{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 875 OF 2010 Ramesh Tarachand Devre Age-54 years, Occ-Subedar in District Jail, Beed R/o Dabhadi, Tq-Malegaon, Dist-Nashik Presently R/o Jail Quarters, Beed APPLICANT VERSUS The State of Maharashtra RESPONDENT ....... Mr. Joydeep Chatterjee, Advocate for applicant Mrs.Yogita M.Kshirsagar, APP for respondent State ....... WITH CRIMINAL APPLICATION NO.891 OF 2010 Dattatraya s/o Deorao Sonune Age-37 years, Occ-Service R/o Mahar Chikna Kelgaon Tq-Lonar, Dist-Buldhana APPLICANT VERSUS 1. The State of Maharashtra 2. The Police Inspector, Shivaji Nagar Police Station, Beed RESPONDENTS ....... Mr. A.B.Girase, Advocate for applicant Mrs.Yogita M.Kshirsagar, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 8th March 2010 PER COURT: {2} 1. The applicants are Subhedar and Jailer of the District Jail Beed. The applicants have prayed to release them on bail in connection with CR No.106/2009 registered with Shivaji Nagar police station, Beed for an offence punishable u/s 301 r/w 201 and 34 of the Indian Penal Code. 2. Heard learned counsel for the respective applicants and learned APP. Both the applicants are arrested on 16.11.2009 and now after completion of investigation charge sheet has been filed on 02.02.2010. 3. Perusal of papers of investigation indicates that one Namdeo Sable, an under trial prisoner was taken to the hospital by the jail authorities on 28.03.2010 as he was not feeling well. He was declared as dead on arrival. As the death was a custodial death, inquest Panchanama was prepared in presence of the Tahsildar and initially ADR was registered. The PM conducted on the dead body of the deceased Namdeo indicates that he had sustained internal head injury and he expired due to said injuries. Some external injuries were also also noticed which are stated in column No.17 of the PM report. An inquiry was conducted and during the course of the said inquiry, it is revealed that death occurred due to assault by jail officers and hence the offence came to be registered on 16.06.2009 at CR No.146/2009 against the applicants and one accused, who is now released on bail. {3} 4. As now the charge sheet has been filed the applicants have requested to release them on bail on the ground that the deceased was kept in Barrack No.3 and no statement of the incumbents of Barrack No.3 is recorded. Statements of 4 under trial prisoners are recorded during the investigation and subsequently u/s 164 of the Criminal Procedure Code. Perusal of the said statements discloses that on 27.03.2009 in the afternoon as deceased Namdeo was not taking food, he was assaulted by kicks and fists blows by the applicants and later on he was taken to Barrack No.3 and directed to take meal to which he had refused. The statements further reveal that the deceased was told that he would be taken to the hospital only after he takes the meals. It is alleged that thereafter he was forcibly bathed and on the next morning taken to the hospital where he reported to be dead. According to learned counsel for the respective applicants though the said statements are accepted, as it is the same nowhere disclose that the applicants had assaulted the deceased with an intention to commit his murder. It is urged that to maintain discipline in the jail, if some strict action is taken by the jail authorities, the same cannot be termed as intention to commit murder. Lastly, it is urged on behalf of the applicants is that now the investigation is over and there is no likelihood of their tampering of witnesses as they are suspended. As against this while opposing the application, learned APP has urged that the act of assault on the part of the applicants has resulted into death of an under trial prisoner and as it is the case of custodial death, the {4} applicants may not be released on bail. 5. Considering the rival submissions and as already stated that the statements of the witnesses recorded during the investigation nowhere discloses that the so called assault by the applicants does not appear to be with an intention to commit murder, however the alleged assault took place as the deceased had refused to take food. No doubt, that deceased was assaulted by the applicants, however, if some discipline required to be maintained inside the jail, then the act of the authorities cannot be termed as assault with an intention to commit murder. In the premise, case is made out to enlarge the applicants on bail, as now they are under suspension and hence possibility of their tampering of prosecution witnesses by entering in jail is ruled out. 6. In the result, both the applications are allowed. The applicants be released on bail in connection with CR No.106/2009 registered with Shivaji Nagar police station, Beed on their furnishing surety in the sum of Rs.20,000/- each and on executing PR bonds in the like amount. [A.V.POTDAR, J.] drp/A10/criapln875-891-10