Shri. Ganesh Vasant Mahadik vs The State Of Maharashtra And Anr
2021 Latest Caselaw 12537 Bom

                                              1/16                 APEAL(ST)-5352-2020+.doc




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL [STAMP] NO. 5352 OF 2020

Ramesh Harischandra Patil                               ...Appellant

         Versus

The State of Maharashtra & Anr.                         ...Respondents

                                  ALONG WITH
                        CRIMINAL APPEAL NO. 193 OF 2021

Ganesh Vasant Mahadik                                   ...Appellant

         Versus

The State of Maharashtra & Anr.                         ...Respondents

                                  ALONG WITH
                        CRIMINAL APPEAL NO. 451 OF 2021

Chinmay Dhanaji Gurav                                   ...Appellant

         Versus

The State of Maharashtra & Ors.                         ...Respondents

                                               ...

Mr. Sanjeev Kadam a/w. Ms. Varsha M. Thorat & Mr. Prashant
Raul for appellant in Appeal Nos. 193/2021, 451/2021 and Appeal
Stamp No. 5352/2020.
Mr. Nitesh V. Bhutekar for Respondent No. 2 in Appeal No.
193/2021 and Appeal Stamp No. 5352/2021.
Mr. J.P. Yagnik, APP for State.
                                ...

                                        CORAM : S. S. SHINDE &
                                                N. J. JAMADAR, JJ.

RESERVED ON : 23rd AUGUST, 2021.

PRONOUNCED ON: 3rd SEPTEMBER, 2021.

Bhagyawant Punde, PA





                                              2/16                       APEAL(ST)-5352-2020+.doc




JUDGMENT: [PER: N.J. JAMADAR, J.]

1. These appeals under Section 14A of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(hereinafter referred to as 'SC & ST Act'), assail the legality,

propriety and correctness of the orders passed by the learned

Special Judge, Mangaon, Raigad, rejecting the applications of the

appellants-applicants for pre-arrest bail, in connection with C.R.

bearing No. 146/2019 registered at Mahad Police Station for the

offences punishable under Section 307, 326, 325, 324, 323, 120-B,

143, 147, 148, 149, 109, 201 of the Indian Penal Code, 1860 ('Penal

Code') and Section 3(1)(4), 3(ii)(va) of the SC & ST Act, Section 3(1)

of the Prevention of Damage To The Public Property Act, 1984 and

Section 37 read with 135 of the Maharashtra Police Act, 1951,

against the appellants and co-accused.

2. Since all the appellants had sought anticipatory bail in

connection with C.R. bearing No. 146/2019, though their

applications have been dismissed by the learned Special Judge by

distinct orders, we deem it appropriate to decide all these appeals

by this common judgment.

Bhagyawant Punde, PA





                                          3/16                   APEAL(ST)-5352-2020+.doc

3. These appeals arise in the backdrop of following facts:-

Allegations in the FIR-

a) People's Education Society, a public charitable trust,

runs various institutions, including Dr. Babasaheb Ambedkar

College, Mahad. Mr. Suresh Athavale (hereinafter referred to as 'the

first informant'), claimed to have been appointed as the principal of

said college, and worked in the said capacity during the period 2013

to 2015. In the wake of dispute over the management of the affairs

of People's Education Society, Mr. Dhanaji Gurav, allegedly usurped

the said position forcibly. Eventually, by an order dated 14.08.2019,

the Charity Commissioner decided that Mr. Ashok Talwatkar who

claimed to be a trustee, had no concern with the trust. The said

decision was upheld by the High Court by an order dated

21.11.2019.

b) The first informant alleges that Shri. S.P. Gaikwad,

Chairman of the society appointed him as the principal of said

college. Pursuant thereto the first informant took charge on

23.12.2019.

c) On 26.12.2019, at about 7.00 am while he was

discussing administrative matters with Smt. Aruna Ajgaonkar and

Smt. Chitra Salvi, employees of the college, in his chamber, he

Bhagyawant Punde, PA

4/16 APEAL(ST)-5352-2020+.doc

noticed that 30 to 35 persons rushed into college premises amidst

shouting slogans "Dhanajii Gurav Jindabad". The mob comprised of

Dhanaji Gurav, Ashok Talwatkar, Chinmay Gurav (Appellant in

Appeal No. 451/2021), Rakesh Sonar, Ganesh Mahadik (Appellant

in Appeal No. 193/2021), Sachin Patre, Ramesh Patil (Appellant in

Appeal Stamp No. 5352/2020), Anil Jadhav, Rohidas Kashinath

Chavan and others.

d) The first informant claimed to have instructed the college

staff to lock the grill door leading to the principal's office. The

members of the said assembly were armed with deadly weapons.

They assaulted Arvind Salvi, Vitthal Gaikwad and Sanjay Hate, who

were resisting their entry towards principal's office. The grill door

was broken open. Thereafter, according to the first informant

Dhanaji Gurav, Gnaesh Mahadik, Sachin Parte, Ramesh Patil and

Anil Jadhav and 5 to 7 other bouncers entered into his chamber.

The appellant Ganesh Mahadik and Ramesh Patil exhorted the

persons to unleash the assault upon the first informant. The

accused Dhanaji Gurav attempted a blow by means of iron rod on

the head of the first informant. He took defensive action and

suffered the blow on his right hand, which was fractured. Rest of

the persons also assaulted him. He was dragged out of his office.

Bhagyawant Punde, PA





                                                   5/16                    APEAL(ST)-5352-2020+.doc

Smt. Aruna Ajgaonkar and Smt. Chitra Salvi were also dragged out

of his office. While fleeing away the members of the accused party

took away the DVR machine which was installed to record the CCTV

footage. The first informant thus lodged the report.

4. Pursuant to the aforesaid FIR, crime was registered at

C.R. No. 146/2019 for the aforesaid offences. Investigation

commenced. Few of the accused came to be arrested. It transpired

that the appellants and co-accused had committed alleged offences

in pursuance of the conspiracy hatched at Saitej Hotel. The

prosecution further alleged that the members of the unlawful

assembly comprised of bouncers, who were brought to the college

by appellant- Chinmay Gurav. Investigation further revealed that

Chimnay Gurav had multiple telephonic conversations with the

accused who participated in the actual assault.

5. In the light of aforesaid indictment, appellant Ganesh

Mahadik preferred an application for pre-arrest bail being Criminal

M.A. No. 104/2020. The appellant asserted that he was working as

senior clerk in the said college. Consequent to disputes between the

two groups of persons to manage the affairs of People's Education

Society, multiple proceedings came to be instituted. Accused

Dhanaji Gurav has filed criminal complaints against the first

Bhagyawant Punde, PA

6/16 APEAL(ST)-5352-2020+.doc

informant and others bearing C.R. No. 01/2017 and R.C.C. No.

98/2016. The appellant is cited as witness in the said case. The

appellant thus asserted that in the dispute between the first

informant and accused Dhanaji Gurav, teaching and non teaching

staff members are unnecessarily dragged. The implication of the

appellant as accused No. 5 in the said C.R. bearing No. 146/2019 is

a part of the said exercise.

6. The appellant further asserted that he, being a member

of the scheduled caste, could not have been roped in for the offences

punishable under SC & ST Act. Even otherwise, there is no material

to implicate the appellant for the offences punishable under Penal

Code and, in any event, custodial interrogation of the appellant is

not warranted.

7. The learned Special Judge was of the view that even if

the provisions of offences punishable under Section SC and ST Act

were not invoked against the appellant, there was sufficient material

to demonstrate the involvement of the appellant in the commission

of the offences under the Penal Code and other Acts. The appellant

was specifically named as a member of the unlawful assembly and

conspirator. Thus, the learned Special Judge by the impugned order

Bhagyawant Punde, PA

7/16 APEAL(ST)-5352-2020+.doc

dated 12.10.2020, declined to exercise the discretion in favour of

the appellant-Ganesh Mahadik.

8. Ramesh Patil (Appellant in Appeal Stamp No.

5352/2020) also applied for pre-arrest bail by filing Cri. M.A. No.

68/2020, on almost identical grounds. The learned Special Judge

by the impugned order dated 31.08.2020 declined to exercise

discretion in favour of the appellant in the backdrop of allegations,

especially exact role attributed to the applicant.

9. Mr. Chinmay Gurav (Appellant in Appeal No. 451/2021)

also preferred Criminal M.A. No. 37/2020. The substance of the

said application was that the appellant came to be implicated for

the only reason that he is the son of accused Dhanaji Gurav. No

specific role of assault has been attributed to the appellant. The

allegations of hatching conspiracy and bringing bouncers to

perpetrate the offences are vague. The investigation is complete and

chargesheet has been filed against the co-accused. At this juncture,

custodial interrogation of the appellant is not warranted.

10. The learned Special Judge was not persuaded to grant

relief of pre-arrest bail as, in her view, there was sufficient material

to incriminate the appellant. It was therefore necessary to provide

Bhagyawant Punde, PA

8/16 APEAL(ST)-5352-2020+.doc

opportunity to the investigating agency to interrogate the appellant.

Hence, application of the appellant for pre-arrest bail came to be

rejected by the learned Special Judge by impugned order dated

26.04.2020.

11. Being aggrieved and dissatisfied with the dismissal of

applications for pre-arrest bail, the appellants-applicants are in

appeal.

12. Admit. Heard finally with the consent of learned counsel

for the parties.

13. We have heard Mr. Sanjiv Kadam, the learned counsel

appearing for the appellants, Mr. Yagnik, the learned APP for State

and Mr. Nitesh Bhutekar, the learned counsel for Respondent No. 2

in Criminal Appeal No. 193 of 2021 and Appeal Stamp No.

5352/2020. With the assistance of learned counsels we have

perused the material on record.

14. Mr. Kadam, the learned counsel appearing for the

appellants would urge that the allegations are required to be

considered in the backdrop of the fact that the institution is faction-

ridden. Various proceedings have been instituted amidst claims and

Bhagyawant Punde, PA

9/16 APEAL(ST)-5352-2020+.doc

counter-claims over the right to manage the affairs of the society.

The claim of the first informant that he came to be appointed as the

principal of college w.e.f. 23.12.2019 is itself contentious. Mr.

Kadam, would strenuously urge that the persons, who were

allegedly present and sustained injuries in the course of the alleged

occurrence, also came to be appointed only after the first informant

allegedly took charge of the post of principal on 23.12.2019. This

factor is required to be considered in conjunction with the fact that

Ramesh Patil and Ganesh Mahadik were the employees of the said

college and after the first informant took charge of the post of the

principal they were sought to be eased off. The presence of Ganesh

Mahadik and Ramesh Patil at the time and place of the occurrence,

therefore, according to Mr. Kadam is natural. Conversely, the first

informant and the witnesses who represented the informant party

have a grudge to implicate these appellants, urged Mr. Kadam.

15. As against this, Mr. Yagnik, the learned APP for State

submitted that there is ample evidence to demonstrate that the

appellant Ganesh Mahadik and Ramesh Patil were not only the

members of unlawful assembly in prosecution of common object of

which grave offences were committed, but specific overt acts have

been attributed qua Ganesh Mahadik and Ramesh Patil. He invited

Bhagyawant Punde, PA

10/16 APEAL(ST)-5352-2020+.doc

attention of the Court to the number of injured and nature of

injuries suffered by them. Mr. Yagnik, would urge that, therefore,

the appellant Ganesh and Ramesh do not deserve the exercise of

discretion in their favour. Lending support to the submission of

learned APP, Mr. Nitesh Bhutekar submitted that the ferocity of the

assault and grievous nature of injuries sustained by the first

informant and injured cannot be lost sight of, while considering the

prayers for pre-arrest bail.

16. To being with, it is necessary to note that so far as

invocation of the provisions contained in SC & ST Act qua Ramesh

Patil and Ganesh Mahadik, the learned Special Judge, recorded that

the applicants appeared to be the members of Scheduled Caste.

Nonetheless, even if the bar under Section 18 and 18A of the SC &

ST Act does not came into play, having regard to the nature of

accusation against the appellants and the material in support

thereof, they were not entitled to be released on anticipatory bail.

17. Whether this approach of the learned Special Judge is

justifiable?

18. First and foremost, it is imperative to note that the first

informant alleged that the mob of 30 to 35 persons barged into the

Bhagyawant Punde, PA

11/16 APEAL(ST)-5352-2020+.doc

campus of college. An effort was made to shut the access to office of

the principal by locking the grill door. The members of the assailant

party broke open the grill door, and charged into his office. On the

way, the members of the staff of the college, including Sanjay Hate,

Arvind Salvi and Vitthal Gaikwad, were assaulted. What prima facie

incriminates the appellants Ganesh and Ramesh, at this stage, is

the clear and categorical allegation that they were members of the

small group of assailants, who entered into the chamber of the first

informant along with accused Dhanaji Gurav. Not only the first

informant has named appellants Ganesh and Ramesh but has also

attributed the specific role that they exhorted other members of the

party to beat the first informant.

19. Mr. Kadam, the learned counsel for the appellants made

an endevour to demonstrate that in the statements of witnesses

apart from accused Dhanaji Gurav, no other member of the alleged

unlawful assembly was named and they were described as

'unknown persons'. The submission does not carry much

substance. We have adverted to the FIR in a little detail, on

purpose. The first informant spoke about the presence of Smt.

Aruna Ajgaonkar and Smt. Chitra Salvi in his chamber, when the

incident occurred. Both Smt. Aruna and Smt. Chitra have stated

Bhagyawant Punde, PA

12/16 APEAL(ST)-5352-2020+.doc

that the appellant Ganesh and Ramesh were members of the party

which accompanied accused Dhanaji Gurav in the chamber of the

first informant and assaulted the first informant. Even, Mr. Vitthal

Gaikwad, one of the injured has named the appellant Ganesh and

Ramesh as the members of the unlawful assembly.

20. At this juncture, it is imperative to note that the injury

certificate of the first informant, Sanjay Hate, Arvind Salvi, Vitthal

Gaikwad and Mahendra Ghare reveal that each of them had

sustained multiple injuries. The first informant, Sanjay Hate,

Vitthal Gaikwad and Mahendra Ghare had sustained fractures. In

the face of this material, we are of the view that the learned Special

Judge was justified in recording that there was adequate evidence

to make out prima facie offences against the appellant Ganesh and

Ramesh. The first informant has attributed a specific role to the

appellants. The alleged eye witnesses to the occurrence have

specifically named the appellants. At this stage, the medical

evidence and circumstantial evidence lends prima facie support to

the claim of the first informant and the alleged witnesses. In the

backdrop of this nature of the material against the appellants, it

cannot be said that the custodial interrogation of the appellants is

not necessary. Thus, no fault can be found with the refusal to

Bhagyawant Punde, PA

13/16 APEAL(ST)-5352-2020+.doc

exercise the discretion in favour of the appellants Ganesh and

Ramesh by the learned Special Judge.

21. On the aspect of complicity of appellant Chinmay Gurav,

the thrust of the submission on behalf of the prosecution was based

on the call detail record which indicated that the appellant Chinmay

Gurav had multiple conversations with accused no. 11 Santosh

Patil, accused no. 6 Anil Jadhav, accused no. 10 Ramesh Patil and

accused no. 4 Ganesh Mahadik, in the days immediately preceding

the day of occurrence. The appellant Chinmay allegedly had

conversation with accused no. 11 Santosh Patil three times in

between 5.33 am to 6.33 am, hours before the occurrence. It was

urged that these multiple conversations indicate that the appellant

Chinmay Gurav had hired hirelings, and custodial interrogation of

the appellant is necessary to uncover the identity of 20-25 unknown

persons who were allegedly brought by the appellant and also to

recover DVR, which is the vital piece of evidence to fix the identity of

the assailants.

22. Mr. Kadam, the learned counsel for the appellant, on the

other hand, would urge that no specific role has been attributed to

the appellant Chinmay Gurav. There is a strong motive for the first

informant and the members of informant party to implicate the

Bhagyawant Punde, PA

14/16 APEAL(ST)-5352-2020+.doc

appellant Chinmay, on account of deep rooted enmity with Dhanaji

Gurav, father of appellant-Chinmay.

23. Had there been no material to prima facie establish the

nexus between the appellant- Chinmay and the occurrence, the

submission on behalf of the appellant would have merited

acceptance. However, it is pertinent to note that in the FIR itself

appellant Chinmay was named as one of the members of unlawful

assembly. The first informant asserted that the accused Dhanaji

Gurav and other named accused were accompanied by unknown

persons, who appeared to be the bouncers. The multiple telephonic

conversations with as many as four of the named accused in the

days preceding to the occurrence and with accused No. 11 Santosh

on the very day of the occurrence, at this juncture, cannot be said

to be innocuous and inconsequential. In the backdrop of the nature

of accusation against appellant Chinmay, especially the indictment

that the appellant arranged bouncers to effectuate the object of

unlawful assembly, custodial interrogation of the appellant

Chinmay appears necessary.

24. Appellant Chinmay Gurav has to encounter another

obstacle. The bar contained in Section 18 and 18A under SC and ST

Act, evidently operates against Chinmay Gurav. In the light of

Bhagyawant Punde, PA

15/16 APEAL(ST)-5352-2020+.doc

aforesaid consideration, it cannot be said that the offences

punishable under Section SC & ST Act are not prima facie made

out. For this reason also, the prayer of the appellant Chinmay

Gurav for pre-arrest bail cannot be countenanced.

25. The conspectus of aforesaid consideration and reasoning

is that no interference is warranted in the impugned orders whereby

the prayer of the appellants for pre-arrest bail came to be rejected.

Hence the following order:-

ORDER

1. The appeals stand dismissed.

2. Ad-interim relief, if any, stands vacated.

     ( N. J. JAMADAR, J.)                                 (S. S. SHINDE, J.)




Bhagyawant Punde, PA





                                         16/16                APEAL(ST)-5352-2020+.doc

26. At this stage, Mr. Sanjeev Kadam, learned counsel for

the appellants prays for continuation of the ad-interim relief granted

in Criminal Appeal (St.) No. 5352 of 2020 and No. 193 of 2021 for a

period of four weeks. Since we have dismissed the appeals by

assigning adequate reasons, we do not find any justification for

continuation of the ad-interim relief after dismissal of the appeals.

The oral application for continuation of ad-interim relief thus stand

rejected.

     ( N. J. JAMADAR, J.)                            (S. S. SHINDE, J.)




Bhagyawant Punde, PA