Bombay High Court
Kisan @ Babanrao Patilba Kawad vs The State Of Maharashtra on 7 June, 2022
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR CANCELLATION OF BAIL NO.43 OF 2020
IN CRI.APPLN.NO.6821/2017
RANGNATH S/O KISANRAO VARAL
VERSUS
KISAN @ BABANRAO PATILBA KAWAD AND ANOTHER
.....
Advocate for Applicant : Mr. N. B. Narwade
Advocate for Respondent No.1 : Mr. C. V. Dharurkar
APP for Respondent No.2-State : Mr. V. M. Kagne
.....
WITH
APPLICATION FOR CANCELLATION OF BAIL NO.115 OF 2019
IN CRI.APPLN.NO.6821/2017
THE STATE OF MAHARASHTRA
VERSUS
BABAN @ KISAN PATILBA KAWAD
.....
APP for Applicant-State : Mr. V. M. Kagne
Advocate for Respondent : Mr. C. V. Dharurkar
.....
WITH
CRIMINAL APPLICATION NO.3261 OF 2019
IN CA/6821/2017
KISAN @ BABANRAO PATILBA KAWAD
VERSUS
THE STATE OF MAHARASHTRA
.....
Advocate for Applicant : Mr. C. V. Dharurkar
APP for Respondent-State : Mr. V. M. Kagne
.....
::: Uploaded on - 07/06/2022 ::: Downloaded on - 08/06/2022 10:35:34 :::
2 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
WITH
CRIMINAL APPLICATION NO.1647 OF 2017
THE STATE OF MAHARASHTRA
VERSUS
DR. MAHINDRA LAXMAN ZAVARE AND ANTOEHR
.....
APP for Applicant-State : Mr. V. M. Kagne
Advocate for Respondent No.1 : Mr. N. S. Ghanekar
Advocate for Respondent No.2 : Mr. D. G. Nagode
.....
WITH
CRIMINAL APPLICATION NO.1178 OF 2018
IN CA/4277/2017
SANDEEP S/O REVJI LANKE
VERSUS
THE STATE OF MAHARASHTRA
.....
Advocate for Applicant : Mr. V. R. Dhorde
APP for Respondent-State : Mr. V. M. Kagne
.....
CORAM : SMT.VIBHA KANKANWADI, J.
Date of Reserving the Order :
02-02-2022
Date of Pronouncing the Order :
07-06-2022
ORDER :
1. ACB No.115 of 2019 and Application No.1647 of 2017 have
been filed by the State for cancellation of bail granted to the
3 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
respective respondents, whereas ACB No.43 of 2020 has been filed
by the original informant for cancellation of bail of respondent No.1
who is original accused No.5. Application No.1178 of 2018 has been
filed by accused Sandeep Revji Lanke for relaxation of condition
imposed on them to the bail that he shall not enter within the limits
of village Nighoj, Taluka Parner, District Ahmednagar, till the
conclusion of the trial. Criminal Application No.3261 of 2019 is also
filed for relaxation of condition imposed while granting bail to
original accused No.5. For the sake of convenience the respondents
would be addressed by name to avoid confusion. It will not be out
of place to mention here that the respondent in ACB No.115 of 2019
and No.43 of 2020 are same i.e. original accused No.5 whose bail
application granted by this Court is sought to be set aside on the
ground of breach of terms of condition to the bail by State as well as
informant. However, almost on the same line the State has filed
Criminal Application No.1647 of 2017 to challenge the order passed
by learned Additional Sessions Judge, Ahmednagar granting bail to
the respondents.
2. All the respondents are accused in Crime No.19 of 2017
registered with Parner Police Station, District Ahmednagar, for the
4 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
offence punishable under Section 302, 143, 147, 148, 149, 120-B
r.w.109 of IPC and under Section 25 r.w.3 and 4 of Arms Act.
3. Heard leaned Advocates Mr. N. B. Narwade, Mr. C. V.
Dharurkar, Mr. V. R. Dhorde for applicants, also heard learned APP
Mr. V. M. Kagne for respondent-State, learned Advocate Mr. N. S.
Ghanekar for respondent No.1 in Cri.Appln.No.1647 of 2017 and
learned Advocate Mr. D. G. Nagode for respondent No.2 in Cri.Appln.
No.1647 of 2017.
4. It has been vehemently submitted on behalf of the State as
well as original informant in respect of the accused Kisan @
Babanrao Patilba Kawad that this Court while granting him bail had
imposed condition that, "(a) he shall not try to meet the witnesses
and shall not enter into village Nighoj till conclusion of the trial."
However, he had occasionally come to the village for which the
informant had taken the objection with the police authorities and
then on 03-01-2022 accused Kisan Kawad had entered Nighoj village
and had taken part in hunger strike till death. That fact was
immediately made known to the police and police had gone to the
said place. Even accused No.5 Kisan @ Baban Kawad was taken in
custody by the police, however, it was only nominal arrest.
5 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
Panchanama about that incident has been carried out. Thereafter,
the Police Inspector, Parner Police Station had given communication
to Sub-Divisional Police Officer, Rural Ahmednagar, seeking
permission to take further action against Baban @ Kisan Kawad.
Police had issued notice to him on 03-01-2022 and asked him to
leave Nighoj village. Prior to that, at the place where the hunger
strike was going on, accused Kisan Kawad had given speech for
about 18 minutes and transcript of the same as well as the
photographs about his presence at the spot have been produced.
They both submitted that when there is clear violation of the
condition put to his bail; the bail deserves to be cancelled.
5. Learned APP has also made submissions on the Criminal
Application No.1647 of 2017. It has been stated that when clear
evidence is prima facie collected against them, the learned
Additional Sessions Judge ought not to have granted bail. The
conspiracy to commit murder of Sandeep @ Gondya has been
hatched up by respondent Dr. Mahindra Zaware and Amruta Rasal,
is clear enough. There was political enmity between the accused
persons and the deceased. Sandeep was brutally murdered by firing
bullets and also use of deadly weapons. The Trial Court had failed to
6 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
consider that the vehicles and weapons are yet to be seized as it is a
high political affair. Though the charge-sheet has been filed, it
cannot be said that it is a complete charge-sheet as certain accused
persons are still absconding, and therefore, their bail order deserves
to be set aside.
6. The learned Advocate appearing for respondent Dr.Mahindra
Zaware and Amruta Rasal supported the reasons given by the
learned Additional Sessions Judge while releasing those respondents
on bail, and submitted that even if now we take the charge-sheet as
it is, then there is no prima facie evidence to connect these
respondents with the said crime. In fact, they were restrained from
entering the village and accordingly they have abided by the terms.
Now the charge-sheet is also filed, and therefore, that condition
deserves to be cancelled.
7. Learned Advocate appearing for Kisan Kawad has submitted
that he is a political person and also social worker. He had given
certain representations to Superintendent of Police and Police
Inspector, Parner Police Station. His drive was against the gaming
business in Nighoj and on 03-01-2022 strike was arranged by Nighoj
Vivid Karyakari Society in respect of payment of water tax. Even if
7 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
the transcription of his speech is considered of which the entire
transcript is provided, would show that he was agitating about the
legal rights of farmers in his area. The application that has been
filed is not with a good intention. In respect of accused No.5 i.e.
Kisan Kawad is concerned, he had approached this Court by filing
Criminal Writ Petition No.1048 of 2018 and the Division bench of this
Court allowed the petition and gave direction to the
respondent/State to see that the report is given in respect of the
action of respondent No.5 i.e. Deputy Superintendent of Police,
Ahmednagar, for registration of the crime for the offence punishable
under Section 167 of Indian Penal Code and for other offences which
the department may file that they are also committed. It was on the
basis of the fact that was pointed out that the forged record was
created and was submitted against the present respondent Kisan
Kawad. Further, as regards the decision to take part in the hunger
strike is concerned, he had given an application to Police Inspector,
Parner Police Station on 28-12-2021 and it was received by police
station on 30-12-2021. So he had taken precautions to inform the
concerned police about his intention to enter Nighoj area. He was
agitating for the rights of people, and therefore, it cannot be
considered as violation of terms of bail.
8 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
8. The learned Advocate for the respondent Kisan Kawad has
relied on the decision in Aslam Babalal Desai Vs. State of
Maharashtra, reported in AIR 1993 SC 1, wherein it ha been held
that :-
"Cancellation of bail cannot be for special reasons
germane to cancellation under Section 437 (5) and 439
(2) of Cr.P.C."
In that case, cancellation of bail was sought on the ground that
there was subsequent filing of charge-sheet.
Further reliance has been placed on the Dolat Ram Vs. State
of Haryana, reported in AIR OnLine 1994 SC 368, wherein it has
been held that :-
"Cancellation of bail should not be in a mechanical
manner without considering supervening circumstances."
Further reliance has been placed on the decision in Myakala
Dharmarajam and others etc. Vs. State of Telangana and Another,
reported in AIR 2020 Supreme Court 317, wherein decision in
Raghubir Singh Vs. State of Bihar, reported in AIR 1987 SC 149
was relying, and it was held that the grounds mentioned therein are
illustrative and not exhaustive.
9 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
Further reliance has been placed on Bhagirathsinh Judeja Vs.
State of Gujarat, reported in AIR 1984 Supreme Court 372, wherein
it has been held that :-
"Very cogent and overwhelming circumstances are
necessary for an order seeking cancellation of the bail.
It is now well settled by a catena of decisions of the
Supreme Court that the power to grant bail is not to be
exercised as if the punishment before trial is being
imposed. The only material considerations in such a
situation are whether the accused would be readily
available for his trial and whether he is likely to abuse
the discretion granted in his favour by tampering with
evidence. If there is no prima facie case there is no
question of considering other circumstances. But even
where a prima facie case is established, the approach of
the court in the matter of bail is not that the accused
should be detained by way of punishment but whether
the presence of the accused would be readily available
for trial or that he is likely to abuse the discretion
granted in his favour by tampering with evidence."
Further reliance has been placed on the decision in Manubhai
Bhikhabhai Valand Vs. State of Gujarat and Ors., reported in 2009
Cri.L.J. 1275, wherein on evidence it was found that there is no
breach of condition imposed to the bail application, and therefore,
10 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
the application was rejected.
He further relied on Aiyub Ahmed Kora Vs. State of Gujarat,
reported in AIR OnLine 2021 GUJ 1880 (Gujarat High Court),
wherein the offence was of 2019 and there was marriage of one of
the daughter of the applicant. Further due to pandemic it was
difficult for him to remain outside the limits of village, and therefore,
his entry into the village was not considered as breach to the bail
order.
9. As regards the application for cancellation bail against accused
Kisan Kawad is concerned, the bail order was passed by this Court,
and therefore, no statement can be made on the merits. The State
as well as the informant have filed application only for cancellation of
bail on the ground that he has committed breach of the condition. It
is also to be noted that accused Kisan Kawad is not denying the fact
that he had entered Nighoj village on 03-01-2022. However, this
incident has taken place much after the application for cancellation
of bail was filed. If we consider the original, that means the
applications as they are, then it has been tried to be canvassed that
this Court has not considered the facts of the case and the evidence
that was collected. As regards the application of the original
11 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
informant is concerned, he relied on the complaint filed by one Lahu
Baban Nicchit on 14-01-2020 to the police stating that Kisan Kawad
is projecting him that is Lahu as 'Sand Mafia' and he is editing the
news published in WhatsApp without there being any concern of
Lahu. The copy of that complaint is made available. However,
another fact was relied for cancellation of bail that is lodging of
offence under Section 195-A of IPC against him and one Suman
Bodge on 11-01-2019 vide Crime No.34 of 2019 with Parner Police
Station, District Ahmednagar, by one Sow. Sunita Vijay Uchale. Said
Sunita Uchale is one of the witness in the present case where Kisan
Kawad is facing murder charges. It was then stated that through
said Suman Bodge, Baban @ Kisan Kawad had tried to give threats
for not deposing. However, now along with the affidavit-in-reply
Kisan Kawad has filed copy of the Judgment in Sessions Case
No.244 of 2019 by the learned Additional Sessions Judge,
Ahmednagar, that he as well as said Suman Bodge has been
acquitted from the offence punishable under Section 195-A of IPC on
27-12-2021, therefore, the said grounds are not in existence now.
But, as regards the subsequent event that has taken place on 03-
01-2022, that is the recent one as aforesaid Baban Kawad accepts
that he had come within the jurisdiction of Nighoj village. Important
12 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
point to be noted is that part of the transcription of his speech has
been given by the original informant and on direction by this Court
even Baban Kawad has given the entire transcript of his speech. We
are not concern with for what cause he had come inside the village.
We have to see whether he had adopted proper procedure and
whether there is breach of the condition. This Court does not agree
with the submission on behalf of the Advocate for respondent Kisan
Kawad that intention is required to be seen in such situation. He
mean to say that intention of Baban @ Kisan to enter Nighoj village
was different and not give threats to any witnesses. In fact, when
such political persons are involved in a case, then their presence
itself for whatever reason at a particular place may raise
apprehension in the mind of the witnesses who have been posed
against them. Taking into consideration the brutal murder that was
committed, that too at the broad day light, this Court had imposed
the said condition. Accused Baban Kawad has full knowledge about
the condition that has been imposed on him and if we consider his
speech, he specifically states that he is aware that his bail would be
cancelled when he has come to village. When he has the knowledge
as to what he is committing, then he cannot put forward a defence
that his intention to enter the village was different. Certainly he has
13 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
committed breach of the term imposed by this Court and even in his
speech he has stated that he is ready to go to jail for committing
breach of the condition to the bail. In fact, he was not required to
glorify his act when still the charges of murder of a person are
hanging over his head. He cannot roam around and especially enter
the village as it he has been acquitted from those charges. Under
such circumstances, the bail granted to accused Baban Kawad
deserve to be cancelled for committing breach of the term. The
ratio laid down in the authorities cited by the learned Advocate for
said respondent cannot be denied, but the interpretation of those
authorities is not in the way he want to. In Myakala Dharmarajam
Vs. State of Telangana (Supra) it has been clarified by the Hon'ble
Apex Court that the list given in Raghubir Singh (Supra) for
cancellation of bail is not exhausted. Conditions are imposed while
granting a bail to an accused taking into consideration the
circumstances. There is always a reason behind imposition of such
condition and one of the consideration is definitely that the witness
should feel protected till their evidence is over. Therefore, that
environment should be given by the Courts themselves, and
therefore, the said bail order deserves to be set aside.
14 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
10. As regards the cancellation of bail to other two accused are
concerned, it can be seen that the learned Additional Sessions Judge
while granting bail to them had considered the role alleged against
them. A detailed order has been passed and it has been observed
that as regards applicant No.2 therein i.e. Amruta Rasal is
concerned, there was absolutely no evidence about criminal
conspiracy. She was not present at the spot. As regards applicant
No.1 therein Dr. Mehindra Zavare, it has been stated that there are
statements of some witnesses disclosing the material that there was
meeting in the pomegranate garden of applicant No.1 wherein he
said some incriminating words. It was also observed that there was
some material against applicant No.1, he was found to be talking
with some of the assailants and then it was also stated that the talk
was in the hospital of applicant No.1. However, the assailants from
whom the weapons have been recovered under Section 27 of the
Indian Evidence Act have not stated name of applicant No.1, and
therefore, all those things prompted to concern Judge to allow the
application. It is to be noted that proper conditions have been
imposed while granting bail. They have also been asked not to stay
within the radius of five kilometers of village Nighoj where the
prosecution witnesses are residing. Therefore, no case is made out
15 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
for cancellation of bail granted to them by the State. As regards the
application filed by those respondents for cancellation of the
condition imposed is concerned, at the cost of repetition it can be
said that the condition has been imposed for the protection of the
witnesses and it need not be cancelled till the conclusion of the trial.
11. There is also Application No.1178 of 2018 filed by another
accused Sandeep Revji Lanke for relaxation of condition about not to
enter village Nighoj. It is to be noted that he has been released
under Section 439 of Cr.P.C. by this Court by order dated 20-09-
2017. This Court had noted that the said applicant was not present
at the spot at the time of incident. His name was not even
mentioned in the FIR and as regards the charge of conspiracy is
concerned, there are statements of two witnesses on that point.
That material was taken into consideration while releasing him on
bail, however, when the condition is imposed, the intention was to
protect the witnesses. Even though since 2017 it appears that he is
away from his village, yet the time has not yet come to relax the
said condition taking into consideration the fact that the trial has not
come to an end and it was a brutal murder. Under such
circumstances, for the aforesaid reasons, following order is passed.
16 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
ORDER
1) ACB No.115 of 2019 and ACB No.43 of 2020 stand
allowed.
2) The order passed by this Court on 21-08-2018 in
Criminal Application No.6821 of 2017 releasing Kisan @
Babanrao Patilba Kawad stands set aside. He should
surrender before the learned Additional Sessions Judge,
Ahmednagar, before 05.00 p.m. on 10-06-2022.
3) In case of failure on his part to surrender, the
learned Additional Sessions Judge, Ahmednagar, may
take up the steps by issuing non-bailable warrant and
thereby securing his presence.
4) Criminal Application No.3261 of 2019 was filed by
applicant/accused Kisan Kawad for relaxation of
condition, however, when this Court has come to the
conclusion that the bail granted to him deserves to be
cancelled for breach of terms of condition, the said
application in fact does not survive, hence that
application stands disposed of.
5) Criminal Applications No.1647 of 2017 and
No.1178 of 2018 stand rejected.
(SMT. VIBHA KANKANWADI)
JUDGE
17 ACB 43-2020, 115-2019, APPLN 3261-2019, 1647-2017, 1178-2018
LATER ON :
After pronouncing the order, the learned Advocate Mr. C. V.
Dharurkar for respondent Kisan @ Babanrao Patilba Kawad prays for
Stay of the order as respondent Kisan @ Babanrao intends to
approach the Higher Court. In view of this, the operation of this
order is stayed till 30-08-2022.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-.
