Ganesh Tanaji Kadam vs The State Of Maharashtra
2021 Latest Caselaw 3564 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           CRIMINAL APPELLATE JURISDICTION

        ANTICIPATORY BAIL APPLICATION NO. 533 OF 2021

 Ganesh Tanaji Kadam                                         .... Applicant
      Versus
 The State of Maharashtra                                    .... Respondent
                                          ______

 Mr. Subhash Jha i/b Law Global Advocates                                     for the
 applicant.
 Mr. Ajay Patil, APP for the State/Respondent.
                             ______

                                     CORAM :SARANG V. KOTWAL, J.

DATE :25th FEBRUARY, 2021

P.C. :

1. The Applicant is seeking anticipatory bail in

connection with C.R.No. 445 of 2019, registered with

Paud Police Station, under sections 302,

323,427,143,147,148,149 of the Indian Penal Code, under

Sections 4 and 27 of Indian Arms Act and Section 37(1)

(3), 135 of Maharashtra Police Act. Subsequently Section

120B of Indian Penal Code is also added.

2. Heard Mr. Subhash Jha, learned Counsel for the

applicant and Mr. Ajay Patil, learned APP for the State.

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3. The FIR is lodged by one Mahesh Satav. He has

stated that on 09/10/2019, the frst informant was to get

delivery of his new car. The deceased Pratik was his

friend. In the year 2016, one Ganesh Dedge was

murdered and deceased Pratik was an eye witness in that

case. Since then he was on inimical terms with Kiran

Satav and Samir Pandhare. On the date of the incident,

the informant had gone to take delivery of his car. He

was accompanied by his friend Pratik. They started from

Chinchwad towards Lavale village. When they were

travelling from Raut Wadi, Bhare Road, their car was

intercepted by a tractor. From behind their car, one

Santro car came. From that car fve known persons and

two unknown persons got down. The informant has

named Kiran Satav with sickle, Samir Pandhare with

sickle, Kiran Kalmkar with sickle, Mahesh Gawade with

sickle, Rajit Kalmkar with sickle, as the persons who had

got down from the car. They broke wind shield of the

informant's car and straight way assaulted Pratik with

their weapons. The informant ran away from the spot to

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save himself. One of their friends went to Pratik's house

and brought his father to the spot. Thereafter, all the

assailants went away with their vehicle. Pratik

succumbed to his injuries. On this basis the FIR is lodged.

4. Shri Jha, learned Counsel for the applicant

submitted that in the FIR there is no allegations against

the present applicant. He is not even named. In some

statement given belatedly reference to the applicant's

name is made. According to Shri Jha, the learned

Sessions Judge did not apply his mind in rejecting his

application. The ground mentioned in the order of

rejection of bail regarding the applicant absconding for

many years is not sustainable. In the previous case, the

applicant had surrendered and was released on regular

bail. He submitted that the fact of the accused was

absconding for many days; cannot be a circumstance for

rejecting the bail application of the accused. There could

be many reasons for his absconding. It may not point to

his guilt. He submitted that in this particular case, the

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applicant's wife had won election of gramsabha of village

Lavale and due to local politics, he is falsely roped in, in

this ofence. He further submitted that the applicant was

an editor of a local daily and therefore he had enemies,

as he had exposed diferent acts of corruption and

malpractices. He submitted that there is no material in

the charge-sheet fled against other accused to show

applicant's involvement. He relied on the Judgment of

Hon'ble Supreme Court in the case of Raghubir Singh

Vs. State of U.P. reported in (1972), Volume 3 Supreme

Court Cases, page 79 to contend that the circumstance of

absconding is not a circumstance to establish his guilt.

5. Learned APP opposed this application. He

submitted that a warrant was issued against the present

applicant in this case on 30/9/2020. He was not available

and was not found, therefore, subsequently a

proclamation was issued against him by the learned

Magistrate on 2/2/2021. He relied on the observations of

the Hon'ble Supreme Court in case of State of Madhya

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Pradesh Vs. Pradeep Sharma reported in AIR 2014,

Supreme Court page 626 as well as in the case of Lavesh

Vs. State (Nct of Delhi), reported in 2012 ALL MR (Cri)

3300, Supreme Court, to contend that once the

proclamation is issued against the accused, anticipatory

bail application cannot be entertained. He submitted

that there was a statement of father of the deceased

which is recorded immediately on the very day on which

the FIR was lodged and in that statement, he has referred

to an incident, when the applicant and his brother Mahesh

had threatened him that they would commit murder of his

son Pratik. He therefore, submitted that there was

proximate cause and reason for the applicant to conspire

to commit murder of the deceased.

6. I have considered these submissions. As far as

merit of the matter is concerned, the statement of father

of the deceased is recorded immediately on 9/10/2019.

The frst informant was friend of the deceased so he may

not be aware of the exact nature of the enmity. The

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father of the deceased was aware of this. The father of

the deceased has stated in his statement that in August

2019, when he and his wife were travelling on his two

wheeler, the applicant and his brother Mahesh came in a

car, they stopped him and told him that because of his

son, they were arrested and had gone to jail and that they

would not leave his son alive. Since there was terror in

the area created by the applicant and his brother, he had

not lodged any complaint. On 8/10/2019, Kiran Satav and

his associates assaulted the deceased Pratik.

7. As submitted by the learned APP, the main

accused Kiran is still absconding. The charge-sheet is

fled against the arrested accused which include call

record details between Kiran Satav and applicant's

brother. That has to be looked into, in the context of the

threats given by the applicant and his brother to the

father of the deceased in August 2019.

8. Learned APP submitted that the applicant was

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absconding for three years in the earlier case in which

deceased Pratik was an eye witness. Though he

subsequently surrendered and was released on bail, the

fact that he was absconding for three years cannot be

ignored. He had surrendered after the trial was

concluded against others. In this particular case also,

initially warrant was issued and subsequently

proclamation was also issued against the applicant. The

Hon'ble Supreme Court in case of Pradeep Sharma

(supra) in paragraph No. 12 by relying on Lavesh's case

(supra) has observed thus:

"Recently, in Lavesh Vs. State (NCT of Delhi) 2012 8 SCC 730, this Court, (of which both of us were parties) considered the scope of granting relief under Section 438 vis-a-vis to a person who was declared as an absconder or proclaimed ofender in terms of Section 82 of the Code. In para 12, this Court held as under:

"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed ofender", there is no question of granting anticipatory bail. We reiterate that when

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a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed ofender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."

It is clear from the above decision that if anyone is declared as an absconder/proclaimed ofender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail."

9. Therefore, in this particular case, the history

and conduct of the applicant, not in one but in two cases,

will have to be taken into consideration. It is not a case

of his absconding only in one case because of

apprehension of arrest. This was repeatedly done by the

applicant in two cases consecutively. He was not

available for interrogation right from the year 2019.

Today proclamation is pending against him. Observations

of the Hon'ble High Court in a case of Pradeep Sharma's

case and Lavesh's case are squarely applicable to this

case. Even on merits, there is sufcient material against

the present applicant. His custodial interrogation is

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required. No case for grant of anticipatory bail is made

out.

The application is rejected.

                                       (SARANG V. KOTWAL, J.)




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