LAWS(BOM)-2005-2-41

ANIL RANGRAO THORAT Vs. STATE OF MAHARASHTRA

Decided On February 03, 2005
Anil Rangrao Thorat Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) After hearing Counsel for the parties, as 1 indicated my mind to allow the application. Mr. Gupte, on instructions, states that the Court may not record elaborate reasons which will eventually prejudice the respondents at the stage of bail application, if moved by the Respondents. Mr. Gupte on instructions states that the Respondents are inclined to surrender before the appropriate court, so that their regular bail application can be considered by that Court on its own merits. Ordinarily, in view of the stand taken by the respondents, I would have disposed of the application without recording any reason, but, for the nature of directions that 1 propose to issue, I think it necessary to make few broad observations, making it clear that the same shall not affect the merits of the case of the respondents in the event they move application for bail before the appropriate court.

(2.) Indeed, at the first blush, on reading the impugned judgment, it gives an impression that it is a considered judgment and in that view of the matter, no interference was warranted. However, on close scrutiny of the record, with the assistance of the Public prosecutor, I am constrained to observe that the judgment in question cannot be described anything but perverse. I should say to the credit of Mr. A. S. Gadkari, the Assistant public Prosecutor that although the stand of the State Government, on instructions, is that the State was supporting the order is question, but on request made by the Court, he has placed before me relevant evidence, which comples me to make the observation that the order in question is perverse.

(3.) The learned Judge, while granting anticipatory bail in respect of the offence, which is indeed serious one under sections 307, 342, 147, 148, 149, 427, Indian Penal code, and sections 3 and 25 of the Arms Act, has observed, as can be discerned from the reasons from paras 4 to 7 of the judgment, that it will be unsafe to conclude that the respondent Nos. 2 to 5 had active role or participated in the crime. For reaching at that conclusion, the learned Judge has only referred to the statement of Sarpanch, Sou. Chaya mali. It is held that the statement of Sou. Chaya Mali is conspicuously silent about the presence of Respondent Nos. 2 to 5. This basis is completely belied by the supplementary statement of Sou. Chaya Mali, which was recorded on 21st November,2004, which clearly refers to at least the role of respondent Nos. 4 and 5 and their active participation in the crime. The learned Judge has then observed that the injury certificate indicates that there are seven injuries and six are simple; Only one injury is grievous, which is described as "clean cut sharp cut injury over head i. e. scalp midline 8 cm. x 0. 5 x 0. 5 cm. red bleeding present. " Once again, this observation is clearly error apparent on the face of the record. The injury certificate dated 13th November, 2004 produced by the Public prosecutor clearly indicates that the doctor has certified Injuries No. 1 and 4 as grievous injuries. The learned Judge has only referred to injury No. 4 in his order and made no reference to injury No. 1, which is mentioned in the injury certificate as, "clean cut sharp edged injury over left foot c/or sum m 6 x 0. 5 cm x 0. 5 cm. red bleeding". Besides, there are in all eight injuries and not seven as mentioned by the learned Judge. These facts are required to be highlighted as it is on that basis the learned Judge proceeds to examine the matter. The learned Judge has then observed that if the Respondents were leading a group of 17 members of the village panchayat and all members of the same group, then it is but natural that the Respondents were in a position to take assistance of their workers and they would not have appeared in person to take part in altercations. There is no reason why this assumption has been drawn by the learned Judge. The record, however, indicates to the contrary. Not only sou. Chaya Mali has deposed about the involvement of at least Respondent Nos. 4 and 5, but there are other witnesses, who have consistently mentioned that fact, namely, hanmant Rajaram Mali, Savitribai Rajaram mali, Baburao Ramchandra Gawade, Milind ramchandra, Chandrabhaga Ramrao Shinde, raosaheb Ramchandra Mali, Raghunath tukaram Ravate, Kondiba Kashinath naikwadi, Manjula Eknath Shinde and manohar Krishna Naikwadi. If this was the nature of evidence on record, there was no basis for the learned Judge to draw such assumption, especially in the matter which was of serious nature and the Court was called upon to consider anticipatory bail application. The learned Judge then observes that no satisfactory explanation is coming before the court for what purpose the complainant had been to the house of Sou. Chaya Mali and what ultimately led him to go and visit the house during night hours when more particularly the situation was tense in the village on the very ground of taking resignation of the members. Once again, this assumption is misplaced, and, in any case, could not have been the basis for granting anticipatory bail to the Respondents. On the other hand, all the witnesses, including sou. Chaya Mali and her husband, Hanmant rajaram Mali, have deposed about the reason for which the complainant had visited the house of Sou. Chaya Mali, at that hour, along with Baburao Ramchandra Gawade. The learned Judge then observes that if the only purpose for arresting the Respondents was for recovery of weapons, that is not a good ground for refusing anticipatory bail. This, in my view, is complete misunderstanding of the purport of section 438 of the Code. Assuming that this reason is on the basis of the earlier conclusion reached that there is no evidence whatsoever to implicate the Respondents in the crime, as mentioned earlier, the basis on which that conclusion is reached cannot be sustained and is contrary to the record. Even if this was an independent reason, it is well- settled that at the stage of anticipatory bail, the Court will taken into account factors specified in section 438 of the Code.