Bombay High Court
Sarita Balu Munde vs Gowardhan Janardhan Kaple on 31 January, 2024
2024:BHC-NAG:1193
172 appln55 and 38.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPLN) NO.55/2023
Sarita Balu Munde
..vs..
Rohan Gajanan Ingle s/o Gajanan Ingle and anr
AND
CRIMINAL APPLICATION (APPLN) NO.38/2023
Sarita Balu Munde
..vs..
Gowardhan Janardhan Kaple and anr
....................................................................................................................................................................
Office Notes, Office Memoranda of Coram,
appearances, Court orders or directions Court's or Judge's Order
and Registrar's orders
....................................................................................................................................................................
APPLN No.55/2023
Ms.Tasmiya Taleha, Advocate h/f Shri C.J.Dhruv, Counsel for the
Applicant.
Shri Akshay A.Naik, Counsel for NA No.1.
Shri N.R.Rode, Additional Public Prosecutor NA No.2/State.
APPLN No.38/2023
Ms.Tasmiya Taleha, Advocate h/f Shri C.J.Dhruv, Counsel for the
Applicant.
Shri Akshay A.Naik, Counsel for NA No.1.
Shri N.R.Rode, Additional Public Prosecutor NA No.2/State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 17/01/2024
PRONOUNCED ON : 31/01/2024
1. By these applications under Section 439(2) of the
Code of Criminal Procedure, the applicant seeks cancellation of
bail in connection with Crime No.640/2022 registered with
Ramdaspeth Police Station, Akola for offence punishable under
Section 302 read with Section 34 of the Indian Penal Code.
2. Heard Advocate Ms.Tasmiya Taleha for the applicant,
learned counsel Shri Akshay Naik for non-applicant No.1 (in both
.....2/-
172 appln55 and 38.23
applications), and learned Additional Public Prosecutor Shri
N.R.Rode for the State.
3. As per contentions of the applicant, deceased Vishal
Kaple was associated with a prominent political party. During
years 2019 to 2022, he was popular due to his social activities
especially raising his voice against various social evils like
prostitution and illegal sale of liquor.
4. Rohan Gajanan Ingle (accused Rohan), who is non-
applicant No.1 in Criminal Application No.55/2023, as per
allegations of the prosecution, was aggrieved by the drive of the
deceased in putting an end to the sale of illegal liquor. The
deceased wrote a letter to the Superintendent of Police regarding
threats by accused Rohan Ingle and other co-accused. It is alleged
that with the help of Kashinath Changdev Bagde, the deceased
made a complaint to the State Excise against illegal sale of liquor.
As a result of complaint dated 13.10.2022, the excise department
initiated legal action on 19.10.2022. It is alleged by the informant
and prosecution witnesses that on 20.10.2022, when Kashinath
Bagde was proceeding on his two-wheeler, he was intercepted by
accused Rohan Ingle and other co-accused and was taken to "Om
Dhaba" owned by co-accused Ballu Wankhede. Later on,
Kashinath was brought by accused Rohan Ingle and other co-
accused at the house of the deceased and family member of the
.....3/-
172 appln55 and 38.23
deceased were threatened by saying that the deceased has to
face dire consequences if he is not withdrawing the complaint.
On 21.10.2022, two unknown persons visited house of Kashinath
and threatened his family members and, therefore, he lodged
complaint with Civil Lines Police Station Akola. As per allegation,
said Kashinath witnessed co-accused Gowardhan Janardhan Kaple
(accused Gowardhan), who is non-applicant No.1 in Criminal
Application No.38/2023, and Ashwin Kaple along with Shivanand
Dorvhekar who eliminated the deceased. It is further alleged that
on 29.10.2022, accused Rohan contacted Kashinath for
settlement and took him to "Shubham Hotel" wherein other co-
accused were present and said Kashinath was pressurized to
withdraw the complaint. As per allegations, accused Gowardhan,
along with the other co-accused, hatched conspiracy and hired
co-accused Shivanand and Vinod Kamble. On 30.10.2022, at 6:30
pm, the deceased was stabbed by the co-accused. On the basis
of report lodged by Rahul Nagorao Dhaye, the crime is registered
against the co-accused and during investigation, involvement of
accused Rohan and accused Gowardhan revealed and, therefore,
they were arrested.
5. Accused Rohan and accused Gowardhan, approached
the Sessions Court by filing application Exhibit-52 by accused
Rohan and Misc.Criminal Application No.57/2023 by accused
Gowardhan for grant of bail. Learned Judge of the trial court
.....4/-
172 appln55 and 38.23
allowed applications and granted bail on the ground of parity as
the co-accused are released on bail by this court in Criminal Bail
Application No.342/2023. Another co-accused Ashwin was also
released on bail by the Sessions Court.
6. Being aggrieved with the said orders passed by the
Sessions Court, the applicant, who is sister of the deceased,
preferred these applications for cancellation of the bail.
7. Advocate for the applicant submitted that the ground
of parity was not available to accused Rohan and accused
Gowardhan as their role is distinguishable from co-accused
Abhishek Jagtap as there was no criminal antecedent against him
as well as there was no involvement in illegal liquor of business.
Whereas, several offences are registered against accused Rohan
and accused Gowardhan. Insofar as accused Gowardhan is
concerned, there is a direct evidence against him showing that he
threatened the deceased as well as his family members. The
CDRs show that accused Rohan was in a continuous contact with
Shiva Dorvhekar who eliminated the deceased. The trial court
has not considered prima facie material showing involvement of
accused Rohan and accused Gowardhan in a previous incident of
threatening to prosecution witness Kashinath Bagde. The trial
court had also not considered the association of accused Rohan
and accused Gowardhan with the co-accused. The parameters or
.....5/-
172 appln55 and 38.23
principles for grant of bail are also not considered by the trial
court.
8. Learned counsel for the applicant further submitted
that the Honourable Apex Court in the case of Neeru Yadav vs.
State of U.P., reported in (2016)15 SCC 422 frowned upon
the concerned High Court which totally ignored the criminal
antecedents of accused and weighed the doctrine of parity in
granting bail.
She further submitted that orders passed by the trial
court are without application of mind and, therefore, the same are
liable to be quashed and set aside. The trial court mechanically
granted the bail in heinous offence.
9. Per contra, learned counsel Shri Akshay A.Naik for
accused Rohan and accused Gowardhan submitted that perusal of
statements of witnesses reveals that similar allegations are made
against accused Rohan and accused Gowardhan and the co-
accused who are released on bail. The trial court assigned
reasons mentioning that it is material to note that co-accused
Dhnyaneshwar, who was also similarly involved in the conspiracy
and was giving threats to the deceased and Kashinath, is released
on bail by the High Court as well as the co-accused are also
released on bail and, therefore, the principal of parity was
applied. He further submitted that CDRs and documents, placed
.....6/-
172 appln55 and 38.23
on record, are collected by the investigating officer during further
investigation under Section 173(8) of the Code of Criminal
Procedure. At the relevant time, details regarding mobile
numbers of co-accused Shivanand and the accused and a detailed
material showing their calls to each other were not placed on
record. The investigating agency has only placed on record CDRs
without giving details regarding names of customers. Further
details are collected subsequently and filed along with
supplementary chargesheet. Thus, at the relevant time, when
bail applications of accused Rohan and accused Gowardhan are
considered, the said material was not before the Court.
Considering CDRs collected during further investigation, while
deciding applications, it will cause prejudice to accused Rohan
and accused Gowardhan. He further submitted that on merits
also, involvement of accused Rohan and accused Gowardhan in
the incident dated 30.10.2022 is neither narrated by the applicant
nor by any of family members while recording their statements by
the investigating officer. In a subsequent statement, first time,
prosecuting witnesses came along with a theory of threatening by
accused Rohan and accused Gowardhan. He further submitted
consideration for grant of bail and cancellation of bail is different.
Supervening and overwhelming circumstances are required for
cancellation of bail. The orders passed by the trial court granting
bail were on the basis of material of investigation papers placed
.....7/-
172 appln55 and 38.23
before the court. If new material is collected during further
investigation, the applicant is always at liberty to prefer an
appropriate application for cancellation of bail before the trial
court. In view of Section 439(2) of the Code, similar powers are
to the Sessions Court also to cancel bail granted. If this court
considers the material which was not before the trial court at the
relevant time, when the bail was granted, it would certainly cause
prejudice to accused Rohan and accused Gowardhan and,
therefore, he prayed for rejection of applications.
10. Before adverting to the discussion, whether the trial
court granted the bail mechanically or on the basis of material
placed before it, it is necessary to see settled law regarding
cancellation of bail.
11. It is well settled that very cogent and overwhelming
circumstances or grounds are required to cancel bail already
granted. Ordinarily, unless a strong case based upon any
supervening event is made out, an order granting bail is not to be
lightly interfered with under Section 439(2) of the Code of
Criminal Procedure.
12. The Honourable Apex Court in the case of
Bhagirathsingh Mahipat Sing Judeja vs. State of Gujarat,
reported in (1984)1 SCC 284 held that if there is no prima
facie case, there is no question of considering other
.....8/-
172 appln55 and 38.23
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 grained in his
favour by tampering with evidence, we would have certainly
overlooked this aspect of the matter if the approach of the
learned judge was otherwise one which would commend to us.
13. In the case of Deepak Yadav vs. State of Uttar
Pradesh, reported in (2022)8 SCC 559 it is held that the issue
of bail is one of liberty, justice, public safety and burden of the
public treasury, all of which insist that a developed jurisprudence
of bail is integral to a socially sensitized judicial process. It is
further held that it is well settled that 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 offence; (ii) nature and gravity of the
accusation; (iii) severity of the punishment in the event of
conviction; (iv) danger of the accused absconding or fleeing, if
released on bail; (v) character, behaviour, means, position and
standing of the accused; (vi) likelihood of the offence being
repeated; (vii) reasonable apprehension of the witnesses being
influenced, and (viii) danger, of course, of justice being thwarted
by grant of bail.
.....9/-
172 appln55 and 38.23
Thus, for grant or denial of bail, the nature of crime
has a huge relevancy.
It is further observed that the grounds for cancellation
of bail are: (i) interference or attempt to interfere with the due
course of administration of justice; (ii) evasion or attempt to
evade the due course of justice; (iii) abuse of the concession
granted to the accused in any manner; (iv) possibility of accused
absconding; (v) likelihood of/actual misuse of bail, and (vi)
likelihood of the accused tampering with the evidence or
threatening witnesses.
The Honourable Apex Court further held that
cancellation of bail cannot be limited to the occurrence of
supervening circumstances and gives illustrative circumstances
where the bail can be cancelled; a) where the court granting bail
takes into account irrelevant material of substantial nature and
not trivial nature while ignoring relevant material on record; b)
where the court granting bail overlooks the influential position of
the accused in comparison to the victim of abuse or the witnesses
especially when there is prima facie misuse of position and power
over the victim; c) where the past criminal record and conduct of
the accused is completely ignored while granting bail; d) Where
bail has been granted on untenable grounds; e) where serious
discrepancies are found in the order granting bail thereby causing
.....10/-
172 appln55 and 38.23
prejudice to justice; f) where the grant of bail was not appropriate
in the first place given the very serious nature of the charges
against the accused which disentitles him for bail and thus cannot
be justified, and g) when the order granting bail is apparently
whimsical, capricious and perverse in the facts of the given case.
14. In another judgment in the case of Vipan Kumar
Dhir vs. State of Punjab, reported in (2021)15 SCC 518, the
Honourable Apex Court held that the the well settled legal
principle is that the cancellation of bail is to be dealt on a
different footing in comparison to a proceeding for grant of bail. It
is necessary that 'cogent and overwhelming reasons' are present
for the cancellation of bail. Conventionally, there can be
supervening circumstances which may develop post the grant of
bail and are non conducive to fair trial, making it necessary to
cancel the bail.
15. Thus, in view of the well settled legal principles, it is
required to be borne in mind that when a prayer is made for
cancellation of bail, cogent and overwhelming circumstances
must be present and bail once granted cannot be cancelled in a
mechanical manner without considering whether any supervening
circumstances have rendered it no longer conducive to allow fair
trial. The cancellation of bail has to be dealt on a different footing
in comparison to a proceeding for grant of bail. No doubt, each
.....11/-
172 appln55 and 38.23
case would have its peculiar facts and the same are required to
be taken into consideration for adjudication of bail matters
including cancellation of bail.
16. Thus, in view of the above well settled legal position,
it is to be considered whether the trial court has granted bail
without considering parameters for grant of bail and by ignoring
the material evidence against accused Rohan and accused
Gowardhan.
As far as order passed by the trial court, in
connection with accused Rohan is concerned, the trial court
observed in paragraph No.19 that, "the role of co-accused Ashwin
was not only about the grievance on the point of complaint
against his businesses, but also for the reason of rising political
dominance of Vishal as compared to his status. Under such
circumstances, it cannot be believed at this stage that the
accused Rohan had different, rather any more severe role in
relation to co-accused Ashwin."
In paragraph No.20 it is further observed that, "it is
most material here to note that co-accused Dnyaneshwar who
was also similarly involved in the conspiracy and giving threats to
Vishal and Kashinath is also released on bail by the Hon'ble High
Court of Bombay, Bench at Nagpur, Nagpur in BA No.342/2023 by
order dated 15.6.2023. The co-accused Ashwin is already
.....12/-
172 appln55 and 38.23
released on bail by this court by order dated 22.6.2023 whereas
co-accused Gowardhan is already on bail. Under such
circumstances, the principle of parity would certainly prevail even
present proceeding."
17. In the light of the above observations, if investigation
papers are considered, allegation against accused Rohan is on the
basis of statement of Kashinath Bagde who alleged that on
20.10.2022 accused Rohan and one more person restrained him
and abused him and took him at "Om Dhaba" of Balu Wankhede
wherein Balu Wankhede and accused Rohan and Ashwin abused
him and took him at the house of the deceased. At the house of
the deceased, family members of the deceased were threatened
by accused Rohan, accused Gowardhan Kaple, Ballu Wankhede,
and Ashwin Kaple that if the complaint is not withdrawn, Vishal
has to face dire consequences. The statements of the informant
and other family members neither make a reference of this
incident dated 20.10.2022 nor they have mentioned the incident
in their subsequent statements. The wife of the deceased,
namely Vaishnavi Vishal Kaple, has also not referred this incident
in her statement though her statement was recorded on
4.11.2022. The information was lodged on 31.10.2022 wherein
no role is attributed to accused Rohan. Though statement of the
informant was recorded on 4.11.2022, he has also not mentioned
threatening by accused Rohan by visiting the house of the
.....13/-
172 appln55 and 38.23
deceased on 20.10.2022. Thus, the trial court has considered
that the role attributed to the applicant and Ashwin is similar on
the basis of statements of various witnesses. Admittedly,
Kashinath has attributed role to the present non-applicants by
mentioning the incident dated 20.10.2022. It is pertinent to note
that his statement was recorded on 10.11.2022.
18. The another circumstance, on which accused Rohan
and accused Gowardhan relied upon, is CDRs. Initially, CDRs were
filed before the court which were not mentioning any calls
between accused Rohan and accused Gowardhan and co-accused
Shiva Dorvhekar. In fact, there was no detail by obtaining the
record from the concerned company regarding the customer
details etc.. In subsequent investigation carried under Section
173(8) of the Code of Criminal Procedure, the investigating officer
collected the said details and supplementary chargesheet was
filed wherein the said details including applications filed by
accused Rohan and accused Gowardhan and other co-accused for
obtaining prepaid SIM Cards were collected which disclosed that
customer namely Rohan Ingle, having his Mob No. 9359623607,
had called on the mobile phone of Shivanand who actually
executed the act having mobile number 9822822477. Thus,
admittedly, these call details were not before the trial court when
the bail applications of the non-applicants were considered. In
the above circumstances, if this record is considered, definitely, it
.....14/-
172 appln55 and 38.23
will cause prejudice to accused Rohan and accused Gowardhan.
In such circumstances, the applicant is at liberty to approach the
trial court and brought to the notice of the trial court aforesaid
documents i.e. CDRs.
19. As far as accused Gowardhan is concerned, the trial
court observed that allegations against him are only on the basis
of statement of Kulkdeep Ingle who stated that once he hard co-
accused Ashwin saying to the deceased, "vHkh rsjs FkksMs fnu ckdh gS " and
accused Gowardhan gave a clap to the co-accused. The only
words uttered by accused Gowardhan were that "ckdh dksVZ dk dke eS
laHkkyrk gw". As far as criminal conspiracy is concerned, the material
against accused Gowardhan is far less than that of the co-accused
and released Gowardhan on bail.
20. Learned counsel for the applicant submitted that the
trial court has not considered CDRs between accused Gowardhan
and the other co-accused.
21. As observed earlier, details of CDRs were collected by
the investigating officer during further investigation and the same
were not placed before the trial court at the relevant time and,
therefore, on the basis of the statements, the trial court held that
the co-accused, who are released on bail, and accused Rohan and
accused Gowardhan played similar role and on the ground of
parity the bail was granted.
.....15/-
172 appln55 and 38.23
22. In the above circumstances, the applicant is at liberty
to approach the trial court and bring these facts to the notice and
pray for cancellation of bail.
23. At this stage, it cannot be said that the trial court has
ignored this material while considering bail applications as CDRs
were never produced before the trial court being it was not part of
the earlier chargesheet.
24. In this view of matter, applications deserve to be
rejected and the same are rejected.
25. The applicant is at liberty to approach the trial court
by filing an appropriate application and the trial court shall
consider the same in the light of new facts placed on record.
The applications stand disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 31/01/2024 13:29:40
