Bombay High Court
Shubham @ Ghubad S/O Dilip Wasnik vs The State Of Maharashtra, P.S.O., ... on 7 July, 2025
2025:BHC-NAG:6448
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (BA) NO. 405 OF 2025
( Shubham @ Ghubad S/o Dilip Wasnik
Vs.
State of Maharashtra, Police Station Officer, Jaripatka, Nagpur,
Tah. & Dist. Nagpur.)
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. D.M. Dixit, Advocate for the Applicant.
Mr. A.M. Ghogare, APP for the Non-applicant/State.
CORAM: URMILA JOSHI-PHALKE, J.
DATED : 7th JULY, 2025
1. By this Application, the Applicant seeking bail in
connection with Crime No. 1306/2018 registered with Police
Station Jaripatka, Nagpur for the offence punishable under
Sections 302, 324, 114 r/w 34 of the Indian Penal Code r/w
Section 135 of the Bombay Police Act, 1951 and Sections 4 &
25 of the Arms Act.
2. The Applicant came to be arrested on 15.11.2018
since then he is behind bars.
3. Learned Counsel for the Applicant, submitted that
that the applicant is arrested on the basis of report lodged by
one Sudhir Gajbhiye who alleged that prior to 15 days of the
incident the dispute took place between the present applicant
and co-accused persons with the deceased Sandip @ Kalu
Gajbhiye. On 14.11.2018 at about 4:45 p.m. informant Sudhir
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received information that someone is assaulting the deceased
on the ground near Lalit Kalabhawan. He immediately rushed
to the spot and found that his brother Sandip is lying on the
ground and the accused along with the present applicant were
assaulting him by the sharp weapon. After the incident, the
present applicant and other co-accused fled away from the
spot of incident.
4. Learned Counsel for the applicant submitted that
the incarceration of the present applicant is for more than
seven years in the said crime. The other co-accused namely
Lakhan @ Lucky Dilip @ Dilip Wadhve is already released on
bail by this Court on the ground of delay in trial. The accused
Nos.3 and 4 namely Rishikesh @ Shambhu Ramesh
Gowardhan and Tanmay @ Popo Raju Jadhav who have
released on bail. Thus, he submitted that, the right of the
present Applicant under Article 21 of the Constitution of India
of a speedy trial is hereby affected. He invited my attention to
the roznama and submitted that last witness was examined on
19.04.2023 and thereafter the investigation officer has filed
an application under Section 10 of the Maharashtra Control of
Organised Crime Act, (for short "MCOC Act") and the trial
kept in abeyance and there is no further progress in the trial.
In view of Article 21 of the Constitution of India, the
fundamental right of the accused is of a speedy trial and if it
is affected then irrespective of the nature of the crime the
Applicant shall be released on bail.
5. He further submitted that as far as Section 10 of
the MCOC Act, is concerned, which states that the trial of any
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offence under this Act by a Special Court shall have
precedence over the trial of any other case against the
accused in any other Court and shall be concluded in
preference of the trial of such other cases. Thus, it is not that
the in view of Section 10 of MCOC Act the other trial is to be
stayed. He submitted that considering the long incarceration
of the present Applicant and considering the fact that the
right of the present Applicant of the speedy trial enshrined
under Article 21 of the Constitution of India is affected, he be
released on bail.
6. In support of his contention, he placed reliance on
Akash Satish Chandalia Vs. The State of Maharashtra,
reported in 2023 NCBHC-AS 28583, wherein this Court at the
Principal Seat observed that Long incarceration as an
undertrial can be a valid ground for granting bail, even in
cases involving serious offences, if the trial is unlikely to
conclude in a reasonable time. He also placed reliance on
Union of India Vs. K.A. Najeeb, reported in 2021 CriLR (SC)
267.
7. Learned APP, strongly opposed the said
application and submitted that, considering 13 witnesses are
already examined, trial is on the verge of its completion. In
view of that, the Application deserves to be rejected. He
further submitted that, as the Application is pending under
Section 10, and therefore, there is no further progress. In
view of that and considering the nature of the offence which
is of serious and the role attributed to the present Applicant is
also a specific role, the application deserves to be rejected.
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8. Having heard learned Counsel for the parties.
Perused the investigation papers. There is no dispute as to the
fact that the applicant is implicated in the alleged offence on
an allegation that he has assaulted the deceased by means of
sharp weapon and caused his death. The statements of the
eye-witnesses and the evidence recorded before the Court also
shows the involvement of the present applicant in the alleged
offence. There is also no dispute as to the fact that the
Applicant is behind bar since the date of his arrest i.e. from
15.11.2018 i.e. for more than seven years. The co-accused are
already released on bail and one of the co-accused namely
Lakhan @ Lucky Wadhve is already released on bail
considering that there is delay in trial. The accused Nos.3 and
4 namely Rishikesh @ Shambhu Ramesh Gowardhan and
Tanmay @ Popo Raju Jadhav were released on bail alleged to
have committed the offence under Section 307 of the Indian
Penal Code and considering their continuous criminal
activities committed by them by seeking the approval under
Section 23(1) and 23(2) of the MCOC Act, the charge-sheet is
filed against them. In view of Section 10 of the MCOC Act
which is filed by the investigation officer, the trial Court has
kept the trial in abeyance and no single witness is examined
after 19.04.2024 i.e. a one year is already passed. Section 10
of the MCOC Act which states that the trial of any offence
under this Act by a Special Court shall have precedence over
the trial of any other case against the accused in any other
Court (not being a Special Court) and shall be concluded in
preference of the trial of such other case and accordingly the
trial of such other cases shall remain in abeyance, the present
trial of the applicant is kept in abeyance. Admittedly, there is
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no progress in the trial as trial since 19.04.2024 i.e. almost
one year has been passed.
9. Considering the submission, it is necessary to refer
Section 10 of the MCOC Act, which reads as:
"10. Trial by Special Courts to have precedence. The
trial of any offence under this Act by a Special Court
shall have precedence over the trial of any other case
against the accused in any other Court (not being a
Special Court) and shall be concluded in preference
of the trial of such other cases and accordingly the
trial of such other cases shall remain in abeyance."
10. The Hon'ble Apex Court, while interpreting pari
materia provisions under the Uttar Pradesh Gangsters and
Anti-Social Activities (Prevention) Act, 1986, interpreted
Section 12 of the said Act. Said Section 12 of the said Act
reads as under:
"12. Trial by Special Court to have precedence. The
trial under this Act of any offence by Special Court
shall have precedence over the trial of any other case
against the accused in any other court (not being a
Special Court) and shall be concluded in preference
to the trial of such other case and accordingly the
trial of such other case shall remain in abeyance."
11. The Hon'ble Apex Court, in the case of
Dharmendra Kirthal vs. State of Uttar Pradesh and anr,
reported in (2013) 8 SCC 368, in paragraph No.32 has
observed as under:
"32. The present provision is to be tested on the
touchstone of the aforesaid constitutional principle.
The provision clearly mandates that the trial under
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this Act of any offence by the Special Court shall
have precedence and shall be concluded in
preference to the trial of such other courts to achieve
the said purpose. The legislature thought it
appropriate to provide that the trial of such other
case shall remain in abeyance. It is apt to note here
that "any other case" against the accused in "any
other court" does not include the Special Court. The
emphasis is on speedy trial and not denial of it. The
legislature has incorporated such a provision so that
an accused does not face trial in two cases
simultaneously and a case before the Special Court
does not linger owing to clash of dates in trial. It is
also worthy to note that the Special Court has been
conferred jurisdiction under sub-section (1) of
Section 8 of the Act to try any other offences with
which the accused may, under any other law for the
time being in force, have been charged and
proceeded at the same trial."
12. Thus, from the aforesaid principles laid down by
the Hon'ble Apex Court, it is crystal clear that legislative
intent behind the said provisions was not that the proceeding
of other offences must be kept in abeyance till conclusion of
the trial under the Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986. Even, in the case of Mobin
Iftikhar Zaidi vs. State Of U.P. and ors (Application under
Section 482 No.27361 of 2011), it has been held as under:
"A perusal of the aforesaid provision reveals the
legislative intent behind the said provision and its
object was that the trial under the Gangsters Act
should be given preference and the same should not
get unduly delayed because of pendency of other
cases in other courts. The legislative intention was
not that the proceedings of other offences must be
kept in abeyance till conclusion of trial under the
Gangsters Act. Its intent was that the dates fixed in
the other trials and in the case under the Gangsters
Act should not clash together, in order to ensure that
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the trial under the Gangsters Act does not get unduly
delayed or hampered with and reaches to its logical
conclusion at the earliest. It can not be the intention
of the legislature that if a person is required in other
cases in crimes of such heinous nature such as
murder, dacoity, loot and rape etc, the trial of those
offences should not proceed further till conclusion of
trial under Gangsters Act. In view of the above, it is
clear that the legislative intent is that the trial under
the Gangsters Act need be given preference to other
trial."
13. By considering the above decisions of the Hon'ble
Apex Court, the interpretation of the said provisions shows
that it is not the proceedings in a matter under MCOC Act
which has preference or precedence but it is the trial of the
offence under the MCOC Act by the Special Court which will
have precedence. It is thus apparent that Section 10 would
come into play and be operative only in the event of the trial
of an offence under the MCOC Act having commenced. If the
trial has not yet commenced, there would be no question of
Section 10 coming into play.
14. Thus, from the aforesaid discussion, it is clear that
the Hon'ble Apex Court while interpreting the provisions
explained the intention of legislature behind enacting Section
12 of the Uttar Pradesh Gangsters and Anti-Social Activities
(Prevention) Act, 1986 which is pari materia provisions of
Section 10 of the MCOC Act that the case under the said Act
should not be delayed and other case can also go on, but clash
of dates should be avoided and for which purpose 'kept in
abeyance' would mean if dates in both cases are common, the
case under the said Act will get precedence.
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15. The Hon'ble Apex Court, in the case of
Dharmendra Kirthal (supra), held that "it is an apposite to
note here that there is a distinction between an accused who
faces trial in other courts and the accused in the special courts
because the accused herein is tried by the Special Court as he
is a gangster as defined under Section 2(c) of the Act and is
involved in anti-social activities with the object of disturbing
public order or of gaining any undue temporal, pecuniary,
material or other advantage for himself or any other person.
The accused persons under the Act belong to altogether a
different category. The legislature has felt that they are to be
dealt with in a different manner and, accordingly, the trial is
mandated to be held by the special courts in an expeditious
manner". It is further held that "the present provision is to be
tested on the touchstone of the aforesaid constitutional
principle. The provision clearly mandates that the trial under
this Act of any offence by the Special Court shall have
precedence and shall be concluded in preference to the trial of
such other courts to achieve the said purpose. The legislature
thought it appropriate to provide that the trial of such other
case shall remain in abeyance. It is apt to note here that "any
other case" against the accused in "any other court" does not
include the Special Court. The emphasis is on speedy trial and
not denial of it.
16. In the present case the Applicant is arrested on
15.11.2018. There is no dispute as to the fact that the
involvement of the present applicant is a serious offence and
the nature which deserves a consideration while exercising
the discretion to release an accused on bail.
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17. The Hon'ble Apex Court in the case of Union of
India Vs. K.A. Najeeb, reported in 2021 CriLR (SC) 267 relied
upon by the learned Counsel for the Applicant, wherein in
para No.18 it is observed as under :
"18. It is thus clear to us that the presence of
statutory restrictions like Section 43−D (5) of UAPA
per−se does not oust the ability of Constitutional
Courts to grant bail on grounds of violation of Part III
of the Constitution. Indeed, both the restrictions
under a Statue as well as the powers exercisable
under Constitutional Jurisdiction can be well
harmonised. Whereas at commencement of
proceedings, Courts are expected to appreciate the
legislative policy against grant of bail but the rigours
of such provisions will melt down where there is no
likelihood of trial being completed within a
reasonable time and the period of incarceration
already undergone has exceeded a substantial part of
the prescribed sentence. Such an approach would
safeguard against the possibility of provisions like
Section 43−D (5) of UAPA being used as the sole
metric for denial of bail or for wholesale breach of
constitutional right to speedy trial."
18. While exercising the discretion the consideration
for grant of bail which Court has to take into consideration
are, the nature and gravity of the offence, the possibility of
the applicant fleeing away from justice, tampering of the
witnesses etc. but at the same time, the factor of incarceration
for indefinite period of an applicant as an under trial prisoner
also deserves to be taken into consideration. Pending the trial,
a person cannot be kept in custody for an indefinite period of
time and it clearly a violation of the fundamental right
enshrined in the Constitution and time and again, has been
considered to be a justifiable ground to exercise the discretion
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to release an accused. The Hon'ble Apex Court in which the
same principle has laid down and the release of the accused
on the ground of long incarceration and the impossibility of
the conclusion of the trial in a near future is considered. In
the present case, as the another charge-sheet is filed against
the co-accused, the trial of the present applicant is kept in
abeyance and that is for indefinite period i.e. till the disposal
of the trial under the provisions of the MCOC Act. Admittedly,
the present applicant is not the accused in the trial under the
provisions of MCOC Act. He is kept behind bar as the other
co-accused are facing the trial under the provisions of the
Special Act. Admittedly, in the present case, the material
witnesses are already examined including the informant and
eye-witnesses. Some witnesses have not supported the
prosecution case, but two eye-witnesses are already examined
who have supported the prosecution case, therefore, the
apprehension raised by the learned Additional Public
Prosecutor regarding tampering of the witnesses has also not
in existence as their evidence is already recorded in the trial.
It is well settled that, deprivation of a personal liberty without
ensuring the speedy trial is not in consonance with the Article
21 of the Constitution of India, access to justice and speedy
trial has been well recognized as a hall mark of a liberty
guaranteed in the Constitution and when timely trial is not
possible the accused cannot be made to suffer further
incarceration as he has already undergone significant period
of the proposed sentence and in such circumstances, the
discretion can be used in favour of the accused. In the above
set of circumstances, the application of the applicant deserves
to be allowed by imposing certain conditions. Accordingly, I
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proceed to pass the following order.
ORDER
i. The Application is allowed.
ii. The Applicant - Shubham @ Ghubad S/o Dilip Wasnik in connection with Crime No.1306/2018 registered with Police Station, Jaripatka, Nagpur for the offences punishable under Sections 302, 324, 114 read with Section 34 of the Indian Penal Code, Sections 4 and 25 of the Arms Act, 1959 and Section 135 of the Bombay Police Act, 1951, be released on bail on furnishing P.R. bond in the sum of Rs.25,000/- with one solvent surety in the like amount.
iii. The Applicant shall attend the trial on a regular basis and shall not apply for the exemption in any circumstances.
iv. The Applicant shall attend the Jaripatka, Nagpur police station once in a week i.e. on every Sunday between 10.00 a.m. and 1.00 p.m. and the concerned Police Officer of the said police station shall record his presence.
v. The Applicant shall furnish names and addresses of his two relatives along with their address proof and shall produce the same before the trial Court.
12 24.BA.405-2025.odt vi. The Applicant shall not directly or indirectly make any inducement and threat or promise to any person acquainted with the facts of the present case and shall not in any manner involve and tampering of the evidence and in any criminal activities.
19. Pending application/s, if any, shall stand disposed of accordingly.
(URMILA JOSHI-PHALKE, J.) SD. Bhimte Signed by: Mr.S.D.Bhimte Designation: PA To Honourable Judge Date: 09/07/2025 17:19:00