High Court
Facts
1937-BA.1705.2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.937 BAIL APPLICATION NO. 1705 OF 2023Santosh Vijay Survase.… ApplicantVersusThe State of Maharashtra.… Respondent...Mr. Joslyn A. Menezes, Advocate for Applicant.Mrs. Pratibha J. Bharad, APP for Respondent/State.Mr. M. S. Bhosale, Advocate to assist the PP. ...CORAM :SANJAY A. DESHMUKH, J.DATE :15th February, 2024. P.C.:1Heard. 2This is an application, under Section 439 of the Code ofCriminal Procedure, 1973, for grant of regular bail in connection withCrime No.9 of 2023, registered with Ashti Police Station, District Beed,for the offences punishable under Sections 302, 307, 326, 324, 323,504, 506, 120-B, 109, 143, 147, 148 and 149 of the Indian Penal Codeand under Sections 37(1) and 37(3) of Maharashtra Police Act. 3It is averred in the report that informant Nana BabanSurvase and his brother Tatya went to Ashti Police Station for lodging
Legal Reasoning
5937-BA.1705.2023.odtthe factors to be borne in mind while considering anapplication for bail are:(i)whether there is any prima facie or reasonableground to believe that the accused had committedthe offence;(ii)nature and gravity of the accusation;(iii)severity of the punishment in the event ofconviction;(iv)danger of the accused absconding or fleeing, ifreleased on bail;(v)character, behaviour, means, position and standingof the accused;(vi)likelihood of the offence being repeated;(vii)reasonable apprehension of the witnesses beinginfluenced; and(viii)danger, of course, of justice being thwarted bygrant of bail.”9 In Shahzad Hasan Khan (supra), the HonourableSupreme Court in paragraph 6 held as under:“6.….. We are constrained to observe that JusticeD. S. Bajpai refused to grant the prayer and proceeded togrant bail simply on the ground that the liberty of a citizen 6937-BA.1705.2023.odtwas involved which is the case in every criminal case moreparticularly in a murder case where a citizen who let alonelosing liberty has lost his very life. Another ground forgranting bail was that trial was delayed, therefore theaccused was entitled to bail. This also cannot be helped if alitigant is encouraged to make half a dozen applications onthe same point without any new factor having arisen after thefirst was rejected. Had the learned Judge granted time to thecomplainant for filing counter-affidavit, correct facts wouldhave been placed before the court and it could have beenpointed out that apart from the inherent danger of tamperingwith or intimidating witnesses and aborting the case, therewas also the danger to the life of the main witnesses or to thelife of the accused being endangered as experience of lifehas shown to the members of the profession and thejudiciary, and in that event, the learned Judge would havebeen in a better position to ascertain facts to act judiciously.No doubt liberty of a citizen must be zealously safeguardedby court, nonetheless when a person is accused of a seriousoffence like murder and his successive bail applications arerejected on merit there being prima facie material, theprosecution is entitled to place correct facts before the court.Liberty is to be secured through process of law, which isadministered keeping in mind the interests of the accused,the near and dear of the victim who lost his life and who feelhelpless and believe that there is no justice in the world asalso the collective interest of the community so that partiesdo not lose faith in the institution and indulge in privateretribution. Learned Judge was unduly influenced by theconcept of liberty, disregarding the facts of the case.”
Arguments
2937-BA.1705.2023.odtthe report on 6th January, 2023, as their sibling Amol was beaten by co-accused Saurabh. That time, this applicant (accused No.1) convincedthem not to lodge the report and the matter can be resolved bycompromise at his home. Accordingly, the informant, Ganesh ParshuSurvase, Sunita Anil Murkute, Savita Tatya Survase, Amol AnilMurkute, Rahul Anil Murkute and the brother of informant Tatya, wentto the house of this applicant at about 08:15 pm on the same day,where all the accused persons were present. That time, co-accusedAkshay closed the gate of the compound of the house from inside andall the accused took iron rods, sword and bludgeons and alleged thatthe informant and his relatives voted against them in the elections andalso went to lodge the report against them. Therefore, they started toassault the informant and other witnesses. This applicant and co-accused Saurabh assaulted the brother of informant Tatya with ironrods on his head due to which Tatya collapsed on the ground. Co-accused Akshay assaulted the informant with sword on his head, but itwas landed on the shoulder of informant. Therefore, the informantcollapsed down. The remaining accused also assaulted injuredwitnesses by iron rods and sword. The informant and his brother Tatyawere moved to the hospital. His report was taken down in the hospitaland accordingly, the crime was registered. 4The learned counsel for applicant submitted that from the 3937-BA.1705.2023.odtCCTV footage it appears that the applicant is just walking there anddid not assault. Due to earlier dispute, the applicant is falselyimplicated in the crime. The incident occurred without any plan andintention to commit murder of the deceased. This Court granted bail toco-accused Ranjit Gunjal considering that the provisions of Section302 of the IPC are not attracted. This applicant did not use anyweapon. The applicant has no criminal antecedents. It is lastly prayedto allow the application. 5The learned APP for the State and the learned counselassisting the prosecution strongly opposed the application andsubmitted that the applicant is involved in the crime of murder. Hisname is mentioned in the report. The report of Forensic ScienceLaboratory in respect of CCTV footage is still awaiting. The possibilityof same nature of crime cannot be ruled out. Considering thepossibility of pressurizing the prosecution witnesses and tampering theevidence, it is lastly prayed to reject the application. 6Perused the charge-sheet, particularly, the FIR and thepostmortem report. The name of the applicant is mentioned in thecharge-sheet. The incriminating weapons are seized. The role of theapplicant was to call the informant and the deceased for compromisein his house and there at his instance, they all went for compromise. 4937-BA.1705.2023.odtIn the CCTV footage accused No.7 (Ranjit Gunjal) was not seen,therefore, this Court granted him bail. Merely because the applicantdid not assault at the time of alleged incident, it cannot be inferred thathe was not involved in the said crime. There is oral evidence of theinformant and other witnesses that the applicant assaulted. The entireincident is not covered in the CCTV footage. The applicant has notmade out a case for granting him bail on the principle of bail is a ruleand jail is an exception. All the grounds raised in the writtenarguments of the learned counsel for applicant are the matter ofevidence. 7In the facts and circumstances of the present case, itwould be proper to rely upon the following two authorities:-i)Deepak Yadav Vs. State of Uttar Pradesh andanother, (2022) 8 Supreme Court Cases 559; andii)Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan andanother, (1987) 2 Supreme Court Cases 684.8In Deepak Yadav (supra), the Honourable Supreme Courtin paragraph 22 held as under:“22.As reiterated by the two-Judge Bench of thisCourt in Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010)14 SCC 496 : (2011) 3 SCC (Cri) 765, it is well-settled that
Decision
7937-BA.1705.2023.odt 10In view of the above ratio and guidelines laid down in theabove case laws, there is prima-facie material against this applicant.The applicant has called the informant for compromise at his houseand thereafter, alleged incident occurred at his house. His name ismentioned in the report. He is booked for serious crime of murder. Hispossibility of fleeing away from the trial, pressurizing the prosecutionwitnesses and tampering with the evidence cannot be ruled out.Therefore, the applicant is not entitled for bail on the principle that jailis exception and bail is rule. He is not entitled for liberty of bail and it isnot justifiable. Considering all these aspects, the application deservesto be rejected. The bail application is, therefore, rejected. [ SANJAY A. DESHMUKH, J. ] nga