High Court
Legal Reasoning
924-CRIAPEAL-137-244 SLP (CRl.) No.9816/2023), submits that considering the factthat appellant is a police officer, whose involvement primafacie appears from the record, a strict view needs to be takenagainst him on the question of granting of bail. She submitsthat, accused no.1 was granted bail by the Apex Court asState failed to file counter to the appeal filed by accused No.1Umashankar. According to her, bail granted to accused no.4Shivraj Adabe by this Court, he does not stand on similarfooting like that of present appellant. Further submission is,appellant was on night guard duty on the day of which thecustodial death of deceased has occurred, and therefore, thisprima facie, shows active involvement in the conspiracy ofaccused persons to commit custodial death of deceased.Hence, the appellant is not entitled for regular bail.8.Learned advocate for respondent no.2/victim submitsthat as the State failed to file counter to appeal filed byaccused no.1, the Apex Court has released him on bail. Herethe State as well as victim are opposing the bail, andtherefore, the appellant is not entitled for bail. 9.Appellant is arrested on 26.05.2023 and oncompletion of further investigation, supplementary charge-sheet is filed on 10.07.2023. All the nine accused in theS.P. Rane 924-CRIAPEAL-137-245 present crime are police personnel. As per the reportsubmitted by the Investigating Officer, accused No.6 BalwantSaybanna Jamadar, Assistant Police Inspector, Accused No.7Umashankar Manmath Kasture, Police Inspector and accusedNo.9 Shivraj Gangadharrao Adabe, Police Head Constable, arereleased on regular bail.While releasing accused Umashankar, the Apex Courthas passed following order:“Despite the stop order having been passed andearlier opportunities having been given to the Stateof Maharashtra, the respondent-State has not filedany counter affidavit so far. Today also request ismade for further time which is declined.Considering the facts and circumstances of thecase and the period of incarceration of the petitioner,which is more than seven months, custody certificateto this effect is placed on record, we are inclined togrant bail.Accordingly, the petitioner be released on bailsubject to such terms and conditions as may beimposed by the Trial Court.The Special Leave Petition is, according,disposed of.Pending application(s), if any, shall standdisposed of.” Accused Shivraj Adabe is granted bail by this Courtvide order dated 05.01.2024. S.P. Rane 924-CRIAPEAL-137-246 10.There was nothing on record to indicate that bailgranted to aforesaid accused is questioned by eitherprosecution or by the victim.11.Considering the fact that charge-sheet is filed on10.07.2023 and the trial is not likely to commence andconclude in near future and appellant being Police HeadConstable is government servant, he is not likely to flee awayfrom justice, appellant need not be detained for indefiniteperiod. Apprehension of the State can be taken care of byimposing suitable conditions. 12.In Ajay Kumar Yadav (supra), the Apex Court hasobserved that, “stricter view is required to be takenconsidering the fact that respondent no.3 is part of policeforce and allegation is that of custodial death, in which he hasbeen implicated. In cases of this nature, having regard to theover all influence a member of the police force may wield inconnection with a case against them pertaining to custodialdeath, a stricter view is to be taken on the question ofgranting bail.Secondly, the charge-sheet is under section 302 ofthe Indian Penal Code and the appellant has been enlarged onbail within 1 and ½ years of his detention. The alleged offenceS.P. Rane 924-CRIAPEAL-137-247 is of grave and serious nature and that factor has not beenproperly considered by the High Court.” 13.Case of Sumitha Pradeep (supra), is in respect ofgrant of anticipatory bail, wherein it is observed:“There appears to be a serious misconception of lawthat if no case for custodial interrogation is made outby the prosecution, then that alone would be a goodground to grant anticipatory bail. Custodialinterrogation can be one of the relevant aspects tobe considered along with other grounds whiledeciding an application seeking anticipatory bail.There may be many cases in which the custodialinterrogation of the accused may not be required,but that does not mean that the prima facie caseagainst the accused should be ignored or overlookedand he should be granted anticipatory bail. The firstand foremost thing that the court hearing ananticipatory bail application should consider is theprima facie case put up against the accused.Thereafter, the nature of the offence should belooked into along with the severity of thepunishment. Custodial interrogation can be one ofthe grounds to decline custodial interrogation.However, even if custodial interrogation is notrequired or necessitated, by itself, cannot be aground to grant anticipatory bail”. 14.There cannot be any dispute about the aforesaid ratioof the Apex Court. However, in the facts of the present case,since three co-accused are already released on bail, and as thetrial is not likely to conclude in near future, further pre-trialcustodial detention of appellant is not necessary. Hence, thefollowing order.S.P. Rane 924-CRIAPEAL-137-248 ORDER (i)Criminal Appeal is allowed (ii)Impugned order dated 19.01.2024 passed bylearned Additional Sessions Judge, Ambajogai,below Exhibit-8 in Special Case No.50 of 2023(iii)Appellant Sugat S/o Narhari Sarwade bereleased on bail on furnishing Personal Bond andSurety Bond of Rs.15,000/- with one surety inthe like amount in connection with Crime No.340of 2016 registered with Parli City Police Stationfor offences punishable under sections 302, 166,167, 193, 217, 218, 220, 323, 330, 331, 348,201, 120(B) read with section 34 of the IndianPenal Code and under Section 147 of theMaharashtra Police Act and under section 3(2)(va) of the Scheduled Castes Schedule Tribes(Prevention of Atrocities) Act. (iv)Appellant shall not enter Parli Taluka until furtherorders. (v)Appellant shall not tamper the prosecutionevidence. [ NITIN B. SURYAWANSHI ] JUDGE S.P. Rane
Arguments
924-CRIAPEAL-137-241 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPEAL NO. 137 OF 2024Sugat S/o Narhari Sarwade… Appellant VERSUSThe Superintendent Of Police And Another… Respondents ......Mr. Nilesh S. Ghanekar, Advocate for AppellantMs. S.S. Joshi, APP for Respondent No.1 – StateMr. N.U. Talegaonkar, Advocate for Respondent No.2...... [CORAM : NITIN B. SURYAWANSHI, J.] DATE : 02nd APRIL, 2024 ORDER :1.This appeal filed under section 14-A of ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act,takes exception to the order dated 19.01.2024 passed bylearned Additional Sessions Judge, Ambajogai, below Exhibit-8in Special Case No.50 of 2023.2.Tukaram Jogdand, son of respondent no.2/victim wasfound dead in police lockup. Crime No.340 of 2016 wasregistered with Parli City Police Station, District-Beed foroffences punishable under sections 306, 330, 331, 348, 323read with section 34 of the Indian Penal Code. On 05.01.2021,charge-sheet was filed in the said crime and case is numberedas Sessions Case No.7 of 2022.S.P. Rane 924-CRIAPEAL-137-242 3.In criminal writ petition no.431/2022, Division Benchof this Court directed addition of section 302 of the IndianPenal Code, in the said crime and also directed furtherinvestigation under section 173 (8) of the Code of CriminalProcedure. On completion of further investigation,supplementary charge-sheet was filed against 9 accusedpersons for offences punishable under sections 302, 166, 167,193, 217, 218, 220, 323, 330, 331, 348, 201, 120-B read withsection 34 of the Indian Penal Code and under sections 147 ofthe Maharashtra Police Act and under sections 3(2)(va) of theScheduled Castes Schedule Tribes (Prevention of Atrocities)Act, on 10.07.2023 and appellant came to be arrested on26.05.2023. Allegations against appellant are that, when theappellant was on lockup guard duty at Parli City Police Station,deceased Tukaram Sambhaji Jogdand was brought there at9.30 hours by D.B. police personnel, (1) Vishnu Nagargoje,(2) Milind Sarnikar and (3)Vikas Waghmare. When there wasno offence registered against deceased, he was illegally kept inlockup. Appellant has taken false entry in the guard dutyregister that nobody in the lockup. It was the duty of appellantto give intimation to superiors that without there being anyoffence register, deceased was illegally kept in lockup. By notdoing so, appellant helped D.B. police personnel. When theS.P. Rane 924-CRIAPEAL-137-243 deceased died in lockup, appellant did not disclose thisinformation to superior officers. appellant was on night guardduty on the day of death of deceased in the police custody. 4.Heard learned advocate for appellant, learned APP forrespondent no.1-State and learned advocate for respondentNo. 2. Perused the investigation papers.5.Learned advocate for appellant submits thatappellant is arrested on 26.05.2023 and since then he is incustody. Co-accused No.1 Umashankar Kasture is released bythe Apex Court on regular bail. This Court has enlargedaccused no.4 Shivraj Gangadharrao Adabe on regular bail on05.01.2024. He, therefore, submits that on the ground ofparity also, appellant is entitled for bail. He further submitsthat trial is not likely to commence and conclude in nearfuture, and therefore, appellant need not be detained incustody for indefinite period. 6.Learned APP and learned advocate for respondentno.2/victim vehemently opposed the prayer of appellant. 7.Learned APP, by relying on decisions of Apex Court inSumitha Pradeep Vs. Arun Kumar C.K. & Anr. (Criminal AppealNo.1834/2022), and Ajay Kumar Yadav Vs. The State of UttarPradesh & Ors. (Criminal Appeal No. __ of 2024 arising out ofS.P. Rane