Bombay High Court
Bandu Damu Masal vs The State Of Maharashtra on 9 December, 2020
Author: Bharati Dangre
Bench: Bharati Dangre
Digitally 1/6 23 BA 166-20.doc
Manali signed by
Manali P. Tilak
P. Date:
2020.12.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Tilak 16:02:31
+0530
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.166 of 2020
Bandu Damu Masal .. Applicant
Versus
State of Maharashtra .. Respondent
...
Vilasini Balasubamanian i/b Jaydeep Mane for the applicant.
Mr. P.H. Gaikwad, APP for the State.
CORAM: BHARATI DANGRE, J.
DATED : 9th DECEMBER 2020
P.C:-
1 The applicant is incarcerated since 25 th June 2018 in
relation to C.R.No. 1089 of 2018 registered by Hadapsar Police
Station. The said C.R invoke section 115, 120B, 467, 468, 471,
302 read with Sections 511 and 34 of the IPC.
2 On investigation, charge-sheet has been filed and the
application preferred by the applicant, pre-charge-sheet and on
filing of charge-sheet came to be rejected.
3 With the assistance of the learned counsel for the
applicant and the learned APP, I have perused the charge-sheet.
Counsel for the applicant has placed reliance on an order passed
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by this Court in Bail Application of co-accused being Anant
Modhve, Anand Bhope, Rajendra Shitole where the three
applicants came to be released on bail by order passed by Hon'ble
Justice Anuja Prabhu Desai on 31 st October 2018. She submit
that she has a better case than the said applicants and hence, his
liberty be restored to him. She also rely on an order passed in case
of co-accused Nitin Pise dated 20th December 2018 by Hon'ble
Justice A.S. Gadkari.
4 The complainant is a police personnel and he state
that on 2nd November 2017, when they were investigating into
another crime, registered with Vishramwadi police station, a
secret informer provided information that one Omkar @ Bunty
and Bandu Masal i.e. the present applicant have accepted
consideration of Rs.One crore for committing murder and
advance of Rs.15 lakhs has been received by them. The
interrogation began and the team could trace two persons by
name Bunty @ Omkar Bendra and one Nitin Kumar Pise who
gave them information that one person by name Vishnu Raskar
and Anand Modhva has given the contract of killing one
Mangesh Tupe and this contract was for Rs.One crore and
advance amount was also paid. This resulted in registration of an
offence and along with three other accused persons, the applicant
was indicted as accused no.3. It is worthy to mention that the
persosn who are alleged to have accepted some consideration for
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the purpose of killing of Mangesh Tupe never executed the act of
murder.
It is not understood as to how Section 302 has been
invoked. The relevant section invoked against the present
applicant would be Section 115 which prescribe punishment for
abetment of offence punishable with death or Imprisonment for
Life if offence is not committed. The penalty prescribed is
Imprisonment of either description for a term which may extent
to 7 years and shall also be liable for fine. Section 115 (Part 1) is
attracted if a person abets commission of an offence punishable
with death or Imprisonment for Life and if that offence is not
committed in consequence of the abetment, whereas Part II
prescribes the penalty if an act causing harm is done as a
consequence of such abetment. Abetment of a thing is enlisted in
the IPC in Section 107 and a person is said to abet doing of a
thing if he invokes any person to do that thing or secondly
encourages with one or more other person or persons in any
stipulation for the doing of that thing, if an act or illegal omission
takes place in pursuance of that conspiracy, and in order to the
doing of that thing, or if he intentionally abets by any act of illegal
omission the doing of that thing. Even assuming for a moment
that Section 115 has been rightly invoked and applied against the
present applicant, the maximum punishment is Imprisonment
upto 7 years since the act has not been committed in consequence
of the abetment.
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5 Pertinent to note that while dealing with the bail
applications of the three co-accused Anant, Anand and Rajendra,
Hon'ble Justice Anuja Prabhu Desai has held as under :-
"11 It is also pertinent to note that the conspiracy to
eliminate Mangesh Tupe was hatched in the year 2015
because of dispute between Mangesh Tupe and the
applicants - Rajendra Shitole and Anand Bhope over the
payment of sale consideration. However, there is no prima
facie material to indicate that there was any such dispute
between the applicants and Mangesh Tupe as in the year
2015. On the contrary, the records prima facie indicate that
there were several business transactions between Mangesh
Tupe and the applicants till the year 2016. This fact prima
facie indicates that their relations were cordial till 2016.
Consequently, there was no reason or motive for the
applicants to enter into a criminal conspiracy to eliminate
Mangesh Tupe.
12 The nature of the allegations against these applicants,
in my considered view, justifies grant of bail. Furthermore,
the applicants Anant Modhve and Anand Bhope are in
custody since 14/11/2017. The investigation is completed
in all respects and presence of the applicants is not required
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for the purpose of the investigation."
6 The present applicant has been arrested in connection
with the said crime on 25th June 2018 and it is 30 months since
he is incarcerated. Learned A.P.P. states that till today, charge is
not framed. In any contingency, the applicant is not alleged of
any act which would attract Section 467, 468, 471 of the IPC. He
is therefore entitled to be released on bail in light of the fact that
till today, no charge is framed. Hence, the following order :-
ORDER
Application is allowed.
(a) The Applicant - Bandu Damu Masal shall be released on bail in connection with C.R.No. 1089/2018 registered with Hadapsar Police Station on furnishing P.R. bond to the extent of Rs.25,000/- with one or two sureties of the like amount.
(b) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to the Court and shall not tamper with evidence.
(c) The Applicant shall attend the trial on each date when it commence and make his attendence in Tilak 6/6 23 BA 166-20.doc Hadapsar Police Station once in every month, till framing of charge.
SMT. BHARATI DANGRE, J Tilak