Case Note & Summary
The applicant, Ganesh Madhukar Mendarkar, filed a regular bail application under Section 439 of the Code of Criminal Procedure, 1973, in connection with Crime No. 45/2016 registered at Dindoshi Police Station, Mumbai, for offences punishable under Sections 302, 397, and 34 of the Indian Penal Code, 1960; Sections 4 and 25 of the Indian Arms Act, 1959; and Sections 37(1) and 135 of the Maharashtra Police Act, 1951. The applicant was 51 years old and had been in custody since 20 January 2016, a period of 9 years and 25 days at the time of the application. There were four accused in the crime, and the other three had already been granted bail. The trial had commenced in 2018, but out of 36 witnesses listed by the prosecution, only the informant and three panch witnesses had been examined. The applicant pressed for bail on two grounds: long incarceration and his HIV-positive status, for which he was undergoing treatment. The prosecution submitted that it would make efforts to complete the trial within three months but could not guarantee it. The court considered the settled law that bail is the rule and refusal is the exception, and that the High Court's discretion to grant bail is unfettered. The court noted that the long incarceration of the applicant, coupled with the lack of reasonable certainty of the trial being completed in the foreseeable future, violated his right to speedy trial under Article 21 of the Constitution. The court also took into account the overcrowding in prisons, citing a report that Mumbai Central Prison housed 220-250 inmates in barracks meant for 50. The court held that the applicant's continued detention would be unjust and granted bail on certain conditions, including furnishing a personal bond of Rs. 50,000 with one or two sureties, and reporting to the police station once a month.
Headnote
A) Criminal Law - Bail - Long Incarceration - Section 439 Code of Criminal Procedure, 1973 - Article 21 Constitution of India - Under-trial accused incarcerated for 9 years and 25 days - Trial commenced in 2018 but only 4 witnesses examined out of 36 - Prosecution unable to assure early completion - Held that continued detention would violate right to speedy trial and personal liberty; bail granted (Paras 1-14). B) Criminal Law - Bail - Health Condition - Section 439 Cr.P.C. - HIV-positive accused undergoing treatment - Long incarceration aggravates health issues - Held that health condition is a relevant factor for grant of bail (Para 5). C) Criminal Law - Bail - Discretion of High Court - Section 439 Cr.P.C. - Power of High Court to grant bail is unfettered - Principle that bail is the rule and refusal is the exception - Held that High Court must exercise discretion judiciously, considering liberty of accused (Paras 11-12).
Issue of Consideration
Whether an under-trial accused who has been incarcerated for 9 years and 25 days, suffering from HIV, and whose trial is not likely to conclude in the foreseeable future, should be granted regular bail under Section 439 Cr.P.C.
Final Decision
Bail granted. Applicant to be released on furnishing a personal bond of Rs. 50,000 with one or two sureties; to report to the police station once a month; not to tamper with evidence or influence witnesses.
Law Points
- Bail is the rule and jail is the exception
- Long incarceration violates Article 21 right to speedy trial
- High Court's discretion to grant bail is unfettered
- Health condition of accused is a relevant factor for bail
- Delay in trial due to prosecution's failure to examine witnesses justifies bail
