BA-2364-2024+ -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD BAIL APPLICATION NO. 2364 OF 2024 Pravin s/o Popat Kharchand, Age: 30 years, Occ: Nil, R/o: Mula Colony, Newasa Phata, Tq. Newasa, Dist. Ahmednagar. … Applicant Versus State of Maharashtra … Respondent WITH CRIMINAL APPLICATION NO. 530 OF 2025 Asif Khan s/o Ilayat Khan Age : 44 years, Occu – Agri, R/o Newasa, Tq. Newasa, Dist Ahmednagar. … Applicant Versus 1. The State of Maharashtra, Through Newasa Police Station, Tq. Newasa, Dist. Ahmednagar. 2. Pravin Popat Kharchand, Age: 31, Occ: Nil, R/o: Mulla Colony, Newasa Phata, Tq. Newasa, Dist. Ahmednagar. … Respondents ….. Mr. S. G. Ladda, Advocate for the Applicant in Bail Application No. 2364 of 2024 and Respondent No.2 in Criminal Application No. 530 of 2025 (through video conference). Mr. S. S. Dande, APP for Respondent State in both applications. Mr. G. R. Syed, Advocate for the Applicant in Criminal Application No. 530 of 2025. ..... 2025:BHC-AUG:4899 BA-2364-2024+ -2- CORAM : ABHAY S. WAGHWASE, J. Reserved on : 18.02.2025 Pronounced on : 21.02.2025 ORDER : 1. Criminal Application No. 530 of 2025 is at the instance of the informant, praying therein to permit him to assist learned APP and to oppose the bail application. For the reasons mentioned in the application, the same is allowed in terms of prayer clause (B) and disposed off accordingly. 2. Vide instant bail application, applicant is seeking enlargement on regular bail on account of his arrest in crime no. 0222 of 2013 registered at Newasa Police Station, District Ahmednagar for offence punishable under Sections 302, 120-B, 201, 143, 147, 148, 149 of IPC, Section 3/25 of the Arms Act and Sections 37(1)(3) and 135 of the Maharashtra Police Act. 3. Pointing to the date of arrest of the applicant as 26.11.2013, learned counsel also pointed out that in fact, FIR is of 16.09.2013. He would emphasize and amplify that, going by the above date of arrest, applicant is behind bars since almost 12 years. He would submit that in above crime, investigation is already over and investigating BA-2364-2024+ -3- machinery has already filed charge sheet in December 2013 itself. He pointed out that initially, Sessions Case bearing no. 1 of 2014 was on the file of learned Additional Sessions Judge, Shrirampur, but subsequently, at the instance of prosecution, Sessions Case was transferred to Ahmednagar and it was re-numbered. He further pointed out that prosecution opened the trial by examining PW1 on 12.07.2017 and by 11.09.2018, prosecution could examine only five witnesses. He pointed out that as on today, prosecution could examine only 29 witnesses. According to him, it took almost a decade for prosecution to examine above strength of witnesses. 4. Learned counsel also laid heavy stress on the age of applicant and submitted that he was barely 19 years of age. Moreover, being of young age and almost a teen, he also is gripped with health issues like anal bleeding and he is passing through a very difficult phase without any chances of trial coming to an end. 5. Learned counsel pointed out that other accused, namely Sopan, Chourangi, Abaji @ Rameshwar, Mohan, Pawan, Sachin, Sadiq and Ashok are already beneficiaries of bail at the hands of the Hon’ble Apex Court and this Court respectively. Learned counsel took this Court through the observations of the Hon’ble Apex Court and this BA-2364-2024+ -4- Court while granting bail and would emphasize that the aspect of long incarceration is what weighed on both, Hon’ble Apex Court as well as this Court. Consequently, he submitted that even applicant deserves similar treatment. 6. Learned counsel further submitted that in spite of matter having reached the stage of recording statement under Section 313 of Cr.P.C., erroneous procedure has been adopted in framing questions and therefore, in the interest of justice, defence was required to object to the questions framed therein and was constrained to apply for re- framing or deletion of certain questions which, according to him, were not at all incriminating. He pointed out that in above process also, learned trial court is not expeditiously dealing with the stage and is rather adjourning the matter on the count of non-production of accused. Learned counsel took this Court through the rozanama and would submit that there is hardly any scope to blame defence for the pace with which trial is being conducted. He pointed out that on one or the other count matter is getting adjourned, either for want of production of accused or for say of some of the accused. Ultimately, he submitted that present applicant is the sufferer. That, he has been deprived of the right of speedy trial which is apparently getting trampled. That, even recent report of the learned trial court does not BA-2364-2024+ -5- suggest that there are any immediate prospects of matter getting concluded. He pointed out that, after recording of statements of eleven accused under Section 313 Cr.P.C. is over, defence also intends to examine three witnesses. Moreover, now accused no.2, even to whom present learned counsel was representing, as did not attend court and as NBW was issued against him, vakilpatra of accused no.2 has been withdrawn. For the more reason, he submits that there are no immediate chances of accused no.2 being apprehended and brought before the court, to answer questions under Section 313 Cr.P.C. 7. Thus, according to the learned counsel, in the light of the above circumstances, further indefinite incarceration would defeat applicant’s right of bail as well as speedy trial as, according to him, until proven guilty, every prisoner is presumed to be innocent. For all above reasons, he seeks relief of bail. 8. Learned APP as well as learned counsel who is permitted to assist learned APP, have both objected on the ground that present applicant is the main accused. He has used the fire arms. Three rounds were fired by him in broad day light. That, he was hired. That, other accused had engaged him. They both submit that now, in view BA-2364-2024+ -6- of the report of the very trial Judge, matter itself would come to an end soon and hence, they seek rejection of bail application. 9. Heard. Principal and fundamental ground for grant of regular bail in this matter is long pre-trial incarceration. Equal thrust is on age as well as alleged health issues of accused. Pointing to the date of occurrence and arrest, learned counsel would submit that, applicant is shown to be 19 years of age. That, now almost over 12 years have passed since his arrest, but there are no chances of trial getting concluded. Another ground pressed into service is, co-accused are enlarged on bail by the Hon’ble Apex Court as well as by this Court and orders to that extent are annexed herewith. 10. Perused the papers. Admittedly, above crime is reported on 16.09.2013 by one Asif Ilayat Khan who informed Newasa police that, his maternal cousin Riyaz (deceased) was shot in front of the office of Sub-Registrar, Newasa by present applicant. Informant claims that deceased had deposed in another murder trial. That, out of anger and annoyance, present applicant along with Mohan, Rameshwar, Chourangi, Pawan, Sachin, and Sadiq conspired and committed murder of Riyaz. On such report, Newasa Police registered crime bearing No. 222 of 2013. FIR shows that crime is registered for BA-2364-2024+ -7- offence under Sections 302, 120-B, 143, 147, 148, 149 of IPC and Sections 3/25 of Arms Act and 37(1)(3)/135 of the Maharashtra Police Act. In said crime, applicant is said to be arrested on 26.11.2013. 11. Synopsis to the bail application shows that State engaged special prosecutor who caused appearance on 12.07.2017 and there is no dispute that even trial had commenced. By now, prosecution had allegedly examined 29 witnesses. Papers annexed with the bail application show that after rejection of bail application of accused Sopan and Chourangi by order dated 13.04.2023 of this Court, they approached Hon’ble Apex Court and by order dated 08.11.2023, these accused are granted bail by the Hon’ble Apex Court. Whereas, accused Abaji @ Rameshwar Gade, Mohan Suresh Lashkare, Pawan Somnath Narula, Sachin Chandrakant Chavan, Sadiq Bashir Shaikh and Ashok Jalindar Jagtap are also granted regular bail by this Court by orders dated 20.08.2024 and 09.10.2024 respectively. Consequently, only applicant Pravin is currently in jail. 12. Though learned counsel forcefully submitted that he is suffering from anal bleeding, there is no supportive document. BA-2364-2024+ -8- 13. Present application was on the board of this Court on 07.02.2025 and this Court, after hearing submissions advanced then that matter is stuck up at the stage of recording statement under Section 313 Cr.P.C. since long, thought it fit to call report from the learned trial Judge, who is seized with the case, as to why matter is not proceeding ahead in spite of sessions case being of the year 2018. 14. In response to above communication through registry, learned Sessions Judge vide communication dated 12.02.2025 conveyed that trial was pending before District Judge-1 and Additional Sessions Judge, Ahmednagar and case was subsequently transferred to learned Sessions Judge on 09.12.2024, and matter is posted for statement under Section 313 Cr.P.C. Apart from conveying so, learned Sessions Judge also gave dates of the matter and particulars of the court business. The same demonstrates that matter is getting adjourned on the count of either accused are not present, or under-trial prisoner not produced, or accused absent or accused applying for bail. Then, on 09.12.2024, matter is transferred to the court of learned Sessions Judge and Principal District Judge and then again, since 12.12.2024 accused nos. 1 and 2 are not produced before the court. On 12.12.2024, through accused no.1 (present applicant), applications Exhibits 760 and 761 for deletion of part statement under Section 313 BA-2364-2024+ -9- Cr.P.C. were filed. Again on 13.01.2025, application Exhibit 765 was filed for deletion of proposed questions to be put to the accused under Section 313 Cr.P.C. Finally, on 29.01.2025 accused (present applicant) is shown to be produced whereas accused no.2 was absent and shown to have filed application for exemption vide Exhibit 767. Further, learned Sessions Judge was also pleased to convey that now statements under Section 313 Cr.P.C. are ready and same are verified by learned Special Prosecutor as well as defence Advocates. Some of the accused remained absent on the earlier dates and though statement is ready, answers under Section 313 of Cr.P.C. could not be recorded. Court has assured that it is ready to record the same provided all accused persons are present and matter is not adjourned by way of any other application filed by defence and absence of accused. In the concluding para, it is informed that 29 witnesses are already examined by the court and court has not adjourned recording of statement of accused, but due to applications filed by defence and due to absence of accused, it could not be recorded. That, even in case of non production of under trial prisoner, the court can record statement on video conferencing and sent it to jail to get it signed by the accused if the defence advocates cooperate, and that matter is posted on 15.02.2025. BA-2364-2024+ -10- 15. Again, this court is in receipt of another report from the learned Sessions Judge dated 15.02.2025 reiterating therein the earlier court business since 28.08.2024 to 29.01.2025 and further adding court business dated 15.02.2025 that, jail authority has not produced accused no.1 i.e. present applicant as he was sick. Concerned police has produced report Exhibit 773 on that count. It is further remarked that defence counsel filed application Exhibit 771 to delete some questions. Said application and earlier application Exhibit 765 both are decided. Accused no.2 is absent. Counsel representing accused no.2 withdrew vakalatnama of such accused no.2 vide Exhibit 772 and hence NBW has been issued against accused no.2. On same date, learned Sessions Judge has conveyed that, on oral request of learned defence counsel, matter is adjourned and posted on 01.03.2025 for recording statement under Section 313 Cr.P.C. and it is reiterated that court is ready with the set of questions under Section 313 Cr.P.C. However, again it is further reported to this court that, for above situation, statement of accused could not be recorded. That, the court is ready with the set of questions. As vakalatnama of accused no.2 is withdrawn, NBW having been issued against accused no.2, it would further affect the speedy disposal of trial if accused no.2 is not traced out. BA-2364-2024+ -11- 16. Thus, what is emerging from above discussion is that, in spite of matter having reached to the stage of recording statements under Section 313 Cr.P.C., this stage is not getting completed for various reasons like accused not produced; re-framing / re-casting questions under Section 313 Cr.P.C., on objections being raised by defence; some of the accused remaining absent and seeking exemption and finally, on 15.02.2025, NBW has been issued against accused no.2 as counsel representing such accused has withdrawn his vakalatnama. Resultantly, above report shows that, it all percolates down to the re- arrest of accused no.2 in response to NBW issued by the court on 15.02.2025. Most of the dates, as are appearing from the report of learned Sessions Judge, are non production of accused for trial by the jail authorities. This is also a matter of serious concern. Now it is for the police machinery to respond to the non bailable warrant and produce accused no.2 as early as possible. Apparently, from the report of learned Sessions Judge, now statement under Section 313 Cr.P.C. is finally ready. Applications questioning the statements under Section 313 Cr.P.C. framed by court, in which there has to be participation of both, prosecution as well as defence, are also shown to be now finally settled and now it is a matter of posing questions to the accused. On court query, learned counsel informed this Court that after statements under Section 313 Cr.P.C., defence would examine three witnesses BA-2364-2024+ -12- from their side. This would be followed by arguments and ultimately followed by judgment. 17. Therefore, considering the reports of learned Sessions Judge, this Court reposes trust on the learned Sessions Court and believes that it will keep both, prison authorities as well as police authorities, on toes and of course on co-operation of defence counsel, remaining accused also should respond to the call of court to appear and answer questions under Section 313 Cr.P.C.. This should positively work out as the matter is already on the verge of conclusion. From the report of learned Sessions Judge and the dates reproduced in the report, trial cannot be said to be protracted at the end of the court. Here, apparently, prison authorities, who are not producing under trial prisoner on given dates, and even absence of some of the accused are contributing factors for the delayed trial. Be it so. Now, learned Sessions Judge has assured that it is ready with the set of questions under Section 313 Cr.P.C. Accused no.2 having remained absent, NBW has been issued against him, and therefore, it is now entirely on the police machinery to trace him and produce him before the court as early as possible or to take the blame. Learned Sessions Judge to appraise top police officers about requirement of production of accused no.2. BA-2364-2024+ -13- 18. Taking the assurance of learned Sessions Judge into consideration that it is ready to consider recording of statement of accused under Section 313 Cr.P.C. on video conference if so required, this Court is inclined to request learned Sessions Court to fix a timeline, to which all stake holders need to respond, and help in conclusion of trial. In case, if there is no progress of the matter within two months from today, then applicant is at liberty to move afresh for bail. With above directions, the bail application is disposed off. [ABHAY S. WAGHWASE, J.] vre