When Higher Court Orders Day To Day Trial, Positive Steps Must Be Taken To Ensure Presence Of Witnesses And Accused: Bombay HC Grants Bail To Accused In Murder Case Due To Slow Pace Of Trial

The Bombay High Court has sought an explanation of the Trial Court in a murder case due to delay in completion of the trial and has granted bail to the accused.

The applicant i.e., the accused had approached the Court on the second occasion seeking his release on bail, as there was no compliance of the direction issued by the Court to conclude the case in a time-bound manner.

A Single Bench of Justice Bharati Dangre said, “Not a single positive step has been taken by the in charge Court to ensure the presence of witnesses and also to secure the presence of accused on the concerned date. … In this scenario, a direction is issued calling upon an explanation from the learned Judge, I may receive the stereotype response, that the Court was also entrusted with time bound sessions trial, or that since the witnesses were not present, or the accused were not produced and hence the trial could not proceed.”

The Bench also said that the order passed by the higher Court, when it directed that the Judge shall fix the trial on day to day basis, do not indicate that the Judge shall only fill the pages of Roznama and record the happenings that the witness are absent or the accused is not produced from Jail.

Advocate Sandesh Manikhedkar appeared for the applicant/accused while APP S.R. Agarkar appeared for the respondent/State.

In this case, the Applicant was arrested in 2016 and he faced the charge under Sections 302 and 452 of the IPC. He remained incarcerated since the day of his arrest and since the APP had stated that five witnesses were already examined and the prosecution intended to examine total 10 witnesses, the trial was directed to conclude within a period of 6 months.

The High Court had directed that the concerned Judge shall endeavour to fix the trial on day-to-day basis and conclude the same. Upon the order being passed in 2022, the concerned Judge took note of the direction issued by the Court and fixed the trial, though not on day-to-day basis, but spread over by a period of about a week or so and the counsel for the applicant placed the Roznama of the proceedings before the court.

The High Court, in view of the above facts, observed, “Perusal of the distinct dates would reveal that on most of the occasions the witnesses are absent and on some of the remaining dates when the witness is present, the accused is not produced from jail custody. … The net result of the above is that the trial has not progressed at all and it remains stand still at the same stage where it was on 30.09.2022, merely an year after the order is passed.”

The Court said that the net result is the accused continues to be incarcerated and await culmination of his trial, where he is ready to face the consequences, which may even entail a conviction, if not and if he succeeds and is acquitted, the question which he will ask the entire system is why he was being incarcerated pending his trial and that too almost 7 years.

“Time and again, I have expressed that some accountability deserve to be fixed and when I say accountability it is not only procedural one but possibly on the courts, who are in seized of such trials and particularly when the accused are incarcerated for such a long time. … In the present case, the learned Judge, on all these dates has not bothered to pass a speaking order imposing some responsibility upon the prosecution or the jail authority for non production of accused persons”, further observed the Court.

The High Court Judge said that for the last one year the trial has not progressed and though attempts have been made by her to call for explanation from the prisons or the concerned Judge, it did not yield any result.

“In the result, though the learned APP state on instructions that there are approximately 6 to 10 witnesses which are to be examined, with the snail-speed progress of the trial for last one year, I am unable to comprehend as to who should be blamed. … I deem it appropriate to release the Applicant on bail only on the ground of long incarceration and to be concluded within the stipulated period, though an attempt was made in the past, when it was directed that considering that total 10 witnesses are to be examined, the trial shall be concluded within a period of 6 months from today”, ordered the Court.

Accordingly, the High Court allowed the bail application and released the applicant.

Cause Title- Shishirkumar Gopalchandra Padhy v. State of Maharashtra (Neutral Citation: 2023:BHC-AS:27718)

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