AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.469 OF 2010 IN CRIMINAL APPEAL NO.524 OF 2003 Satish Vitthal Dhotre. ... Applicant Vs. The State of Maharashtra. ... Respondent Mr. U.R. Agandsurve for the applicant. Ms. P.H. Kantharia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 6TH APRIL, 2010. P.C.:- 1. The applicant is original accused 2 in Sessions Case No.64 of 2000. By judgment and order dated 17/2/2003, the Court of IInd Additional Sessions Judge, Pandharpur convicted the applicant along with four others inter alia, for offences punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code (for short, “the AJN 2 IPC”) and sentenced to suffer rigorous imprisonment for life. The appeal filed by the applicant is admitted. This is his application for bail. 2. We have heard learned counsel for the applicant at some length. Learned counsel submitted that according to the prosecution, there are three eye-witnesses viz. PW-1 Talak Shaikh, PW-2 Salim Shaikh and PW-3 Surekha Pawar. He submitted that it is the case of PW-1 Talak Shaikh that he was assaulted by the accused. Learned counsel pointed out that there is only one injury on PW-1 Talak Shaikh and, therefore, it cannot be said with certainty that it is the applicant who is the author of the said injury. Learned counsel submitted that so far as PW-3 Surekha Pawar is concerned, she is not really an eye-witness but she has come on the scene of offence after the incident in question was over. Learned counsel submitted that PW-2 Salim Shaikh has stated that all the accused assaulted the deceased. It is therefore, difficult to ascribe the fatal injury to the applicant. Learned AJN 3 counsel submitted that in the circumstances, the applicant may be released on bail. 3. It is not possible for us to release the applicant on bail. The deceased had suffered 20 injuries. Three eye- witnesses have deposed about the incident in question. PW-1 Talak Shaikh is an injured eye-witness. Therefore, his presence at the scene of offence cannot be doubted. PW-2 Salim Shaikh has given a graphic account of the incident in question. PW-3 Surekha Pawar is the wife of the deceased. She also claims to have seen the incident. There is a recovery of chopper at the instance of the applicant. In the circumstances, it is not possible for us to grant bail to the applicant. 4. Before parting, we must mention a disturbing fact. On 26/9/2003, a Division Bench presided over by one of us (Smt. Ranjana Desai, J.) granted bail to original accused 5. On 21/12/2004, the same Bench rejected the bail application of original accused 2 and 4 by a reasoned AJN 4 order passed in Criminal Application No.4298 of 2004. Original accused 1 preferred Criminal Application No.1193 of 2006 on 15/11/2006 praying for bail. We are distressed to note that in that application in Ground (r), it is stated that “the co-accused have been released on bail by this Hon'ble Court (Coram: Ranjana Desai and P.V. Kakade, JJ.) on 26/9/2003” though on 26/9/2003, only one accused was released by the Bench. Criminal Application No.1193 of 2006 was heard by the Division Bench presided over by Justice V.G. Palshikar on 24/11/2006. The Division Bench observed as under : “The application mentions that other accused persons have already been granted bail. We see no reason why this accused also should not be granted bail on same terms and conditions as mentioned in order dated 26/9/2003.” 5. Reposing complete faith in the advocate for the applicant and believing that the application contains correct facts, the Division Bench released original accused 1 on bail on same terms and conditions as mentioned in AJN 5 order dated 26/9/2003. We have no manner of doubt that the Division Bench was misled into believing that all the accused were granted bail. We deprecate this conduct of the advocate for the applicant. The lawyers' duty is first towards the court and correct facts must be placed before the court. The proceedings have to be fought on merits and not in this manner. It must also be mentioned that in the present application, it is stated that the co-accused have been released by this court vide order dated 26/9/2003 when in fact only one accused was released. 6. Criminal application is disposed of. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]