1 BA.312&440-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.312 OF 2011 Arun Raghunath Bhoir. ..Applicant. Vs. State of Maharashtra. ..Respondent. WITH CRIMINAL APPLICATION NO.113 OF 2011 IN CRIMINAL BAIL APPLICATION NO.312 OF 2011 Mr.Mahesh Kashiram Nare. ..Applicant. Vs. The State of Maharashtra and Anr. ..Respondents. WITH CRIMINAL APPLICATION NO.115 OF 2011 IN CRIMINAL BAIL APPLICATION NO.312 OF 2011 Mr.Arun Raghunath Bhoir. ..Applicant. Vs. The State of Maharashtra. ..Respondent. And Manda Harishchandra Gosavi. ..Intervenor. 2 BA.312&440-11 WITH CRIMINAL BAIL APPLICATION NO.440 OF 2011 Mr.Mangesh Arun Bhoir. ..Applicant. Vs. State of Maharashtra. ..Respondent. WITH CRIMINAL APPLICATION NO.171 OF 2011 IN CRIMINAL BAIL APPLICATION NO.440 OF 2011 Mr.Mangesh Arun Bhoir. ..Applicant Vs. The State of Maharashtra. ..Respondent. And Manda Harishchandra Gosavi. ..Intervener. .... Mr.Subhash Jha, a/w. Navid Memon & Ms.Sharon Patole, i/b. Law Global for the Applicants in BA Nos.312/2011 & 440/2011. Mr.Ganesh Gole, for the Intervenor. Mr.P.S. Hingorani, APP for the State. .... CORAM : A.R.JOSHI, J. DATED : 22ND JULY, 2011 [IN CHAMBER, 2:40 PM] P.C. 1. Heard rival submissions at length on these repeated applications for bail preferred by the applicants/accused in the matter of Sessions Case No.62 of 2010 arising out of C.R. No.I-149/2009 of Shivaji Nagar police Station, Ambernath. 3 BA.312&440-11 2. The offences alleged against the present applicants and co-accused – presently 13 in number, are punishable under Sections 302, 307, 427 read with Section 149 of IPC and also under Sections 120-B, 504, 506 of IPC and also under Sections 3 & 25 of the Arms Act. 3. This is the second bail application filed on behalf of the present applicants / accused. Earlier both the applicants had preferred Criminal Bail Application No.1911/2010. Said application was finally heard on merits on 1 st July, 2010 by this Court, and prayer for bail was rejected. That time, the factual positions as to happening of the incident of rioting and killing the deceased by using firearm in the office of the Petrol Pump, were discussed. 4. At the threshold it is submitted by the learned Counsel Shri Jha for the applicants that the repeated bail applications can be entertained and appropriate orders can be passed by the Court and even on rejection of the earlier bail application, subsequent application can be allowed if in the 4 BA.312&440-11 intervening period another co-accused who are allegedly having the same role as that of the applicant are already released on bail by the another Bench of concurrent jurisdiction. It is further submitted by pointing out the ratio of the authority (1978) 1 SCC 579 Babusing Vs. State of U.P. that the order of refusing bail application does not necessarily preclude another on a later occasion giving more details, further developments and different considerations. By submitting this argument, it is emphasized on behalf of the applicants that in the present matter there are further developments, inasmuch as, firstly there is another investigating agency i.e. Crime Branch which further investigated the matter and filed chargesheet and secondly, after rejection of the bail application of the present applicants by this Court, other co-accused who are allegedly placed in the same role as that of the present applicants, had been released on bail by another Bench of the this Court. 5. In order to elaborate the above points, firstly it is submitted that the investigation in the present matter was 5 BA.312&440-11 transferred to Crime Branch somewhere in August, 2010, which is after the rejection of the first bail application which was rejected on 1.7.2010. It is further submitted that after such transfer of investigation to Crime Branch, statements of all witnesses, whose statements were earlier recorded and whose statements were recorded for the first time disclose a vast variance so far as happening of the incident at the petrol pump. It is further submitted that the investigation by Crime Branch resulted in filing of the report under Section 169 of Cr.P.C. finding deficient evidence against the main co-accused persons namely Mr.Rana Roy & Mr.Gudu Chouhan. These persons are not charged in the Sessions Case which is pending. According to learned Counsel for the applicants this is the changed circumstance which shall prompt this Court to view the role of the present applicants differently so as to entertain repeated bail application. 6. Second argument canvassed on behalf of the applicants is requirement of allowing the present application for bail on parity in view of granting of the bail applications 6 BA.312&440-11 of two other co-accused who are allegedly placed in similar role as that of the applicants / accused. The bail orders granting bails to these co-accused are brought to the notice of this Court which are dated 3.2.2011 for accused Pradeep Dubey and 27.4.2011 for accused Shailesh Kulkarni. In order to substantiate this argument, various authorities are cited before this Court, which are as under :- 1. 2001 ALL MR (CRI) 1403 [Kunal Ramdas Chavan V/s. State of Maharashtra] 2. 1999 Cr.L.J. 4403 [Vishnu Ram Chandra Maheshwari Vs. State of U.P.] 3. 1992 Cr.L.J. 1371 [Shobha Ram Vs. State of U.P.] 4. (2005) 7 SCC 226 [Kamaljit Singh Vs. State of Punjab] 5. (2007) 8 SCC 145 [Jaya Simha Vs. State of Karnataka] By pointing out the above authorities, It is submitted that on parity the present repeated bail applications are required to be allowed. 7. Counter to the above arguments, learned Counsel Shri Gole for the intervenor (mother of deceased) strongly objected for grant of bail and pointed out to this Court that 7 BA.312&440-11 under very peculiar and curious circumstances the investigation was transferred to Crime Branch. It is further elaborated that the main accused Rana Roy when applied for anticipatory bail, it was rejected throughout at Sessions Court and High Court level and matter was taken in SLP before the Apex Court, however, such application was withdrawn and then the said accused had moved appropriate Government machinery for transfer of investigation on alleged grounds of no proper investigation done by the local police. It is further brought to the notice of this Court that by that time the investigation was already over and chargesheet was also filed and more over the case was committed to the Court of Sessions. Inspite of such advanced stage of the matter, without there being any orders from the Court for transfer of such investigation, orders were passed by one ACP, Crime Branch for transfer of the investigation from local police to Crime Branch. Resultantly, further investigation was carried out by the Crime Branch and statements of witnesses were recorded, even statements of new witnesses were also 8 BA.312&440-11 recorded. According to learned Counsel for the intervenor, this conduct on the part of the investigating agency smacks a bias attitude. It is further argued that at this stage of decision on the repeated bail applications, this aspect of change in the investigation agency and giving a clean chit to the main accused persons is of much relevance and required to be considered, more so, when the earlier application of the present applicants was rejected on merits and apparently there is no more material came forward in the further investigation of the Crime Branch so as to dilute the effect of the statements of earlier witnesses and mainly the complainant – Mahesh Nare and one eye witness Dnyaneshwar Kolekar. 8. Secondly, it is brought to the notice of this Court that factually the orders granting bail to the co-accused were passed in February, 2011 and April, 2011 when the investigation was already transferred to Crime Branch but no fresh chargesheet was filed. Only the report under Section 169 of Cr.P.C. was filed by the Crime Branch exonerating the 9 BA.312&440-11 main accused persons named earlier. 9. This Court has given thoughtful consideration to the above arguments and alleged changed circumstances as to further investigation by Crime Branch and release of the co-accused on bail. In the opinion of this Court, though, as laid down in various authorities cited before the Court on behalf of the applicants, the aspect of parity is to be considered while granting bail, equally it cannot be lost sight of that the Court has to go through the facts and if there are circumstances to show that the accused applicants who claims bail on parity ground cannot be granted bail on another grounds, then his bail can be rejected. In other words, whether or not there is applicability of parity so far as the applicants and other co-accused released on bail, is to be ascertained on the availability of other material against the person asking for bail. On this aspect, learned Counsel Shri Gole for the intervener brought attention of this Court to the contents of the statement of one witness Shri Jayesh Shah recorded by the earlier investigating agency. It is dated 10 BA.312&440-11 12.12.2009. It reveals that at about 10:30 a.m. on 6.12.2009 the said witness received a mobile phone call from the present applicant Arun Bhoir giving rather a threat to the said witness as to shifting the building material placed on the site or otherwise there would be a quarrel. Apparently, this is an act of threat given by the applicant Arun Bhoir, just prior in point of time to the offence of murder in the present case. As such apart from the presence of the present applicants on the spot, this is another prima facie material as to giving of threat of dire consequences by applicant – Arun Bhoir spelt out by the said witness. It is further brought to the notice of this Court on behalf of the intervenor that one of the relatives i.e.uncle of the deceased in the present matter, has been murdered on 6.5.2011 and in that matter co-accused Bhalchandra Bhoir, who is the main assailant in the present matter, is a wanted accused. By pointing out this circumstance, it is further submitted on behalf of intervener that a sort of atmosphere of terror has been created by the rival party and in fact uncle of the victim has also been killed 11 BA.312&440-11 and under these circumstances, further argued, it would not be in the fitness of situation to grant application for bail of the present applicants, so as to more crystallize the situation. 10. Considering the rival submissions and considering the involvement of the applicants and as to application of Section 149 of IPC for the main offence punishable under Sections 302 & 307 of IPC and 427 of IPC, it is not in the fitness of the situation to release the applicants on bail. Hence, the order : :: O R D E R :: [i] Criminal Bail Application Nos.312/2011 & 440/2011 stand rejected. Accordingly, applications for intervention also stand disposed of. (A.R. JOSHI, J.) PPD