'Keeping Under-Trial Accused In Custody For Indefinite Period Violates Fundamental Rights’: Bombay HC

'Keeping Under-Trial Accused In Custody For Indefinite Period Violates Fundamental Rights’: Bombay HC

The HC was hearing a bail plea filed by Chandalia through advocate Sana Raees Khan citing long incarceration and no possibility of the trial being concluded in the near future.

Urvi MahajaniUpdated: Saturday, September 30, 2023, 06:08 PM IST
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Bombay High Court | File

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 of India, observed the Bombay High Court while granting bail to one Akash Chandalia who was arrested in 2015 for allegedly kidnapping and murdering two boys for ransom. 

Justice Bharati Dangre, on September 26, granted bail to Chandalia saying that time and again, “long incarceration” and the “impossibility” of conclusion of trial in a time bound manner have been considered as “justiciable ground” to release an accused on bail. 

The HC was hearing a bail plea filed by Chandalia through advocate Sana Raees Khan citing long incarceration and no possibility of the trial being concluded in the near future. 

On July 20, 2015, Lonaval police registered a complaint stating that Akshay and Rajesh were kidnapped by local gangster Kisan Pardeshi. Subsequently, their bodies were recovered from a nearby Ghat which revealed that they were tortured. 

Balancing act

Justice Dangre 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 an undertrial prisoner also deserves its due weightage,” the judge said.

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, said the court.

“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,” it added. 

'Hallmark of liberty'

The justice further added that “access to justice” and “speedy trial” have been well-recognised as a hallmark of liberty guaranteed in the Constitution and when a timely trial is not possible, the accused cannot be made to suffer further incarceration. 

Advocate Khan argued that Chandalia has been behind bars for over seven years and the trial is not concluded. If he is eventually acquitted, the prosecution will not be able to restore the number of years spent in jail.

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, the court underlined.

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