Bail for Pocso accused after 5 yrs in custody

Mumbai: Citing his long incarceration pending trial of more than 5 years and 4 months, and the complainant being untraceable, rendering the commencement of trial uncertain, the Bombay High Court granted bail to a Pocso case accused. The HC also considered how it regularly deals with bail applications of undertrials who were in custody for long periods and said it was equally aware of the conditions of prisons. The single judge bench of Justice Milind Jadhav, who granted bail, said that in one of the cases before him last Dec, a report submitted by the superintendent of the Arthur Road Jail in Mumbai said the prison exceeded its sanctioned intake capacity by over five to six times, and every barrack sanctioned to house 50 had over 220-250 inmates. Justice Jadhav said the question the HC thus faced was how it could "find a balance between the two polarities'' in the "incongruity.''The HC invoked its own wide powers, observing, "In so far as the power of High Court to grant bail is concerned, when the case is such that it involves a question of personal liberty of an undertrial who is incarcerated for a very long period, the powers are wide and unfettered by conditions, the principle rule being that bail is the rule and refusal is the exception, allowing accused persons to better prepare their defence.'' Justice Jadhav heard two legal aid appointed lawyers, Meghna Gowalani for the accused, who cited the prolonged custody since Jan 2020, sans trial, advocate Ilsa Shaikh appointed for the prosecutrix—complainant—who was not traceable, and a prosecutor, Savita Yadav, who opposed the complaint, citing the seriousness of the crime. The alleged victim was 16 when she was allegedly raped, and rape was the prosecution case. The HC also appreciated advocate SS Sawalkar's assistance to the court in placing before it relevant SC judgments that expound on the right to speedy trials and prolonged incarceration. — Swati Deshpande