Atharva Rajendra Nangare vs The State Of Maharashtra
2023 Latest Caselaw 9276 Bom

2023:BHC-AS:25796

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION

                       ANTICIPATORY BAIL APPLICATION NO.1866 OF 2023

             Atharva Rajendra Nangare                                         ...Applicant
                        vs.
             The State of Maharashtra                                         ...Respondent

             Mr. Zaid Qureshi i/b. Hulyalkar & Associates, for the Applicant
             Mrs. A.A. Talekar, APP, for the Respondent/State.
             Mr. Bhausaheb Dhole, Dy. SP. Haveli police station present.

                                                 CORAM :   N. J. JAMADAR, J.

                                                 DATE :    SEPTEMBER 5, 2023.

             P.C.:

1. This application is preferred seeking pre-arrest bail in

connection with C.R. No. 21 of 2023 registered at Velha police

station, Pune for the offences punishable under sections 302 read

with 34 of Indian penal Code, 1860 and sections 3 read with 25 and

4 read with 27 of Indian Arms Act, 1959 and sections 3(1), 3(2)

and 3(3) of the Maharashtra Prevention and Eradication of Human

Sacrifice and Other Inhuman, Evil and Aghori Practices and Black

Magic Act, 2013.

2. Suresh Renuse, the first informant ,lodged a report that on 4 th

March, 2023 he was informed by his cousin Ashok @ Lala that the

first informant's brother Navnath @ Pappu Renuse (the deceased)

was killed by Laxman Renuse (accused No. 1) and his four

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associates in front of Visava Hotel, Velhe, the native place of the

first informant, deceased and accused No. 1. The first informant

reached the said spot and found that the deceased was lying in a

pool of blood. These were injuries on the face with sharp edged

weapon. A knife and blood stained Cleaver (Sattur) were laying

thereat. Four to five empty cartridges were also strewn.

3. The first informant alleged that Dnyaneshwar @ Laxman

(accused No. 1) had a grudge against the deceased as accused No. 1

suspected that the deceased was taking the side of the parties with

whom the accused No. 1 had a dispute over the land situated at

Maral Awad. Thus, the deceased was done to death by accused No. 1

and his associates. In a supplementary statement, the first

informant further alleged that Vishal Renuse, the son of accused

No. 1 Dynaneshwar had passed away due to jaundice. However,

accused No. 1 suspected that the deceased and his cousin Lala had

practiced black magic and thus accused No. 1 Dnyaneshwar had

proclaimed that he would eliminate the deceased and Lala.

4. Eventually, accused Nos. 1 to 8 came to be arrested and the

applicant was shown as absconder. The prosecution alleged that the

applicant was the co-conspirator. The applicant had procured the

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pistol and cartridges from Madhya Pradesh. The co-accused also

named the applicant as one of the members of the unlawful

assembly in the prosecution of the common object of which the

deceased was killed. The prosecution relied upon the transcript of

the conversation between the co-accused.

5. Apprehending arrest, the applicant approached the Court of

Session. By an order 30 th May, 2023 the Additional Sessions Judge

rejected the application holding inter alia that the applicant had

hatched the criminal conspiracy to eliminate the deceased and had

also procured the firearm which was used in the crime. Evidently,

no submissions were canvassed on behalf of the applicant and the

said order came to be passed upon perusal of the material on

record.

6. Mr. Zaid Qureshi, learned counsel for the applicant, submitted

that the learned Additional Sessions Judge ought not to have

rejected the application without providing an effective opportunity

of hearing. Nonetheless, according to Mr. Qureshi, the prosecution

has failed to bring any material on record to connect the applicant

with the crime. Laying emphasis on the fact that in the first

information report and the remand report dated 11 th March, 2023

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the applicant was not named as one of the conspirators or members

of the unlawful assembly, Mr. Qureshi submitted that the

implication of one Gopal @ Gopya Nangre in the remand report

dated 15th March, 2023 was by way of afterthought. It was

submitted that even the transcript of the telephonic conversation

does not indicate that the applicant was a co-conspirator. There is a

serious dispute about the identity of the applicant as Mr. Gopal

Nangre to whom the co-accused have referred to and whose name

finds mention in the telephonic conversation. In such

circumstances, as the investigation is complete for all intent and

purpose and charge sheet has been lodged against the co-accused,

the applicant deserves the exercise of discretion, submitted Mr.

Qureshi.

7. Per contra, learned APP submitted that there is a strong

prima facie case against the applicant. The firearms were procured

by the applicant. He was the principal conspirator in hatching the

conspiracy to cause death of the deceased. Having regard to the

nature of the accusation and the brutal manner in which the

deceased was killed, this is not a case where the discretion can be

exercised in favour of the accused, submitted Mrs. Talekar, the

learned APP. Learned APP further submitted that since a

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proclamation under section 82 of the Code has already issued

against the applicant by the learned Magistrate, the applicant is not

entitled to be released on pre-arrest bail. Even otherwise, the

antecedents of the applicant dis-entitle him from the relief of pre-

arrest bail.

8. As the applicant is declared a proclaimed offender, the

learned counsels were heard on the point of entitlement to pre-

arrest bail, post the applicant being declared a proclaimed offender.

9. Mr. Qureshi, the learned counsel for the applicant submitted

that there is no absolute bar to grant pre-arrest bail to an accused

against whom proclamation has been issued. Mr. Qureshi further

urged that the stage of issue of proclamation also assumes

significance. In the case at hand, the proclamation has been issued

on 11th August, 2023 while this Court is seized of the matter. The

prosecution cannot be permitted to defeat the statutory remedy of

seeking pre-arrest bail by obtaining an order of proclamation when

the pre-arrest bail application is subjudice. The issue of

proclamation while the applicant has all along been pursuing the

remedies cannot defeat the right of the applicant, submitted Mr.

Qureshi.

Vishal Parekar                                                                                 ...5





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10. To lend support to this submission, Mr. Qureshi placed a

strong reliance on the judgment of the Allahabad High Court in the

case of Siddharth Kapoor vs. State Of U.P. And Another 1 wherein

the Allahabad High Court held that where the accused has

preferred an application for pre-arrest bail and it came to be

rejected by the Court of Session and thereupon the accused moved

the High Court and if in the interregnum any proclamation under

sections 82 & 83 of the Code is issued, it may be considered as a

circumventive exercise undertaken by the Investigating Officer.

11. Evidently, the applicant has been pursuing the remedy under

section 438 of the Code. It seems that the application for pre-arrest

bail was filed in the Court of Session on 18 th April, 2023. The

proclamation was ordered to be issued on 11 th August, 2023. It was

preceded by non bailable warrant. This fact deserves to be taken

into account.

12. The legal position as regard the entitlement to pre-arrest bail

of an accused who is declared a proclaimed offender is fairly

crystallized. The fundamental premise of refusing to entertain the

prayer for pre-arrest bail under section 438 of the Code is that a

person who made himself scarce and has been avoiding the arrest,

1 Cri. Misc. Anticipatory Bail Application u/s 438 CRPC No.4040 of 2022

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despite the issue of non-bailable warrant against him, does not

deserve the discretionary relief.

13. In the case of Lavesh vs. State (NCT of Delhi)2, where it was

discernible that the appellant therein was not available for

interrogation and was declared as an "absconder", the Supreme

Court held that normally, when the accused is "absconding" and

declared as a "proclaimed offender", there is no question of granting

anticipatory bail. The Supreme Court observed in paragraph 12 as

under:-

12] From these materials and information, it is clear that the

present appellant was not available for interrogation and

investigation and declared as "absconder". Normally, when the

accused is "absconding" and declared as a "proclaimed

offender", there is no question of granting anticipatory bail. We

reiterate that when a person against whom a warrant had been

issued and is absconding or concealing himself in order to avoid

execution of warrant and declared as a proclaimed offender in

terms of Section 82 of the Code is not entitled the relief of

anticipatory bail.

(emphasis supplied)

14. The aforesaid pronouncement was followed in the case of

2 (2012) 8 Supreme Court Cases 730.

Vishal Parekar                                                                                 ...7





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State of Madhya Pradesh vs. Pradeep Sharma 3. In the facts of the

said case, where the accused were arraigned for the offences

punishable under sections 302 and 120B of the Penal Code, the

Supreme Court after adverting to the aforesaid observations in the

case of Lavesh (supra) enunciated that in such serious offences

where the respondents/accused were proclaimed offenders, the

High Court ought not to have granted anticipatory bail. It was held,

the High Court failed to appreciate that it is a settled position of law

that where the accused has been declared as an absconder and has

not cooperated with the investigation, he should not be granted

anticipatory bail.

15. A three Judge Bench of the Supreme Court had an occasion to

consider this aspect in the case of Vipan Kumar Dhir vs. State of

Punjab and Another4. In the said case, the Supreme Court also

adverted to the contentions as regards the irregularity in declaring

a person as proclaimed offender and the circumstances in which the

pre-arrest bail can be granted to a person against whom the

proclamation has been issued. The Supreme Court observed as

under:-

14] Even if there was any procedural irregularity in declaring the

3 (2014) 2 Supreme Court Cases 171.

4 (2021) 15 Supreme Court Cases 518.

Vishal Parekar                                                                                 ...8





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respondent-accused as an absconder, that by itself was not a

justifiable ground to grant pre-arrest bail in a case of grave offence

save where the High Court on perusal of case diary and other

material on record is, prima facie, satisfied that it is a case of false

or over-exaggerated accusation. Such being not the case here, the

High Court went on a wrong premise in granting anticipatory bail

to the respondent-accused.

(emphasis supplied)

16. The aforesaid pronouncement of the Supreme Court

enunciates in a clear and explicit terms two propositions. One, a

mere procedural defect in the issue of proclamation can not be a

ground to deviate from the ordinary rule that when a proclamation

has been issued against a person, he does not deserve the relief of

pre-arrest bail under section 438 of the Code. Two, even where the

proclamation has been issued against a person, the High Court can

grant pre-arrest bail if it is satisfied upon perusal of the relevant

material that it is a case of false or exaggerated accusation. The

latter principle emphasizes the nature of the power vested in the

Court under section 438 of the Code where the Court upon analysis

finds that the accusation itself is false, vexatious or exaggerated. In

such a situation, the fact that a proclamation has been issued

against the accused does not impinge upon the power of the Court to

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grant relief under section 438 of the Code to protect the cherished

personal liberty.

17. In the case of Abhishek vs. State of Maharashtra and Others5

explaining the implication of a declaration of a proclaimed offender,

the Supreme Court enunciated as under:-

68] As regards the implication of proclamation having been

issued against the appellant, we have no hesitation in making it

clear that any person, who is declared as an 'absconder' and

remains out of reach of the investigating agency and thereby

stands directly at conflict with law, ordinarily, deserves no

concession or indulgence. By way of reference, we may observe

that in relation to the indulgence of pre-arrest bail in terms of

Section 438 CrPC, this Court has repeatedly said that when an

accused is absconding and is declared as proclaimed offender,

there is no question of giving him the benefit of Section 438

CrPC. ... ...... ...

(emphasis supplied)

18. Lastly, in the case of State of Haryana vs. Dharamraj6

delivered on 29th August, 2023, after considering the aforesaid

pronouncements, the Supreme Court reiterated the position in law

as under:-

5     (2022) 8 Supreme Court Cases 282.
6     Cri.Appeal out of SLP (Cri.) No. 2256/22 Dt.29/08/23.

Vishal Parekar                                                                                ...10





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16] The respondent, without first successfully assailing the order

declaring him as a proclaimed offender, could not have

proceeded to seek anticipatory bail. Looking to the factual prism,

we are clear that the respondent's application under section 438,

Cr.P.C. should not have been entertained, as he was a

proclaimed offender. We may note that in Lavesh vs. State

(NCT of Delhi), (2012) 8 SCC 730, this Court was categoric

against grant of anticipatory bail to a proclaimed offender. In the

same vein, following Lavesh (supra) is the decision in State of

Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC 171, where

this Court emphasized that a proclaimed offender would not be

entitled to anticipatory bail. Of course, in an exceptional and

rare case, this Court of the High Courts can consider a plea

seeking anticipatory bail, despite the applicant being a

proclaimed offender, given that the Supreme Court and High

Court are Constitutional Courts. However, no exceptional

situation arises in the case at hand. Following Pradeep Sharma

(supra), in Prem Shankar Prasad vs. State of Bihar, 2021 SCC

Online SC 955, this Court was unequivocal that the High Court

therein erred in granting anticipatory bail ignoring proceedings

under sections 82 and 83, Cr.P.C. ... ......

(emphasis supplied)

19. In view of the aforesaid enunciation, the broad submission of

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Mr. Qureshi that the order of declaring the applicant as proclaimed

offender, having been passed during the pendency of the application

for pre-arrest, does not constitute an impediment in considering the

prayer for pre-arrest bail, does not merit acceptance, unreservedly.

As noted above, in Vipan Kumar Dhir (supra), a three judge Bench

of the Supreme Court has clearly enunciated that even if there was

any procedural irregularity in declaring the accused as an

absconder, that by itself, can not be a justifiable ground. It is a

different matter that if the Court finds that the order of

proclamation was obtained to defeat the right of the accused to seek

relief under section 438 of the Code. It is quite possible that an

application for pre-arrest bail may be preferred and not diligently

persued, and simultaneously the applicant evades the arrest

successfully and eventually when the proclamation is issued, the

accused may urge that an application for pre-arrest bail having

been filed prior in point of time he is not precluded from seeking the

said relief. Thus, an absolute proposition that the proclamation

issued during the pendency of pre-arrest bail application looses

significance, can not be countenanced.

20. I am, therefore, inclined to consider the prayer of pre-arrest

bail in the light of the second proposition enunciated by the

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Supreme Court in the case of Vipan Kumar Dhir (supra) namely

whether it is such a rare and exceptional case that the Court can

upon perusal of the material on record form an opinion that the

accusation against the applicant is false, vexatious and

exaggerated. If the material on record lends such assurance,

despite the issue of proclamation, the Court would be justified in

granting pre-arrest bail as the matter would then be in the realm of

protecting the personal liberty of the applicant.

21. As noted above, the applicant was undoubtedly not initially

named as one of the assailants and co-conspirator. The prosecution

primarily relies on the telephonic conversation to fix the identity of

the applicant as one of the co-conspirator. There is prima facie

material to show that the applicant was allegedly instrumental in

procuring the firearm. The Court also finds that there is prima facie

material to show that the applicant was a privy to the alleged

conspiracy. It is trite conspiracy is hatched in secrecy. Direct

evidence is seldom available. In view of the provisions contained in

section 10 of the Evidence Act, the doctrine of agency comes into

play and a statement made by one of the co-conspirator becomes

admissible against another where the conspiracy is afoot. The

telephonic conversation is required to be appraised through the

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aforesaid prism. At this stage, it would be rather audacious to draw

an inference that the accusations against the applicant is false or

exaggerated.

22. The antecedents of the applicant indicate that the applicant

had been prosecuted for the offences punishable under section 354

of the Penal Code (C.R.No. 332 of 2017, Khadak police station);

section 376 of the Penal Code (C.R.No. 409 of 2017, Khadak police

station) and section 3 read with 25 of Arms Act (C.R.No. 358 of

2021, Khadak police station). Mr. Qureshi joined the issue by

canvassing a submission that the applicant has been acquitted in

Special (Posco) Case No. 22 of 2018 and in R.C.C. No. 258 of 2018

and therefore the antecedents cannot be pressed into service to

deprive the applicant the relief of pre-arrest bail.

23. Mr. Qureshi may be justified in dislodging the objection on the

ground of antecedents, to a large extent. However, in the totality of

the circumstances, having regard to the gravity of the offences,

charge of conspiracy, nature of the involvement of the applicant

coupled with fact that the applicant allegedly kept himself away

from the investigating agency and that necessitated the issue of

non-bailable warrant and proclamation, I am not inclined to

exercise the discretion in favour of the applicant.

Vishal Parekar                                                                   ...14





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        Hence, the following order.



                                    ORDER

        1]       The application stands rejected.

        2]       It is clarified that these prima facie observations are

confined to determine entitlement to pre-arrest bail only.

                                             (N. J. JAMADAR, J.)




Vishal Parekar                                                                        ...15