When courts cited delayed trials, years spent in jail as ground to grant bail to accused

The court considered that Pahuja was only 18 years old when she was arrested in 2016 and that there is no likelihood of the trial getting over within a short span of time.

The court also considered that she had no criminal antecedents and was a woman. Over the past year, in many cases, accused have been ordered to be released on bail on the ground that the trial is delayed, while also considering other grounds like the role of the accused.

In May 2022, former media executive Indrani Mukerjea, was granted bail by the Supreme Court after she spent over six-and-a-half years in jail, for the alleged murder of her daughter, Sheena Bora.

The court, in its order on May 18, 2022, said that it did not intend to comment on the merits but will consider that she has been in custody for more than six years and even if 50 per cent of the witnesses are given up by the prosecution, the trial will not complete soon.

In April, the CBI cited a list of 92 witnesses who remain to be examined. Similarly, artist Chintan Upadhyay, who was arrested in December 2015 for the alleged murder of his estranged wife, Hema and her lawyer, was granted bail by the Supreme Court in September 2021.

The court considered that he had spent six years in jail and said that he was entitled for bail. The trial in the case is nearing conclusion with the final arguments currently being heard by the court. The sessions court however refused to grant bail to a co-accused stating that there was prima facie evidence of his direct evidence in the case.

In the case of lawyer Shahid Azmi, who was murdered in his office in 2010, the trial is yet to conclude. The high court granted bail to the alleged shooter and main accused, Devendra Jagtap, in October 2022, stating that he had been behind bars for more than 12 years.

“…no directions of expediting trial or conducting it in a stipulated period would offer any solace to him,” the high court said in its order.

Similar bail orders were passed in the case of an accused who spent 10 years in jail for the alleged murder of four men after a brawl in Kurar in 2011 and in the case of the alleged murder of Delhi-based businessman Arun Tikku, where the accused has spent 10 years in jail since his arrest in 2012.

The court granted bail to one of the accused in the murder case of builder Sunil Kumar Lohariya considering that he had spent nine-and-a-half years in jail.

Existing provisions in law do ensure that delayed trials do not cause undue incarceration to undertrials. As per section 436A of the Criminal Procedure Code, a person is entitled to be released from custody if she has spent more than half of the maximum punishment possible in the offences he or she is booked under.

The section, however, specifies that the offence cannot be punishable with death. Section 302 (murder) of the Indian Penal Code has the maximum punishment of death.

In these cases, while opposing their bail, the prosecutors have submitted that the main ground for the delay in trials has been the conduct of the accused, claiming that they file irrelevant applications to deliberately prolong the trial, when they fear being found guilty.

Lawyers for the accused, however, claim that they have a fundamental right under Article 21 for a speedy trial and it is the prosecution’s job to ensure that witnesses remain present and the trials go on expeditiously.

In these cases, the delay in trial was also due to the Covid-19 pandemic when trials came to a halt. Officials said that voluminous data and multiple accused in a case also lead to delays.

“The long incarceration when a trial is delayed amounts to pre-trial conviction. If an accused is cleared of all charges after spending so many years in jail, there will be no compensation for the years lost. There must be a time limit and directions to the prosecution to only examine pertinent witnesses so that trials can be concluded within a specific time,” said lawyer Sana Raees Khan, who represented Pahuja and Mukerjea in their bail hearings.