High Court
Legal Reasoning
12197.2023BA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.915 BAIL APPLICATION NO. 2197 OF 2023AKSHAY SANJAY HAKEVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. Desale Nilesh N. APP for Respondent/State : Mr.G.O. Wattamwar ...WITHBAIL APPLICATION NO. 243 OF 2024DNYANESHWAR @ KENYA HIMMAT KADHAREVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. Desale Nilesh N.APP for Respondent/State : Mr.G.O. Wattamwar WITHBAIL APPLICATION NO. 276 OF 2024AAKASH NANA KOLIVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. Deshpande Chaitanya ChandrakantAPP for Respondent/State : Mr.G.O. Wattamwar ...CORAM :S. G. MEHARE, J.DATE :18th October, 2024. P.C.:1.Heard the learned counsel for the applicants, the learned APPfor the respondent-State and the learned counsel for the firstinformant.2.The applicants seek bail in crime no.156 of 2020 registered with 22197.2023BA.odtMohadi Nagar police station, Dist. Dhule for the offences punishableunder sections 302, 120-B, 201, 143, 147, 148, 149, 504, 506 readwith 34 of the Indian Penal Code, sections 3/25, 4/25 and 27 of theArms Act and sections 3(1)(i), 3(2), 3(4) of the Maharashtra Control ofOrganized Crime Act (for short, “MCOC Act”). 3.Admittedly, the applicants have been arrested in 2020. Sincethen they are languishing in jail. The learned counsel for the applicantshave argued the matter on merit. However, without raising specificground for indefinite incarceration, they were pressing hard to grantthem bail in view of a recent judgment of the Hon’ble Supreme Court inthe case of Javed Gulam Nabi Shaikh Vs. State of Maharashtraand another, Criminal Appeal No.2787 of 2024 (Arising out of SLP(Cri) No.3809 of 2004), dated July 3, 2024. They would submit that tilldate the trial Court is not able to even proceed to frame charge. Manyapplications are pending. They are ready to abide the conditionsimposed while enlarging them on bail.4.The learned APP for the respondent-State and the learnedcounsel for the victim submit that it is just taking the disadvantage oftactics played to delay the trial. Since there are large number ofaccused, they are filing different applications at different times. Thesewere deliberate acts of not supporting the prosecution to conclude thetrial. Since the accused have the rights to file various applications, theCourt cannot refuse it, but this is purely a misuse of the process of law. 32197.2023BA.odtSuch applications should have been submitted at the earliest. Theprofessionals are playing with the law. They without raising any specificground for long incarceration just asked the bail on that ground. Theyshould have raise such ground in the applications. However, none ofthe lawyer took pains to add this ground to the applications. They havesubmitted that since the ground was not raised, they could not be ableto explain properly the reasons for alleged delay and point out thetactics played by the applicants to protract the trial. Hence, they prayednot to consider this ground.5.So far as the merit of the matters is concerned, they have comebefore the Court for the first time. The applicant Dnyaneshwar @Kenya is not named in the FIR. There are general allegations againstthe applicants. The investigation against him and the custodialinterrogation is over. The MCOC Act could not be applied as therewere no criminal antecedents to his discredit. There was no syndicatecrime. There are no specific allegations levelled against him. He is thesole bread earner of his family.6.Lengthy arguments of the learned counsel for the applicantswould show that they are harping upon the nature of the incident andlarge number of persons attacking to the deceased. The incident hasbeen captured in CCTV footage. However, a few persons werecaptured in the CCTV footage for going and coming back. Nothing wasrecovered from the applicants. The weapons have been recovered 42197.2023BA.odtfrom the spot of the incident. Some of the weapons were recoveredfrom one Badshah Dargah Hill, but not at the instance of anyapplicants. The clothes were recovered. The vehicle has beenrecovered from accused Akash. It was not the weapon used forcommitting the murder. It has also been argued that the eyewitnessesare the family members and planted witnesses. Their statements wererecorded belatedly. The statement of eyewitness Bansi R. Gosavi wasalso not consistent and corroborated by any other witnesses.7.It was further argued that the CCTV footage from the Toll Nakadoes not establish the involvement of the applicants because it wascaptured for a very short time. If the timing from the said CCTV footageis considered, it is highly improbable to accused to complete the crimeand go back. The statement of Ravindra Chavan was also recordedbelatedly. The witness Shubham Bhamre allegedly present on the spotof incident and witnessed the incident, he did not disclose the incidentimmediately. His statement does not inspire the confidence. In fact, heran away from the place of the incident, which is near the hotel. Thereis no evidence that the applicants took their bikes from the Dhaba ofthe deceased after the alleged incident. They prayed that consideringthe imbalanced evidence against them, they may be released on bail.8.The learned APP vehemently argued that the deceased had 53injuries. It was an organized crime. Only the nexus is sufficient to applyMCOC Act. The FIR was immediately registered. There was no 52197.2023BA.odtinordinate delay in recording the statements of the witnesses. FIRmentions a specific role attributed to each of the accused. Negligiblevariance in the statements of the witnesses would not make theprosecution case doubtful. It was brutal murder. Hence, the mentalcondition of the witnesses are to be considered. In the CCTV footage,the accused were seen carrying the weapons. Applicant-Akshay Hakewas driving the bike. Ajay Koli was pillion, he was holding a sword.Rahul was second pillion. He was holding the hockey stick. Atul washolding the sword. Applicant – Dnyaneshwar was driving the bike. Firstpillion Om Shendge was holding sword and second pillion Ganesh wasalso holding sword. All the accused were together while passingthrough the Toll Naka. In the ordinary course of life, no person wouldcarry a deadly weapon with him. Their intention was clear to eliminatethe deceased. The deceased tried to save his life but, all the accusedchased him and assaulted him with deadly weapons. So far as thedelay is concerned, several applications were filed by differentapplicants one after another to protract the trial. In fact, the matter wasready for framing the charges. The learned APP would also argue thatmore than one charge-sheet is not required to be filed against theaccused to apply the MCOC Act. To support his arguments, he reliedon Zakir Abdul Mirajkar Vs. State of Maharashtra and others{2020 DGLS (SC) 1081}. 62197.2023BA.odt9.The learned counsel Mr.Raje for the victim would submit thatthere was deliberate delay on the part of the accused to proceed withthe trial. The applicants were playing tactics and protracting the trial.The material collected against the applicants is cogent and reliable.The offence is serious. It was a determined act to eliminate thedeceased. He would submit that it was an organized crime. Therefore,the MCOC Act has been correctly applied. Therefore, the applicants donot deserve bail.10.In reply, the learned counsel Mr.Deshpande for the applicantsargued that still many applications are pending for orders and hearing.11.The first ground raised is delay in trial cannot be considered asthere were no grounds as such in the bail applications. It was aneleventh hour ground. Therefore, there is substance in the argumentsof the learned APP that unless the details have been supplied, it wasdifficult for the prosecution to explain how the delay has been causedand who is responsible for delay. Since many applications are stillpending show the tendency of the accused, to protract the trial. Theyappear not diligent in filing such applications at the earliest. TheHon’ble Supreme Court in the case of State of Bihar and another Vs.Amit Kumar @ Bachcha Rai (2017) 13 SCC 751 has held that if theoffence is serious and committed with predetermined mind, longincarceration of the accused is no ground to grant bail. Mere delay isno ground to grant bail. The conduct of the parties should also be 72197.2023BA.odtseen. Whether the tactics as argued by the learned APP are playedand the criminals of the serious crimes are responsible to protract thetrial, long incarceration may be a ground to grant bail mechanically. 12.As far as merit is concerned, the prosecution case in brief wasthat the incident happened when the deceased was in his hotel.Around 24 accused went to his hotel on bikes. The CCTV footagereveal that few of the accused were holding the deadly weapons. Theprosecution has evidence that all the accused came on bikes andarranged the deadly weapons. They deliberately covered their faceswith handkerchief. All the accused left at a time. The InvestigatingOfficer has given the details of the accused holding the deadlyweapons and travelling together on the bikes. The first informant wasthe eyewitness to the incident. He had immediately lodged the report.They started abusing the deceased. The deceased and others alsothrew chairs on their person. One of the accused opened fire, so thefirst informant and deceased started running. All the accused chasedthe deceased and killed him with deadly weapons near nullah.Eyewitness has also explained the assault on the person of thedeceased. Eyewitness has specifically stated that immediately afterthe incident all the accused fled away on the motorcycles. Prima facie,the evidence reveal that the applicants were gathered together with amotive to eliminate the deceased and travelled on the bikes armedwith deadly weapons. The first informant and the deceased were 82197.2023BA.odtknowing the applicants and other co-accused. The accused were largein number. Therefore, in such a situation, it could not be expected fromthe first informant to specify the specific role of each applicant. It is tobe assessed what was their common object. Their pre-incident conductand post-incident conduct is sufficient to believe that they had acommon object. They came all together with the deadly weapon andmercilessly killed the deceased causing him around 56 injuries andimmediately ran away. If some discrepancies are there, those wouldnot be disbelieved at this juncture, because it was an act committed bya group of people with common object. Reading the papers it showsthat it was a predetermined act and committed with a terror. Theevidence collected against all accused in this crime shows theconnection with the crime. All accused were aggressive and ofdetermined mind to eliminate the deceased. Their acts apparentlycreated a terror in the locality. Therefore, some of the discrepancieswhich may be explained during the trial cannot be considered at thisjuncture for granting them bail.13.It may be observed in short that the acts of the accused werewith a common object. It was brutal murder of the deceased withdeadly weapons without showing any mercy. So, in such a case,granting bail to such hardened criminals would be dangerous to thesociety.
Decision
92197.2023BA.odt14.Both the learned counsel for the applicants relied upon the caseof Javed Gulam Nabi Shaikh Vs. State of Maharashtra andanother, Criminal Appeal No.2787 of 2024 (Arising out of SLP (Cri)No.3809 of 2004), dated July 3, 2024. However, that can not beconsidered in these cases in view of the above observations. Hence,the bail applications stand dismissed.15.Criminal Application no. 4359 of 2024 stands disposed of. [ S. G. MEHARE, J. ]sga