1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1443 OF 2010 Satish Sudhakar Dighe .... Applicant. V/s The State of Maharashtra ..... Respondent. Mr. V.S. Kotwal i/b Mr. M.S. Mohite for the applicants. Mr. S.R. Shinde, APP for the State. CORAM: V. M. KANADE, J. DATE : 19th April, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the applicants and the learned APP for the State. 2. Applicant was arrested on 12/12/2009 in connection with the offence punishable under sections 395, 397, 201 of the Indian Penal Cod and under section 3 Rule 2.25 and under section 4, Rule 2.27 of the Indian Arms Act which was registered at Borgaon Police Station, Satara vide C.R. No.116 of 2009. 3. Prosecution case is that the complainant who is working with courier company, was traveling in a bus which started from Kolhapur at about 10.30 p.m on 03/12/2009 and when 2 the bus reached near the town Nagthane, two persons who were sitting in the bus assaulted the complainant and forcibly took out parcels which he and other employee were carrying. Thereafter, the said two persons along with their other associates who were also traveling in the said bus took the bus to a secluded spot and threatened all passengers and took away ornaments worth Rs 19,07,000/- including cash. A complaint was filed on the next date. Applicant, thereafter, was arrested on 12/12/2009. A mobile phone was seized from him and, thereafter, a Scorpio Jeep owned by the present applicant was also seized. Prosecution case is that the applicant is the master mind behind the entire robbery and though he was not traveling in the said bus where the incident took place, he was constantly in touch with the accused who were traveling in the bus and had given them instructions to commit the said dacoity. The charge-sheet was filed in March, 2010. It is an admitted position that there is no recovery of weapons, ornaments or cash at the instance of the present applicant. 4. The learned Counsel appearing on behalf of the applicant has invited my attention to the order passed by the Sessions Court. He submitted that the Sessions Court had incorrectly recorded that the applicant was identified in the identification parade, though, in fact, no identification parade was held in this case. The learned APP fairly conceded that the said statement appearing in the said order of the learned Sessions Judge appears to have been 3 incorrectly recorded since no identification parade was held. 5. The learned APP appearing on behalf of the State, however, has vehemently opposed the application for bail. He submitted that one of the co-accused has made a statement that the share of the present applicant was to be kept in the Scorpio Jeep. He submitted that the co-accused also has stated in his statement which was recorded under section 27 of the Evidence Act that the present applicant was in touch with the other accused who were traveling in bus. He submitted that the mobile phone record indicated that the applicant was in touch with the accused in the bus. However, the transcript has not been produced. Apart from seizure of the Scorpio Jeep and two mobile sets, no other recovery has been made at the instance of the applicant. The learned APP pointed out that the applicant was convicted by the Sessions Court for the offence punishable under section 302 of the Indian Penal Code and an appeal has been filed against the said order in this Court and he was released on bail. 6. After having heard both the Counsel at length, in my view, applicant deserves to be released on bail. Firstly, the investigation is over and charge-sheet has been filed. Secondly, there is no material on record to indicate that the applicant was the brain behind the said robbery though it is the case of prosecution that the applicant was in touch with the persons who were traveling in the bus at the relevant 4 time. There is nothing to show that the applicant had given instructions to the said accused since the transcript has not been produced. Applicant has not been identified. Though identification parade was not held, it is wrongly recorded by the learned Sessions Judge that the applicant was identified in the identification parade. This being the position, in my view, there is no material on record to show the direct involvement of the present applicant. It is a settled position in law that the statement made by the co-accused under section 27 of the Evidence Act are not admissible and, therefore, no reliance can be placed by the prosecution on those statements of the co-accused who have named the present applicant in the commission of the said offence and, lastly, merely because the applicant has been convicted for the offence punishable under section 302 of the Indian Penal Code, that by itself cannot be considered as a ground for not releasing the applicant on bail, particularly after the investigation is over and when there is no material on record. 7. Applicant, therefore, be released on bail on execution of P.R. Bond of Rs 10,000/- with one or two sureties in the like amount. Applicant shall not leave Taluka Haveli District Pune during the pendency of the trial without taking leave of the Trial Court. Applicant, however, shall be permitted to attend the dates in the Court at Satara. Applicant shall attend the nearest Police Station from his residence during the pendency of the trial once in a week. Applicant shall not 5 threaten any of the prosecution witnesses or try to tamper with the evidence. If any complaint is received, his bail shall be canceled. 8. Trail Court shall not be influenced by any observations made by this Court in this Order while granting bail to the applicant since these observations are prima facie in nature and the Trial Court shall decide the criminal case on its own merits and in accordance with law. 9. Application is disposed of in the aforesaid terms. (V.M. KANADE, J.) 6