Bombay High Court
The State Of Maharashtra vs Mayur Sarangdhar Patil And ... on 6 June, 2022
Bench: V. V. Kankanwadi
{1} ACB 217 OF 2021 & ANR.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR CANCELLATION OF BAIL NO.217 OF 2021
. The State of Maharashtra ..Applicant
VERSUS
. Jayesh s/o Sarangdhar Patil ..Respondent
(Original accused No.2)
...
WITH
APPLICATION FOR CANCELLATION OF BAIL NO.222 OF 2021
. The State of Maharashtra ..Applicant
VERSUS
1. Mayur Sarangdhar Patil
2. Mahesh Sarangdhar Patil ..Respondents
(Original accused/applicant)
...
APP for Applicant-State : Mr.V.M.Kagne
Advocate for Respondents : Mr.Hemantkumar F. Pawar
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE OF RESERVING ORDER : 6th April, 2022
DATE OF PRONOUNCING ORDER : 6th June, 2022
ORDER :-
1. Both the applications are fled by the applicant-State under
Section 439(2) of the Code of Criminal Procedure for cancellation
of bail granted by the learned Additional Sessions Judge,
Bhusawal under Section 439 of the Code of Criminal Procedure
on 6th October, 2021 and 29th October, 2021 respectively in
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connection with Crime No.103 of 2021, registered with Bhusawal
Taluka Police Station, District Jalgaon, for the ofence punishable
under Sections 302, 307, 326, 324, 323, 504 read with Section
34 of the Indian Penal Code (IPC).
2. Heard Mr.V.M.Kagne, learned APP for the applicant State
and Mr.H.F.Pawar, learned Advocate for the respondents.
3. Perusal of the First Information Report (FIR) lodged by one
Subhash Shamrao Koli resident of M.I.D.C. Road, near
Panchmukhi Hanuman Temple, Sakegaon, Tq.Bhusawal, on 14 th
June, 2021 would show that it is in respect of an incident that has
been allegedly taken place at 08:00 p.m. on 13 th June, 2021. He
has stated that his brother-in-law namely Ashok Narayan More
used to run a Brick Kiln about 15 to 20 years ago and for water
for the business, the informant, through his mediation, had made
available that water from the agricultural land of one Sarangdhar
Pandit Patil, which was adjacent farmer. The rent/rate for the
water was fxed @ Rs.15,000/- per year. The said Brick Kiln
business was closed after one year by the brother-in-law of the
informant. He had paid some amount but around Rs.3,000/- to
Rs.4,000/- were outstanding. Around 07:30 p.m. on 13 th June,
2021, the informant had gone for purchase of electric items. He
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found that accused Mahesh Sarangdhar Patil with Rajendra
Diwakar Bhole were standing near shop by name National
Medical. Accused Mahesh called the informant but the informant
did not go towards accused Mahesh and he went to the shop and
started purchasing the items. At that time, accused Mahesh
came to the shop and without saying anything, he started
assaulting the informant. He was joined by his brother Jayesh
Patil. All of them had assaulted the informant by kicks and fsts
blows. The informant was rescued and was taken to his home.
When the nephews of the informant by name Ishwar Koli, Nilesh
Baliram Sonawane and Rahul Santosh Koli got to know about the
incident, they went to the house of accused Mahesh and started
asking as to why the informant was assaulted. At that time,
Mahesh, Jayesh and Mayur assaulted the nephews of the
informant. Mahesh assaulted Ishwar by an iron pipe on his head.
Jayesh assaulted Nilesh with an axe on his head and neck.
Mayur and Jayesh assaulted Rahul by an axe on his back and
legs. They were rescued by the people nearby and taken to the
hospital.
4. The learned APP for the applicant-State submitted that
taking into consideration seriousness of the ofence, the learned
Additional Sessions Judge ought to have shown that much
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maturity while passing the orders. Further fact is that due to the
said assault, injured Nilesh Sonawane succumbed to the injuries
on 21st June, 2021 while undergoing treatment with Dr.Ulhas Patil
Medical College and Hospital, Jalgaon. The post mortem report
Column 17 would show that there were 13 surface injuries on the
body of deceased Nilesh and there were corresponding internal
injuries. The cause of death that has been given is "head injury".
After completion of the investigation, the charge-sheet was fled
on 8th September, 2021 that means at the time of passing the
orders in respect of the respondents, the entire charge-sheet was
before the learned Additional Sessions Judge, however, he has
passed a very cryptic order. It was wrongly observed that the
respondents have no criminal antecedents. Infact respondent
Jayesh was already convicted and sentenced to sufer
imprisonment for life in Crime No.57 of 2011 registered with
Warangaon Police Station for the ofence punishable under
Sections 302, 323, 353, 504, 506, 341 read with Section 34 of
the IPC. The statements of the witnesses have been recorded
and most of them are the eye witnesses, who have stated in
support of the prosecution. Active role was played by the
respondents and the respective weapons used in the commission
of the ofence have been recovered under Section 27 of the
Indian Evidence Act. When there was prima-facie evidence
{5} ACB 217 OF 2021 & ANR.
against the respondents, it was not at all referred and a very
cryptic order has been passed, which cannot be allowed to be
sustained. Learned APP has taken this Court through the entire
charge-sheet while making submissions. He, therefore,
submitted that the impugned orders deserve to be set aside and
the respondents deserve to be taken in custody.
5. Learned Advocate appearing for the respondents in both
the cases has submitted that the way in which the learned
Additional Sessions Judge has passed the order, he may not be
able to strictly support the entire contents, but when the entire
charge-sheet was available before the concerned Court, it ought
to have been considered. He, however, supports the fact that
the applications fled by the respondents ought to have been
allowed taking into consideration the fact that there was a cross
complaint vide Crime No.102 of 2021, which was instituted prior
in time with the same Police Station. The said cross complaint
under Sections 307, 143, 147, 148, 149, 504 of the IPC and
under Section 37(1), 37(3) punishable under Section 135 of the
Maharashtra Police Act came to be registered against the
deceased and the other alleged injured witnesses. He further
submitted that the contents of the FIR would disclose that the
incident has happened at two places; one is near the electric
{6} ACB 217 OF 2021 & ANR.
shop and another is in-front of house of accused Mahesh Patil. If
we consider the role attributed to accused Mahesh in the incident
that has taken place near electric shop, at the most ofence
under Section 323 of the IPC can be attracted which is a bailable
ofence. Thereafter, the informant had gone to his home and
after he had narrated the incident, his nephews had gone to the
house of accused Mahesh. Informant says that he had followed
the nephews so that he can avoid any untoward incident. He
does not say that he was assaulted second time by the
respondents. This fact shows that the nephews of the informant
were the aggressors. The respondents were justifed in
protecting themselves and their property when they were
attacked. The statements of the witnesses including the injured
would show that the injured nephews of the informant were the
aggressors. Therefore, the Bail Applications fled by the
respondents ought to have been allowed. Accordingly, they were
allowed. The reasons might not be happily worded.
6. The learned Advocate appearing for the respondents also
submitted that in the cross complaint, when applications under
Sections 439 of the Code of Criminal Procedure were made by
the nephews of the informant - Ishwar Koli, Vishal Koli and
Subhash Koli, the same Judge has released them on bail on 30 th
{7} ACB 217 OF 2021 & ANR.
September, 2021 and if we consider the reasons given by the
learned Judge, they are copy paste and word to word identical.
With all the seriousness the learned Advocate appearing for the
respondents has pointed out that the concerned judge
(Mr.S.P.Dorle), who was the then Additional Sessions Judge /
Special Judge at Bhusawal, District Jalgaon, has passed similar
orders that means word to word same reasons assigned in many
cases. The copies of the orders passed in various applications by
the same Judge, taken through the internet, have been produced
for the perusal of this Court. Those are the orders in Criminal
Bail Application Nos.516 of 2021, 548 of 2021, 577 of 2021, 652
of 2021 and it was submitted that these are the few orders,
which he has downloaded and there are so many similar orders
those have been passed by the same Judge. He submitted that it
is unfortunate for the accused persons that though they have got
the relief but because of such cryptic orders, the other side may
get a chance to fle an appeal or get it cancelled. The learned
Judge was absolutely not applying his mind and he appears to
have made a format of the order with some changes about the
facts alleged in the FIR. He has further kept the same reasons
for allowing the applications. He also submitted that the
concerned Judge is not in service now. The learned Advocate for
the respondents, therefore, further submitted that when all the
{8} ACB 217 OF 2021 & ANR.
material is before this Court, this Court may independently come
to the conclusion as to whether the respondents were entitled to
the relief of bail or not.
7. It was pointed out by the learned APP for the applicant that
in Sessions Case No.129 of 2014, respondent Jayesh Sarangdhar
Patil was accused No.5 and he was sentenced to sufer
imprisonment for life by the learned Additional Sessions Judge-2,
Bhusawal on 9th April, 2019, for the ofence punishable under
Section 302 read with Section 34 of the IPC and sentenced has
been imposed under other ofences also. Learned APP also
pointed out that respondent Jayesh has fled an appeal
challenging his conviction by fling Criminal Appeal No.410 of
2019 and in that appeal he had fled Criminal Application
No.1509 of 2019 for suspension of sentence. The Division Bench
of this Court by order dated 18th June, 2019 has suspended the
sentence and directed his release on bail.
8. It is to be noted that each case is required to be considered
independently frst and then if there is any cross complaint or the
cumulative efect of the same will come at a subsequent stage
for consideration even at the time of considering the Bail
Application. We can consider the ratio laid down by the Hon'ble
{9} ACB 217 OF 2021 & ANR.
Apex Court in Ramesh Bhavan Rathod Vs. Vishanbhai Hirabhai
Makwana (Koli) and Another [(2021) 6 SCC 230] wherein the
Hon'ble Apex Court has elaborated on the consideration that
govern the grant of bail. It was emphasized that recording of
reasons by a Judge is not a task in formality, but an exercise of
judicial accountability and transparency, which makes the
decision available for further scrutiny at the touchstone of reason
and justice. This was again reiterated by the Hon'ble Apex Court
in Hariram Bhambhi Vs. Satyanarayan and Another [2021 SCC
Online SC 1010]. In Ramesh Bhavan Rathod (supra) the Hon'ble
Apex Court observed as under:
"39. Grant of bail under Section 439 CrPC is a matter
involving the exercise of judicial discretion. Judicial
discretion in granting or refusing bail - as in the case of any
other discretion which is vested in a court as a judicial
institution - is not unstructured. The duty to record reasons
is a signifcant safeguard which ensures that the discretion
which is entrusted to the court is exercised in a judicious
manner. The recording of reasons in a judicial order ensures
that the thought process underlying the order is subject to
scrutiny and that it meets objective standards of reason and
justice....
40. We are also constrained to record our
disapproval of the manner in which the application for bail
of Vishan (A-6) was disposed of. The High Court sought to
support its decision to grant bail by stating that it had
perused the material on record and was granting bail
{10} ACB 217 OF 2021 & ANR.
"without discussing the evidence in detail" taking into
consideration:
(1) the facts of the case;
(2) the nature of allegations;
(3) gravity of ofences; and
(4) role attributed to the accused."
9. Further reliance can be placed on the observations in
Mahipal Versus Rajesh Kumar Alias Polia and another, [(2020) 2
Supreme Court Cases 118], which reads as under:
"13. The principles that guide this Court in assessing
the correctness of an order [Ashish Chatterjee Vs. State of
W.B., CRM No.272 of 2010, order dated 11-1-2010 (Cal)]
passed by the High Court granting bail were succinctly laid
down by this Court in Prasanta Kumar Sarkar v Ashis
Chatterjee [(2010) 14 SCC 496] : [(2011) 3 SCC (Cri) 765].
In that case, the accused was facing trial for an ofence
punishable under Section 302 of the Penal Code. Several
bail applications fled by the accused were dismissed by
the Additional Chief Judicial Magistrate. The High Court in
turn allowed the bail application fled by the accused.
Setting aside the order of the High Court, D.K.Jain, J.,
speaking for a two-Judge Bench of this Court, held: (SCC
pp. 499-500, paras 9-10)
"9. ... It is trite that this Court does not, normally,
interfere with an order passed by the High Court
granting or rejecting bail to the accused. However, it is
equally incumbent upon the High Court to exercise its
discretion judiciously, cautiously and strictly in
{11} ACB 217 OF 2021 & ANR.
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
ofence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or feeing,
if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the ofence being repeated;
(vii) reasonable apprehension of the witnesses
being infuenced; and
(viii) danger, of course, of justice being thwarted
by grant of bail.
10. It is manifest that if the High Court does not
advert to these relevant considerations and
mechanically grants bail, the said order would sufer
from the vice of non-application of mind, rendering it to
be illegal."
10. Similar ratio has been laid down in Myakala Dharmarajam
and Others etc. Vs. The State of Telangana and Another [2020
Cri. L.J.1457]. Further, following observations in Brijmani Devi
{12} ACB 217 OF 2021 & ANR.
Vs. Pappu Kumar and Anr., Criminal Appeal No.1663 of 2021
disposed of on 17.12.2021 by the three judge Bench of the
Hon'ble Apex Court have been reiterated in Manoj Kumar Khokar
Vs. State of Rajasthan and Anr, in Criminal Appeal No.36 of 2020
(Arising out of SLP (CRL.) No.4062 of 2020, which are thus :-
"While we are conscious of the fact that liberty of
an individual is an invaluable right, at the same time
while considering an application for bail Courts cannot
lose sight of the serious nature of the accusations
against an accused and the facts that have a bearing in
the case, particularly, when the accusations may not be
false, frivolous or vexatious in nature but are supported
by adequate material brought on record so as to enable
a Court to arrive at a prima facie conclusion. While
considering an application for grant of bail a prima
facie conclusion must be supported by reasons and
must be arrived at after having regard to the vital facts
of the case brought on record. Due consideration must
be given to facts suggestive of the nature of crime, the
criminal antecedents of the accused, if any, and the
nature of punishment that would follow a conviction
vis-a-vis the ofence/s alleged against an accused."
Further, the relevant principles laid down in Kranti
Associates Private Limited & Anr. Vs. Masood Ahmed Khan &
Ors. [(2010) 9 SCC 496] quoted thus :-
"(a) Insistence on recording of reasons is meant to
{13} ACB 217 OF 2021 & ANR.
serve the wider principle of justice that justice must not
only be done it must also appear to be done as well.
(b) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of judicial
and quasi-judicial or even administrative power.
(c) Reasons reassure that discretion has been
exercised by the decision-maker on relevant grounds
and by disregarding extraneous considerations.
(d) Reasons have virtually become as indispensable a
component of a decision-making process as observing
principles of natural justice by judicial, quasi-judicial
and even by administrative bodies.
(e) The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned decisions based
on relevant facts. This is virtually the lifeblood of
judicial decision-making justifying the principle that
reason is the soul of justice.
(f) Judicial or even quasi-judicial opinions these days
can be as diferent as the judges and authorities who
deliver them. All these decisions serve one common
purpose which is to demonstrate by reason that the
relevant factors have been objectively considered.
This is important for sustaining the litigants' faith in
the justice delivery system.
{14} ACB 217 OF 2021 & ANR.
(g) Insistence on reason is a requirement for both
judicial accountability and transparency.
(h) If a judge or a quasi-judicial authority is not
candid enough about his/her decision-making process
then it is impossible to know whether the person
deciding is faithful to the doctrine of precedent or to
principles of incrementalism.
(i) Reasons in support of decisions must be cogent,
clear and succinct. A pretence of reasons or "rubber-
stamp reasons" is not to be equated with a valid
decision-making process.
(j) It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers.
Transparency in decision-making not only makes the
judges and decision-makers less prone to errors but
also makes them subject to broader scrutiny. (See
David Shapiro in Defence of Judicial Candor [(1987)
100 Harvard Law Review 731-37]
(k) In all common law jurisdictions judgments play a
vital role in setting up precedents for the future.
Therefore, for development of law, requirement of
giving reasons for the decision is of the essence and is
virtually a part of "due process."
11. Cryptic reasons are no reasons at all and this Court is really
shocked to see that the concerned Judge has literally made a
{15} ACB 217 OF 2021 & ANR.
format for bail orders, may it be for the bail applications where
the accused is charged for the ofence punishable under Sections
302, 307 or even 354 and under POCSO Act, Arms Act etc. There
cannot be uniformity in reasons like 'copy paste'. When we have
earlier considered as to what are the requirements those are to
be seen by a Court while dealing with an application under
Section 439 of the Code of Criminal Procedure, it cannot be taken
by the Sessions Judges or Additional Sessions Judges as a
formality to touch these points and pass a cryptic order. In
Kanwar Singh Meena Vs. State of Rajasthan [(2012) 12 SCC 180]
the Hon'ble Apex Court has observed as under :
"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."
12. Therefore, what was required from the learned Additional
Sessions Judge, Bhusawal is that he should have considered the
material that was placed before him in the charge-sheet under
Section 173 of the Code of Criminal Procedure while deciding the
bail applications fled by the respondents. Instead of carrying out
{16} ACB 217 OF 2021 & ANR.
desired exercise, he has adopted a cryptic way. In one of the
recent pronouncements by the Hon'ble Apex Court in Manoj
Kumar Khokhar. Vs. State Of Rajasthan and Another [(2022) 3
SCC 501], the Hon'ble Apex Court has again considered all the
above-said decisions as well as some other earlier
pronouncements by the Hon'ble Apex Court. The Three Judges
Bench decision in Brijmani Devi Vs. Pappu Kumar and Another
(Criminal Appeal No.1663 of 2021 disposed on 17 th December,
2021) was relied which reiterated that "while considering
application for grant of bail, a prima-facie conclusion may be
supported by the reasons and must be arrived after having
regard to the vital facts of the case brought on record". A cryptic
order or orders which have now been demonstrated as a copy
paste format orders cannot be allowed to be sustained.
13. The learned Additional Sessions Judge appears to have
considered the statement made on behalf of respondent - Jayesh
that there are no criminal antecedents against him. The copy of
the bail petition fled by him before the learned Additional
sessions Judge has been made available. It is totally silent on
the point that he was convicted for the ofence punishable under
Sections 302 etc. of the IPC and has been sentenced to sufer
imprisonment for life and he has been released on bail by
{17} ACB 217 OF 2021 & ANR.
suspending the sentence by the Appellate Court. Therefore, the
order that was passed in favour of respondent - Jayesh also
sufers from suppression of material fact. When on bail under
suspension of sentence, it is alleged that he has committed
second ofence also under Sections 302, 307 of the IPC. If that
fact would have been disclosed, the result might have been
diferent. Here not only the respondent - Jayesh deserves to be
blamed but the prosecution agency also. The prosecution /
Investigating Ofcer appears to have not pointed out about the
criminal antecedents against the accused Jayesh before the
concerned Court.
14. The charge-sheet would show that the statements of
witnesses, especially the injured Ishwar Koli and Rahul Rajendra
Sapkale show that respondent Jayesh had assaulted deceased
Nilesh by an axe on his head and neck. The said axe has been
recovered from respondent Jayesh under Section 27 of the Indian
Evidence Act. As aforesaid, the post mortem report conveys
that there were 13 surface wounds with internal injuries and
probable cause of death is "head injury". There are also
statements of eye witnesses who have stated that such incident
has taken place and there was active role by respondent Jayesh.
As regards the other respondents Mayur Patil and Mahesh Patil
{18} ACB 217 OF 2021 & ANR.
are concerned, there appears to be no criminal antecedents but
the evidence against them in the form of statements of the
injured witnesses as well as eye witnesses would show that they
had used iron rod and axe to cause the injuries. We can see
even similar reasons in between the orders of respondent Jayesh
and respondents Mayur and Mahesh given by the concerned
Judge. When there is active role in the crime and cryptic order is
passed, it cannot be allowed to be sustained. As regards the
stand taken by the respondents that the injured and the
deceased were the aggressors is concerned, it would be the
matter of evidence. So also the fact that they are involved as
accused in cross complaint which was fled earlier to the present
FIR., whether the accused persons were acting in right of private
defence will have to be considered by the trial Court after
evidence is laid. It cannot be considered at all now.
15. Taking into consideration all these aspects, the impugned
orders passed by the learned Additional Sessions Judge,
Bhusawal on 6th October, 2021 and 29th October, 2021 deserve to
be set aside. At the most, liberty can be given to the
respondents to approach the same Court for bail, if the trial does
not get over within a reasonable period.
{19} ACB 217 OF 2021 & ANR.
16. Before parting, it will have to be observed that the
approach of the then learned Additional Sessions Judge,
Bhusawal was totally wrong. When he is sitting in the chair of a
Judge then he should have understood that there is no short cut
at any stage of the proceeding. At each and every stage of a
proceeding, the Judge should apply his or her mind and it can be
refected only through the orders and Judgments those are
passed. An order cannot be passed in a mechanical way and at
the cost of repetition it can be said that there cannot be a format
of a bail order atleast under Section 439 of the Code of Criminal
Procedure before the Sessions Judge or Additional Sessions
Judge. Since a statement has been made that the concerned
Judge is no longer in service, this Court refrain itself from giving
any directions against him on the administrative side. With the
aforesaid observations, following order is passed :-
ORDER
(i) Applications stand allowed.
(ii) The orders passed by learned Additional Sessions Judge,
Bhusawal, District Jalgaon in Criminal Bail Application Nos.605 of
2021 and 664 of 2021 dated 6th October, 2021 and 29th October,
2021 respectively are hereby set aside. In other words, the bail
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granted to present respondents in ACB No.217 of 2021 and ACB
No.222 of 2021 stands cancelled.
(iii) The respondents, who are on bail, their bail bonds stand
cancelled and they are directed to surrender before the learned
Additional Sessions Judge, Bhusawal on 9th June, 2022 before
05:00 p.m. Thereupon, the learned trial Judge to take them in
custody.
(iv) In case of failure on the part of the respondents to
surrender, the learned Additional Sessions Judge, Bhusawal to
issue non-bailable warrant against the respondents / accused
persons and secure their custody.
(v) The respondents are at liberty to approach the concerned
Court for bail, if the trial does not get concluded within a period
of one year from today.
(vi) The Registrar (Judicial) to forward a copy of this order to
the learned Additional Sessions Judge, Bhusawal.
( SMT. VIBHA KANKANWADI )
JUDGE
SPT
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Later on :-
17. After the pronouncement of the order, the learned
Advocate appearing for the respondents submits that the order
be stayed for a period of four weeks as his clients intend to
challenge the present order before the Hon'ble Apex Court.
18. Taking into consideration the wish expressed that the
respondents want to challenge the order before the Hon'ble Apex
Court, the time to surrender is extended till 30th August, 2022.
( SMT. VIBHA KANKANWADI )
JUDGE
SPT
