1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO.548 OF 2009 IN CRIMINAL APPEAL NO.441 OF 2009 Manohar Yeshwant Kadam ... Applicant V/s. The State of Maharashtra ... Respondent Mr. Raja Thakare with Mr. A.M. Chimalker i/b. Ms. Poonam N. Ankleshwarya & Amba Salelkar for the Applicant. Ms. Usha Kejriwal, APP, for Respondent-State. Mr. S.D. Rupawate with Mr. G.P. Lasure and Mr. Santosh J. Prasad for the Intervenors. CORAM : A.V. NIRGUDE & R.G. KETKAR, JJ. [VACATION COURT] DATE : 22ND MAY, 2009. P.C. : 1. The appellant has filed this application seeking bail pending the appeal. it has to be decided under Section 389 of the Cr.P.C. which provides suspension of sentence pending the Appeal and release of the appellant on bail. 2. The appellant had been charged under Section 304 of the IPC and has been convicted under the same offence on 7th May, 2009 by the learned Additional Sessions Judge, Siwri 2 at Bombay in Sessions Case No.22 of 2003 and has been sentenced to suffer life imprisonment and to pay fine of Rs.1,000/- in default to suffer R.I. for three months. The prosecution case in brief can be stated as under : 3. On 11th July, 1997 at about 6:30 a.m. or so a garland of chappals was found around the neck of the statue of Dr. Babasaheb Ambedkar installed at Ramabai Colony, Ghatkopar. The news of this sacrilege spread soon and the inhabitants of the colony gathered near the statue and near the eastern express high way. The main control room police informed this fact to the North East Control Room, Chembur which further directed the Pant Nagar Striking Mobile Force having unit of state reserve police force (SRPF) to rush to the spot. The appellant was the Police Sub-Inspector of SRPF as the platoon commander who was on duty as the in-charge of the striking mobile force took his van and his armed men to the spot. When he reached the spot, he found that there was no space to park his van. He also found that the mob was pelting stones and due to which the traffic on the road blocked. It is alleged that considering this situation on the highway, the appellant took his van from wrong side on the road and then ordered his rifle armed constables to open fire to control and disperse the mob. In the firing ten persons lost their lives 3 and about 12 persons sustained serious injuries. The appellant made a report of this incident to the authorities. The offence came to be registered at Pant Nagar Police Station vide a Crime No.299 of 1997. The Government of Maharashtra thought it fit to constitute a Commission of enquiry headed by Shri Justice Gundewar. The Commission of enquiry submitted its report to the Government. It was held there that the police did not take proper steps to deal with the crowd and dispersal before opening of fire. The Commission also held the appellant responsible for opening of fire and causing death of ten persons etc. Rather belatedly the Government of Maharashtra on 24th August, 2001 issued order to take penal action against the appellant. On 30th August, 2008 the Crime No.71 of 2001 was registered against the appellant. The offences punishable under Sections 304 and 338 of the IPC were alleged against the appellant. The appellant came to be arrested in this case on 20th December, 2002. He was remanded to police custody and then he was taken in judicial custody. Ultimately, on 3rd January, 2003, the learned Additional Sessions Judge, Bombay released the appellant on bail. It is pertinent to note that before the appellant can be arrested on 20th December, 2002 and after the crime was registered against him on 30th August, 2001, the appellant tried to secure bail 4 anticipating his arrest. But he failed to obtain a favourable order. Thereafter, the learned Additional Sessions Judge conducted the trial and as said above on 7th May, 2009, he convicted the appellant for offence punishable under Section 304 of the IPC and sentenced him to suffer imprisonment for life etc. 4. We heard the submissions of the learned Counsel appearing for the appellant as well as the State of Maharashtra and the Intervenors at length. We are inclined to admit the Appeal and call for R & P of the lower Court and for this there is practically no opposition of the respondents/intervenors. They staunchly opposed the application for bail. 5. The present application, as said above, is pressed for suspension of sentence and bail. The question is whether the appellant after his conviction during the pendency of this Appeal deserves a favourable order under Section 389 of the Cr.P.C. 6. With the help of the learned Counsel appearing for the parties, we went through the impugned judgment and we were also taken through the some of the true copies of the 5 depositions that are annexed to the Appeal Memo. The prosecution in all examined 38 witnesses in this case. 7. Mr. Thakare, the learned Counsel appearing for the appellant, mainly raised three points in order to press the application for bail. He first said that the prosecution of the appellant was bad for want of sanctions under Section 161 of the Bombay Police Act and under Section 132 of the Cr.P.C. The second point of Mr. Thakare is that in view of the peculiar and complicated nature of the factual aspect of this case, there is need of reappreciation of the entire evidence. He asserted that depositions of the some of the prosecution witnesses were unjustly ignored etc. Mr. Thakare thirdly asserted that while granting sanction under Section 20 of the SRPF Act, the provisions of Section 11 were not taken into account and according to him this lapse is almost fatal to the prosecution case. He pointed out that this point was not raised before the trial court. Lastly, Mr. Thakare also asserted that in the facts and circumstances of the case it is not undesirable for releasing the appellant on bail despite his conviction under Section 304 of the IPC. Let us now consider these objections one by one. 8. Mr, Thakare first asserted that the prosecution case is bad for want of sanctions under Section 161 of the Bombay 6 Police Act and under Section 132 of the Cr.P.C. He placed reliance on various judgments to highlight the importance of the sanctions under above mentioned Sections. To this, the learned APP and the Advocate appearing for the Intervenors asserted that the objections regarding lack of sanction were taken by the appellant before the charge was framed and such objections were rejected through the speaking orders of the trial court. It was further suggested that these points are no more relevant and cannot be argued now. But we do not think that this important point which is indicating alleged serious lapse on the part of the prosecution should be rejected only because at the trial stage such point was raised and was rejected. In our view the lack of sanction under Section 162 of the Bombay Police Act and under Section 132 of the Cr.P.C. deserves serious consideration and we think that the appellant has a strong defense based on this objection. 9. Mr. Thakare then suggested that while granting sanction for prosecution under Section 20 of the SRPF Act. The Authority did not take into account the purport of Section 11 of the SRPF Act. It seems the point based on Section 11 of the SRPF Act was not raised when the matter was finally argued before the trial Court. Section 11 of the said Act reads as under :- 7 “11 (1). When employed on active duty at any place under sub-section (1) of section 10, the senior reserve police officer of highest rank not being lower than that of a Naik present shall be deemed to be an officer in charge of a Police Station for the purposes of Chapter IX of the Code of Criminal Procedure, 1898. 11(2). Notwithstanding anything contained in sections 100 and 103 of the Indian Penal Code, a reserve police officer employed as aforesaid may, when there is reasonable apprehension of assault on himself or any reserve, police officer of of damage or harm to any property or person which or whom it is his duty to protect use such force to the wrong doer or assailant as may be reasonably necessary even though the use of such force may involve risk of death of the wrong doer or the assailant or any other person 8 assisting such wrong doer or assailant.” 10.On the plain reading of this Section it is clear that a reserve police officer is protected for using force while he has reasonable apprehension of assault on himself or his subordinates or of damage or harm to any property or person which or whom it is his duty to protect. The protection afforded by Section 11 is specifically mentioned to be in addition to the protection of "right of self defense". So we think this aspect of the matter deserves due consideration and would afford a strong arguable point to the appellant. 11.Mr. Thakare then suggested that there is possibility of discussion on the appreciation of the evidence of the prosecution. He suggested that the depositions of prosecution witness No.18, 24 and 31 are not properly appreciated by the learned trial Judge. He took us through some portions of the depositions and showed us various admissions given by these important prosecution witnesses in favour of the appellant. He then showed us the relevant part of the Judgment. The learned Judge of the Trial Court disbelieved the depositions of these three witnesses on the ground that these witnesses at the relevant time were 9 working under the appellant and would therefore take his side. Admittedly, these three witnesses were not declared hostile. Whatever they have admitted thus would also be the prosecution evidence. Suffice it to say that there is a strong defence based on appreciation of evidence and the appellant will be able to argue this aspect of the matter at the time of final hearing of the Appeal. 12. Mr. Thakare then argued that the appellant has been on bail since 2003, he has clean antecedents and had attended the trial punctually. Although this aspect alone would not be sufficient to release the appellant on bail after his conviction, the learned APP rightly pointed out that the conduct of the appellant during the trial and his being on bail during the trial are not as relevant a factor as the evidence that has come on record against the appellant. However, in our opinion, this aspect of the matter is relevant in the light of various viable and arguable defenses being available to the appellant for the final hearing. 13.The learned Counsel appearing for the Intervenors vehemently argued and pointed out that the appellant avoided arrest and tried to seek anticipatory bail in this case prior to his arrest. He even suggested that the State covertly protected the appellant all through out the 10 proceedings. He pointed out instances as to how the Intervenors at every stage were required to approach the High Court for various actions that were required to be taken against the appellant by the State. We think these aspects are at this stage are not relevant. Indeed due to the consistent efforts of the Intervenors and their sympathizers, the appellant was brought before the Court and was tried in this case. 14.It is also one of the important factors that the trial Court has recorded a judgment of conviction rejecting his defense of right of private defense etc. In this background while considering his application for bail and suspension of sentence under Section 389 of the Cr.P.C., the relevant factors that are required to be taken into account by the Court while considering the prayer for bail in a case involving serious offence are as under :-(i)The nature of accusation made against the appellant, (ii)the manner in which the crime is alleged to have been committed, (iii)the gravity of the offence and (iv) the desirability of releasing the appellant on bail after he was convicted for committing offence of serious nature. The above mentioned factors are as stated by the Supreme Court in the case of Vijay Kumar versus Narendra and another reported in (2002) 9 Supreme Court cases page 364. 11 15.There is no difficulty in coming to a conclusion that the offence in this case is grave. Due to alleged act of the appellant as many as 10 persons lost their life and of twelve sustained injuries. But one must also see the nature of accusation made against the accused. We have narrated above the prosecution case. It is not in dispute that the appellant was commanding a platoon of police which was called at a spot where they saw unruly mob pelting stones and committing acts of arson. The situation was quite grave and tense. It required immediate action. The appellant, it seems, was the first senior police officer to reach the spot. He then took certain action. It is the prosecution case that he initially tried to disperse the mob by telling them to go away. The was the mob was unruly and was pelting stones and was committing acts of arson. This was happening near a highway where the traffic got stranded. A luxury bus was found stranded near the scene offence. The mob attacked the bus. The occupants of the buses hurriedly left the bus. The mob then tried to set fire to the bus. The fact as to whether the mob tried to set other vehicles especially the LPG tankers which were also stranded on the road on fire is rather disputed but it is a fact admitted by both the parties that the LPG tankers where the stranded on the road. At such emergent situation it is alleged that the 12 appellant instead of following standard procedure before resorting to firing at unruly mob rather, hurriedly opened fire at the mob. It is alleged that there were seven police constables having rifles in their hands at the disposal of the appellant. It is alleged that the appellant then directed the constables to start firing. The constables who had used their guns in the firing at the instance of the appellant are the prosecution witnesses. They deposed as to what happened at the relevant time. Taking into account all the depositions the learned judge in the trial court drew a conclusion that the appellant rather in haste ordered firing and due to which the diseased lost their lives. The nature of accusation is thus not that the appellant on purpose without provocation opened fire and caused deaths. It is also relevant to mention that it is not the prosecution case that the appellant personally handled any weapon at the relevant time. It is an admitted fact that the appellant did not use any gun and did not fire shots. It is neither the case of a prosecution that the appellant had the personal grudge against anyone from the mob etc. Admittedly though there occurred 10 deaths, the prosecution does not accuse the appellant of committing murders. This makes a big difference in the nature of accusation. 16. We have already narrated in short as to how and in what 13 manner the offence was committed. The prosecution does not say that the appellant personally used weapons to fire shots. 17.Let me now consider the desirability of releasing the appellant on bail despite having been convicted for offence under section 304 IPC. The relevant factors that are required to take into account are as under : 1. Whether the appellant was on bail during the trial; 2. For how long the trial lasted; 3. How was the conduct of the appellant during the trial; 4. How long this appeal would remain pending; 5. Whether there is any apprehension of the appellant jumping the bail... 18.The appellant was on bail during the trial. His conduct during the trial was not blameworthy. The trial lasted for few years. This appeal would also remain pending for quite some time. Since the appellant is in government service there is no possibility of his abscondance. 19.Although in the application relief in respect of suspension of sentence has not been specifically sought having regard to the prayers in the appeal memo and the provisions of Section 389 of the Cr.P.C., we are of the opinion that while granting bail to the appellant pending the Appeal, the 14 execution of sentence also deserves to be suspended. Hence the order : “ O R D E R” The substantive sentence awarded to the appellant stands suspended. The appellant is released on bail of Rs.50,000/- with one surety in a like amount. The appellant is given facility of cash bail for a period of three weeks from today. At this stage Shri Rupawate, the learned Counsel appearing for the Intervenor sought stay to the effect of this order. His request is declined because the order is releasing the appellant on bail. Concerned parties to act on the authenticated copy of this order. [R.G. KETKAR, J.] [A.V. NIRGUDE, J.]