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2022 DIGILAW 1216 (BOM)

Sushil v. State of Maharashtra

2022-04-26

ANIL S.KILOR

body2022
JUDGMENT 1. This is an application for cancellation of bail granted to the non-applicant No.2 vide order below Exh.53, dtd. 25/1/2022 in Sessions Trial Case No.11 of 2021 in connection with Crime No.80 of 2020 registered with the Police Station Akot City, District : Akola for the offences punishable under Ss. 302, 120, 120-B, 201 read with Sec. 34 of the Indian Penal Code, Ss. 3/25, 5/27, 7/27 of the Arms Act and Ss. 47/177, 130(1)(2)/177, 3/181 of the Motor Vehicles Act. 2. The brief fact of the present case are as follows: On 22/2/2020, a report was lodged by the police constable Bhashkar Shaligram Sangale, stating therein that on 21/2/2020 at about 22 hours while he was watching T.V. at his home, he heard a sound like fire cracker. Thus, when he came out at his house, he witnessed a person lying on the ground in in front of the quarter of police constable Dubey and further saw that one person of thin built fleeing from the spot while one other well built person riding a motor cycle nearby. When the informant raised alarm, two persons fled from the spot on the motor cycle. Accordingly, he intimated to the police and thereupon, the police personnel approached the lying person and thereupon, it revealed that he was Tushar Phundkar, who was the Ex-Chief of District Prahaar Sanghatana. The deceased breathed his last during the treatment in hospital. Thereafter, the offence was registered under Ss. 302, 120, 120-B, 201 read with Sec. 34 of the Indian Penal Code, Ss. 3/25, 5/27, 7/27 of the Arms Act and Ss. 47/177, 130(1)(2)/177, 3/181 of the Motor Vehicles Act vide Crime No.80 of 2020. 3. During the course of investigation, it was transpired that the accused Pawan Sedani on the count of avenging his brother Teja Sedani's murder, hatched a conspiracy and accordingly procured arms with the help of accused Nikhil Sedani and said plot was executed by the accused Shyam Swapnil Nathe, the non-applicant No.2 herein and one Alpesh Dudhe. 4. According to the prosecution, the non-applicant No.2 has shot deceased Tushar in the head and committed brutal cold blooded murder. 5. The non-applicant No.2 was arrested on 26/3/2020. Thereafter, he preferred an application for grant of regular bail, which was allowed by the learned Sessions Judge, Akot vide order below Exh.53 dtd. 25/1/2022 which is sought to be cancelled. 6. According to the prosecution, the non-applicant No.2 has shot deceased Tushar in the head and committed brutal cold blooded murder. 5. The non-applicant No.2 was arrested on 26/3/2020. Thereafter, he preferred an application for grant of regular bail, which was allowed by the learned Sessions Judge, Akot vide order below Exh.53 dtd. 25/1/2022 which is sought to be cancelled. 6. I have heard the learned counsel for the respective parties. 7. Shri Ghurde, learned counsel for the applicant submits that the bail was granted by the learned Sessions Judge on irrelevant material. It is submitted that order granting bail is perverse. 8. It is submitted that it was a cold blooded murder and looking to the evidence collected by the prosecution, the learned trial Court ought not to have granted bail to the non- applicant No.2. He further submits that the order on it's face shows that in a cryptic and mechanical manner it was passed without taking into consideration relevant material. 9. The learned counsel for the applicant submits that while considering the prayer for grant of bail, the guiding factors would be gravity of the crime, character of the evidence and position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice. He submits that these factors have not been considered by the learned Sessions Court while granting bail to the non-applicant No.2 and therefore, as to the order passed by the learned trial Court is against the well recognized principles underlying the power to grant bail. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kanwar Singh Meena Vs. State of Rajasthan and another, (2012) 12 SCC 180 . He therefore, prays for cancellation of bail. 10. On the other hand, Shri Thakare, learned APP submits that the offence was committed with premeditation. It is submitted that the evidence collected by the Investigating Officer during the investigation is sufficient to show the involvement of the non-applicant No.2/accused in the alleged offence. He submits that the offence committed by the nonapplicant No.2 is heinous and in such matter, bail ought not to have granted by the learned trial Court. It is submitted that the evidence collected by the Investigating Officer during the investigation is sufficient to show the involvement of the non-applicant No.2/accused in the alleged offence. He submits that the offence committed by the nonapplicant No.2 is heinous and in such matter, bail ought not to have granted by the learned trial Court. In support of his contention, he has placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Jagjeet Singh and Ors. Vs. Ashish Mishra @ Monu and anr. (passed in Criminal Appeal No.632 of 2022 (Arising out of Special Leave Petition (Cri.) No.2640 of 2022) dtd. 18/4/2022). 11. The learned APP has further drawn attention of this court to the findings recorded by the learned Sessions Court while granting bail. It is submitted that the learned trial Court has not taken into consideration the factors which ought to have been considered, while granting bail. He submits that, only on the ground that nothing remained to be recovered/discovered at the instance of the non-applicant No.2, the learned Sessions Judge has granted bail to the non-applicant No.2. He accordingly supports the case of the applicant for cancellation of bail. 12. Shri Gadhiya, learned counsel for the non-applicant No.2 strongly opposes the application and submits that no ground is made out by the applicant for cancellation of bail and supports the order granting bail to the non-applicant No.2. 13. It is submitted that for cancellation of bail the some cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. He further submits that in the case of Dolat Ram and others Vs. State of Haryana, (1995) 1 SCC 349 . the Hon'ble Supreme Court of India has held that unless overwhelming circumstances are available, the Court should not cancel the bail. He has further placed reliance on the judgment in the case of Bhagirathsinh s/o Mahipat Singh Vs. State of Gujarat, (1984) 1 SCC 284 . 14. He further submits that merely because the high Court had a different view than the view taken by the Sessions Court on the same set of material which had been taken into consideration by the learned Sessions Judge, cannot be a valid ground to label the order passed by the Sessions Judge as perverse. 15. 14. He further submits that merely because the high Court had a different view than the view taken by the Sessions Court on the same set of material which had been taken into consideration by the learned Sessions Judge, cannot be a valid ground to label the order passed by the Sessions Judge as perverse. 15. It is submitted that the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted, are different. In support of his submission, he has placed reliance on the judgment of Savitri Agrawal and others Vs. State of Maharashtra and another, (2009) 8 SCC 325 . 16. He further submits that while releasing on bail, the principal rule should be to secure the presence of the applicant, who seeks to be liberated. In support of his submission, he has placed reliance on the judgment in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 . 17. He further submits that it is not necessary for the Court to give elaborate reasons while granting bail, particularly, when the case is at the initial stage and the allegations of the offences by the accused would not have been crystallized as such. For this purpose, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Brijmani Devi Vs. Pappu Kumar and Another,2021 SCC Online SC 1280. 18. He submits that it is a well settled law that "bail is rule and jail is exception". He submits that in the case of Jeetendra Vs. State of Madhya Pradesh and another, (2020) 12 SCC 536 . the Hon'ble Supreme Court of India has observed that there is no gainsaying that the bail should not be granted or rejected in mechanical manner as it concerns the liberty of a person. 19. To consider the rival contentions of the parties, I have perused the charge sheet and also the judgment citied by the respective parties. 20. In this case, the offence was registered against the nonapplicant No.2/accused for the offence punishable under Ss. 302, 120, 120-B, 201 read with Sec. 34 of the Indian Penal Code, under Ss. 3/25, 5/27, 7/27 of the Arms Act and under Ss. 47/177, 130(1)(2)/177, 3/181 of the Motor Vehicles Act. There is no dispute that it is a heinous crime. In this case, the offence was registered against the nonapplicant No.2/accused for the offence punishable under Ss. 302, 120, 120-B, 201 read with Sec. 34 of the Indian Penal Code, under Ss. 3/25, 5/27, 7/27 of the Arms Act and under Ss. 47/177, 130(1)(2)/177, 3/181 of the Motor Vehicles Act. There is no dispute that it is a heinous crime. At this stage, therefore, it would be appropriate to consider while considering the guiding factors, for grant of bail. 21. The Hon'ble Supreme Court of India, in the case of Kanwar Singh Meena Vs. State of Rajasthan and another (supra), has observed thus: "10. Thus, Sec. 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Sec. 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail." 22. From the above referred judgment, it is clear that while granting bail, the High Court and the Sessions Court are guided by same considerations as other Courts, such considerations are namely; i) gravity of the crime, ii) the character of the evidence, iii) position and status of the accused with reference to the victim and witnesses, iv) the likelihood of the accused fleeing from justice and repeating the offence, v) the possibility of his tampering with the witnesses and obstructing the course of justice, vi) and such other grounds which are required to be taken into consideration. It is further clear that the Court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. 23. In the teeth of the above referred well settled principles of law, at this stage, it would be proper to refer the finding recorded by the Sessions Court while granting bail to the nonapplicant No.2. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. 23. In the teeth of the above referred well settled principles of law, at this stage, it would be proper to refer the finding recorded by the Sessions Court while granting bail to the nonapplicant No.2. which is as follows: "6] At present, nothing remained to be recovered/ discovered at the instance of the present applicant accused. Most of the all the accused are released on bail by this Court or by the Hon'ble High Court. Even main accused Pawan Sedani, who according to the prosecution, is a conspirator behind all the offences in this case, is also released on bail by the Hon'ble High Court. The present applicant accused is a local resident. According to him, besides the present one, no antecedent of offences is alleged even by the State. Other accused who are released on bail are attending the Court regularly. There is no reason to believe that, this accused would abscond if released on bail. Merely on hypothetical fear of the prosecution, the present applicant accused can not be detained behind the bars till conclusion of the trial, i.e. for uncertain and indefinite period of time..." 24. From the above referred findings of trial Court it can be seen that, the learned trial Court weighed with the following aspects: i) nothing remained to be recovered/discovered at the instance of the non-applicant No.2, ii) most of the accused are released on bail, even the main accused Pawan Sedani, the conspirator is also released on bail, iii) the non-applicant No.2 is a local resident and there are no antecedent of offence to the discredit of non-applicant No.2, iv) there is no reason to believe that, the non-applicant no.2 would abscond if releases on bail, and lastly, iv) the non-applicant No.2 can not be detained behind the bars till conclusion of the trial, i.e. for uncertain and indefinite period of time. 25. In this case, the charge-sheet runs above 560 pages, containing two CCTV footage recorded at the restaurant and at the Bank. There are statements of the witnesses, CD Report, report regarding recovery of Pistol under Sec. 27 of the Code of Criminal Procedure(the Cr.P.C.). 26. 25. In this case, the charge-sheet runs above 560 pages, containing two CCTV footage recorded at the restaurant and at the Bank. There are statements of the witnesses, CD Report, report regarding recovery of Pistol under Sec. 27 of the Code of Criminal Procedure(the Cr.P.C.). 26. Thus, it is clear that during the investigation, the sufficient material has been collected by the prosecution to prima facie show the involvement of the non-applicant No.2 in the alleged heinous offence. 27. In the above referred backdrop, now I will move to examine the law on the point of cancellation of bail. 28. The Hon'ble Supreme Court of India, in the case of Kanwar Singh Meena Vs. State of Rajasthan and another (Supra) has held that While cancelling bail under Sec. 439(2) of the Cr.P.C., the primary considerations which weigh with the Court are, whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. It is further held that even in a case where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. It is also observed that if the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, in such matters, it is justifiable to cancel the bail as such orders is against the wellrecognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. 29. The Hon'ble Supreme Court of India further held that the High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes, ultimately result in weakening the prosecution case and have adverse impact on the society. 30. The Hon'ble Supreme Court of India, in the case of Jagjeet Singh and Ors. Vs. Ashish Mishra @ Monu and anr (supra) has observed that the discretion of grant of bail under Sec. 439 of the Cr.P.C. is not unfatal. 30. The Hon'ble Supreme Court of India, in the case of Jagjeet Singh and Ors. Vs. Ashish Mishra @ Monu and anr (supra) has observed that the discretion of grant of bail under Sec. 439 of the Cr.P.C. is not unfatal. On the contrary, the High Court or the Sessions Court must grant bail after the application of judicial mind, following the well established principles and not in a cryptic or mechanical manner. 31. The Hon'ble Supreme Court of India has further held in paragraph Nos.30 and 31 as follows: "30. It will be beneficial at this stage to recapitulate the principles that a Court must bear in mind while deciding an application for grant of bail. This Court in the case of Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr. : (2010) 14 SCC 496 , p.9 and 10, after taking into account several precedents, elucidated the following: 9. ...However, it is equally incumbent upon the High Court to exercise its discretion judicially, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (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 accusation; (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 influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 32. The Court in Prasanta Kumar Sarkar went on to note: 10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal. In Masroor [ : (2009) 14 SCC 286 : (2010) 1 SCC (Cri.) 1368], a Division Bench of this Court, of which one of us (D.K.Jain, J.) was a member, observed as follows: (SCC p.290, para 13) 13. In Masroor [ : (2009) 14 SCC 286 : (2010) 1 SCC (Cri.) 1368], a Division Bench of this Court, of which one of us (D.K.Jain, J.) was a member, observed as follows: (SCC p.290, para 13) 13. ...Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided, but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence." 33. Thus, it is clear that if the High Court or Sessions Court does not advert to the relevant considerations and mechanically grants bail, the said order would suffer from vice of non-application of mind, rendering it to be illegal. 34. There cannot be any dispute as regards the well settled principles of law, if where the prima facie case is established, the approach of the Court in the matter of bail should not that the accused should be detained by way of punishment. 35. It is also a settled law that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail and the trend today is towards granting bail because it is now well settled by a catena of decisions of the Hon'ble Supreme Court of India that the power to grant bail is not to be exercised as if the punishment before the trial, is being imposed. (As held in the case of Bhagirathsinh s/o Mahipat Singh Vs. State of Gujarat (Supra)). 36. There cannot be a dispute as regards the law laid down in the case of Savitri Agrawal and others Vs. State of Maharashtra and another (Supra) that merely because the High Court had a different view on the same set of material which had been taken into consideration by the Sessions Court as perverse and also the law that "the bail is rule and jail is an exception". 37. However, without adverting to the principles which Court must bear in mind while deciding the application for grant of bail or where the Court grants bail mechanically, it suffers from vice of non-application of mind and renders such order as illegal. 38. I have discussed herein above, the principles and guidelines to be considered while deciding the application for grant of bail. 38. I have discussed herein above, the principles and guidelines to be considered while deciding the application for grant of bail. In the light of said the guidelines and the principles, if the findings recorded by the learned Sessions Court while granting bail to the non-applicant No.2 are considered, it can safely be said that the principles, which ought to have been considered by the learned Sessions Court while granting bail to the non-applicant No.2, have not been taken into consideration or the Sessions Court has not adverted to those principles while granting bail to the non-applicant No.2. 39. I have already pointed out that there is a voluminous record of the case, containing evidence against the accused persons, including the non-applicant No.2 and from the set of evidence prima facie it can be seen that the offence was committed in pre-meditated manner. 40. Thus, as per the principles to be considered at the time of grant of bail, the learned Sessions Court ought to have considered the gravity of the crime and character of the evidence as well which has not been considered and there is no finding recorded on it. 41. Whereas, the factors which were taken into consideration were that nothing remained to be recovered/discovered at the instance of the non-applicant No.2/ accused and most of the accused, including the main accused who is a conspirator, was released on bail. 42. Thus such order can be referred as perverse and it can be said that on irrelevant material, the bail was granted to the non-applicant No.2. 43. There is no dispute that the factors to be considered at the time of grant of bail are different than the factors to be considered at the time of cancellation of bail granted. It is held by the Hon'ble Supreme Court of India in catena of judgments that where the supervening circumstances are available or the order is perverse, the bail granted, can be cancelled. It is further held that even in absence of supervening circumstances, nothing deter the high Court or the Sessions Court to cancel the bail if it is found that the bail granted in heinous offence, without considering the relevant material and the order is perverse. 44. It is further held that even in absence of supervening circumstances, nothing deter the high Court or the Sessions Court to cancel the bail if it is found that the bail granted in heinous offence, without considering the relevant material and the order is perverse. 44. In the present case, there is nothing to show that there are supervening circumstances available however, as observed that on the irrelevant material, the bail was granted in heinous crime. Therefore, as the order is perverse, it needs to be cancelled in the interest of justice. 45. There is no dispute that the law laid down by the Hon'ble Supreme Court of India in the cases of Sanjay Chandra Vs. Central Bureau of Investigation (Supra), Brijmani Devi Vs. Pappu Kumar and Another(supra) and Dolat Ram and others Vs. State of Haryana (supra). However, in view of the findings recorded herein above, the sufficient ground is made out by the applicant for cancellation of bail and accordingly, the above referred judgments cited by the non-applicant No.2 are of no help to the respondent No.2 in the peculiar facts of the present case. 46. From the above referred findings, I have arrived at a conclusion that the bail granted to the non-applicant No.2 needs to be cancelled. Since I have reached to said conclusion on account of factors namely; irrelevant consideration having impacted the impugned order granting bail, it is made clear that it would be without depriving the non-applicant No.2/accused of his legitimate right to seek enlargement on bail on relevant consideration. If such application is made by the non-applicant No.2 after surrendering, on relevant factors, the same shall be decided by the Sessions Court on its own merit, after taking into consideration the relevant materials. Accordingly, I pass the following order: i) The application is allowed. ii) The order granting bail below Exh.53, dtd. 25/1/2022 in Sessions Trial Case No.11 of 2021, is hereby quashed and set aside. iii) It is made clear that this order would not come in the way of the non-applicant No.2/accused, if the non-applicant No.2 seeks enlargement on bail on the relevant consideration and if he makes such application, the learned Sessions Court shall decide the same on its own merit. The application stands disposed of.