MUMBAI: Granting bail to a rape accused behind bars for over five years, Justice Milind Jadhav of the Bombay high court said each day’s incarceration in prison amounts to a change in circumstance and therefore it enables the accused to approach the Bail Court. The trial court has refused him bail in a case registered in 2020.
Police in Mumbai had arrested Abhishek Kumar Singh in February 2020 over allegations of rap, extortion and cheating apart from cyber offences. He had in 2020 withdrawn a bail plea and later when he filed in 2021, the HC dismissed his plea citing ‘no change of circumstance’. The Supreme court too in April 2023 did not interfere with the HC dismissal.
Last year he sought bail again before the trial court which the court rejected and he thus moved the HC on grounds of prolonged incarceration and delay in trial. The prosecutor Megha Bajoria and a lawyer Tanmay Bhave, appointed via legal aid for the first informant, argued before Justice Jadhav that delay in trial court was due to Singh’s conduct.
They argued that on the last two hearings before the trial court, absence of the defence lawyer delayed framing of charge—the last pre-trial step.
For the accused, advocates Prashant Pandey and Dinesh Jadhwani refuting the prosecution claim, cited trial court record to argue that of the last 70 hearings, on 68 dates the Singh was not produced before the court, leading to adjournments.
The HC said it was granting bail on grounds of prolonged incarceration pending trial and the ignominy it causes the accused, as the trial is yet to start.
The HC said while courts do have to consider the gravity of the offence, likelihood of tampering of evidence or influencing of accused and flight risk of an accused, often what comes to its notice is that trials don’t conclude fast and prisons on the other hand are overcrowded. Justice Jadhav said the HC is aware of the conditions of the State’s jails.
In Mumbai, the Arthur Road prison is overcrowded by five to six times its capacity as reported last December by the prison superintendent. Each barrack meant to house 50 houses 220-250 undertrial inmates, the HC noted and said the question that arises then is “how can courts find a balance between the two polarities?”
In Singh’s case the HC invoked the ‘bail is a rule, jail, an exception’’ principle set out by the SC and said “when it involves a question of personal liberty of an under-trial who is incarcerated for a very long period,’’ the powers of the HC are wide and unfettered by conditions.
Referring to various SC rulings on bail and of a speedy trial being integral to a person’s fundamental right to life and liberty, the HC said given that the there is no possibility of trial concluding in a foreseeable future, as held by the top court, it was exercising its power to grant bail to the rape accused.
The HC directed Singh’s release on a bail bond of Rs 25000 and permitted his immediate release on cash bail with several conditions including his monthly two-hourly appearance before the police station and cooperation with the trial and not leave the State sans a court nod. Any unnecessary adjournment he may seek would entitled the prosecution to seek cancellation of his bail, as would any two consecutive deaults, the HC directed.
The HC Judge said, “Merely because the trial is taking an indefinite period of time to complete does not ipso facto mean that the accused cannot be released on bail and solely on his long incarceration granted bail.’’