High Court
Legal Reasoning
2089.2023BA-4- stated by Nitin Bhoi that Bhatya assaulted Rahul. Though otherco-accused are released on bail by order of this Court in BailApplication No.1512 of 2023, dated 27.09.2023, their role is differentthan this applicant. Further, their names are subsequently added withgeneral allegations and without specific role. Role of this applicant isvery specific that he assaulted Rahul with knife on his stomach.Possibility of pressurizing the prosecution witnesses and tamperingthe evidence on his part cannot be ruled out. Further, he is bookedfor serious crime of murder for death penalty and life imprisonment isprescribed for it. At the same time, victims near and dear shall notfeel that there is no justice. 7.In the case of Deepak Yadav Vs. State of UttarPradesh and another, (2022) 8 SCC 559, the Hon’ble supremeCourt in para 22 has laid down eight guidelines. Para 22 reads asunder:- “22.As reiterated by the two-Judge Bench of this Court inPrasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC496 : (2011) 3 SCC (Cri) 765, it is well-settled that the factors tobe borne in mind while considering an application for bail are:(i)whether there is any prima facie or reasonable groundto believe that the accused had committed theoffence;(ii)nature and gravity of the accusation; 2089.2023BA-5- (iii)severity of the punishment in the event of conviction;(iv)danger of the accused absconding or fleeing, ifreleased on bail;(v)character, behaviour, means, position and standing ofthe accused;(vi)likelihood of the offence being repeated;(vii)reasonable apprehension of the witnesses beinginfluenced; and(viii)danger, of course, of justice being thwarted by grantof bail.8.In the case of Shahzad Hasan Khan Vs. Ishtiaq HasanKhan and another, (1987) 2 SCC 684, para 6“6.….. We are constrained to observe that Justice D. S.Bajpai refused to grant the prayer and proceeded to grant bailsimply on the ground that the liberty of a citizen was involvedwhich is the case in every criminal case more particularly in amurder case where a citizen who let alone losing liberty has losthis very life. Another ground for granting bail was that trial wasdelayed, therefore the accused was entitled to bail. This alsocannot be helped if a litigant is encouraged to make half a dozenapplications on the same point without any new factor havingarisen after the first was rejected. Had the learned Judgegranted time to the complainant for filing counter-affidavit,correct facts would have been placed before the court and itcould have been pointed out that apart from the inherent dangerof tampering with or intimidating witnesses and aborting thecase, there was also the danger to the life of the main witnessesor to the life of the accused being endangered as experience oflife has shown to the members of the profession and thejudiciary, and in that event, the learned Judge would have beenin a better position to ascertain facts to act judiciously. No doubtliberty of a citizen must be zealously safeguarded by court,nonetheless when a person is accused of a serious offence likemurder and his successive bail applications are rejected on meritthere being prima facie material, the prosecution is entitled toplace correct facts before the court. Liberty is to be secured 2089.2023BA-6- through process of law, which is administered keeping in mindthe interests of the accused, the near and dear of the victim wholost his life and who feel helpless and believe that there is nojustice in the world as also the collective interest of thecommunity so that parties do not lose faith in the institution andindulge in private retribution. Learned Judge was undulyinfluenced by the concept of liberty, disregarding the facts of thecase.”9.Considering the ratio and guidelines in the above case lawsand the entire material on record, the applicant is certainly notentitled for bail. The application, therefore, deserves to be rejected. Itis rejected. (SANJAY A. DESHMUKH, J.) sga
Arguments
2089.2023BA-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD904 BAIL APPLICATION NO. 2089 OF 2023GANESH ALIAS BHATEYA SUBHASH JAGTAP (PATIL)VERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant:Mr.Rajendra Deshmukh, Senior Advocate i/bMr.Devang R. Deshmukh, Ms. Rakshanda Jaiswal and Mr. Vishal ChavanAPP for Respondent/State : Mrs.Pratibha J. Bharad Advocate for assist to P.P. : Ms.Nilofar G. Khan h/f Mr. V.P. Raje ... CORAM : SANJAY A. DESHMUKH, J. DATED : 23rd FEBRUARY, 2024. PER COURT :- 1.The applicant is seeking bail under section 439 of theCriminal Procedure Code, 1973 (for short, “Cr.P.C.”). The applicanthas been arrested in connection with crime No.0040 of 2023registered with Shirpur City Police Station, Shirpur, Tq. Shirpur,Dist.Dhule, for the offences punishable under sections 302, 143, 147,148, 149, 120-B and 201 of the Indian Penal Code.2.Informant averred in the report that before 2 years quarreltook place between his son Rahul and this applicant Bhatya @Ganesh Subhash Patil. When the applicant went to convince thisapplicant, he and his brother beaten him, therefore, there was enmitybetween them.3.It is further averred in the report that on 04.02.2023 atabout 6 p.m., one Nitin Bhoi came to him on his shop and told that 2089.2023BA-2- the applicant has assaulted his son Raul. He immediately went toIndira Hospital. He saw that there was severe injury to a stomach ofRahul. That time doctors directed him to took him to Cottage hospital.There doctor declared that he is no more. Informant got informationabout that incident from Nitin Bhoi and he told him that near toKrantinagar at R.C. Patel School, he saw Rahul having bleedinginjuries and the applicant and other co-accused were having sword,knife and other weapons in their hands. Therefore, the report waslodged against the applicant and others.4.The learned advocate for the applicant submitted that thereport is filed on hear-say information given by Nitin Bhoi. Theapplicant is falsely implicated in the crime. There is unreasonabledelay caused for recording statements of the witnesses. Theco-accused are released on bail by this Court. The applicant hasroots in the society. He has no criminal antecedent. Considering therule of parity, he lastly prayed to allow the application.5.The learned APP for the State strongly opposed theapplication and submitted that the applicant is booked for seriouscrime of murder of son of informant. Criminal antecedents of theapplicant are pointed out namely Crime No.184/2014 under sections326, 323, 504, 506 of the Indian Penal Code, Crime No.282/2018under section 395 of the Indian Penal Code and under section3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention 2089.2023BA-3- of Atrocities) Act, Crime No.107/2019 under sections 324, 34 of theIndian Penal Code and Crime No.223/2019 under sections 324, 323of the Indian Penal Code. The learned advocate assisting toprosecution also strongly opposed the application and submitted thatthe applicant is prime accused and he is wirepuller of this incident.Therefore, rule of parity cannot be made applicable to this applicant.There is evidence of witnesses, who have seen the incident ofassault. If the applicant is released on bail, he will certainly pressurizethe prosecution witnesses and considering his criminal antecedents,he cannot be released on bail. It is lastly submitted to reject theapplication.6.Perused the charge-sheet, particularly the report andstatements of witnesses. No doubt, the statements of the witnessesare not promptly recorded after the incident, but only on that countand for the inaction or mistake of the Investigating Officer, the entireincident of assault and commission of murder cannot be disbelievedat this stage. Meticulous consideration of the evidence is notexpected at this stage. The postmortem report shows that Rahulsustained 8 injuries. A stab injury is sustained to him on his stomach.Admittedly, knife used for commission of murder of Rahul is seizedwhich was lying on the spot of incident and clothes having blood stainwere seized at the instance of this applicant. The witnesses SachinBhoi and Nitin Bhoi witnessed that incident and their statements areon record. In the initial part of the FIR, the name of this applicant is