High Court
Legal Reasoning
126 BA.2219.2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.26 BAIL APPLICATION NO. 2219 OF 2023Bharat S/o Vitthal Edke.… ApplicantVersusThe State of Maharashtra.… Respondent...Mr. Rahul R. Karpe, Advocate for Applicant.Mrs. Pratibha J. Bharad, APP for Respondent/State....CORAM :SANJAY A. DESHMUKH, J.DATE :22nd January, 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.130 of 2014, registered with Jamkhed Police Station, DistrictAhmednagar, for the offences punishable under Sections 396, 341,323, 504, 506(2) of the Indian Penal Code, Sections 3/25 and 4/25 ofthe Arms Act and Sections 3(1)(i) and 3(4) of the Maharashtra Controlof Organised Crime Act, 1999 (for short “MCOC Act”). 226 BA.2219.2023.odt3It is alleged that the applicant and other accusedcommitted murder of Shankar Thanekar. It is alleged that byinformant Malchand Bapusaheb Naik, resident of Peth Vadaj, TahsilKandhar, District Nanded that he was leader of Shivsena Party andChief of Taluka Kandhar and Shankar Mahadeorao Thanekar, residentof Jintur, Tahsil Mukhed was President of Shivsena Party for Mukhed,Manoj @ Ramrao Jivanrao Gond was Vice-President of ShivsenaParty, Mukhed, Shivaji Shankarrao Gedewar was Chief of ShivsenaParty Mukhed city and Shankar Narayanrao Lute was Kisan-SenaDistrict Chief, Nanded. The elections of Legislative Assembly wereforthcoming and the names of the contesting candidates for MukhedConstituency were to be finalized. On 31st August, 2014 at about 11:00pm, the informant alongwith Shankar Thanekar, Manoj Gond, ShivajiGedewar, Shankar Lute proceeded towards Mumbai by Innova car,which was owned by Janardhan Shettiwad and driven by AvinashBailke. The discussion took place at Mumbai about prospectivecandidate of the party for the forthcoming elections. On 2ndSeptember, 2014, they all started return journey through Mumbai –Pune – Ahmednagar. At about 11:00 pm, they had dinner at HotelSandip, Kedgaon Shivar at Pune-Nagar highway. They all proceededtowards Ashti-Jamkhed road and had tea near the Toll-Naka ofPandhari village. That time, Shankar Thanekar took the steering ofsaid car and started to drive it, because the driver Avinash Bailke was 326 BA.2219.2023.odtfeeling drowsiness. The informant sat near to the seat of driver.Middle seat was taken by driver Avinash Bailke and Shankar Lute.Backside seat took by Manoj Gond and Shivaji Gedewar. On 3rdSeptember, 2014 at about 00:45 hours, when they reached nearJamkhed, one white colour four-wheeler without number plate andwithout logo of the company, looking like Zylo car, overtook them andparked their vehicle in front of the vehicle of the informant. Then 7 to8 unknown persons alighted from the said car and started demandingcash and valuables. They pulled out the informant, Shankar Thanekar,Avinash Bailke and Shankar Lute and started assaulting them by fistsand kick blows and threatened on the point of revolver. One amongstthem, assaulted on the right-side of chest of Shankar Thanekar withthe help of weapon like Gupti and killed him on the spot. They tookcustody of Innova car and fled away towards Jamkhed side. That time,they took away two tolas golden ring, ten grams silver rings, cashamount of Rs.9,500/-, mobile handset of Carbon company. Reportwas lodged on the same day at about 03:45 hours at Jamkhed PoliceStation. The other co-accused were arrested, however, this applicantwas not traced out and therefore, trial proceeded against the fiveaccused. The MCOC Act was invoked against the applicant later onand after that, charge-sheet was filed in the Special Court, (MCOCAct), Nashik. Special (MCOCA) Case No.02 of 2015 proceededfurther and decided on 31st October, 2018. Those five accused were
Legal Reasoning
426 BA.2219.2023.odtacquitted and as per the directions of the learned Special Judge,(MCOC Act), Nashik, in the operative part of the judgment, in clause(5), directions were given to the investigating officer to file separatecharge-sheet against absconding accused i.e. this applicant. Theapplicant is arrested on 17th April, 2022 and since then he islanguishing in the jail. 4The learned counsel for applicant submitted that theprocedure under Section 299 of the Code of Criminal Procedure wasnot followed by the investigating officer prior to submitting the charge-sheet. No any attempt was made to arrest the applicant. Theapplicant is resident of Mira Bhaindar East, District Thane. He hasroots in the society. He will not flee away from trial. He is labourer.He has no criminal antecedents. There is no prima-facie evidenceagainst him. The applicant is ready to abide all the conditions. It islastly prayed to allow the application. 5The learned APP for the State strongly opposed theapplication and submitted that the applicant is involved in seriouscrime and he is absconding since last eight years. Though the trial isconcluded and other accused are acquitted, it cannot be inferred thatthe applicant is also innocent and likely to be acquitted. He is arrestedin other three crimes. The list of these three crimes shows that the 526 BA.2219.2023.odtapplicant was involved in similar type of crimes registered underSections 392, 395 396 of the Indian Penal Code alongwith the ArmsAct. The three cases bearing SC No.17 of 2015, SC No.385 of 2014and SC No.371 of 2014, are pending in the Sessions Court,Ahmednagar. The learned APP also pointed out sub-section (5) of theSection 21 of the MCOC Act, which provides that the Court whilegranting bail has to consider whether the accused was released on bailor not in other crimes. It is lastly prayed to reject the application. 6Perused the charge-sheet, particularly, report as well asthe judgment of the learned Special Judge, (MCOC Act), Nashik. Allthe accused are acquitted, however, that is no ground to release thisapplicant on bail. If the criminal antecedents of this applicant areconsidered, he is prosecuted in other three cases. Now the specialcase is pending. If the statements of witnesses are considered, prima-facie, those do not disclose the description of this applicant. The testidentification parade of the applicant was also not conducted. No anyincriminating article is seized at the instance of this applicant.Considering all these aspects, though there are three crimesregistered against the applicant and mandate of sub-section (5) ofSection 21 of the MCOC Act, the application deserves to be allowed oncertain stringent conditions to secure the presence of this applicant forthe trial. Hence, the following order:- 626 BA.2219.2023.odtO R D E RI.The application is allowed.II.The applicant in connection with Crime No.130 of 2014,registered with Jamkhed Police Station, District Ahmednagar, forthe offences punishable under Sections 396, 341, 323, 504,506(2) of the Indian Penal Code, Sections 3/25 and 4/25 of theArms Act and Sections 3(1)(i) and 3(4) of the MaharashtraControl of Organised Crime Act, 1999, be released on bail onfurnishing two personal bonds of Rs.1,00,000/- (Rupees OneLakh only) with sureties of the like amount on followingconditions:- a)The applicant shall not pressurize the prosecutionwitnesses. b)The applicant shall not tamper with the prosecutionevidence, in any manner. c)The applicant shall attend each and every case before theSpecial Court. d)If the applicant remains absent without any justification forcontinuous three dates, the Special Court would be atliberty to cancel the bail without reference to this Courtand proceed further with the trial. e)The applicant shall not leave the Maharashtra Statewithout prior permission of the Special Court. [ SANJAY A. DESHMUKH, J. ] nga