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2013 DIGILAW 2030 (BOM)

Umesh Pujari v. State of Goa

2013-09-30

R.M.SAVANT

body2013
JUDGMENT R.M. Savant, J.- The applicants above-named have approached a this Court for bail after their applications carne to be rejected by the Learned, J.M.F.C. and the Learned Sessions Court. The applicants have been arrested by the Porvorim police pursuant to the F.I.R registered on 22/08/2013, being Crime No. 121/2013 for the offences punishable under Sections 143, 144, 147, 148, 150, 323, 356, 341, 342, 402, 440, 452, 427, 436, 395, 397, 399 r/w 149, 120-B IPC. The F.I.R is to the effect that on 22/08/2013 between 12.40 hours to 12.50 hours, a group of 20 to 25 persons had entered the LPK waterfront club premises with their faces covered with masks and that these persons were armed with wooden dandas, pick-axe, hammers etc. and that the said persons had assaulted the security guards and prevented them from entering the club. They had also confined the staff in the staff room and thereafter damaged the property of the club. The material indicates that one of the persons was carrying a petrol can and he had poured petrol on the counter and set it on fire. The scene or offence panchanama indicates that some clay statues, lights with fittings and fixtures. CCTVs. LCD TVs. air conditioners, furniture etc. were extensively damaged. The Scene of Offence panchanama also prima-facie indicates that the counter, executive chair, fans LCD T.V. set, wiring. CCTVs were partly burnt and damaged. It is also alleged that the said persons have decamped with a Samsung LCD TV. The manner in which the crime was committed inter alia shows that the same was well planned and systematically executed in broad clay light. It is the case of the police that the investigation is still going on. It is their case that the Identification Parade was held in the last week pursuant to which three of the applicants have been identified by the eye witnesses and the fourth applicant has been identified by the persons who had lent the motorcycles. Prima facie there is material on record to indicate the complicity of the accused in the said crime committed on 22/08/2013. The applicants have been arrested for the offences as indicated above. 2. Heard the Learned Senior Counsel Mr. S.C. Dessai for the applicants and the Learned Public Prosecutor. Mr. S.R. Rivankar for the State. 3. It is the submission of the Learned Senior Counsel Mr. The applicants have been arrested for the offences as indicated above. 2. Heard the Learned Senior Counsel Mr. S.C. Dessai for the applicants and the Learned Public Prosecutor. Mr. S.R. Rivankar for the State. 3. It is the submission of the Learned Senior Counsel Mr. Desai that the ingredients for offences under Sections 395, 397, 427 and 436 of the I.P.C is not made out. It is further the submission of the Learned Counsel that custody of the applicants is not required and for the said purpose relics upon the following judgments : (i) (1978) 2 SCC 365 in the matter of Miss Harsh Sawhney v. Union Territory (Chandigrah ADMN.) (ii) (1978) 1 SCC 240 in the matter of Gudikanti Narashimhulu and others v. Public Prosecutor, High Court of Andhra Pradesh. (iii) 2001 Bom. CR Cri (2201) 2 Bom. LR 875 in the matter of Khemlo Sakharam Sawant v. State. (iv) In the matter of Sanjay Chandra v. CBI. 4. Insofar as the judgment in Miss Harsh Sawhney (supra) is concerned, the Apex Court held that the case of the prosecution that the presence of the accused was necessary for making a search and recovery of certain documents untenable as taking into custody was not necessary for that purpose. 5. Insofar as the second judgment in the case of Narasimhulu's case is concerned, the Apex Court laid down certain guidelines for exercise of the discretion in the matter of grant of bail. The Apex Court held that the nature of the charge is a vital factor and the nature of the evidence is also pertinent. The Apex Court further held that the severity of the punishment to which the accused may be liable if convicted or if the conviction is confirmed also bears upon the issue. Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. The Apex Court was concerned with the case whether the petitioners before it had been acquitted along with others in the trial court and that the acquittal had been set aside in the High Court. The Apex Court was concerned with the case whether the petitioners before it had been acquitted along with others in the trial court and that the acquittal had been set aside in the High Court. There was no suggestion made that during the time they were on bail, and they were free during the pendency of the trial and that when the appeal was pending in the High Court, that they abused the trust reposed by the Court allowing them to be at large. 6. In the case of Sanjay Chandra (supra), the Apex Court observed that when the under trial prisoners are detained in jail custody for an indefinite period. Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial. The Apex Court in the said judgment also referred to the two paramount considerations. which are to be kept in mind while considering a petition for grant of bail in non-bailable offence, namely, the seriousness of the offence, the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. In the facts of the said case, the Apex Court observed that no good reason is seen to detain the accused in custody, that too, after the completion of the investigation and filing of the charge sheet. It is in the said circumstances that the Apex Court ordered the applicants to be released on bail on the terms and conditions imposed by it. 7. Insofar as the matter of Khemlo Sakharam Sawant v. State is concerned, the said case concerned the offence under section 12 of the Prevention of Corruption Act. In the facts of the said case, involved where the evidence had already been recorded by the Investigating Agency, a Learned Single Judge of this Court found that the ground made out by the prosecution of a co-accused absconding was not a sufficient ground to refuse bail, especially when in the said case, the principal offender had not been booked and the applicant before the Single Judge was charged for abetment. 8. Per contra, the Learned Public Prosecutor, Mr. Rivankar submitted that the applicants are accused in respect of a serious offence and the investigation is still in progress as a large number of the persons are still absconding. 8. Per contra, the Learned Public Prosecutor, Mr. Rivankar submitted that the applicants are accused in respect of a serious offence and the investigation is still in progress as a large number of the persons are still absconding. The Learned Public Prosecutor has relied upon the judgment of the Apex Court reported in (2005) 8 Supreme Court Cases 21 in the matter of State of U.P. Through CBI v. Amarmani Tripathi. The Apex Court in the said judgment has re-stated the factors to be considered whilst considering the application for bail. The said factors are re-stated in paragraph 20 of the said judgment and which are as follows : (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT Delhi.] 9. In the said judgment, the Apex Court has also held that the though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. 10. I have heard the Learned Counsel for the parties. 11. The evidence as disclosed shows that commission of the offences by a group of 20 to 25 persons who had covered their faces with masks and had criminally trespassed in the LPK Waterfront Night Club armed with weapons. It is also alleged that the said persons had wrongly confined the security guards of the club and other staff and had extensively damaged the property of the club and had set the counter on fire. It is also alleged that the said persons had decamped with one wall mounted Samsung LCD TV. The prosecution has filed an Affidavit of the Investigation Officer in this Court. It is also alleged that the said persons had decamped with one wall mounted Samsung LCD TV. The prosecution has filed an Affidavit of the Investigation Officer in this Court. In the said Affidavit it is stated that the accused were armed with wooden dandas, pick-axe, smash hammer, a plastic can without lid and other relevant material which have been attached under the panchanama. It is further stated in the Affidavit that the police has recovered one two wheeler and one smash hammer at the instance of the accused Domnic Nazareth. who is one of the applicants and two two-wheelers have been recovered at the instance of the accused Parimal Pandit and also three more scooters have been recovered from the owner of the scooters, which were hired by the accused Jayesh Chodankar who along with the accused Parimal Pandit and accused Rupesh Gadekar had personally procured the same from the owner of the scooters and were used during the commission of the said crime. The applicants have also been identified in the Test Identification Parade which was held. Hence, prima facie, the complicity of the accused in the crime is seen. Having regard to the material which has come on record it is not possible to accept the submission of the Learned Senior Counsel that the ingredients for the offences under Sections 395, 397, 427 and 436 of the I.P.C are absent. It is also required to be noted that one of the accused Domnic Nazareth is facing trial in a murder case. It appears that the persons who have committed the offence are part of a gang which indulges in such activities. In my view, therefore, the accused cannot be enlarged on bail as the same would hamper the investigation and would also result in intimidating the witnesses. The judgments cited supra enunciate the well settled guidelines which the Court has to bear in mind whilst considering an application for bail. In my view, if the facts of the present case are considered, in the context of the said guidelines, the applicants are not entitled to be enlarged on bail. In that view of the matter, all the four applications for bail as above are rejected.