Pending trial, accused cannot be incarcerated for indefinite period: Bombay HC

A person cannot be incarcerated for an indefinite period of time pending trial as it is violative of the fundamental rights enshrined in the Constitution of India, the Bombay High Court said while granting bail to a man, accused in a double murder case.

A single bench of Justice Bharati Dangre on September 26 granted bail to Akash Satish Chandalia, arrested in September 2015 by the Lonavala police in Pune district on the charges of double murder and conspiracy.

The court in its order said a balancing act has to be struck between the gravity and seriousness of the charges, which the accused is facing, and the long time taken for conclusion of trial.

"The seriousness of an offence and its heinous nature may be one aspect, which deserves a consideration while exercising the discretion to release an accused on bail, but at the same time, the factor of long incarceration of an accused as under-trial prisoner also deserve its due weightage," the court said.

Pending the trial, a person cannot be kept in custody for an indefinite period of time and it clearly violates the fundamental right enshrined in the Constitution, and time and again has been considered to be a justiciable ground to exercise the discretion to release an accused, it added.

The court in its order noted that despite directions being issued to conclude the trial in a time-bound manner, it has not yielded any result and in such circumstances, there is no option but to release an accused on bail.

"A balancing act, therefore, will have to be struck between the gravity and seriousness of the charges, which the applicant has to face and the long time consumed for conclusion of the trial, as the question of great significance, which all the stakeholders in the system must ponder is, after this long period of trial, if the accused is acquitted, how shall the system compensate him," the order said.

Justice Dangre noted that deprivation of personal liberty, without ensuring speedy trial was not in consonance with Article 21 of the Constitution.

"Access to justice and speedy trial has been well-recognised as a hallmark of liberty guaranteed in Part III of the Constitution and when a timely trial is not possible, the accused cannot be made to suffer further incarceration," the court said.

If an accused has already undergone a significant period of the proposed sentence then the court would ordinarily be obligated to enlarge him on bail, keeping aside the seriousness of the accusations faced by him, it said.

Chandalia's advocate Sana Raees Khan argued that he was incarcerated for almost eight years and the trial is yet to conclude.

"Incarceration for an indefinite period will amount to pre-trial conviction and deprivation of personal liberty without ensuring speedy trial is not in consonance with Article 21 of the Constitution and the same is violative of his fundamental right," Khan submitted to the court.

The bench noted that Chandalia faces a charge under Indian Penal Code (IPC) section 302 (murder) and the manner in which the alleged offence has taken place is undisputedly serious in nature.

The case against Chandalia is that he and the co-accused in the case, a gangster, allegedly kidnapped two persons and assaulted them to death.

The prosecution's case is that Chandalia was one of the persons who assaulted the duo. Two other co-accused in the case are already out on bail in the case.