1applns 3785-09+6 ors IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION Nos. APPLICANT/S RESPONDENT/S 3785/2009 Manohar Gopal Patil State of Maharashtra & ors 3786/2009 Manohar Gopal Patil State of Maharashtra & ors 3713/2009 Manohar Gopal Patil State of Maharashtra & ors 3714/2009 Manohar Gopal Patil State of Maharashtra & ors 3700/2009 Manohar Gopal Patil State of Maharashtra & ors 3710/2009 Manohar Gopal Patil State of Maharashtra & anr 4091/2009 The State of Maharashtra Kanha Padaji Gharat Mr S.R.Chitnis, Sr counsel with Mr Nitin Sejpal and Ms Pooja Bhojane for the Applicant. Mr Y.M.Nakhawa with Mr P.S.Hingorani, A.P.P. for the State. Mr Hrishikesh Mundargi with Niranjan Mundargi for Respondent No.2. CORAM:- A.R. JOSHI, JJ. DATE :- 30TH JUNE, 2010. P.C.:- 1. Heard rival submissions at length on earlier dates and matter is taken up for passing final order. 2. This common order is passed in all the seven applications as the respondents-original accused who are involved in the same offence 2applns 3785-09+6 ors arising out of CR No.I-45/2009 registered with the N.R.I.Sagari Police Station, Panvel for the offence punishable under Sections 143, 144, 147, 148, 149, 302 of Indian Penal Code (I.P.C.) read with Sections 3 and 25 of the Arms Act. 3. Criminal Application Nos. 3785/2009 and 3786/2009 are preferred by the original complainant for cancellation of bail granted to the respective accused persons who are respondents in the respective applications. Criminal Application Nos. 3713/2009 and 3714/2009, 3700/2009 and 3710/2009 are preferred by the same complainant for cancellation of regular bail granted in favour of the respective accused who are the respective respondents in the said applications. Criminal Application No. 4091/2009 is preferred by the State Government for cancellation of regular bail granted in favour of respective accused who is respective respondent in the said application. It may be mentioned that Criminal Application Nos.3710/2009 and 4091/2009 are preferred for cancellation of the bail granted to the same accused i.e. by name Kanha Padaji Gharat. 4. Prior to appreciating the rival arguments certain factual position as to what is prima facie material against the respondents-accused persons and what are the different events happened during the pendency of investigation, are required to be narrated in rather details in order to appreciate, whether these are the fit cases in which the prayer clauses for cancellation of anticipatory bail and/or regular bail are required to be accepted or not. 3applns 3785-09+6 ors 5. On the night of 13th March, 2009 at about 14:45 p.m. at Ulva, taluka Panvel, District Raigad in front of house of one Ramesh Balurao Mundekar there was some commotion and there was assault on the son of the complainant at the hands of rival party members including main accused Mahadeo Rama Madhavi, Sarpanch of the village, one Jagdish Pandurang Madhavi and Narayan Pandurang Madhavi. In the said assault, said named persons used sword and sickle and inflicted injuries on the head of the complainant. Other co-accused i.e. all the respondents in the present applications were also present on the spot, holding sticks in their hands and they also assaulted Rajesh Manohar Patil-son of the complainant (hereinafter referred to as the “deceased”) by means of such sticks. A sort of terror like atmosphere and riot like situation was created by all the accused persons including the respondents in the present applications. Due to the said injuries victim Rajesh died. In the postmortem there are about 17 injuries mentioned. Out of them five or six injuries are incised wounds and all other wounds are contusions and abrasions probably caused by use of the sticks. 6. It is a factual position that out of the same incident of murder and rioting committed on 13.3.2009, counter cases came to be lodged with concerned police station. First in point of time C.R. No.I-44/2009 was lodged by Sarpanch of the village Gram Panchayat – one Mahadeo Madhavi against rival party i.e. the witnesses and the deceased in the present matter for the offences registered under C.R. No.45/2009. Said Mahadeo Rama Madhavi lodged C.R. No.I-44/2009 for the offence 4applns 3785-09+6 ors punishable under 324 of I.P.C.and offences of rioting. At this juncture, it must be mentioned that during the hearing of all the bail applications before the learned Additional Sessions Judge, this factual position of filing of counter cases was never brought to the notice of the said Court by the prosecuting agency and also by the respondents herein who are the accused in C.R.No.45/2009. So far as the present applications are concerned, present respondents were charged for the offence punishable under Section 302 and offences of rioting, using deadly weapons in such rioting and in fact causing murder of the deceased - who was the son of the first informant. It appears that said C.R.No. 45/2009 came to be lodged late after the registration of C.R.No.I-44/2009 lodged by Mahadev Madhavi, Sarpanch of the village Gram Panchayat as mentioned above. 7. During the arguments on the present applications for cancellation of respective bails granted to the respondent, learned Senior counsel Shri S.R.Chitnis placed much reliance on this factual position of lodging of counter cases and not bringing the said fact before the learned Additional Sessions Judge during the hearing of respective bail applications. During the argument it is also brought to the notice of the Court that the statements of four witnesses by name Jaideep Manohar Patil, Abhay Pandharinath Madhavi, Nitin Kishor Madhavi and Sameer Damodhar Madhavi were recorded much belatedly on 8.4.2009 though they were named as accused persons in the counter complaint lodged vide C.R.No.I-44/2009 for the lesser offences. 5applns 3785-09+6 ors 8. Now, coming to the merits of the order of anticipatory bail granted in favour of the accused – Kishor Kashinath Thakur (respondent in Criminal Application No.3785/2009) is concerned, certain factual position can be narrated. Application for anticipatory bail was preferred by said accused on 23.3.2009 before the learned Additional Sessions Judge, Raigad-Alibag and on the next day interim relief was granted to him. Thereafter, finally anticipatory bail was allowed confirming the said relief on 28.5.2009. Apparently, Additional Sessions Judge was influenced by the arguments advanced on behalf of the said accused that he was not present on the relevant night and was at his work place. This argument was substantiated by the said accused by statement of some witnesses from the said company as to attendance of said accused on duty on that night. As against this, there are affidavits filed by two witnesses stating that the distance between the said company and the scene of offence is hardly 15 minutes run by a motorcycle and which would facilitate the said accused to reach to the scene of offence to take part in the incident of assault. Here, in this application No. 3785/2009, what was before the learned Additional Sessions Judge was the alleged plea of alibi and as against this there were statements of the witnesses taking the name of the present accused as the person taking active part in assault on the deceased on the relevant night. More so, it was not brought to the notice of the Sessions Judge that there were cross complaints lodged. Thus, the said Court was not benefited by the factual position as to presence of rival parties on the spot including the 6applns 3785-09+6 ors presence of accused Kishor Thakur. 9. Apart from the above, it is also brought to the notice of the Court by Senior counsel Shri S.R.Chitnis for the applicant that present application for cancellation of bail was preferred along with other such applications and notice was directed to be issued against the present respondent and as such in all the matters such notices were issued on respective respondents on 19.9.2009 which is an admitted position. It is further argued on behalf of the applicant that at least from 19.9.2009, the respondent-accused was aware of the filing of present Criminal Application for cancellation of anticipatory bail and this fact should have been brought to the notice of Additional Sessions Judge. However, that has not been done. On this submission, it is argued on behalf of the respondent-accused that he had preferred regular application for bail much prior to the service of the notice of cancellation of bail. It is submitted that he preferred application for regular bail on 9.7.2009 i.e.much prior to 19.9.2009. By pointing out this, it is further argued on behalf of the respondent-accused that it was not to his knowledge that the application for cancellation of bail was already preferred when he applied for regular bail. 10. Counter to the above arguments, learned Senior counsel Shri S.R.Chitnis specifically pointed out to this Court contents of the application allegedly for regular bail dated 9.7.2009. Plain reading of the said application shows that it is nothing but asking to the Court for continuation of earlier given bonds with further mention that investigation 7applns 3785-09+6 ors is already over and the charge sheet is filed. In the said application, it is specifically mentioned that present respondent-accused had already complied with the conditions of anticipatory bail order by producing surety papers and obtaining bail from the concerned police station after his arrest on 2.6.2009. On asking by this Court, learned A.P.P. for the State produced the said police record. On inspection it is revealed that there are no solvency papers so far as surety of Rs.25,000/- is concerned, only a personal bond appears to have been given by the surety and also by the present respondent-accused before the police on 2.6.2009. Whatever it may be, it is the aspect for which the Investigating Officer is independently answerable. So far as cancellation or otherwise of the present bail application of the present respondent is concerned, suffice it to say that there was no specific application for regular bail and in fact it was not heard on merits and simplicitor said prayer for continuation of the earlier surety was allowed by the same Sessions Court which has granted anticipatory bail. In the opinion of this Court, this is not the proper procedure adopted by the Sessions Court while dealing with the application purported to be for regular bail in the matter of offence of murder. At the first instance itself, in the opinion of this Court, the anticipatory bail should not have been granted considering the specific allegations against the present respondent-accused as his name is appearing in the F.I.R. which was lodged immediately after the incident. Moreover, much care was expected on the part of the learned Sessions Judge while dealing with such anticipatory bail application. It 8applns 3785-09+6 ors was a matter of counter cases. However, it appears that the said fact was not brought to the notice of the Sessions Court by the police machinery or even by the accused persons. 11. Apart from the above, it must be said that the argument advanced on behalf of the present respondent-accused cannot be accepted. The argument on behalf of the respondent-accused is that in view of allowing the regular bail of the accused by the Sessions Court, present application for cancellation of anticipatory bail does not survive. Said argument cannot be accepted for the reason that there was no any specific application for grant of regular bail on filing of the charge sheet as the supplementary charge sheet came to be filed only on 11.5.2010 and there was no charge sheet against the applicant accused when the application was made before the Sessions Court on 9.7.2009. 12. Considering over all effect of the evidence of the complainant and other witnesses it must be said that it was not a case in which pre- arrest relief was warranted in favour of the present respondent accused and as such said order which is impugned in the present Criminal Application No. 3785/2009 is required to be set aside. 13. So far as Criminal Application No. 3786/2009 is concerned it must be said that three respondents accused applied for anticipatory bail on 9.7.2009. However, their names were taken by the witnesses and also their names were appearing in the complaint lodged by the first informant. In the statement of witness Jaideep Manohar recorded on 8.4.2009 there is allegation against all three respondents accused as to 9applns 3785-09+6 ors their presence on the spot and having sticks in their hands during the incident of assault on the victim. Again, the late recording of the statement of 8.4.2009 by the police is taken shelter of by the complainant side and also by the accused persons. According to the complainant, it was on the part of the police to arrest the accused persons and purposely statements of witnesses were recorded belatedly on 8.4.2009 though said witnesses are available and are accused in the counter C.R.No.I-44/2009. 14. As against this, on behalf of the present respondents- accused, it is submitted that at the first instance said witness do not mention anything to the police and as after thought they gave their statements on 8.4.2009. Whatever may be the cause for recording of such statements, the fact remains that prima facie the names of the accused persons are appearing in the statements of witnesses recorded on 8.4.2009. On this aspect it is argued on behalf of the respondents- accused that apart from sweeping allegations against the present respondents in Criminal Application No. 3786/2009, there is no overt act attributed to them as to individually the said respondents assaulting the deceased. Again on this aspect, it must not be lost sight of the factual position that the names are taken in the statements of witness Jaideep Manohar. Moreover, there is application of Section 149 of I.P.C.and as such it was immaterial as to who inflicted injury. If it is prima facie ascertained that the accused persons formed a criminal conspiracy to indulge into an offence and in fact the offence of 302 of I.P.C. has been 10applns 3785-09+6 ors committed by use of the weapons in the unlawful assembly. Again, so far as the allegations against the present respondents are concerned, it must be said that the Trial Court had erred in appreciating the evidence and erred in enlarging them on anticipatory bail. 15. Moreover, on 26.3.2010 an application is made before the learned Sessions Court by the present respondent-accused asking permission to surrender and to apply for regular bail. In the said application it is specifically mentioned that charge sheet has already been filed and they had already complied with anticipatory bail order by giving appropriate bonds before the Police Station. Definitely as on 26.3.2010 present respondent-accused had knowledge of filing of the present application No.3786/2009 for cancellation of their anticipatory bail. However, there is no whisper of this factual position in their application for surrender and asking for regular bail. Even the Investigating Agency did not bring this factual aspect to the notice of the Court and as such the situation was created before the learned Sessions Judge to promptly grant the regular bail. However, there was intervention by the present applicant and the factual position was brought to the notice of the learned Sessions Judge as to filing of the present application for cancellation of anticipatory bail. Consequently, the application for surrender is still pending before the learned Sessions Court without there being any specific directions for taking the present respondents accused persons into custody. 16. Considering the above circumstances, it is admitted 11applns 3785-09+6 ors position that the present respondent accused persons did not bring true and factual position to the notice of the Sessions Court while asking for surrender and regular bail inasmuch as the earlier charge sheet filed against then arrested accused was on 10.6.2009 whereas the present respondents-accused were arrested on 22.7.2009 and supplementary charge sheet was filed only on 11.5.2010. As such, filing of the charge sheet against the respondents accused on the date of applying for surrender and asking for regular bail was actually not correct and misleading the Sessions Court. Reportedly, said application preferred by the respondents accused for surrender is kept on 30.6.2010. 17. All the same, considering allegations against the present respondent-accused and as to prima facie material against them as to being present on the spot with sticks in hand and considering the implication of section 149 read with section 302 of I.P.C., it must be said that the circumstances warrant interference in the order impugned in the present Criminal Application No. 3786/2009. 18. So far as Criminal Application Nos. 3700/2009 and 3710/2009 are concerned, the learned Senior Counsel did not press for the relief claimed as to cancellation of bail to the respective respondent-accused and as such said Criminal Applications are accordingly disposed of without there being any interference in the impugned order of granting regular bails to the respective respondent-accused in the said applications. It must be mentioned that Criminal Application No. 4091/2009 preferred by the State is concerned regarding same accused 12applns 3785-09+6 ors by name Kanha Padaji Gharat (original accused No.3) for which Criminal Application No. 3710/2009 is preferred by the original complainant, in the opinion of this Court, considering the fate of the application No.3710/2009, said application No.4091/2009 is also to face the same fate and accordingly required to be disposed of without there being any interference in the order of bail granted to the said respondent accused Kanha Gharat. 19. Now,coming to the Criminal Application No.3713/2009 and 3714/2009 for cancellation of regular bails granted to the respective respondents Nos.2, 3 and 4 (original accused Nos.3, 6 and 8 in C.R.No.I-45/2009),it must be said that there are statements of the complainant and also two women from the family of the complainant i.e. by names Smt. Reshma Rajesh Patil(wife of the deceased) and Dakshata Jaydeep Patil.Statements of said women and the complainant were recorded immediately on the next day of the incident i.e.on 14.3.2009. Statement of Smt Dakhshata mentions the presence of the respondents-accused in these applications.Again,it is a factual position that the statements of four witnesses Jaideep Patil,Abhay Madhavi,Nitin Madhavi and Sameer Madhavi were recorded on 8.4.2009, given role of these respondents accused as to use of sticks to assault the deceased. Again, the same argument was advanced on rival sides on the delayed recording of the statements of these four witnesses. On behalf of the respondent Nos.2 and 4 (Rohan Jeevan and Rajesh Kashinath) in Criminal Application No. 3713 / 2009 it is submitted that 13applns 3785-09+6 ors there is no specific overt act attributed to these respondents accused by any of the witnesses whose statements are recorded on 8.4.2009. However, it cannot be ignored that their names are definitely appearing in the complaint recorded in C.R.No.45/2009 and as such considering the implication of Section 149 of I.P.C. for committing the offence of 302 of I.P.C. it must be said that Sessions Court should have been more careful in granting relief to the respondent - accused in both these criminal applications. In other words, the reasoning given by the Sessions Court, while granting bail to these accused, is more based on presumption and certain hypothetical situation inasmuch as it was opined by the Sessions Court that false implication of the said respondents cannot be ruled out and the witnesses whose statements were recorded on 8.4.2009 did not try to apprehend the accused who allegedly ran away from the spot. 20. On the above aspect, needless to mention that the thorough analysis of the contents of the statements of witnesses is not expected while dealing with the application for bail and more so when the accused are charged for serious offence of murder arising out of rioting and use of deadly weapons. On this aspect as to appreciation of the prima facie material, certain authorities are brought to the notice of this Court from rival sides. 21. Learned counsel Shri Mundargi relied on the following citation:- (1995) 1 Supreme Court Cases 349 Dolat Ram v. State of Haryana 14applns 3785-09+6 ors 22. As against the ratios propounded by the above authority, reliance was placed on the following authorities on behalf of the applicant. (1) 2004 SCC (Cri) 1974 Chaman Lal v. State of U.P. & ors (2) 2001 ALL MR (Cri) 1210 Puran v. Rambilas & ors. (3) 2002 SCC (Cri) 688 Ram Govind Upadhyay v. Sudarshan Singh & ors. (4) 2004 SCC (Cri) 1977 Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu (5) 2003 SCC (Cri) 1524 Salim Khan v. Sanjai Singh and Anr. 23. Considering the ratios propounded by the above authorities and applying the said ratios to the facts of the present matter at hand, in the opinion of this Court, it must be said that this is a fit case in which considering prima facie involvement of the present respondents- accused, the circumstances warrant interference in the impugned orders of granting bail. This is more so, when out of the same incident there are rival complaints came to be lodged. However, there was no whisper in the say of the police filed before the Sessions Court during the hearing of the respective bail applications as to filing of such counter 15applns 3785-09+6 ors cases. All the same, circumstances warrant cancellation of bail and setting aside the orders impugned in Criminal Application Nos. 3713/2009 and 3714/2009. 24. In the result, the following order is passed. O R D E R. (a) Criminal Application Nos. 3785/2009 and 3786/2009 are allowed and the impugned orders dated 28.5.2009 and 9.7.2009 are set aside. Applications are disposed of. (b) Criminal Application Nos. 3713/2009 and 3714/2009 are allowed and the impugned orders granting bail to the respective respondents-accused are set aside. Applications are disposed of. (c) Directions are given to the Sessions Court which is seized of the matter to take appropriate steps against the respective accused who are the respondents in Criminal Application Nos. 3785/2009, 3786/2009, 3713/2009 and 3714/2009 for their arrest. (d) Criminal Application Nos. 3700/2009, 3710/2009 and 4091/2009 are dismissed and accordingly disposed of. (e) The Trial/Sessions Court dealing with the Sessions Case shall not be influenced by the observations expressed in the present order while deciding the said case on merits. (A.R.JOSHI,J) 16applns 3785-09+6 ors