1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 43 / 2010 [Shripad Dattatraya Mande vs. State of Maharashtra ) ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. A S Mardikar Adv. for applicant Mr S B Ahirkar APP for Respondent .......... CORAM : A.P.BHANGALE, J. DATED : JANUARY 20, 2010. Heard. 2. During the course of hearing of this application my attention has been invited to the order passed by the Hon'ble Supreme Court in Criminal Misc. Petition No.18660/2009 in SLP (Cri) No. 3750/2009, which reads thus : “Heard learned counsel for the parties. On the facts of the case we direct that the bail application of Respondent No.1 shall be considered by the Court concerned on its own merits in accordance with law, expeditiously. Cri. Misc. Petition is disposed of accordingly.” 3. It is also brought to my notice that the Apex Court by order dated 15.1.2010 dismissed the SLP(Cri) No. 3750/2009 by following order : “Heard learned counsel for the petitioners. There is no merit in this petition. It is dismissed accordingly. 2 Interim order dated 13.5.2009 shall stand vacated.” This Court is informed that the interim order was regarding stay of sessions Trial No. 76/2004 which was pending in the Court of Sessions Judge, Akola. 4. Under these circumstances, Hon'ble Supreme Court has specifically directed that the bail application of respondent no.1 i.e. (applicant herein) shall be considered by the Court concerned on its own merit, in accordance with law, expeditiously. However, it appears that the learned trial Judge (Sessions Judge, Akola) while rejecting the application Exh.127 by order dated 2.12.2009 (in para Nos.7 & 8) observed as under: “7. Asking me to enter into merits of the case that discussing the evidence would prejudging the case before trial is complete. On the evidence of five witnesses if I make such observation to grant bail it would be a judgment before trial. The matter is now before the Hon'ble Apex Court to decided if the witnesses are to be arraigned as accused or not and the matter is fixed in the month of January 2010 for hearing. At this juncture it would not be desirable to consider the merits of the matter for granting or not granting bail to the applicant /accused. I therefore, answer these point in the negative and against the applicant. 8. As as one peruse the order of the Hon'ble Apex Court, the Hon'ble Apex Court has observed the application to be decided on its merits of the case expeditiously in the matter would be the only one ground whether pendency of the proceedings before the 3 Hon'ble Apex Court which is offshoot of main proceedings before this Court causing delay in completion of the trial. I am not in agreement with the submissions made by the learned Advocate Shri Moyal on this point. If the matter is kept in in the month of January 2010, it is better that on this count liberty can be given to the applicant to move bail application afresh in the month of February,2010 after knowing about the fate of the application. Special Leave Petition preferred by Uday Joshi before the Hon'ble Apex Court. 5. It does appear that the learned Sessions Judge was aware of the order passed by the Hon'ble Apex Court that bail application of the present applicant was directed to be considered on its own merits in accordance with law expeditiously although SLP was kept pending for final disposal in the month of January,2010. Under these circumstances, it was expected of the learned Sessions Judge to apply his mind to the application in accordance with law in order to decide the bail application. The bail application on merits are to be decided in accordance with law considering the prima facie view of the material collected during the course of investigation as to nature of accusation, possible punishment if accusation is proved or probability of sentence in the case. furthermore, to consider the character of the accused as also criminal antecedents, if any, reported against him, position and status of the accused with reference to the victim and witnesses whether it is likely that he would tamper with the evidence, whether his presence can be 4 ensured at the time of trial, whether he is likely to jeopardise his own life, whether there are prospects of of private retribution by victim and relatives and larger interest of the society, public as also the State. The bail applications are to be decided on merits in accordance with law, considering the above factors. It is not necessary nor it is required of the trial Judge to discuss the evidence as evidence is not led at that stage. It appears that the learned trial Judge while deciding the application failed to notice the law regarding bail application as also merits to be decided on the basis of above factors, either to grant or refuse to grant bail in favour of the applicant. Be that as it may, in view of SLP (Cri) No. 3750/2009 is already dismissed on 15.1.2010 by Hon'ble Apex Court, the trial Court is directed to comply with the order passed by Hon'ble Apex Court by deciding the bail application on its own merits, in accordance with law, expeditiously. Liberty to move the trial Court accordingly. Application is disposed of. Humdast granted. JUDGE sahare