Bombay High Court
Gitesh S/O. Battersingh Kowachi ... vs State Of Maharashtra Thr. Police ... on 21 August, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (BA) NO.784/2017
Gitesh s/o Battersingh Kowachi and ors. ..vs.. State of Maharashtra, through
PSO P.S. Purada, Tq. Kurkheda, Dist. Gadchiroli
_______________________________________________________________________
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. V. N. Morande, Advocate for applicants.
Mr. I. J. Damle, A.P.P. for non applicant-State.
CORAM : V.M. DESHPANDE, J.
DATED :
AUGUST 21, 2017
1. Present application is filed by the applicants
under Section 439 of the Code of Criminal Procedure for
grant of bail.
2. The applicants are arrested in connection with
Crime No.11/2017 registered with Police Station, Purada,
Tq. Kurkheda, Dist. Gadchiroli for an offence punishable
under Sections 4 and 5 of the Explosive Substances Act,
1908, Sections 5 and 28 of the Indian Arms Act, 1959 and
under Section 135 of the Maharashtra Police Act, 1951.
3. I have heard Mr. V.N. Morande, learned counsel
for the applicants and Mr. I.J. Damle, learned A.P.P. for
the non applicant-State in extenso.
4. The FIR was lodged by Suresh Sayam, Head
Constable who was a part of Police party of 29 police
personnels which was in combing operation against the
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Naxals. On 31.03.2017 when he along with 29 police
personnels was discharging his duties in the dense forest,
they noticed 4 unknown persons. On noticing the presence
of police party, those persons started running away. That
gave a cause of suspicion in the minds of the police party
and therefore they were chased and were apprehended.
After they were apprehended, those 4 unknown persons
disclosed their identity to the police officers. They are the
present applicants. At the time of their search, explosives
and other articles which could be used to explode the
explosives were found in their possession so also a gun was
found in their possession. The applicants were unable to
give any explanation about the said objectionable articles
in their possession. The police party, after following the
due process of law, arrested those persons and also seized
all the articles.
5. During the course of investigation, one of the
applicants also made disclosure statement which led to the
recovery of a walkie-talkie which was used to establish
contact with the outlawed organization. The investigating
officer has already completed the entire investigation and
the challan is already filed before the court of law.
6. The charge-sheet contains statements of one
Kamla and Birju who were Naxalites. They surrendered
before the law on 15.02.2016 and 13.08.2016 respectively.
Their statements show that the present applicants are
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die hard supporters of the Naxal movement. Their
statements also show that these applicants not only used to
supply daily needs and articles to the Naxalites when they
were with the Naxal movement but also that they used to
provide explosives and information about the movements
of police.
7. According to the learned counsel for the
applicants, there was an option with the applicants either
to follow the law or help the Naxalites by providing and
extending an active help to them in view of their threats.
According to the learned counsel for the applicants, the
present applicants opted not to follow the law but to
provide and extend active help to the Naxalites. He
submits that the applicants are residents of internal parts
of a forest, where members of the outlawed organization
regularly visit, and therefore the applicants hardly had an
option to resist offering the help to those members. The
applicants were bound to save their skin by offering such
help is only submission that was canvassed before me.
8. I am afraid the argument does not merit
countenance. We are a society governed by law. The
citizens have no option to choose between obeying the law
or breaching it. So long as a citizen is in a position to
exercise his will, he must without doubt obey the law. If
the argument of the learned counsel were to be accepted,
it will take us to an unchartered territory and make us
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condone disobedience to law on principles unknown to
law.
9. The submission of Mr. V.N. Morande, learned
counsel for the applicants, reminds me the arguments
advanced in a celebrated English case; The Queen v.
Dudley & Stephens; reported in 1884 Queens Bench
Division, Vol. XIV, 273, where the prisoners who in order
to escape the death from hunger, killed, and ate the flesh
of a fellow traveller stranded with them on a cast away
boat. The argument simply stated thus;
"Necessity will excuse an act which would otherwise
be a crime."
The argument was comprehensively rejected by
Lord Coleridge, Chief Justice. The learned Chief Justice
termed the act rather as temptation than an act of 'what
the law has ever called necessity.' The learned Chief Justice
went on to add that;
"Though law and morality are not the same, and
many things may be immoral which are not
necessarily illegal, yet the absolute divorce of law
from morality would be of fatal consequence; and
such divorce would follow if the temptation to
murder in this case were to be held by law as an
absolute defence of it."
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10. Therefore, the arguments of Mr. Morande, the
learned counsel for the applicants, in my view, are
required to be rejected outright.
11. Merely because the challan is presented by the
investigating officer that by itself cannot be a ground for
the applicants to get themselves released on bail especially
when the present applicants were found to be actively
helping the outlawed organization and were found in
possession of the explosives. No case is made out for grant
of bail. The application is therefore rejected.
JUDGE
kahale
