Mumbai: Is it mandatory to release undertrial prisoners on bail if they have completed half or one-third of the maximum possible prison term the offence they are accused of attracts? The Bombay High Court held that the law “does not mandate” bail on completion of half or one-third of the maximum punishment the offence attracts.
The court still has discretionary powers based on facts and circumstances to deny bail even if the inmate has spent more time inside, ruled Justice Madhav Jamdar on March 17 and rejected a second bail application filed by a man accused of gang rape, considering the seriousness of the offence.
Section 479 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Act that replaced the erstwhile procedural code for criminal law, provides that a person who has undergone detention for half of the maximum imprisonment specified for that offence — so long as the sentence is not the noose — shall be released on bail. If the accused is a first-time offender, they can be released even if they have spent one-third of such maximum sentence behind bars. However, Justice Jamdar noted that the section also provides that, on hearing the Public Prosecutor and by a reasoned order, the court may continue the person’s custody for longer than half the maximum sentence.
The accused, Nitesh Lahange, was behind bars for three years following his March 7, 2022, arrest in a case off Mumbai.
Last Jan, the lawyer for the accused argued his bail plea for a while before Justice Jamdar allowed him to withdraw it and file again if there was no substantial progress in the trial. In November 2024, the accused petitioned the High Court again for bail. This time, he cited the fact that he was in custody for three years already, with no progress in the trial, thus “violating” his right to a speedy trial and also a lack of criminal antecedents.
Justice Jamdar said the lack of antecedents is not the sole criterion to permit release on bail. The facts of the case need to be looked at, he said.
The High Court said the record shows prima facie involvement of the accused in the “very serious offence” along with three others. Besides, it was only last month that the trial court framed charges, and the prosecution assured the High Court that the state would take steps to expedite the trial.
The High Court was not convinced that, based on the facts and circumstances of the gang rape, any case for bail was made out and dismissed his bail plea.