The Bombay High Court in a gang rape case of a minor girl, said that mere delay in the trial of grave offences by itself cannot be a ground to enlarge an accused on bail.

The Court said thus in a criminal bail application filed by an accused who was booked for the offences under Sections 363, 366-A, 376(3), 376-D, and 376-DA of the Indian Penal Code, 1860 (IPC) and Sections 4, 6, 8, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

A Single Bench of Justice Madhav J. Jamdar remarked, “Thus, it is evident that mere delay in the trial pertaining to grave offences, by itself cannot be a ground to enlarge an accused on bail, dehors the facts. As noted herein above, this is a case of gang rape. When the incident took place, the victim was 15 years and 5 months old. Therefore, there is no case made out for grant of bail even on the ground of long incarceration.”

Advocate Sana Raees Khan appeared on behalf of the applicant while APP Veera Shinde appeared on behalf of the respondents.

In this case, the applicant/accused had preferred the second bail application under Section 439 of the Criminal Procedure Code (CrPC) as the Single Judge had dismissed as withdrawn the bail application filed by him. The counsel for the accused stated that although the said bail application was dismissed as withdrawn, liberty was granted to file a fresh bail application in the event the trial does not commence within a reasonable time.

The counsel further stated that the accused was arrested in October 2020 and that there was no further progress in the trial till date and even the charge was also not framed yet. She, therefore, submitted that the accused was entitled for bail on the ground of prolonged incarceration. On the other hand, the APP for the respondents submitted that it was a very grievous case where the victim was subjected to gang rape.

The High Court in view of the facts and circumstances of the case observed, “There is one more important aspect for rejecting Bail Application. It is to be noted that this Court has issued notice to Respondent No.2 by Order dated 21st February 2024 and also directed the Investigating Officer to inform Respondent No.2 that he can engage an Advocate of his own choice or an Advocate can be appointed through High Court Legal Services Committee, Mumbai. It is significant to note that the said notice has been served on Respondent No.2 who in writing has intimated to the Investigating Officer on 4th December 2023 as well as on 6th April 2024 that an Advocate through High Court Legal Services Committee, Mumbai be appointed to represent him. However, as noted earlier, Mr. Biradar, learned Counsel appeared in the matter yesterday on behalf of Respondent No.2 and stated that Respondent No.2 has no objection if the Applicant is granted bail. In fact, Respondent No.2 along with the victim was present in the Court for giving consent to grant of bail to the Applicant. This is a very serious case of gang rape. The conduct of the Respondent No.2 and of the victim clearly shows that the Accused are influencing the witnesses.”

The Court added that it is absolutely essential to expedite the trial. Hence, it requested the Trial Court to file periodical reports before the High Court after every three months to ensure that the trial is concluded expeditiously and in any event within a period of 9 months.

The Court concluded that such direction is issued as the case is of gang rape and the accused persons are attempting to influence the victim and witnesses and are also tampering with the evidence.

Accordingly, the High Court disposed of the bail application and issued necessary directions.

Cause Title- Somnath Bhivaji Gaikwad v. The State of Maharashtra & Anr. (Neutral Citation: 2024:BHC-AS:18371)


Applicant: Advocate Sana Raees Khan

Respondents: APP Veera Shinde and Advocate Sidheshwar N. Biradar.

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