjh gkrkr dkBh ?ksryh o R;kauh eyk
o “A” yk vkeph iWUV dk<k;yk ykoyh- dq.kky eyk Eg.kkyk
rq>k cqYyk “A” kP;k xkaMhr Vkd- ukghrj rqyk [kqi ekjhu Eg.kqu
eh dq.kky lkaxsy rl dsy- rsOgk bZ’oj o fuys’k csMoj clys
gksrs- rsOgk bZ’oj gkrkr eksckbZy ?ksouq dkghrjh djr gksrk- R;kuarj
R;kauh eyk iWUV ?kkyk;yk ykoyh- R;kuarj dq.kky ¼odhy½ us
R;kph iWUV dk<yh o R;kph ‘kqph tkxk R;kP;k ‘khP;k tkxsr ?
kkyk;yk ykxyk rsOgk “A” tksjkr vksjMr vkf.k jMr gksrk-
FkksM;kosGkus bZ’oj] dq.kky o fuys’k us “A” yk o diMs
?kkyk;yk ykoyh- R;kauh vkEgkyk bFk dk; >ky gs dks.kkyk
lkafxrya rj rqEgkyk ekjhu vls Eg.kkys o vkEgkyk rsFkqu ?kjh tk
Eg.kkys- eh o “A” rsFkqu fu?kqu xsyks-Þ(Emphasis added)
English translation of the said statement, reads as under:
“I do not recollect the exact time, but it was the
time of the Diwali festival. I had gone to my friend
Om Kurane’s house located on the rear side of my
house, to see the slab of his house. (Now, I do not
recollect as to with whom I had gone there). Nilesh
Netke, my acquaintance from our village, came
there. He held my hand and took me to Ishwar’s
house. Ishwar and Kunal Bhangre (Vakil) were
present there. They both had sat there. At that
time, “A” was passing by the road to his house. AtPage 10
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come to Ishwar’s house. Thereafter, somebody took
a stick in his hand and asked ‘A’ and me to remove
our pants. Kunal said to me, “Insert your penis in
‘A’s’ anus or else I will beat you a lot”. Therefore, I
did as to what Kunal asked me to do. At that time,
Ishwar and Nilesh had sat on a bed. At that time,
Ishawar had a mobile phone in his hand and he was
doing something therein. Thereafter, they asked me
to wear my pant. Thereafter, Kunal (Vakil) removed
his pants and started inserting his penis in his (A’s)
anus. At that time, “A” was screaming and crying
badly. After sometime, Ishwar, Kunal and Nilesh
asked “A” and (me) to wear our clothes and
threatened us saying, “if you tell anybody about
what has happened here, we will thrash you” and
further asked us to go to our houses. Then, “A” and
I went away from the said place.”
(Emphasis added)
12. Father of victim “A” in his statement has stated that accused
No.1-Kunal Rajesh Bhangre is called as “Vakil Dada”, accused No.2-
Nilesh Suryakant Netake i.e. present Applicant is called as
“Shendiwala Dada” and accused No.3-Ishwar Ashok Shinde is
called as “Jadya Dada”.
13. Ms. Mansukhani, learned Counsel appointed to represent the
interest of the Respondent No.2 in her written note tendered in
Court has stated about the role of the Applicant on the basis of
material on record as under:
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9-BA-2228-2025.DOC “That the allegations against the present
Applicant are four-fold and establish his direct and
active involvement in the commission of the
offence. Firstly, the present Applicant forcibly
brought the minor victim to the premises where the
incident took place. Secondly, he coerced the victim
into removing his clothes through threats and
intimidation. Thirdly, he physically pushed the
victim’s head onto his own lap during the
commission of the sexual offence by the co-accused
so as to physically restrain his movement. Fourthly,
he remained present and actively complicit
throughout the incident and did nothing to prevent
the assault. These acts, taken together, clearly
establish the present Applicant’s role in facilitating
and participating in the commission of the offence
with the other accused persons.
That the statements as set out in the
Chargesheet, as well as those made by the minor
victim boys, have been corroborated by a video
recording of the same, which has been duly
submitted and brought on record before this
Hon’ble Court in compliance with Section 65B of
the Indian Evidence Act. In addition to the
allegations mentioned in the witness statements,
the video recording of the incident clearly shows
that the present held down the head of the minor
victim while he was being sexually assaulted by the
co-accused.”
(Emphasis added)
The said contention raised is on the basis of material on
record.
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14. Thus, the evidence on record prima facie shows that the
present Applicant forcibly brought the minor victims to the place
where the incident took place. He threatened the victims and
forced them to remove their clothes, compelled the victims to do
the act and physically restrained them. The material on record
further prima facie shows that the Applicant has actively
participated in the incident in question. The offence in question is
very serious and heinous, where victims-boys aged 12 and 14 years
have been sexually assaulted and subjected to gang rape. The
medical report also supports the prosecution case. The incident has
been videographed by the accused No.3. The said video recording
also shows that the Applicant is involved in the crime. This is a
serious case where three accused have sexually assaulted the
minor boys. Thus, as set out herein above, no case is made out for
grant of bail on merits.
15. As noted herein above, this Court by order dated 11 th March
2024 allowed the withdrawal of the Bail Application No.3551 of
2023 with liberty to file fresh Bail Application after a period of one
year, if there is no substantial progress in the trial.
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16. As far as accused No.3-Ishwar Ashok Shinde is concerned, a
learned Single Judge by order dated 5 th March 2025 allowed the
withdrawal of the Bail Application No.3307 of 2024 with liberty to
file Bail Application after nine months, if the trial is not concluded
by that time.
17. It is the further submission of Mr. Purankar, learned Counsel
appearing for the Applicant that the Applicant is entitled to be
released on bail in view of long incarceration. It is true that there is
no progress in the trial and even the charge is also not framed. It is
also true that the Applicant is incarcerated since 22 nd December
2021. However, the material on record prima facie shows the
involvement of the Applicant in the crime. The offence in question
is very serious and heinous, where victims-boys aged 12 and 14
years have been sexually assaulted and subjected to gang rape. The
offences involved inter alia are under Section 3 read with Section 4
of the POCSO Act, wherein minimum punishment is of 20 years if
penetrative sexual assault is committed on the child below sixteen
years of age and maximum punishment is life imprisonment. The
offence is also inter alia under Sections 5(g) read with Section 6 of
POCSO Act. The offence under Section 5(g) is an aggravated
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penetrative sexual assault where the child is subjected to gang
penetrative sexual assault and punishment for said offence is
rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment for life,
which shall mean imprisonment for the remainder of natural life of
that person and shall also be liable to fine, or with death.
18. As far as long incarceration is concerned, Section 436A of
Code of Criminal Procedure, 1973 is relevant, which reads as
under :-
“[436-A. Maximum period for which an undertrial
prisoner can be detained.–Where a person has, during
the period of investigation, inquiry or trial under this
Code of an offence under any law (not being an offence
for which the punishment of death has been specified as
one of the punishments under that law) undergone
detention for a period extending up to one-half of the
maximum period of imprisonment specified for that
offence under that law, he shall be released by the Court
on his personal bond with or without sureties:
Provided that the Court may, after hearing the
Public Prosecutor and for reasons to be recorded by it in
writing, order the continued detention of such person
for a period longer than one-half of the said period or
release him on bail instead of the personal bond with or
without sureties:
Provided further that no such person shall in any
case be detained during the period of investigation,Page 15
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9-BA-2228-2025.DOCinquiry or trial for more than the maximum period of
imprisonment provided for the said offence under that
law.
Explanation.–In computing the period of
detention under this section for granting bail, the period
of detention passed due to delay in proceeding caused
by the accused shall be excluded.]”
(Emphasis added)
19. Before understanding the scope of Section 436A of CrPC, it
is necessary to set out the statement of objects and reasons behind
enactment of Section 436-A CrPC which reads as under :
“There had been instances, where undertrial
prisoners were detained in jail for periods beyond
the maximum period of imprisonment provided for
the alleged offence. As remedial measure Section
436-A has been inserted to provide that where an
undertrial prisoner other than the one accused of an
offence for which death has been prescribed as one
of the punishments, has been under detention for a
period extending to one-half of the maximum period
of imprisonment provided for the alleged offence, he
should be released on his personal bond, with or
without sureties. It has also been provided that in no
case will an undertrial prisoner be detained beyond
the maximum period of imprisonment for which he
can be convicted for the alleged offence.””
(Emphasis added)
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20. The Supreme Court in the case of Hussainara Khatoon (IV)
vs. Hone Secy, State of Bihar2, held that the right to speedy trial is
a fundamental right of an undertrial prisoner and is a part of right
to life guaranteed under Article 21 of the Constitution of India. In
fact Section 436A of CrPC have been enacted to ensure protection
of said fundamental right of the undertrial prisoner. Therefore, it
has been provided that if the undertrial prisoner has completed
one-half of the maximum period of imprisonment specified for
such offence, then he shall be released on bail.
21. In the case of Vijay Madanlal Chaudhary vs. Union of India 3,
the Supreme Court in the context of the offence under the
provisions of the Prevention of Money Laundering Act, 2002
(“PMLA”) has discussed the scope of Section 436-A of CrPC. The
following observations in Paragraph No.324 are relevant.
324. Section 436-A of the 1973 Code, is a wholesome
beneficial provision, which is for effectuating the
right of speedy trial guaranteed by Article 21 of the
Constitution and which merely specifies the outer
limits within which the trial is expected to be
concluded, failing which, the accused ought not to be
2 (1980) 1 SCC 98
3 (2022) SCC OnLine SC 929
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detained further. Indeed, Section 436-A of the 1973
Code also contemplates that the relief under this
provision cannot be granted mechanically. It is still
within the discretion of the court, unlike the default
bail under Section 167 of the 1973 Code. Under
Section 436-A of the 1973 Code, however, the court
is required to consider the relief on case-to-case basis.
As the proviso therein itself recognises that, in a
given case, the detention can be continued by the
court even longer than one-half of the period, for
which, reasons are to be recorded by it in writing and
also by imposing such terms and conditions so as to
ensure that after release, the accused makes
himself/herself available for expeditious completion
of the trial.
(Emphasis added)
Thus, in view of the above position of law as the offence is very
serious and heinous and there is likelihood of the Applicant
bringing pressure on the witnesses and as minimum punishment
which can be imposed on the Applicant, if convicted, is 20 years,
no case is made out for grant of benefit under Section 436A of
CrPC.
22. However, in the facts and circumstances, it is necessary that
the trial is to be concluded expeditiously. At this stage, it is
significant to note that when this Court wanted to issue directions
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to the learned Trial Court to expedite the trial, Mr. Purankar,
learned Counsel appearing for the Applicant has relied on the
decision of the Supreme Court in the case of Rup Bahadur Magar
@ Sanki @ Rabin vs. State of West Bengal 4 and submitted that the
Supreme Court has held that High Court should not issue such type
of directions.
23. However, the said order in the case of Rup Bahadur Magar
@ Sanki @ Rabin (supra) relies on the decision of the Supreme
Court in the case of High Court Bar Association, Allahabad vs.
State of U.P. & Ors.5, wherein the Supreme Court has held that in
the ordinary course the High Courts are passing the orders
directing disposal of trials within a time bound manner. Apart from
the fact that such directions are contrary to the law laid down by
the Constitution Bench, such orders put undue pressure on the
Trial Courts which are already flooded with a lot of work. Unless
the factual situation is extra ordinary and exceptional, the High
Courts cannot pass such order of time bound disposal of the case.
4 2024 SCC OnLine SC 5575
5 (2024) 6 SCC 267
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24. However, this is a case where prima face, the Applicant and
other co-accused are involved in very serious and heinous crime.
The offence is inter alia under the POCSO Act. The victim boys of
12 years and 14 years are subjected to sexual assault and gang
rape. Even in said case of High Court Bar Association, Allahabad
(supra), the Supreme Court has stated that in exceptional
circumstances, directions can be issued for time bound disposal of
the case. This is a case where the Applicant is involved in very
serious crime and is taking contention that this Court should not
expedite the trial. In fact, earlier Bail Application has been allowed
to be withdrawn by this Court by order dated 11 th March 2024
passed in Bail Application No.3551 of 2023. Thus, it is very clear
that even the Applicant’s earlier Bail Application was allowed to be
withdrawn as no case was made out to allow the Bail Application
on merits. The only contention which can be raised by the
Applicant is long incarceration.
25. In view of the facts and circumstances of this case, this Court
is inclined to direct time bound disposal of the Sessions Case and
at that time the Applicant is contending that no such direction be
issued. Thus, the said contention clearly shows that the Applicant
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is not interested in time bound disposal of the trial and interested
in delaying the trial so that he can take advantage of the same and
seek bail on the ground of long incarceration.
26. However, in the facts and circumstances, as the children of
12 years and 14 years are subjected to gang rape, the learned Trial
Court is requested to make endeavour to conclude the trial within
a period of one year from today.
27. The State of Maharashtra to ensure that the accused should
either be produced physically or through Video Conferencing
before the learned Trial Court on each and every date of the trial.
28. Learned Public Prosecutor who is conducting the case shall
take expeditious steps for examination of the witnesses.
29. Accordingly, the Bail Application is dismissed.
[MADHAV J. JAMDAR, J.]
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