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2019 DIGILAW 161 (BOM)

Dhananjay Jairam Desai v. State Of Maharashtra

2019-01-17

SADHANA S.JADHAV

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ORDER Sadhana S. Jadhav, J. - Heard the learned Counsel for the applicant and the learned APP for the State. 2. This is a subsequent application seeking enlargement on bail under section 439 of the Code of Criminal Procedure, 1973. Earlier application was rejected vide order dated 5th March, 2015. On 3/6/2014 one Shaikh Mobin Mohamamed Sadik, brother of Mohsin Mohamamed Sadik lodged a report at the police station that on 2/6/2014 while returning from offering prayers at masjid, he was chased by some people. About 20 boys came on 7 to 8 motor cycle and followed the victim and his companion. The said persons mounted assault on Mohsin in order to express hatred towards muslims. Mohsin was identified as Mohammedan and miscreants mounted assault upon him. They had attempted to chase his companion. However, his companion Riyaz has rescued himself. They were also chasing other Muhammadan boys. The passers by had dialed 100 number and called the police and thereafter, the miscreants by leaving their motor-cycles on the spot had fled. In the meanwhile, Mohsin Shaikh was taken to hospital and he was declared dead on arrival. On the basis of the report, Crime No. 305 of 2014 was registered against unknown person and investigation was set in motion. The miscreants were arrested in the first week of June, 2014 and the applicant was arrested on 10/6/2014. 3. The papers of investigation reveal that there are 17 case registered against the applicant under section 153A of the Indian Penal Code. However, police had not taken any coercive action against him except, filing charge-sheet. 4. While rejecting the earlier bail application, this Court had also observed that - "On 19.1.2014, despite the fact that the permission was rejected, Hindu Rashtra Sena held a public meeting and the present applicant had delivered speech by which he had incited feelings of hatred in the minds of Hindus against Muslims. The language was not only ferocious but the applicant had made an unconstitutional speech. The transcript of the said speech is part of the compilation of the charge-sheet. The people were urged to wage a war against Muslims on religious grounds. An attempt was being made to create imbalance in the social harmony of the society. This Court had also observed that while chasing muslim, the members of Hindu Rastra Sena were raising slogan such as "Dhananjay Zindabad", Hindu Rashtra Sena Zindabad". 5. The people were urged to wage a war against Muslims on religious grounds. An attempt was being made to create imbalance in the social harmony of the society. This Court had also observed that while chasing muslim, the members of Hindu Rastra Sena were raising slogan such as "Dhananjay Zindabad", Hindu Rashtra Sena Zindabad". 5. It is the contention of the learned Counsel for the applicant that the miscreants/accused who were arrested for having caused the homicidal death of Mohsin Shaikh have been enlarged on bail by this Court since long. That the applicant was not present at the scene of offence. This Court had observed that the applicant had given inflammatory speeches by which the teenagers and youngsters were instigated to wage war. The present applicant had created violent disharmony in the society. It was in these circumstances that this Court was of the opinion that it would be immaterial to consider as to whether the presence of the applicant at the scene of offence is instrumental or not. 6. After filing of charge-sheet, the case is committed to the Court of Sessions and registered as Sessions Case No. 644 of 2014. The applicant had filed application under section 227 of Criminal Procedure, 1973 for discharging him before the Additional Sessions Judge, Pune. The said application was rejected vide order dated 14/6/2016. Being aggrieved by the Order dated 14/6/2016, the applicant had filed Revision Application No. 516 of 2016. On 13/4/2017 this Court (Coram : A.M. Badar, J) has upon consideration of the entire charge-sheet admitted the revision application and the matter was posted for final hearing after 8 weeks. 7. Alongwith Revision Application, the applicant had also filed Criminal Application No. 543 of 2017 seeking stay to the trial qua the applicant. The matter could not be heard finally within 8 weeks. Hence, this Court (Coram : A.S. Gadkari, J) vide order dated 19/12/2017, in view of the observations of the Court while admitting the revision application had passed an order as follows :"In view of the same, the trial arising out of Sessions Case No. 644/2014 qua the applicant is stayed pending the revision application. 8. In view of this, the learned Counsel for the applicant had prayed for enlargement on bail since the prima facie case for discharge was made out and that the trial against the applicant was stayed. 8. In view of this, the learned Counsel for the applicant had prayed for enlargement on bail since the prima facie case for discharge was made out and that the trial against the applicant was stayed. However, this Court was of the opinion that the trial would be protracted and that it would be unfair to try the co-accused who are enlarged on bail in the year 2016 and 2017. Till date, 20 accused are on bail. 9. The applicant had then filed Criminal Bail Application No. 1310 of 2016 on 22/6/2017. The learned Counsel for the applicant had withdrawn the said application and hence, the application was dismissed as withdrawn. 10. Today once again the learned Counsel for the applicant has prayed for bail on the ground of parity. The learned Counsel for the applicant has placed implicit reliance upon the judgment of the Hob''ble Apex Court in the case of Sanjay Chandra vs. CBI, reported in 2011 (8) Supreme Court 270. The Hon''ble Apex Court has observed as follows : "Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence." 11. In any case, the trial qua applicant was stayed. In fact, if the trial was not stayed, the Sessions Court would have proceeded with the trial since the applicant was undertrial prisoner and the same could have been taken to its logical end by now. 12. The nature of accusation are such that it would create disharmony amongst the community. In any case, the trial qua applicant was stayed. In fact, if the trial was not stayed, the Sessions Court would have proceeded with the trial since the applicant was undertrial prisoner and the same could have been taken to its logical end by now. 12. The nature of accusation are such that it would create disharmony amongst the community. The applicant is founder President of Hindu Rashtra Sena and hence, as on today, this Court is of the opinion that the applicant deserves to be enlarged on bail on imposing certain appropriate conditions based on the accusation against him. 13. The learned Counsel for the application submits that he would give an affidavit/undertaking to this Court that he would get the stay vacated dated 19/12/2017 passed in Criminal Application No. 516 of 2016. The learned Counsel for the applicant submits that the applicant would not seek enlargement on bail till he withdraws Criminal Application No. 543 of 2017 in Criminal Revision Application No. 516 of 2016. He would also give affidavit-cum-undertaking that he would not give any public speeches and also not run organisation Hindu Rashtra Sena till the conclusion of the trial. Sister of the applicant is present and on behalf of the applicant she had conceded to the condition being imposed upon the applicant. 14. The applicant herein has filed affidavit/undertaking which the applicant has signed in the presence of the Jailor Yerwada Central Prison on 24/1/2019. The undertaking is as follows : (a) I undertake that, till the conclusion of trial in C.R. No. 305 of 2014 pending before the Sessions Court, Shivaji Nagar, Pune, the Applicant shall not in any manner whatsoever involve in any Public/Political activities related to or organised at the behest of Hindu Rashtra Sena or even otherwise; (b) I undertake that, till the conclusion of trial in the aforesaid C.R. No. 305 of 2014, I shall not participate or deliver any public speeches in any manner whatsoever and shall not work with any other organisation till the conclusion of trial; (c) I undertake not to publish/broadcast any speeches or interviews or bytes on any social media namely WhatsApp, Facebook, Instagram, Twitter etc. in any manner whatsoever organisation till the conclusion of trial; (d) I forthwith undertake to withdraw all the necessary kiosk, sign-boards, banners and any publication material related to the organisation Hindu Rashtra Sena with immediate effect. in any manner whatsoever organisation till the conclusion of trial; (d) I forthwith undertake to withdraw all the necessary kiosk, sign-boards, banners and any publication material related to the organisation Hindu Rashtra Sena with immediate effect. I also shall restrain in every manner whatsoever my party workers, activists or my followers from publishing any hoardings/banner depicting my pictures/posters or for that matter any activity pertaining to my organisation namely Hindu Rashtra Sena organisation till the conclusion of trial; (e) I forthwith, unconditionally undertake to withdraw Criminal Application No. 543 of 2017 pending in Criminal Revision Application No. 516 of 2016 pending before this Hon''ble Court wherein this Hon''ble Court was pleased to stay the trial qua the instant Applicant arising out of Sessions Case No. 644/2014. (f) I say that, upon being released by this Hon''ble Court I shall be residing at "Hindu Gad, Parmar Bungala, Vitthalwadi, Paud, Pune, Maharashtra-412108. I shall be accessible on Mobile No. 9767969360; (g) I undertake to attend the Hadpasar Police station on every Monday till the end of trial or as per the direction of this Hon''ble Court; The undertaking is taken on record and marked as Article X for identification. 15. In view of the above observations and undertaking give by the applicant, the applicant deserves to be enlarged on bail. Hence, following order is passed : ORDER (i) The application is allowed. (ii) The applicant be enlarged on bail on furnishing P.R. Bond in the sum of Rs. 50,000/- and one or more solvent sureties in the like amount. (iii) The applicant shall not tamper with the evidence. (iv) The applicant shall abide by the undertaking given to this Court till the conclusion of the trial. (v) The applicant shall attend each and every stipulated date before the Sessions Court in Sessions Case No. 644 of 2014. (vi) The applicant shall also give cell phone numbers, landline numbers and permanent addresses of the sureties. (vii) For any breach of condition or breach of any undertaking, the prosecution will be at liberty to file an application under section 439(2) of the Code of Criminal Procedure, 1973. 16. The application is disposed of accordingly.