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2008 DIGILAW 831 (BOM)

Machchindra Tukaram Koli v. State of Maharashtra

2008-06-19

V.C.DAGA

body2008
JUDGMENT:- 1. Heard learned counsel for the applicants and the learned APP for the State. 2. Perused the application and material available on record. 3. The applicants have filed present application under Section 439 of the Code of Criminal Procedure, 1973 in connection with C.R. No.1 of 2007 registered with NRI Complex Sagari Police Station, Navi Mumbai for the offences punishable under Sections 302, 326, 143, 144, 147, 148, 149, 504 and 506 of the Indian Penal. Code. 4. The learned counsel for the applicants, to claim parity, has pressed into service two orders passed by this Court, dated 17th October, 2007 and 5th May, 2008 under which some of the accused were enlarged on bail. 5. The above application is strongly opposed by the learned A.P.P. contending that the involvement of the applicants in a heinous crime of liquidating the deceased because of previous enmity is apparent on the face of record. She further submits that sufficient material is available on record to connect the present applicants with the offence alleged against them. She further submits that the applicants are influential persons in the locality and that the possibility of tampering with the prosecution evidence cannot be ruled out. 6. The liberty available under Section 439 of the Cr.P.C. is general rule in the context of cases where the charges are not so much so serious or complicity of the accused person/s is not prima facie; borne out from the record. The principles at the bottom of discretionary relief provided under Sections 437 or 439 of the Cr.P.C. are enunciated by the Apex Court in "Satish Jaggi Vs. State of Chhatisgarh & Ors." (2007 Cri.L.J. 2766) : AIR 2007 (Supp) 256: [2007 ALL MR (Cri) 828 (S.C.)]. The Apex Court held: "Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial." 7. The above observations of the Apex Court would make it manifest that while granting bail in serious offences, it is necessary to see the gravity of the offence and its impact on the democratic fabric of the society. At the premature stage of considering the application for bail, it is not required to go into the question of credibility and reliability of the witnesses put up by the prosecution. 8. Considering the foregoing discussion, and the circumstances available on record, it cannot be held that the prosecution has no evidence. At this stage of considering bail application, the Court is not at all required to find out as to whether the evidence is sufficient to infer guilt of the applicants or not. It is enough if sufficient grounds are shown to connect the applicants with the offence. The accused involved in offence which is grave, serious and heinous, do not have moral right to seek benefit of the discretionary relief. 9. The doctrine of parity cannot be made applicable in the case of the present applicants since their names are mentioned in the F.LR. The Trial Court in its order dated 2502-2008 has also observed that the applicants have not been co-operating with the investigating agency. 10. Having heard both parties at length, having seen the reasons recorded by the Court below while rejecting application for bail and having seen the circumstances and the material available on record which, prima facie, connects the present accused-applicants with the offence alleged, this is not a fit case to enlarge the applicants on bail. 11. 10. Having heard both parties at length, having seen the reasons recorded by the Court below while rejecting application for bail and having seen the circumstances and the material available on record which, prima facie, connects the present accused-applicants with the offence alleged, this is not a fit case to enlarge the applicants on bail. 11. The applicants are influential persons in the locality. The possibility of tampering with the prosecution evidence by them cannot be ruled out. Under these circumstances, I find it difficult to entertain this application. The view taken by the Court below while rejecting application for bail cannot be faulted with. 12. For the reasons recorded herein and also for the reasons recorded by the Court below, the applicants are not entitled for regular bail. The application is, thus, rejected. 13. In the result, the present application stands rejected. However, observations made in this order are prima facie, they shall not be construed as any finding or any expression of opinion on the merits of the case at the time of trial. Application rejected.