All material details to be fully disclosed before the court: Bombay High Court

 on 17 07 2021 on 18 07 1 wp393.2021IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPURCRIMINAL WRIT PETITION 393 OF 2021Shubham @ Bhaiyyalal s o. Siddi Soni aged 22 yrs Occ. Student r o. House No. 34 Behind Amjadi Masjid Mahesh Nagar Shanti Nagar Nagpur ...... PETITIONER...V E R S U S...State of Maharashtra thr Police Station Officer Police Station Kalamna Nagpur …RESPONDENT Mr. R.R. Vyas counsel for petitioner.Mr. N.S. Rao APP for respondent State. CORA M: ROHIT B. DEO J. DATE : 17.07.2021ORAL JUDGMENT:Heard Mr. R.R. Vyas the learned counsel for thepetitioner and Mr. N.S. Rao the learned APP forrespondent State.2.The credibility of the justice dispensation system isthe collective responsibility of all the stakeholders the judges the bar the litigants and the common man.3.Unfortunately the erosion of the faith of thecommon man in the justice dispensation system more often on 17 07 2021 on 18 07 2 wp393.2021than not is attributable to stakeholders who may not be aliveto their pious duty and responsibility to ensure that the streamof justice flows unpolluted and unhindered.4.The disturbing ease with which the applicantsecured bail by gross suppression nay chicanery is reminiscentof the words spoken by Marcellus in Hamlet “Something isrotten in the State of Denmark”.5.Something is indeed wrong with the state of affairsin the justice dispensation system its credibility is in peril andthe enemy lurks within.6.The applicant is arraigned as an accused in Crime37 2020 registered at Police Station Kalamana Nagpur foroffences punishable under sections 302 307 326 143 145 147 148 149 504 506 120 B of Indian Penal Code read withsection 135 of Maharashtra Police Act. The applicant and theco accused allegedly brutally killed Mr. Nikhil Lokhande.7.The applicant preferred Criminal Application1088 2020 seeking bail which was assigned to Mr. S.S.Deshpande the learned Additional Sessions Judge 8 Nagpur. on 17 07 2021 on 18 07 3 wp393.20218.The learned Sessions Judge rejected theapplication after minutely scrutinizing the material in thechargesheet and hearing the learned counsel Mr. ChetanThakur who appeared on behalf of the applicant.9.The order of rejection of bail dated 20.6.2020notes the uncontroverted position that the applicant is ahistory sheeter and is facing as many as six prosecutionsinvolving serious offences. The rejection order further notesthat there is overwhelming evidence to link the applicant withthe brutal killing and that a weapon is also recovered at theinstance of the applicant.10.The rejection order notes that the adverseantecedents of the applicant justifies the apprehension of theprosecution that the prosecution witnesses may be influencedor pressurized.11.The learned Judge was further not impressed bythe submission canvased by Mr. Chetan Thakur that bail begranted in view of the Covid 19 outbreak. on 17 07 2021 on 18 07 4 wp393.202112.The rejection of bail by the learned Sessions JudgeMr. S.S. Deshpande did not deter the applicant. It appears thattwo days after the rejection of bail the assignment changed.The applicant sensed an opportunity and was quick to prefer anapplication for bail dated 22.6.2020 which was assigned toSmt. V.D. Ingle Additional Sessions Judge 7 Nagpur.13.The note appended below the application seekingbail reads thus:“This is 2nd bail application filed by theapplicant before Sessions Court at Nagpur onthe ground that there is no prospects of earlytrial due to COVID 19 apart from merits ofpresent case”.14.The details of the first application which wasrejected were not disclosed much less the fact that therejection was on merits and hardly 48 hours had elapsedtherefrom nor was the rejection order placed on record.15.I do not have even an iota of doubt in my mind that the note was a machiavellian lip service paid to the solemnduty of true and faithful disclosure of the rejection of the firstbail application on merits. Indeed the note is a manifestationof devious mind and the intent was to subvert the on 17 07 2021 on 18 07 5 wp393.2021administration of justice.16.The applicant succeeded in the nefarious design.The learned Judge Smt. V.D. Ingle was pleased to grant bail bya cryptic order. Perusal of the order dated 24.6.2020 renderedby the learned Smt. V.D. Ingle reveals that she may not haverealized that she was considering a successive applicationpreferred 48 hours after the rejection of the first application bythe learned Judge Mr. S.S. Deshpande.17.The learned prosecutor who appeared inMiscellaneous Criminal Application 1453 2020 which wasallowed by the learned Judge Smt. V.D. Ingle presumably didnot draw the attention of the learned Judge Smt. V.D. Ingle tothe note appended. While the prosecutor was not alive to herduty the learned Judge also did not either consider thedeceitful half truth or if she did consider the note the learnedcounsel Mr. Chetan Thakur who also appeared for the applicantin the earlier bail proceeding was not called upon to produceon record the first rejection order.18.The first rejection order rendered by the learned on 17 07 2021 on 18 07 6 wp393.2021Judge Mr. S.S. Deshpande was not produced on record. In thenote appended the statement made was a mendacious andmischievous half truth. The prosecutor was silent and thelearned Judge failed to hear the alarm bells which theconveniently and deceptively worded “disclosure” ought tohave set ringing.19.The applicant secured the bail by hoodwinking thesystem and merrily walked out of the prison a free man.Fortunately due to the intervention of the complainant theprosecution was obligated to move an application seekingcancellation of bail.20.The applicant opposed the application seekingcancellation of bail. However the applicant did not deny thatthe copy of the earlier rejection order was not placed onrecord.21.The learned Judge Smt. V.D. Ingle cancelled thebail vide order dated 29.8.2020 observing thus:“9)After perusing the present applicationand considering the argument of Ld. APP itappears that Ld. APP has no knowledge aboutrejection of earlier bail application of non applicant accused. She herself argued that APPbefore District Court 8 and before this court on 17 07 2021 on 18 07 7 wp393.2021was not the same and therefore the aforesaidfact could not be ascertained during thepandemic COVID 19. Though the Ld. APP andLd. Counsel for non applicant argued thematter simultaneously and it is the contentionof Ld. Counsel for non applicant that hepointed out the attention of the Court aboutrejection of his earlier bail application thenthe Ld. APP must have argued in that respectbut she did not argue on that point because sheherself has no knowledge about it. Hence thecontention of Ld. counsel fornon applicant accused in that respect cannotbe accepted which shows suppression ofmaterial fact. It also appeared that the Ld.Counsel for non applicant has also not filedcopy of rejection of bail order on record”.22.Unfazed and undeterred the applicant is beforeme questioning the order of cancellation of bail.23.The applicant did not surrender to custody despitethe direction issued by the learned Sessions Judge andabsconded. I therefore directed the applicant vide orderdated 14.6.2021 to surrender to custody within 24 hours. Theapplicant has accordingly surrendered.24.The learned counsel for the applicant Mr. R.R. Vyascanvased an ingenious argument. Mr. R.R. Vyas argued thatstrict rules of pleadings are not applicable to bail applicationand the degree of disclosure is not absolute. The argument is on 17 07 2021 on 18 07 8 wp393.2021noted only as a courtesy to Mr. R.R. Vyas. The duty is to makea true and faithful disclosure and not a half truth with theintent of subverting the administration of justice. Not only theapplicant the learned counsel who appeared in both the bailproceedings must share the blame for the attempt to take thejudicial process for a ride.25.This application is absolutely frivolous and is liableto be dismissed with exemplary costs.26.The application is dismissed with cost ofRs. 50 000 which shall be depositedwith the High Court Legal Aid Sub Committee Nagpur withinthe next 15 days and in default the costs shall be recovered bythe Collector Nagpur as arrears of land revenue.27.Before parting with the order I am impelled torecord that I did consider taking an extremely stern andserious view of the role played by the learned counsel whoappeared on behalf of the applicant in both the bailapplications. However since the learned counsel has filed onrecord an affidavit tendering unconditional apology and on 17 07 2021 on 18 07 9 wp393.2021assuring that henceforth he will disclose all material facts I amrefraining from initiating further action in the fond hope thatthe unsavoury incident would only be an aberration.28.The learned counsel would do well to be guided bythe following observations of the Hon’ble Supreme Court inR.Muthukrishnan Vs. The Registrar General of High Court atMadras AIR 2019 SC 849.“27. It is said by Alexander Cockburn that “theweapon of the advocate is the sword of a soldier notthe dagger of the assassin”. It is the ethical duty oflawyers not to expect any favour from a Judge. Hemust rely on the precedents read them carefully andavoid corruption and collusion of any kind not tomake false pleadings and avoid twisting of facts. In aprofession everything cannot be said to be fair even inthe struggle for survival. The ethical standard isuncompromisable. Honest dedication and hard workis the only source towards perfection. An advocate’sconduct is supposed to be exemplary. In case anadvocate causes disrepute of the Judges or hiscolleagues or involves himself in misconduct that isthe most sinister and damaging act which can be doneto the entire legal system. Such a person is definitelydeadwood and deserves to be chopped of”. JudgeBelkhede 

Summary: The disclosure of all facts which play an important role in securing justice in a case must be revealed before the court and not facts which are a half-truth with the intent of subverting the administration of justice. This was decreed by Hon’ble Justice Rohit B. Deo in the case of Shubham @ Bhaiyyalal vs. State of Maharashtra [CRIMINAL WRIT PETITION 393 OF 2021] on the 17th of July, 2021 before the Hon’ble High Court of Bombay at Nagpur. The brief facts of the case are, the applicant is arraigned as an accused for offences punishable under sections 302, 307, 326, 143, 145, 147, 148, 149, 504, 506, 120-B of Indian Penal Code read with section 135 of Maharashtra Police Act. The applicant and the co-accused allegedly brutally killed Mr. Nikhil Lokhande. A criminal application seeking bail was preferred before the additional sessions Judge. The learned Sessions Judge rejected the application, after minutely scrutinizing the material in the charge sheet. The order of rejection of bail dated 20.6.2020 notes the uncontroverted position that the applicant is a history-sheeter and is facing as many as six prosecutions involving serious offences. The rejection order further notes that there is overwhelming evidence to link the applicant with the brutal killing and that a weapon is also recovered at the instance of the applicant. In apprehension that the prosecution witness may be influenced, the bail application was rejected. However, two days after the rejected, an application for bail was applied before the current bench which was approved. However, the bail was later cancelled since the applicant had concealed material facts. The present petition has been filed to question such a cancellation. The counsel for the applicant submitted that the second bail application is filed since there is no prospects of early trial due to COVID-19 apart from merits of present case. He also argued that, strict rules of pleadings are not applicable to bail application and the degree of disclosure is not absolute. The counsel for the respondent submitted that, the applicant secured the bail by hoodwinking the system and merrily walked out of the prison a free man. Fortunately, due to the intervention of the complainant, the prosecution was obligated to move an application seeking cancellation of bail. It was also submitted that, the details of the first application, which was rejected, were not disclosed, much less, the fact that the rejection was on merits and hardly 48 hours had elapsed therefrom, nor was the rejection order placed on record. The learned judge heard the contentions of both the parties and observed that, the first rejection order rendered by the learned judge, was not produced on record. In the note appended, the statement made was a mendacious and mischievous half-truth. The prosecutor was silent, and the learned Judge failed to hear the alarm bells, which the conveniently and deceptively worded “disclosure” ought to have set ringing.