Bombay High Court
Nilesh Gangaram Doke vs State Of Maharashtra on 11 August, 2022
Bench: A.S. Gadkari
ssm 1 2-ba501.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 501 OF 2022
Nilesh Gangaram Doke .....Applicant
Vs.
The State Of Maharashtra .....Respondent
Mr. Vinod Chate a/w Adv. Kalpana Chate a/w Adv. Pratik Gunjal a/w Pawan
Vadgaonkar i/by Chate & Associates for the Applicant.
Mr. S.S. Hulke, APP for the Respondent-State.
CORAM : A. S. GADKARI, J.
DATE : 11th AUGUST, 2022.
P.C.:-
This is a third successive Application for bail.
The first Application for bail bearing Bail Application No.2260
of 2018 was rejected by this Court by a speaking Order dated 14 th
December, 2018. The said Order was challenged by Applicant before the
Hon'ble Supreme Court by filing Petition(s) for Special Leave to Appeal
(Crl.) No(s).1163 of 2019. The Hon'ble Supreme Court was pleased to
dismiss as withdrawn the said Petition by its Order dated 8th February, 2019.
2 Applicant thereafter preferred second Application for bail
bearing Bail Application No.1947 of 2019. As this Court was not inclined to
grant relief of bail to the Applicant, learned counsel for the Applicant on
ssm 2 2-ba501.22.doc
instructions, withdrew the said Application on 10th February, 2021.
By the said Order dated 10th February, 2021, this Court has
directed the trial Court to expedite the hearing of the said case and to make
an endeavour to dispose it off, within a period of one year from the date of
receipt of the said Order.
3 Record indicates that, the trial of the said case has began and
charge has been framed on 23rd March, 2021. The examination-in-chief of
the informant is recorded on 31st January, 2022.
In this premise, the Applicant is seeking bail on the ground
that, the trial of the said case is delayed.
4 It is to be noted here that, the Order dated 8 th February, 2019
passed by the Hon'ble Supreme Court in Petition(s) for Special Leave to
Appeal (Crl.) No(s).1163 of 2019 was not pointed out to this Court on 10 th
February, 2021 when the hearing of the Criminal Bail Application No.1947
of 2019 was conducted. As noted earlier, by the said Order dated 8 th
February, 2019, the Hon'ble Supreme Court was pleased to dismiss as
withdrawn the said Petition and Order dated 14 th December, 2018 passed in
Bail Application No.2260 of 2018 was not interfered with.
5 In this background, Mr. Chate, learned counsel for the
Applicant submitted that, on 10th February, 2021 at the time of hearing of
Criminal Bail Application No.1947 of 2019, the said fact of passing of Order
by the Hon'ble Supreme Court was pointed out to this Court however, this
ssm 3 2-ba501.22.doc
Court did not record it in its Order. He submitted that, the said Order of
Hon'ble Supreme Court was annexed to the compilation of Criminal Bail
Application No.1947 of 2019 and therefore it is presumed that, this Court
was aware of the said Order. The said submission of the learned Advocate
for the Applicant is dehors of record. Perusal of Order dated 10 th February,
2021 does not reflect that, the said Order of Supreme Court dated 8 th
February, 2019 was pointed out to this Court.
The point to be considered here is that, the Applicant might
have annexed the Order of the Hon'ble Supreme Court to the Criminal Bail
Application No.1947 of 2019 however, the Advocate appearing on 10 th
February, 2021 did not point out the same to this Court is a fact on record
and it is the reason the said Order dated 10 th February, 2021 is silent about
passing of Order of the Hon'ble Supreme Court.
6 It is to be noted here that, the Hon'ble Supreme Court in the
case of State of Maharashtra Vs. Ramdas Shrinivas Nayak & Anr. reported in
(1982) 2 SCC 463, has held that, it cannot allow the statement of judges to
be contradicted by statements at the bar or by affidavit and other evidence.
If the judges say in their judgment that, something was done, said or
admitted before them, that has to be the last word on the subject. The
principle is well settled that the statements of facts as to what transpire at
the hearing recorded in the Judgment of the Court, are conclusive of the
facts so stated and no one can contradict such statement by Affidavit or
ssm 4 2-ba501.22.doc
other evidence. If a party thinks that the happenings in court have been
wrongly recorded in a judgment, it is incumbent upon the party, while the
matter is still fresh in the minds of the judges, to call the attention of the
very judges who have made the record to the fact that the statement made
with regard to his conduct was a statement that had been made in error.
That is the only way to have the record corrected. If no such step is taken,
the matter must necessarily end there.
7 As the Order dated 14th December, 2018 passed in Bail
Application No.2260 of 2018 has not been interfered by the Hon'ble
Supreme Court in its Order dated 8th February, 2019, there is no question of
now again re-appreciating the evidence on record.
8 As far as the prolonged incarceration of Applicant is concerned,
as noted earlier, the trial of the said case has already commenced on 23rd
March, 2021. The maximum sentence prescribed for the offence alleged
against Applicant is death sentence and therefore the provisions of Section
436-A of the Code of Criminal Procedure will not come to any help to
Applicant. Perusal of record indicates that, there is no change in
circumstances then on 14th December, 2018, except incarceration of
Applicant for about 4 years in jail.
In view of the above, this Court finds that, the request of the
Applicant for bail cannot be considered at this stage.
Application is accordingly rejected.
ssm 5 2-ba501.22.doc
9 Additional Sessions Judge, Panvel-Raigad seized of Sessions
Case No.61 of 2018 (New No.381 of 2019) is hereby reminded of Order
dated 10th February, 2021 passed by this Court of expediting hearing of the
trial and its disposal within a period of one year therefrom.
10 Registrar Judicial (I) is hereby directed to communicate the
present Order to the learned Additional Sessions Judge, Panvel-Raigad
seized of Sessions Case No.61 of 2018 (New No.381 of 2019).
(A.S. GADKARI, J.)
Digitally signed by
SANJIV SANJIV
SHARNAPPA
SHARNAPPA MASHALKAR
MASHALKAR Date: 2022.08.12
14:11:23 +0530
