1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.908 OF 2010 Prashant Laxman Deshmukh .... Applicant. V/s The State of Maharashtra ..... Respondent. Mr. Kuldeep S. Patil for the applicant. Mrs. M.R. Tidake, APP for the State. CORAM: V. M. KANADE, J. DATE : 15th April, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the applicant and the learned APP for the State. 2. This is a second application for bail filed by the applicant. His first application for bail was rejected by this Court on 27/1/2009. Liberty, however, was granted to the applicant to apply for bail if the trial is not over within a period of six months. Pursuant to the said liberty which was granted by this Court, applicant has filed this second application for bail. 3. It is firstly submitted by the learned Counsel for the applicant that there is change in the circumstances 2 inasmuch as after the application for bail of the applicant was rejected by this Court, the application for discharge filed by the main accused i.e. original accused No.6 has been allowed and he has been discharged by the Trial Court. Secondly, he submitted that though the applicant was arrested on 18/09/2005, the prosecution has not filed the report of the Ballistic Expert to show that the empty cartridges which were found near the body of the deceased were fired from the same revolver which was recovered from the applicant. 4. Brief facts are that the father of accused No.6 was killed at Khandala while he was returning to his Bungalow. A complaint was lodged and the prosecution case is that his son had given a contract to the underworld’s Don stationed at Bangkok to kill his own father. Accused No.6 was arrested and, later on, during the course of investigation of a complaint which was filed under section 399 read with section 400 of the Indian Penal Code, the applicant was apprehended by the police. 5. According to the prosecution, they seized two revolvers which were found on the person of the applicant. Two blank cartridges were found near the dead body of the deceased. According to the prosecution, the present applicant had used the revolver which was found on his person for the purpose of killing the deceased and the said empty cartridges belong to the same revolver which was used by the applicant and 3 from which the bullets were fired. There is no other material on record to show the involvement of the present applicant. 6. The learned Counsel appearing on behalf of the applicant firstly invited my attention to the order of discharge passed by the Sessions Court in favour of original accused No.6 wherein the entire material on record has been considered and the Court came to the conclusion that no case is made out against the accused No.6. The learned Counsel appearing on behalf of the applicant secondly submitted that Ballistic Expert’s opinion has not been filed so far by the prosecution. Thirdly, he invited my attention to the arrest panchanama with respect to the complaint which was filed against the present applicant and he submitted that what was recovered was the revolvers and what was found near the deceased was 9 mm empty cartridges and accordingly the said 9 mm empty cartridges could not have been fired from the revolver since empty cartridges remain in the revolver itself after they are fired. 7. In my view, there is much substance in the submissions made by the learned Counsel appearing on behalf of the applicant. Firstly, the applicant is in jail since last about four years. Secondly, liberty was granted to the applicant to apply for bail if the trial is not over within a period of six months. Thirdly, Ballistic Expert’s opinion has not been filed so far and, prima facie, 9 mm empty cartridges found near the body of the deceased cannot be linked to the revolver 4 recovered from the person of the applicant since it is an admitted position that empty cartridges of revolver remain in the chamber of the Revolver and, as such, it cannot be said that the said revolver was used for committing murder of the deceased. Fourthly, there is change in the circumstances. The main accused i.e son of the deceased who had allegedly given contract has been discharged by the Sessions court. The said order has been passed after going through the entire evidence on record. The only other material which is on record against the present applicant is that one photograph of the deceased was seized from the present applicant. The seizure of the said photograph of the deceased by itself cannot be a ground for coming to the conclusion that the applicant has committed murder of the deceased. It is inconceivable that the applicant would continue to carry the photograph of a person who is killed, for four months after the incident. It is further submitted by the learned APP appearing on behalf of the State that the applicant is involved in some other cases and is a member of Chota Rajan’s gang. There is nothing on record to indicate that the sanction was obtained by the prosecution under section 23 of the MCOC Act and that the provisions of MCOC Act are made applicable to the present case. Since sanction was not sought from the competent authority under the provisions of MCOC Act, merely because it is alleged that the applicant is a member of Chota Rajan’s gang, that by itself would not be a ground to refuse the bail to the applicant. Further, merely because some other cases are pending 5 against the present applicant also cannot be a sole ground to reject the application for bail filed by the applicant, if his presence can be secured by imposing strict conditions. 8. In view of the changed circumstances as mentioned hereinabove, application for bail will have to be entertained and the submissions made by the learned Counsel appearing on behalf of the applicant will have to be accepted. 9. Applicant, under these circumstances, be released on bail in the sum of Rs 15000/- on execution of P.R. Bond with one or two sureties in the like amount. One of the sureties shall be a local surety. Applicant shall handover his passport, if any, to the Investigating Officer. Applicant shall report to the concerned Police Station twice in a month. He shall not threaten any of the prosecution witnesses. If any complaint is received against him, his bail shall be cancelled by this Court. 10. Application is accordingly allowed and disposed of. (V.M. KANADE, J.) 6