Bombay High Court
Pankaj S/O. Nandlal Patle vs The State Of Mah. Thr. Pso, Ps Ravanwadi, ... on 17 January, 2024
35.aba.14.2024.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (ABA) NO.14 OF 2024
Pankaj s/o Nandlal Patle ..vs.. State of Maharashtra
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Shri A.S. Manohar, Advocate for the applicant.
Shri A.G. Mate, APP for the State.
CORAM:- URMILA JOSHI-PHALKE, J.
DATED :- JANUARY 17, 2024
1. By preferring this application, the applicant is
seeking pre-arrest bail in connection with Crime
No.281/2023 registered at Police Station Rawanwadi,
District Gondia for the offence punishable under Sections
143, 144, 147, 148, 302, 364, 386, 341, 323, 504 and 506
read with Section 149 of the Indian Penal Code.
2. The applicant is apprehending arrest at the hands of
police as allegation is made against him on the basis of
report lodged by one Sandip Madanlal Thakrele, who
alleged in the FIR that Kishor Rathod who was his
neighbour was engaged in selling fake gold ornaments. On
17.09.2023, the informant along with the deceased Kishor
had gone to Om Hardware belonging to co-accused Om
Chaudhari. Deceased Kishor Rathod had finalized a deal
of selling of golden chandelier (earrings) to Om
Chaudhari worth Rs.1.5 Lakh. On 18.09.2023 at about
2.00 p.m., the informant, one Badal Neware and Kankar
Lilhare met the deceased Kishor Rathod and they proceed
on motorcycle towards Dangorli. When they reached at
Dangorli near bus stop, they met one Devdip Jaitwar. It is
further alleged that Om Chaudhari came there along with
the other accused and co-accused where the informant
and Devdip Jaitwar were waiting under a tree while
deceased Kishor Rathod went away for a while.
Thereafter, they started back towards Gondia. Around
3.00 p.m., near Dangorli bus stop, four persons on a
motorbike accosted the informant, Kishor and Devdip
Jaitwar and restrained them. They kicked the motorbike
and caused them to fall. The four unknown persons
started hitting them on the spot. Thereafter, five more
persons arrived at the scene on three motorbikes. As per
the allegations Om Chaudhari abused the informant,
deceased Kishor Rathod and Devdip Jaitwar and also
assaulted them. Thereafter, three persons were forcibly
made to sit on a motorbike and taken to Dongargaon,
Madhaya Pradesh. Some more persons were also waiting
nearby who also started chasing the informant and others.
Upon reaching Dongargaon, the informant and the
deceased and Devdip Jaitwar were taken to the field
wherein also they were also assaulted. It is specifically
alleged that Om Chaudhari hit deceased Kishor Rathod
with a stick on his back, head, chest and legs. Thereafter,
he demanded an amount of Rs.10,00,000/- and told that
only upon receipt of the amount, he will release the
informant, deceased Kishor Rathod and Devdip Jaitwar. At
the relevant time, the informant called his brother Pradip
Thakrele to bring money, whereas Kishor called Atul
Khobragade and Ashish Shahare. The informant came to
know about the names of assailants as they were referring
each by their names. It is alleged that one Ajju Turkar
asked Devdip Jitwar for money and Devdip Jaitwar replied
that he would pay Rs.5,000/-. Thereafter, Devdip Jaitwar
and Aajju Turkar and went on a motorbike and withdrawn
the amount of Rs.5,000/- from an ATM. Om Chaudhari
and his associates again assaulted him. In the said assault,
the death of deceased Kishor Rathod is caused due to the
said injuries. On the basis of the said report, police have
registered the crime.
3. Learned Counsel Mr. Manohar for the applicant
submitted that considering the recitals of the FIR, the
allegations levelled against the co-accused and the
presence of the present applicant is only stated and no
overt act is attributed. There is no specific allegation
against the present applicant. The co-accused with the
similar allegation is already released on bail by this Court
in the event of his arrest. He further stated that even
taking into consideration the allegation as it is, the death
of the deceased is due to the liver injury and small
intestinal haemorrhage. At the most, the act is covered
under Section 304 part II of culpable homicide not
amounting to murder.
4. He further submitted that this Court after
considering the settled law released the co-accused on
bail, the role of the present applicant is similar to them. In
view of that, on the ground of parity also the present
applicant is to be released on bail. He further submitted
that this Court released the applicant on anticipatory bail
in view of the judgment of Shankar Maruti Sawant and
another vs. State of Maharashtra through PSO 2020 SCC
OnLine Bom 11317, by observing that the substratum of
the submission that offence punishable under Section 302
IPC is not made out is predicated on the premise that the
assault was by kick and fist and that there was no
intention of causing death, or causing such bodily injury
as is likely to cause death, or with the knowledge that the
assailant are likely, by such act, caused death. In essence,
the submission is that the assailants cannot be said to have
committed culpable homicide as defined in Section 299 of
IPC. This Court has further observed that the several other
decisions are cited by the Counsel which explain the scope
and ambit of section 438 of the Code of Criminal
Procedure and deal with the considerations which ought
to weigh with the Court while granting or refusing pre-
arrest protection.
5. He further submitted that there is no allegation that
present applicant was carrying any weapon even the
allegations are taken as it is, the allegation is that
deceased was assaulted by kick and fist blows which
resulted into the death. At the most, case covers under
Section 323 of the IPC. The custodial interrogation of the
present applicant is not required and he be released on
anticipatory bail.
6. On the other hand learned APP for the State
strongly opposed the application and submitted that
considering the manner in which the alleged incident has
taken place that the co-accused and the present applicant
in furtherance of their common object assaulted the
deceased and the informant, caused his death sufficient to
show the intention and prays for rejection of the
application.
7. After hearing both the sides and perusal of the
investigation papers, there is no dispute as to the fact that
the co-accused with the similar allegation is already
released on bail. As far as the recitals of the FIR is
concerned, the sum and substance of the allegation is that
the deceased was dealing with the fake gold ornaments
and there was transaction between the co-accused Om
Chaudhari and the deceased. The only allegation against
the present applicant is that he was along with the co-
accused and no overt act is attributed against the present
applicant. Admittedly, the co-accused with the similar
allegation is already released on anticipatory bail. On
perusal of the FIR and the investigation papers, if the facts
and circumstances of the present case are considered,
admittedly, general allegations are made against the
present applicant. No specific role or no weapon is
attributed to the present applicant. In view of the above,
the application deserves to be allowed by imposing certain
conditions. Accordingly, I proceed to pass following order:
(i) The application is allowed.
(ii) In the event of arrest, applicant - Pankaj s/o
Nandlal Patle in connection with Crime
No.281/2023 registered at Police Station
Rawanwadi, District Gondia for the offence
punishable under Sections 143, 144, 147, 148,
302, 364, 386, 341, 323, 504 and 506 read with
Section 149 of the Indian Penal Code, be released
on anticipatory bail on executing a P.R.Bond in
the sum of Rs.25,000/- with one solvent surety, in
the like amount.
(iii) The applicant shall attend the concerned
Police Station once in a week i.e. on every Sunday
between 10.00 a.m. and 01.00 p.m. and shall
cooperate with the investigating agency.
(iv) The applicant shall not directly or indirectly
make any inducement and threat or promise to
any person acquainted with the facts of the
present case.
8. The application is disposed of.
(URMILA JOSHI-PHALKE, J.)
*Divya
