Bombay High Court
Manoj Namdev Gajakosh vs State Of Maharashtra on 4 March, 2021
Author: Sadhana S. Jadhav
Bench: Sadhana S. Jadhav
12-bast-1763.20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION (ST) NO.1763 OF 2020
Manoj Namdev Gajakosh ... Applicant
V/s.
The State of Maharashtra ... Respondent
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Mr. Prashant G. Pandey a/w Mr. Aiqan Memon, Mr. Pradeep Singh, Mr.
Bilal Ahmed, Mr. Santosh Tiwari, Mr. Tushar Halwai and Mr. Ashray
Dare, for the Applicant.
Ms. P.P. Shinde - APP for the State.
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CORAM : SMT. SADHANA S. JADHAV, J.
DATED : 4th MARCH 2021.
P.C. :
1. Heard the learned counsel for the applicant and the learned APP for the Respondent.
2. This is the third application of the applicant seeking his enlargement on bail on the ground of delay in trial.
3. On 8th April 2012, the First Information Report was filed by Hariangad Singh at Oshiwara Police Station on the basis of which Crime No.105/2012 was registered for the offence punishable under pmw 1 of 10 12-bast-1763.20.doc section 302 r/w 34 of IPC. The case was subsequently transferred to DCB, CID for further investigation. The applicant herein was arrested on 10th April 2012. The applicant withdrew his first application for bail, being Criminal Bail Application No.2200 of 2014. The charge in the said case was framed on 9th May 2013. The same is recorded in the Order dated 29th October 2014 passed by this Court (Coram : S.S. Jadhav, J.) The said order reads as under :-
"Learned APP submits that in the present case, charge has been framed on 9/5/2013. In view of this, learned Counsel for the applicant seeks liberty to withdraw the application. Liberty as prayed for is granted in the interest of justice. It is made clear that the trial is expedited. The application stands dismissed as withdrawn."
4. The applicant again filed a second bail application being Bail Application No.955 of 2017. This Court vide order dated 6 th October 2017 has expedited the trial. Order dated 6 th October 2017 reads as under :-
". This is a subsequent Bail Application. Earlier Application filed by the present Applicant bearing No.2200/2014 was withdrawn before this Court.
2. It was submitted by the learned APP that at that stage charge is framed on 9/5/2013. This Court had expedited the trial by order dated 24/10/2014.
3. Mr. Pandey, learned counsel for the applicant has placed on record the roznama of Sessions Case No.548/2012 . It pmw 2 of 10 12-bast-1763.20.doc appears that the Court was vacant on the last date. However, now the matter is assigned to Court Room No.17. This is the matter which was investigated by DCB CID. The learned counsel for the Applicant vehemently submits that the Applicant cannot be subjected to indefinite incarceration and therefore it is prayed that the Applicant be enlarged on bail. However, taking into consideration the seriousness of the matter and the fact that the original accused No.1 is convicted in another case, this Court is not inclined to enlarge the Applicant on bail. However, since the charge is framed 4 years ago, this Court is inclined to expedite the trial. The learned Court Room No.17 is hereby requested to make efforts to conclude the recording of evidence as far as possible by the end of 30/11/2018.
4. Application stands disposed of."
5. This Court, vide sitting list w.e.f. 19th August 2015 to 16th November was assigned the roster of hearing Criminal Writ Petitions, Criminal Revisions and Criminal Applications u/s.482 of Cr.P.C. During the said roster, Criminal Application No.651 of 2015 challenging the order of rejection of discharge application, filed by Accused No.4 - Simran Sood, before the Sessions Court was enlisted before this Court on 28th August 2015 and was simplicitor adjourned to 28 th September 2015. On 28th September 2015, it was adjourned to 19 th October 2015 at the request of the learned APP. The roster was changed on 30 th October 2015. According to the learned counsel, this Court had in those proceedings stayed the trial Court proceedings. Today, learned pmw 3 of 10 12-bast-1763.20.doc counsel for the applicant has drawn attention of this Court, by filing an affidavit, that on 2nd May 2016, the Senior PI of DCB, CID had filed an application before the Sessions Court submitting therein that on 19th October 2015, this Court had granted an oral stay to the proceedings in the lower Court. The said letter filed by the PI was also endorsed and signed by the Special Public Prosecutor in Sessions Case No.548 of 2012.
6. Learned counsel for the applicant has also filed on record a letter addressed by the then Additional Government Pleader and Additional Public Prosecutor, High Court Mr. Deepak R. More, addressed to Senior Inspector of Police, DCB, CID Unit IX, Mumbai. The DCB, CID Unit was informed as follows :-
"It needs to be mentioned and brought to your notice that on 28.8.2015 the said matters were listed before Her Ladyship Justice Smt. S.S. Jadhav, J. and on the said date the matters were assigned to said APP i.e. APP Mrs. Aruna Pai. It appears that the matters were thereafter adjourned to 28.9.2015 before the very same Court and on the said date the matters were assigned to APP Ms.V.S. Mhaispurkar and therefore the undersigned cannot comment as to what exactly transpired in the said Court on the said dates.
However on 19.10.2015 once again the said matters were listed before the very same Court and the matters were assigned to the undersigned. On the said date pmw 4 of 10 12-bast-1763.20.doc as the prosecutor who was to argue the matters i.e. APP Mrs. Aruna Pai and the Investigating Officer were absent when the matters were called out, and therefore oral request was made to seek an adjournment on the said ground that the Prosecutor is busy in other Court. It was specifically pointed out that as the matters are arising out of crime which has been investigated by DCB, CID, Crime Branch, Unit - IX, Mumbai and as per the instructions of the DCB, CID, Crime Branch all the matters of the said branch are required to be argued and attended by APP Mrs. Aruna Pai and the said prosecutor being busy in another court the matters be adjourned. However on the said date i.e. on 19.10.2015 the grievance was made by the Learned Advocate appearing for the Petitioners/Accused persons to the effect that Trial Court was insisting to proceed with the matters. Upon which the Hon'ble Court presided over by (Coram: Smt. S.S. Jadhav, J.) after taking into consideration the series of adjournments applied by the Prosecution on previous dates was pleased to orally direct the undersigned to not to proceed with the matter in the Trial Court till next date. Upon which the undersigned had instructed the concerned Clerk of office of the Public Prosecutor in the said court to ensure that the oral directions of the Hon'ble Court are communicated to the concerned Investigating Officer."
7. It is submitted by the learned counsel that the said letter dated 2nd May 2016 was filed by the Special Public Prosecutor before the Sessions Court.
8. This Court has taken the inspection of the board dated 19 th October 2015. There were 70 matters listed on board. On that day, Criminal Application No.651 of 2015 was not heard nor any pmw 5 of 10 12-bast-1763.20.doc submissions were advanced on behalf of the Prosecutor Mr. Deepak R. More or by Mr. Shyam Keswani. The order reads as follows :-
"By consent stand over to 8/12/2015."
9. This matter was not enlisted before the Court on 8th December 2015. It was only the CMIS date. But on 10 th December 2015 an application was filed by Accused No.4 before the Sessions Court, seeking an adjournment on the ground that the case was stayed as per the oral instructions given by the High Court and taken on record, at the instance of Senior Public Prosecutor, as informed by APP Mr. More advocate of accused on last fixed date. The said application is marked at Exh.81.
10. On 22nd December 2015, information was given to the Sessions Court by SPP "that the matter is listed before the Hon'ble High Court on 11th January 2016, till then, the oral stay to trial is continued by the Hon'ble High Court." The same was the position on 6th January 2016 and on 18th January 2016, an application was made by advocate of accused no.4 (Exh.90) that "trial of this case is directed to be stayed by Hon'ble High Court (Justice Sadhana Jadhav), till decision of the proceedings pending before the Hon'ble High Court." In pmw 6 of 10 12-bast-1763.20.doc fact, this Court was not seized with the hearing of applications in January 2016. A similar request for adjournment was made on the same ground. On 21st March 2016, also the case was adjourned since Criminal Application No.651 of 2015 was still pending. Roznama of Sessions Court dated 1st April 2016 reads as under :-
"SPP Ujwal Nikam informed the court that Writ Petition filed by accd. no.4 is pending before the Honorable High Court and during the course of hearing of said writ petition, the Honorable High Court orally instructed the Public Prosecutor not to proceed in the SC pending before this court. This fact is already brought on record by accd.no.4 filing an application to stay the trial.
Ld. SPP Mr. Nikam further submitted that he is going to produce the letter of public prosecutor attached to the Honorable High Court containing such directions of High Court.
Matter is adjd to 15.04.2016 as stayed."
11. On 15th April 2016, the case was adjourned and on 2nd May 2016 an application was tendered by SPP Mr. Nikam to take on record the letter dated 15th April 2016 issued by Additional Government Pleader Mr. Deepak More. The said application is marked at Exh.95. As per this letter, oral instructions were given by the Hon'ble Ladyship Smt. S.S. Jadhav, not to proceed with the matter in the trial court till next date. Letter is taken on record. The advocate for accused no.4 is directed to produce the written stay order, if any, otherwise court will pmw 7 of 10 12-bast-1763.20.doc proceed on next fixed day. No such order was produced before the learned Sessions Court.
12. It thus appears that a misrepresentation was made by none other than the Public Prosecutor to the Sessions Court that this Court had stayed the proceedings before the Sessions Court. The learned counsel submits that till 19th October 2015 no witness was examined by the Sessions Court. It is a matter of record that while rejecting the application on 6th October 2017, this Court had expedited the trial and requested the Sessions Court to conclude recording of evidence by November 2018. On 20th October 2015 an application was tendered by the Advocate for Accused No.4 i.e. Advocate Mr. Shyam Keswani informing the Sessions Court that the Bombay High Court had on 19 th October 2015 orally directed the prosecution not to proceed in the matter before the Sessions Court and that the proceeding before the High Court was adjourned to 8 th December 2015. The said application is at Exh.79 of the Sessions Court proceedings. It appears that the Sessions Court adjourned the case to 3 rd November 2015. The learned Sessions Judge directed "Accused No.4 either to file an affidavit or to produce a copy of order passed by the Hon'ble High Court in any case on the next date."
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12-bast-1763.20.doc
13. On 3rd November 2015, the Special Public Prosecutor informed the Court that the averments made in the application Exh.79 filed by the Advocate for Accused No.4 are true and correct and therefore, had requested for staying the trial, on the basis of information given to him by the learned APP Mr. Deepak More. It is also noted in the roznama dated 3rd November 2015 that the learned Special Public Prosecutor had made submissions by placing reliance upon the information collected from the learned Public Prosecutor Mr. More attached to the Hon'ble High Court. The records show that the Senior PI and the Special Public Prosecutor had submitted a letter on 2nd May 2016 whereas, the letter written by the Public Prosecutor Mr. Deepak More was dated 15th April 2016. It is pertinent to note that this aspect was not pointed out to this Court on 30th November 2018 when the second bail application was heard. Neither on 20th October 2015 nor on 3rd November 2015, there was any occasion to submit before the Sessions Court that the trial had been stayed by the High Court. Such a misrepresentation by a Public Prosecutor, a responsible officer of this Court is deprecated. It is also pertinent to note that the said application (Criminal Application No.651/2015) was dismissed for default on 4th July 2016 and it has not been restored till date. The pmw 9 of 10 12-bast-1763.20.doc learned Government Pleader Mr. Deepak Thakre is directed to inquire into this matter and file a report on the next date. The learned Sessions Judge is further directed to expedite the trial as the charge was framed almost more than 7 years ago.
14. The Registrar (Judicial - I) is directed to send a copy of this order forthwith to the learned Sessions Judge, Greater Bombay seized with Sessions Case No.548 of 2012. The learned Sessions Court shall take this order on record in Sessions Case No.548 of 2012.
15. Stand over to 12th March 2021.
(SMT. SADHANA S. JADHAV, J.) Digitally signed by Pallavi M. Pallavi M. Wargaonkar Wargaonkar Date:
2021.03.09 16:41:55 +0530 pmw 10 of 10