1 apln2802-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2802 OF 2010 Santosh @ Sadil Rajgir Mukhiya and another. ..Applicant. Vs. The State of Maharashtra and another. ..Respondents. .... Mr.R.C. Mishra, Advocate for the applicant. Mr.S.N. Gawade, A.P.P. for the State. .... CORAM : A.R.JOSHI, J. DATED : 13TH AUGUST, 2010 P.C. 1. Heard rival submissions for sometime on this application for regular bail. Some arguments were also heard on earlier date i.e. on 6.8.2010 and the details as to role of the present applicant were mentioned in that order. 2. The applicant along with co-accused is facing the charges punishable under Sections 381 & 411 read with Section 34 of Indian Penal Code. Allegedly there was house breaking and stealing of the gold and diamond ornaments worth value of Rs.80 lakhs and odd and cash amount of Rs.19 2 apln2802-10 lakhs and odd. The alleged theft occurred in such a manner that even the front door of the flat was not broken up but apparently the latch and key was used by the miscreants to enter the flat and to leave with the looted articles. The cupboards and various articles in the flat were ransacked during such search for the valuables. During the relevant time of such theft, the complainant woman, the owner of the flat, was out of Mumbai. However, she was informed by her daughter on noticing the theft. As such sometime between 16.3.2009 to 18.3.2009 the incident of theft occurred. Present applicants were arrested respectively on 22nd June, 2009 and 24th June, 2009 from their native place at Bihar. 3. Admittedly prior to such incident, applicant No.1 was working as a servant in the said flat and immediately after noticing of the theft he was not attending the work and infact his whereabouts were not traced by the police till the time of end of June, 2009 when the police could found him from his native place from Bihar. 4. It is also a case in which allegedly he gave the part of 3 apln2802-10 the looted articles, ornaments and cash and also the mobile handset belonging to the complainant to his other relatives who are the co-accused. As such, there are certain recoveries from the said co-accused i.e. from accused by name Suresh Mukhiya one nokia mobile handset was recovered allegedly given by the present applicant to him. So also cash amount of Rs.1,38,000/- or so was recovered at the instance of the another co-accused Rajkumar Kamat. Prima facie it is an admitted position that said co-accused are not from Mumbai and were not in the employment of the complainant but only present applicant No.1 was in such employment and immediately after the theft he left Mumbai and could be found after three months. 5. On the last date, after hearing the matter for sometime and after noticing that other co-accused, from whom there are certain recoveries, were granted bail by the learned Additional Sessions Judge, Dindoshi, Goregaon, directions were given to the police to get the order of bail by which the application of the present applicant was rejected. 4 apln2802-10 After going through the said order and after ascertaining the case of the police, prima facie it appears that other co-accused appears to have been released though having found in possession of the stolen property mainly because probably there could not have been charge for the offence punishable under Section 381 of IPC. However, that is the aspect to be dealt in detailed by the trial Court when the matter will be put to recording of evidence. Reportedly investigation is already over, chargesheet is filed and the matter is right for framing of the charge. 6. So far as applicant No.2 is concerned, learned APP for the State produced a copy of the confessional statement of said applicant No.2 recorded under the provisions of Section 164 of Cr.P.C. before the concerned Metropolitan Magistrate on 14.7.2009. After going through the contents of the said statement, suffice it to say obviously that prima facie there is involvement of applicant No.2 also in the present matter. 7. Now, so far as the availability or otherwise of the applicants is concerned, it is expressed on behalf of the 5 apln2802-10 prosecution that if released on bail they may not be available for the trial as the earlier conduct of the applicant No.1 speaks for itself that after the incident of theft he was not available for three months and only he could be arrested in the month of June, 2009. 8. During the argument, learned Advocate for the applicants submitted that the abscondance of the accused prior to his arrest may not be viewed as his guilt and on this aspect he placed reliance on the following authority :- [i] 2002 ALL MR (Cri) 468 (S.C.) [Sanjay @ Bablu @ Keja. Vs. State of Gujarat] 9. Here in the present case, it is not only the criteria that the applicant was absconding and that there is nothing more to link him with the offence. In this case, apart from the factum of his abscondance there is a confessional statement of the co-accused and there are recoveries at the instance of other co-accused. In that view of the matter, the arguments advanced on behalf of the applicant cannot be accepted. 6 apln2802-10 10. Considering the above factual position and considering the magnitude of the stolen articles, it would not be in the fitness of the situation to grant bail to the present applicant during pendency of the trial. At the most directions can be given to the concerned Court to expeditiously try the accused persons. Hence, the order :- :: O R D E R :: [i] Criminal Application No.2802 of 2010 for bail stands rejected. [ii] Directions are given to the concerned Magistrate, who is seized of the matter, to dispose of the trial as expeditiously as possible preferably within nine months from receipt of this order. (A.R.JOSHI,J.) PPD 4.apln2802-10