Occu. Service with Krushi Seva Kendra at Madalmohi, Taluka Georai, District Beed v. Jagdish s
Case Details
1 938-ACB-18,17,11,10-21.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPLICATION FOR CANCELLATION OF BAIL NO.18 OF 2021 Dnyaneshwar alias Pintu s/o. Nivrutti Talekar, Age 39 years, Occu. Service with Krushi Seva Kendra at Madalmohi, Taluka Georai, District Beed .. Applicant (Original Informant) Versus 1. 2. Ganesh s/o. Pratap Mote, Age 37 years, Occu. Business, R/o. Kolher Road, Georai, Taluka Georai, District Beed The State of Maharashtra Through the Officer Incharge, Georai Police Station, Georai, Taluka Georai, District Beed .. Respondents (No.1 original accused) Mr. Govind Kulkarni, Advocate holding for Mr.Devang R. Deshmukh, Advocate for Applicant/original informant; Mr. S. S. Thombre, Advocate for Respondent No.1/accused; Ms. V. N. Patil-Jadhav, A.P.P. for Respondent No.2/State … AND APPLICATION FOR CANCELLATION OF BAIL NO.17 OF 2021 Dnyaneshwar alias Pintu s/o. Nivrutti Talekar, Age 39 years, Occu. Service with Krushi Seva Kendra at Madalmohi, Taluka Georai, District Beed Versus Jagdish s/o. Bhimrao Mote, Age 39 years, Occu. Agri., R/o. Village Madalmohi, Taluka Georai, District Beed Anil s/o. Bhimrao Mote, Age 49 years, Occu. & R/o. As above 1. 2. .. Applicant (Original Informant) 2 938-ACB-18,17,11,10-21.odt 3. 4. Sham s/o. Anil Mote, Age 20 years, Occu. & R/o. As above The State of Maharashtra Through the Officer Incharge, Georai Police Station, Georai, Taluka Georai, District Beed Respondents .. (Nos.1 to 3 original accused) Mr. Govind Kulkarni, Advocate holding for Mr.Devang R. Deshmukh, Advocate for Applicant/original informant; Mr. S. S. Thombre, Advocate for Respondents Nos.1 to 3/accused; Ms. V. N. Patil-Jadhav, A.P.P. for Respondent No.4/State ... AND APPLICATION FOR CANCELLATION OF BAIL NO.11 OF 2021 The State of Maharashtra, Through Police Inspector, Georai Police Station, Taluka Georai, District Beed Versus 1. 2. 3. Jagdish s/o. Bhimrao Mote, Age 37 years, Occu. Agri., R/o. Madalmohi, Taluka Georai, District Beed Anil s/o. Bhimrao Mote, Age 47 years, Occu. Agri., R/o. As above Sham s/o. Anil Mote, Age 18 years, Occu. Agri., R/o. As above .. Applicant .. Respondents (Original accused)
Legal Reasoning
need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the 11 938-ACB-18,17,11,10-21.odt Court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) prima facie satisfaction of the Court in support of the charge." 15. In the case of 'Y' Vs. State of Rajasthan & Anr. 13 it has also been discussed in paragraphs Nos.22, 23 and 25, which reads thus; "22. The impugned order passed by the High Court is cryptic, and does not suggest any application of mind. There is a recent trend of passing such orders granting or refusing to grant bail, where the Courts make a general observation that "the facts and the circumstances" have been considered. No specific reasons are indicated which precipitated the passing of the order by the Court. 23. Such a situation continues despite various judgments of this Court wherein this Court has disapproved of such a practice. In the case of Mahipal (Supra), this Court observed as follows:- 25. Merely recording "having perused the record" and "on the facts and circumstances of the case" does not subserve the purpose of a reasoned judicial order. It is a 12 938-ACB-18,17,11,10-21.odt fundamental premise of open Justice, to which our judicial system is committed, that factors which have 8
Arguments
Ms. V. N. Patil-Jadhav, A.P.P. for Applicant/State Mr. S. S. Thombre, Advocate for Respondents Nos.1 to 3/accused; ... 3 938-ACB-18,17,11,10-21.odt AND APPLICATION FOR CANCELLATION OF BAIL NO.10 OF 2021 The State of Maharashtra, Through Police Inspector, Georai Police Station, Taluka Georai, District Beed Versus .. Applicant Ganesh s/o. Pratap Mote,35 yeas, Occu. Business, R/o. Kolher Road, Georai, Taluka Georai, District Beed .. Respondent (Original accused) Ms. V. N. Patil-Jadhav, A.P.P. for Applicant/State Mr. S. S. Thombre, Advocate for Respondent/accused; ... CORAM : S. G. MEHARE, J. DATE : 13-07-2023 PER COURT:- 1. Heard the learned counsel for the applicant/first informant, the learned A.P.P. for the State and the learned counsel for the respondents/accused. 2. The State and the first informant shall be referred to as 'the prosecution', and the respondent shall be referred to as 'the accused' for convenience. 3. The prosecution has filed Application Nos.18, 17, 11 and 10 of 2021 for cancellation of the bail granted to the accused by the learned Additional Sessions Judge, Fast Track Court, Beed, vide common order dated 04.11.2020 below application Exhibit-30 in 4 938-ACB-18,17,11,10-21.odt Sessions Case No.234 of 2019 and Criminal Bail Application No.653 of 2020 in respect of accused No.7, in connection with CR No.192 of 2019 registered with Police Station Georai, for the offences punishable under Sections 302, 352, 143, 147, 148, 149 of the Indian Penal Code and Section 135 of the Maharashtra Police Act. 4. The accused had filed the bail application vide Miscellaneous Criminal Application No.533 of 2019. The learned Sessions Judge was pleased to reject their bail application. They approached this Court to seek bail vide B.A.No.1405 of 2019. On hearing the respective counsels, this Court had expressed disinclination to grant bail. Hence, they withdrew the bail application and the application was dismissed as withdrawn as per the order dated 07.02.2020. Thereafter, the accused again moved an application for interim bail in view of the decision of the High Power Committee amid Covid-19, for releasing them during the Covid-19 pandemic. It was also rejected. Thereafter again, the aforesaid applications were filed before the learned Sessions Court, and the Court was pleased to release them on bail. 5. As far as accused No.7 Ganesh is concerned, he was absconding for about 17 months. His Bail Application No.653 of 2020 was also allowed. 6. The cancellation of the order granting bail has been sought mainly on the ground that the learned Additional Sessions Judge 5 938-ACB-18,17,11,10-21.odt did not consider the earlier order rejecting the bail by the learned Sessions Court as well as the High Court. Without assigning any reason for the change in circumstances, bail has been granted by incorrectly observing that filing an application for obtaining permission to take voice samples of two accused is one kind of prolonging the trial as well as keeping the accused behind bars for an uncertain period. The learned Sessions Judge also incorrectly observed that there was no material on record suggestive of the fact that in the event of accused persons being enlarged on bail, they may flee from Justice or may cause harm or dissuade the prosecution witnesses from deposing against them. Freedom of an individual cannot be curtailed for indefinite period, especially when the guilt of the accused persons is yet to be proved. He has incorrectly applied the ratio laid down in the case of Sanjay Chandra versus Central Bureau of Investigation (2012) 1 Supreme Court Cases 49. He also discussed that it had been repeatedly held by the Hon'ble Supreme Court that the object of bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative. The Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment, which conviction will entail, the character of the accused, and the circumstances which are peculiar to the accused involved in the crime. However, the above- 6 938-ACB-18,17,11,10-21.odt settled principles deciding the bail application have not been applied in this case. 7. The learned A.P.P. and counsel for the prosecution have vehemently argued that once the bail application has been rejected by the Sessions Court or the High Court, unless there are substantial changes in circumstances, no further bail application could be entertained by the same Court. They also vehemently argued that producing the evidence subsequently found to the investigating Officer and making the further investigation is not barred, and it is not presumed that collection of the additional evidence is with a view to protract the trial as well as keeping the accused behind bars for uncertain period. 8. The learned A.P.P. referred to Section 173(8) of the Code of Criminal Procedure (for short, "Cr.P.C.”) and added that the Investigating Officer has powers to place the material if any found after the charge sheet has been filed, pertaining to the crime, before the Court. Therefore, producing additional evidence is no change in circumstance. The settled principles of granting bail have been totally ignored. Since the trial was stalled due to the Covid-19 pandemic does not mean the trial was deliberately protracted. It has also been vehemently argued that the Court has examined the material in detail as if the Court was deciding the case on merit, which is not permissible while deciding the bail 7 938-ACB-18,17,11,10-21.odt application. The expression of reasons for granting bail should be kept distinct from giving reasons for a decision on merit. The Court need not evaluate the evidence for the decision of the bail. The Court has to examine prima facie material. However, the bail is decided on evaluating the evidence; therefore, the common order granting bail to accused No. 1 to 3 is perverse and arbitrary. 9. The prosecution has also argued that the accused no.7 was absconding for 17 months. However, the learned Additional Sessions Judge erroneously observed that it seems from the record that instead of making efforts to secure the presence of the accused No.7 Ganesh Mote by issuing a non-bailable warrant as well as proclamation under Sections 82 and 83 of the Cr.P.C., the trial Court committed the case against all the accused including accused No.7. The circumstances observed in paragraph No.32 of the order granting bail, were not the grounds for considering bail. There was ample evidence against the accused No.7. Lastly, they have argued that settled principles of granting bail and the gravity of the offence have not been considered. Hence, they prayed to allow the applications. 10. Per contra, the learned counsel for the accused has vehemently argued that there was no material progress in the trial. Hence, the learned Additional Sessions Judge has correctly considered the factum that the complainant intended to protract 8 938-ACB-18,17,11,10-21.odt the trial. There shall not be a pre-trial conviction, and the accused cannot be incarcerated in prison for an indefinite period. Filing an application for voice record was a deliberate attempt to protract the trial. Therefore, the learned Additional Sessions has correctly observed that if the opportunity is given to the prosecution to take the voice samples of the accused, in that case, it will take indefinite time for verification of the voice and receipt of the report from the expert. Filing of such applications by the prosecution itself was a change in circumstances. Though there were no specific findings as regards the change in circumstances, inference can be drawn from the above observations that those were the change in circumstances. The learned Additional Sessions Judge has also correctly observed that there was nothing on record justifying that on enlarging the accused on bail, they may flee from Justice or may cause harm or dissuade the prosecution witnesses from deposing against them. The right to freedom has been correctly considered, and the rule that ‘jail is an exception and bail is rule’ has also been correctly considered. The order granting bail supports the principles laid down by the Hon'ble Supreme Court in the cases of (i) Gurucharan Singh & Ors vs State (Delhi Administration), 1978 AIR 179, (ii) State of Rajasthan, Jaipur vs Balchand @ Baliay, 1977 AIR 2447, (iii) State Through C.B.I. vs Amaramani Tripathi, (2005) 8 SCC 21, and latest judgment in the case of Sanjay Chandra (supra). 9 938-ACB-18,17,11,10-21.odt 11. It has been further argued that considering the ratio laid down by the Hon'ble Supreme Court in the above cited cases, there is no room to argue that the order granting bail is perverse and arbitrary. It is also not the fact that the Court did not consider the material available on record or given weightage to the material which was not relevant to the case. There are no complaints against the accused for violating the bail conditions. Hence, this Court has no scope to interfere with the common order granting bail. The applications being devoid of merit are liable to be dismissed. 12. Before adverting to the controversy, it may be appropriate to discuss the law settled by the Higher Courts on the principles and considerations for granting and cancelling bail. 13. In Deepak Yadav vs The State Of Uttar Pradesh, AIR 2022 SC 2514, the ratio laid down in the case of Prahlad Singh Bhati Vs. NCT of Delhi And Another 6, on the jurisdiction of bail, have been referred to. The relevant paragraph No.8 of the said judgment read thus; "8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means 10 938-ACB-18,17,11,10-21.odt and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 14. Similarly, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav And Another 15, in paraghraph no.15 it has been observed thus; "11. The law in regard to grant or refusal of bail is very well-settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a
Decision
ORDER i) Applications for cancellation of bail Nos.18, 17, 11 and 10 of 2021 are allowed. ii) The bail granted to respondents/accused Nos. (1) Jagdish s/o. Bhimrao Mote, (2) Anil s/o. Bhimrao Mote (3) Sham s/o. Anil Mote and accused No.(7) Ganesh s/o. Pratap Mote, by the learned Additional Sessions Judge, Fast Track Court, Beed, by the impugned common order dated 04.11.2020, stands cancelled. iii) Their bail bonds and surety bonds stand cancelled. iv) The accused shall surrender before the learned Additional Sessions Judge, fast Track Court or the Court currently dealing with the trial on or before 18.08.2023. v) After their surrender, they have the liberty to file a fresh bail application before the learned Sessions Court, Beed. rrd ( S. G. MEHARE ) JUDGE