Sopan Bhagwan Gade vs The State Of Maharashtra
2023 Latest Caselaw 3651 Bom

                                 1                        Cri.BA.182-23.odt


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

               CRIMINAL BAIL APPLICATION NO.182 OF 2023

     Sopan S/o Bhagwan Gade,
     Age 33 years, Occu. Agri.,
     R/o Newasa, Dist. Ahmednagar.                ... Applicant.

                Versus

     The State of Maharashtra                     ... Respondent.

                                     WITH

                CRIMINAL APPLICATION NO.739 OF 2023
                 IN BAIL APPLICATION NO.182 OF 2023
       (Asif Khan s/o Ilayat Khan Vs. The State of Maharashtra and
                                 another)

                                    ...
                Advocate for Applicant : Mr. S. G. Ladda.
              APP for Respondent-State : Mr. S. B. Narwade.
          Advocate for complainant to assist APP : Mr. G. R. Syed.
                                    ...

                                 CORAM : S. G. MEHARE, J.

                                 RESERVED ON               : 12.04.2023
                                 PRONOUNCED ON             : 13.04.2023


     ORDER :-

1. Heard the learned counsel for the applicant, learned APP

for the respondent-State and learned counsel for the

complainant.

2. The applicant has been arraigned as an accused in Crime

No.222 of 2013, registered with Police Station Newasa, District

2 Cri.BA.182-23.odt

Ahmednagar, for the offences punishable under Sections 302,

120-B, 201, 143, 147, 148 and 149 of the IPC and Section

3/25 of the Arms Act and Section 37(1)(3)/135 of the

Maharashtra Police Act.

3. The applicant had filed a Bail Application No.688 of

2020 with Criminal Application No.1344/2020 before this

Court on the ground of Covid 2019 pandemic. At the request of

the applicant, the leave was granted to him to withdraw the

said application with a liberty to file a fresh bail application on

its merits. Since 2019 and after the withdrawal of the bail

application, he did not prefer the bail application. Lastly, he

preferred a bail application before the learned Sessions Judge

on 04.01.2023. The learned Additional Sessions Judge, Court

No.3, Ahmednagar, dismissed his bail application on

05.01.2023. After that, the present application has been filed.

4. In a nutshell, the learned counsel for the applicant Mr.

Ladda taking the Court through a bunch of papers, has

vehemently argued that the prosecution has no evidence

against the applicant that he was the party to a conspiracy nor

he was the party to the agreement doing unlawful act. On the

alleged date of the incident and before that, the applicant was

behind the bar. It has been alleged against him that he

3 Cri.BA.182-23.odt

contacted the main accused on the mobile phone from jail.

However, the police, under the suspicion of throwing the

mobile handset used for conspiracy in the septic tank of jail,

the police scooped out the said tank, but nothing was

discovered. The applicant has been languishing in jail since

2013. Therefore, his detention should be considered having

regard to the provisions of Sections 427 and 428 of the

Criminal Procedure Code. It has also been argued that the

applicant has languished in jail without progress in the trial.

There is no evidence at all against the applicant. The trial has

been protracted deliberately to see the applicant behind the

bar. The political entities, who created a religious issue in

harmony to gain political benefits, want to see him behind the

bar.

5. To bolster his argument, he relied on the case of this

Court in Ashutosh Ashok Butte-Patil Vs. The State of

Maharashtra, Criminal Bail Application No.312 of 2021 and

Hitesh Pravinchand Shah Vs. State of Maharashtra and

another, 2003 SCC Online Bom. 1003 . Recently after the

application was reserved for the order, he placed on record the

case of Bhaurao @ Dadasaheb Raybhan Dhamale Vs. The State

of Maharashtra (Criminal Appeal No. 926/2023) (Arising out

4 Cri.BA.182-23.odt

of SLP (C/Crl.) No. 12549/2022) decided on 24.03.2023

Supreme Court, and the order of this court dated 04.03.2022

passed in the case of Bhaurao @ Dadasaheb Raybhan Dhamale

@ Dadasheb Raybhan Dhamale Vs. The State of Maharashtra

in Bail application No.1530 of 2019 and prayed to grant the

bail.

6. Per contra, the learned APP and learned counsel Mr.

Syed has strongly opposed the bail application. It has been

argued that the applicant is the conspirator, and many cases

are there to his discredit. He arranged to have a mobile phone

when he was behind the bar and plotted the conspiracy with

the main accused. There is remarkable progress in the trial.

The applicant was absconding for two years in another State.

His acquittal in another case has been impugned before the

Supreme Court. The deceased was practising law for the other

fraction. Hence, the deceased was deliberately eliminated. It

was the motive behind his murder. Hence, the deceased was

deliberately eliminated. The trial is on the verge of completion.

Due to the terror of the applicant and his gang, one witness

Altaf, did not support the prosecution. Therefore, the

prosecution has an apprehension that the other witnesses may

be win over. The statement under Section 161 of the Cr.P.C.

5 Cri.BA.182-23.odt

may be considered for bail. It was a daylight murder.

Considering the gravity of the offence and his bad past, he may

not be granted bail.

7. To bolster the argument, learned counsel Mr. Syed relied

on the case of Indresh Kumar Vs. The State of Uttar Pradesh

and another, 2022 LiveLaw (SC) 610.

8. After the acquittal of the applicant by order of this Court

in Criminal Appeal on 02.12.2022, the applicant started

claiming that the trial has been protracted. He did not apply

for bail from 2013 to 2020 except during the Covid 2019

pandemic. He was arrested for the present crime when he was

already behind bar for another crime. The argument of learned

counsel Mr. Ladda reveals that he is counting his detention

since 2011 to convince the Court that the applicant has been

languishing in jail since 2013. However, he has no explanation

why any time before he did not apply for the bail or the

directions were issued to expedite the trial and the trial has not

been completed in the given time.

9. Considering the above facts, it appears that the applicant

wants to secure the bail counting the period of his conviction

for another crime. The status report was called in his case on

6 Cri.BA.182-23.odt

13.05.2022. This Court, by order dated 12.01.2022, in

Criminal Writ Petition No.1183 of 2021, has observed that

considering the difficulties as informed to us, we refrain

ourselves from giving any specific directions about the disposal

of the case on or before a certain date. However, we expect and

hope that, at the earliest, with the co-operation from both side,

the Trial Court will dispose of the case. In Criminal Writ

Petition No.318 of 2022 filed by co-accused Mohan Suresh

Lashkare, by order dated 13.04.2022, this Court directed the

Trial Court to conclude the trial at the earliest and preferably

within six (6) months from the receipt of copy of the order. The

fresh progress report has also been called. The report, in a

nutshell, reveals that most of the time, the trial was protracted

as the accused were not ready to conduct the trial through

video conferencing and insisting on their physical presence at

each and every stage. Another obstacle that the Trial Court

faced was the engagement of high-profile lawyers. The dates

were given considering the difficulty of each lawyer

representing the parties. Every time, the Trial Court has passed

an appropriate orders. These are the facts of this case.

10. The present applicant is concerned, he is seeking bail on

the ground that he has been languishing in jail since 2013. It is

7 Cri.BA.182-23.odt

to be considered whether he is entitled to claim the benefit of

having no material progress in the trial. This Court, in the case

of Ashutosh (cited supra), by quoting various judgments on the

issue of prolonging the custody of the accused without trial,

held that the law has been settled that where the accused has

been languishing in jail for a considerable period, bail may be

granted. However, it is not a straight-jacket formula. The Court

has to consider the facts of each case and other relevant

circumstances.

11. Learned counsel for the applicant Mr. Ladda relying

upon the case of Hitesh (cited supra) has tried to argue that

the period of conviction of the applicant in previous crime be

considered as a period for detention in this case as provided

under Section 427(2) and 433-A of the Cr.P.C. The sentence of

imprisonments imposed in different crimes on different counts

normally run concurrently and not consecutively. Admittedly,

the applicant was not convicted of this crime. Therefore, the

said case law did not assist the applicant.

12. The Hon'ble Apex Court in Indresh Kumar (supra) has

held that statements under Section 161 of Cr.P.C. may not be

admissible evidence, but relevant in considering the prima

facie case against an accused in an application for grant of bail

8 Cri.BA.182-23.odt

in case of a grave offence. Many witnesses are deposing against

the applicant making allegations that he had connected with

the present crime. Considering the ratio laid down by the

Hon'ble Supreme Court in Indresh Kumar, barely, the non-

discovery of the mobile handset in the septic tank of the jail

allegedly used by the applicant may not be the sole

circumstance to believe that he was not the party to the

conspiracy. Particularly, where the statements of the other

witnesses have been available on record.

13. Though the applicant has been languishing in jail for the

present crime since 2013, he was not languishing in jail for this

crime only. He was languishing in jail since he was convict of

another crime. He was released in the said crime as acquitted

on 02.12.2022. That date may be considered for his

languishing in jail. Unless he has been convicted, the set-off

under Section 428 cannot be considered. Therefore, also the

case of Hitesh did not assist him.

14. Apart from the material on record, the applicant has a

history of absconding from the police custody and remaining

abscond for two years are also factors to be considered. The

offence is obviously grave. The applicant was involved in

various cases. Those have been decided finally or not, but

9 Cri.BA.182-23.odt

prima facie sufficient to believe the antecedents to his

discredit.

15. In view of the discussion above, the Court is of the view

that the applicant does not deserve bail.

16. Hence, bail application stands dismissed.

17. Criminal Application No.739 of 2023 to assist learned

APP accordingly disposed of.

(S. G. MEHARE, J.) ...

vmk/-