Bombay High Court
Akshay Atmaram Rathod vs The State Of Mah. Thr. Sub Divisional ... on 13 February, 2023
Author: Vinay Joshi
Bench: Vinay Joshi
Judgment apeal786.22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 786 OF 2022.
Akshay Atmaram Rathod,
Aged about 31 years,
Occupation - Business,
resident of Chandore Nagar,
Yvatmal. ... APPELLANT.
VERSUS
1.The State of Maharashtra,
Through Sub Divisional Police Officer,
Police Station Yavatmal City,.
2.Abha Karan Paropate,
Aged about 29 years,
Occupation - Household,
resident of Rani Amravati,
Babulgaon, District Yavatmal.. ... RESPONDENTS.
---------------------------------
Mr. S.V. Manohar, Senior Advocate with Mr.A.S. Manohar,
Advocate for the Appellant.
Mr. M.J. Khan, A.P.P. for Respondent No.1 /State.
Mr. S.P. Deshpande, Advocate for Respondent No.2.
----------------------------------
Rgd.
Judgment apeal786.22
2
CORAM : VINAY JOSHI AND
VALMIKI SA MENENZES, JJ.
DATE : FEBRUARY 13, 2023.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Considering the controversy involved in the matter, and by consent of the learned Counsel appearing for the respective parties, Criminal Appeal is taken up for final disposal at the stage of admission.
Admit.
2. This is an appeal in terms of Section 14-A[2] of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act" for short), raising a challenge to the order dated 03.09.2022 passed by the Additional Sessions Judge, Yavatmal below Exh.3 in Special Case No.7/2022, rejecting regular bail.
Rgd.
Judgment apeal786.22 3
3. The appellant - Akshay came to be arrested by the police of Yavatmal Police Station, District Yavatmal in connection with Crime No.543/2021 for the offence punishable under Sections 109, 120-B, 302, 307 of the Indian Penal Code, Section 3[2][v] of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act" for short), and Sections 3/25 and 4/25 of the Arms Act. Later on the provisions of Section 3[1][ii], 3[2], 3[4] of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as "the MCOCA" for short) have been invoked. The appellant had applied for regular bail, however, it was turned down by the Sessions Court vide impugned order. Since the provisions of the Atrocities Act have been invoked, this is an appeal under Section 14 A[2] of the Atrocities Act, in substance claiming release on bail.
4. The aforesaid crime was registered at the instance of report dated 23.06.2021 lodged by one Smt.Abha Karan Paropate, alleging that the appellant along with co-accused hatched conspiracy, which resulted into committing murder of her husband Rgd.
Judgment apeal786.22
4
Karan on 23.06.2021. Informant is real sister of the
appellant/accused. The informant stated that she had performed inter-caste marriage with the deceased Karan on 11.04.2021, which was disliked by her brother - appellant/Akshay. Later on both were indulging into business of sand transportation. Several offences were registered against the appellant. On 23.06.2021 around 8.45 p.m. the informant was telephonically communicated that her husband Karan has been assaulted near State Bank Chowk. She tried to contact deceased Karan, but, could not. She was informed by one Laptap that her husband has been assaulted by Baghira, Shubham and Dhiraj @ Brand. She rushed to the government hospital along with Latpat and found her husband lying dead with multiple injuries.
5. It is informants' case that though the appellant was detained at Aurangabad Central Prison under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootlegers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black Marketing of Essential Commodities Act, 1981 (MPDA) however, he has conspired with his fellow colleagues, Rgd.
Judgment apeal786.22 5 who in turn executed the plan of eliminating Karan. She stated that while the appellant was in Aurangabad Central Prison, some of the co-accused met him. During said meeting the co-accused updated the appellant that in his absence deceased Karan was establishing supremacy in the sand extraction business, therefore, she alleged that the appellant had sufficient motive for eliminating the deceased. By expressing strong suspicion against the appellant of hatching conspiracy, she has lodged the report against the appellant and assailants.
6. The State has put strong resistance to this appeal by filing reply-affidavit of the Sub-Divisional Officer, Yavatmal dated 24.11.2022. Besides reiterating the contents of first information report, it is stated that the appellant has a long criminal history. Several offences have been registered against him. The appellant was also earlier involved in the offence under MCOCA. The appellant has been charged for the serious offence of murder, which attracts capital punishment.
Rgd.
Judgment apeal786.22 6
7. It is stated that during investigation it transpired that, while the appellant was in jail, co-accused met him with whom he conspired to kill the deceased. The appellant has strong motive for committing murder of Karan. There is sufficient evidence against the appellant about his complicity, particularly material to establish that the appellant has contacted co-accused. Besides that the prosecution also banks upon a confessional statement of the co-accused namely Mangesh Pande. In addition to that, the prosecution has reminded us the rigor of Section 21[4][b] and Section 21[5] of the MCOCA. With this contention, it has been submitted that the appellant does not deserve for bail.
The learned Counsel appearing on behalf of the informant did not resist for bail, but, supported to the appellants urge for bail.
8. There is no dispute about few facts which are as below -
[a] The informant is real sister of appellant Akshay, whilst deceased Karan was her husband;
[b] Several criminal cases have been registered against the appellant Akshay;
[c] The appellant was detained in Aurangabad Central Prison Rgd.
Judgment apeal786.22 7 from 03.06.2021 under the provision of the MPDA Act. [d] On 23.06.2021, Karan was murdered at Yavatmal, whilst at relevant time the appellant was at Aurangabad Central Prison under detention order.
[e] On 13.09.2021, prior approval was accorded by the Deputy Inspector General of Police for invoking the provisions of MCOCA.
[f] On 16.12.2021, statutory sanction in terms of Section 23[2] of the MCOCA has been accorded.
[g] After completion of investigation final report has been filed.
[h] Main assailants have been released on bail in default, in terms of Section 167[2] of the Code vide order dated 27.09.2021 and 29.09.2021.
[i] The appellants' detention was quashed and set aside by this Court in Writ Petition No.702/2021, vide order dated 23.12.2021.
[j] The appellant was arrested in existing crime on 26.12.2021 and is in jail.
[k] Bail application of the appellant has been rejected by the trial Court on 03.09.2022.
9. The learned Senior Counsel Shri Manohar appearing for the appellant would submit that the appellant has been booked only Rgd.
Judgment apeal786.22 8 with the aid of Section 120-B of the Indian Penal Code. The material collected during the course of investigation nowhere remotely connects him with the crime. The prosecution is relying on nebulous material, which is totally insufficient to prima facie believe that the appellant is guilty for the charged offences. Though there is long list of criminal antecedents, however till date the appellant was not convicted in either of the crime. The prosecution has relied on the alleged conversation of the appellant with co-accused, however, there is no material to establish the same. The confessional statement of co-accused namely Mangesh Pande, in real sense does not make out any case and therefore not worthy of credit. The learned Senior Counsel has relied on some decisions to contend that the rigor of Section 21[4][b] and Section 21[5] of the MCOCA would not confine this Court from releasing the appellant on bail, when once it is found that there is no material in existing crime to hold that the appellant has committed the charged crime.
10. Per contra, the learned A.P.P. in resistance would submit that two police authorities have verified the material relating to Rgd.
Judgment apeal786.22 9 grant of prior approval and sanction for prosecution under the Special Act. It is submitted that the offence is of serious nature. The appellant is the main conspirator, at whose behest his companions have executed the plan. There is material to indicate that while the accused was in jail, he had meeting with the co- accused, from which reasonable inference of conspiracy can be drawn. Besides that there was a phone call by which the accused has contacted his fellow colleague. It is submitted that prima facie the confessional statement of co-accused indicates prime role of the appellant in the crime. Several offences of serious nature have been registered in past against the appellant. Besides that he would submit that considering the aims and object of the Special Statute, specific rider has been put while considering bail. Moreover, while the accused was released on bail in similar case under MCOCA, the existing offence has been committed and therefore, he is not entitled for bail.
11. This takes us to consider the material which is pressed into service by the prosecution against the appellant/accused. The Rgd.
Judgment apeal786.22
10
first information report is obviously of hearsay nature. The
informant has expressed suspicion about conspiracy on the basis of motive which she assumed for the appellant to commit murder. She stated that as she had performed inter-caste marriage, because of which the appellant [her brother] was annoyed. While appellant was in jail, her husband / deceased was looking after the sand extraction business, and therefore, the appellant was apprehensive that the deceased may take over the entire business. The appellant was suspecting that the deceased had informed the police about his whereabouts, which led to his arrest, therefore, the informant suspected about key role of her brother/ appellant in hatching conspiracy to kill her husband.
12. It is brought to our notice that lateron the informant has retracted her statement which is reflected in her reply filed in the Court of Sessions. In said reply, the informant has stated that under misconception she has lodged the report against the appellant
- Akshay. It is her contention that at the relevant time, she was under mental stress due to murder of her husband, and as she was Rgd.
Judgment apeal786.22 11 misled by some people, she has mistakenly made allegations of conspiracy against the appellant.
13. We are not influenced by the retraction of the informant, however, the first information report prominently denotes that for variety of reasons the informant assumed that there was sufficient motive for her brother/accused to kill her husband Karan, and therefore, the case of conspiracy. We are well aware that conspiracy from its very nature is normally hatched in secrecy. It is therefore, extremely rare to have direct evidence in proof of conspiracy. Thus, in order to prove conspiracy there must be either direct or circumstantial evidence to show that there was an agreement to commit a particular offence. However, prima facie there must be existing material of prior concert for the offence of conspiracy. It is necessary for the prosecution to prove and establish such circumstances which would lead to the only conclusion of existence of criminal conspiracy. In that light, the inference has to be drawn from the various circumstances depending upon the facts which would satisfy the judicial mind. However, the facts and Rgd.
Judgment apeal786.22 12 circumstances must be sufficient to reasonably infer the theory of conspiracy. Motive is only one of the factor for consideration, but, not decisive one. Therefore, besides motive for accused from the perspective of the informant, prima facie we do not find anything more in the report lodged by the informant.
14. The learned Senior Counsel Shri Manohar, would submit that there may be variety of reasons for co-accused to kill Akshay without involvement of the appellant. In this regard we have been taken through the contents of the first information report pertaining to the prior incident dated 05.06.2021. In that regard the informant has stated that on 05.06.2021 in the late evening she was at her house with her sister Ayesha More, husband [deceased] and one Aniket Gawande. At that time co-accused Baghira, Subham Baghel, Gaurav and one unknown person arrived. Subham and Baghira after seeing Aniket Gaikwad picked up a quarrel with the sister of informant Ayesha, abused and manhandled her. Deceased Karan has separated the quarrel on which they left the place by giving threat of dire consequences. The informant's sister Ayesha has lodged report Rgd.
Judgment apeal786.22 13 regarding the said incident against the co-accused. The said portion of the first information report has been highlighted with a view to indicate that it was a separate act wherein co-accused had a reason to conceive grudge against deceased Karan. It is submitted that the co-accused who had actually assaulted the deceased have sufficient motive to kill Karan, meaning thereby the appellant has no role in the assault.
15. Though the charge sheet is bulky, the learned prosecutor has provided us a short compilation for the sake of convenience containing the material on which the prosecution is relying. Our attention has been invited to the confessional statement of the co- accused Mangesh Pande recorded by the police officer in terms of Section 18[1] of the MCOCA. Precisely, Mangesh was employed by the accused in his business. He was well acquainted with the appellant, as well as co-accused. He stated that on 22.06.2021, co- accused Subham and Baghira told that both of them went to Aurangabad and met the appellant in jail. At that time, the appellant told them that Karan [deceased] gave tip on which he was arrested. Rgd.
Judgment apeal786.22 14 They also stated that the appellant told them that in his absence, Karan [deceased] was managing the sand business, and he may take over the same, therefore, the appellant asked them to eliminate Karan. Thereafter co-accused Mangesh stated as to how he along with other co-accused assaulted the deceased and committed his murder.
16. Shri Manohar, has strongly criticized the confessional statement of co-accused by stating that it cannot be acted upon, firstly for the reason that so far as the actual assault is concerned, the said portion does not relate with the appellant/ accused. Moreover, the reason for appellant to ask Shubham and Baghira to kill Karan was not stated to him, but, it was his hearsay information through Subham and Baghira. The said hearsay information stated by Subham and Baghira cannot be considered as confessional statement. Moreover it is submitted that the said information is also incorrect, as Subham and Baghira never met the appellant in Aurangabad jail as per jail record, which has been obtained under Right to Information Act. Prima facie, we find substance in the said Rgd.
Judgment apeal786.22 15 submission, because though the confession made by the co-accused can be taken into consideration, however, the later part of the confession about actual assault does not speak anything about the role of the appellant. Obviously, at relevant time the appellant was in jail. The portion of confessional statement on which the prosecution intend to rely is extracted herein below :
" R;kuarj fnukad 22-06-2021 jksth eh o j?kq vls nks?ks f'kokth 'kkGstoG clqu vlrkauk vkeP;k toG 'kqHke o c?khjk gs vkys o R;kauh vkEgkyk lkaxhrys dh] rs nks?ks vkSjaxkcknyk tkoqu v{k; nknkyk HksVys rsOgk v{k; nknkus lkaxhrys dh] dj.k ijksiVs ;kusp R;kph fVi fnyh o R;kusp cxhjk o 'kqHke fo:/n fjiksVZ ns.;klkBh vk;'kkyk HkMdoys gksrs- rsOgk R;kauh v{k; nknkyk lkaxhrys dh] dj.k ijksiVs gk ,dVkp jsrhpk ?kkV pkyor vkgs] R;kps iSls rks Lor(p Bsor vkgs] dj.k ijksiVs ;kps vlsp pkyq jkghys rj vkeps uko laiqu tkbZy- rsOgk v{k; nknkus R;kauk dj.k ijksiVs pk xse djk vls lkaxhrys vkgs- R;k fno'kh vkEgh dj.k ijksiVspk 'kks/k ?ksryk ijarw rks feGkyk ukgh- "
17. It is apparent that there was no direct contact of appellant with Mangesh, so as to construe that the appellant has confessed Rgd.
Judgment apeal786.22 16 something to the co-accused. Whatever Mangesh states was allegedly told to him by the co-accused, and therefore, it is a matter of concern as to how the said portion can be acted against the appellant/accused. Undoubtedly by virtue of Section 30 of the Evidence Act, confession may be taken into consideration against the maker as well as other person facing joint trial. Section 30 signifies that such confession by the maker against co-accused can be taken into consideration, meaning thereby it shall be merely treated as a piece of corroborative evidence. Therefore, it is one of the element in the consideration of all the facts against the appellant. The prosecution is endeavoring to rely on confession of the co-accused to establish a criminal conspiracy that too on the hearsay information of co-accused. Therefore, prima facie it is difficult to rely on said piece of evidence against the appellant.
18. The prosecution has obtained report from jail authorities regarding telephonic conversation and meetings which the appellant had with others from 04.06.2021 onwards. The said chart indicates that since it was a pandemic period, the appellant was not permitted Rgd.
Judgment apeal786.22
17
to meet anybody during the said period. The chart of telephonic
talk permitted to the appellant during the said period has been produced. The prosecution is relying only on isolated entry dated 08.06.2021, indicating that on that date the appellant had a talk with one Vivek stated to be his brother. The prosecution has not relied on other telephonic communication entries with which we have no reason to consider.
19. It is not clarified as to who is the person namely Vivek. Be that as it may, even if it is presumed that the so called Vivek has contact with the assailants/ co-accused, however, prima facie it is hard to believe that in single phone call the accused has transmitted to his friends his intention and full proof plan to eliminate Karan. The alleged incident took place on 23.06.2021, whilst the isolated call to one Vivek was dated 08.06.2021. It is beyond comprehension to connect the incident with call of one Vivek that too 15 days prior to the occurrence. One cannot presume or imagine the things in the proof of guilt.
Rgd.
Judgment apeal786.22 18
20. In above background we have considered the next limb of resistance which pertains to a crime chart of accused. In all 18 offences have been registered against the appellant/accused in past. No doubt some of them are of serious nature. It is informed that out of these crimes, in 7 cases the appellant/accused was acquitted, whilst 9 are pending and 2 are under investigation. The said statement is not countered by the prosecution, meaning thereby the appellant was not convicted in any of the offence so far. Certainly antecedents bear relevance however, they would not take front seat if there is no sufficient material relating to the crime in which bail has been claimed.
21. The learned A.P.P. would submit that the appellant has to satisfy the dual requirement incorporated in Clause 4[b] of Section 21 of the MCOCA. According to him not only the Court has to record a finding that accused is not guilty, but, the appellant is not likely to commit any offence while on bail. Adverting to Section 21[4][b] of the MCOCA, we find that the twin conditions are to be taken into account while considering bail for the offence under MCOCA. The Rgd.
Judgment apeal786.22 19 first condition is that the Court has to satisfy that there is no reasonable material to believe that the accused is guilty for the offence, then secondly there is no likelihood of accused committing any offence while on bail. The learned Senior Counsel would submit that the question of interpretation of Section 21[4][b] fell for consideration before the Supreme Court in case of Ranjitsingh Brahmajeetsingh Sharma .vrs. State of Maharashtra and another - [2005] 5 SCC 294. Our attention has been drawn to paragraph nos. 35 to 38 of the said judgment. The Supreme Court has observed that at this stage the Court is required to record an objective finding on the basis of material on record only for grant of bail, and for no other purpose. If the Court, having regard to the material brought on record is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The relevant portion i.e. paragraph nos. 36 to 38 has been reproduced hereinbelow.
"36. Does this statute require that before a person is released on bail, the court, albeit prima Rgd.
Judgment apeal786.22 20 facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to record such a finding? Would there be any machinery available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on records only for grant of bail and for no other purpose .
38. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even Rgd.
Judgment apeal786.22 21 likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision."
Rgd.
Judgment apeal786.22 22
22. Thus the requirement at this stage is to take over all view of the available material only for the purpose of recording a tentative finding for the purpose of deciding bail application. We have tested the rival submissions on the anvil of prima facie test about existence of reasonable grounds which can be believed. At the cost of repetition we may say that the first information report does not travel beyond the motive perceived by the informant as per her understanding. The confessional statement of co-accused is under clot of hearsay nature. The communication is in the form of only isolated phone call to some one else, that too, much prior to the occurrence. Due to pandemic period at relevant time, the jail authorities have not permitted any one to meet the appellant which is not disputed. On the basis of aforesaid material we are unable to construe the same as reasonable one and worth to be relied to establish the guilt of accused. Thus, we have no doubt in our mind in saying that there are reasonable grounds for prima facie holding that the appellant is not guilty of the offence with which he is charged.
Rgd.
Judgment apeal786.22 23
23. So far as the second limb about the requirement of arriving to a conclusion that the accused is not likely to commit any offence while on bail, it has been submitted that the said aspect has been adequately explained by the Supreme Court in case of Ranjeetsingh [supra]. In said case it has been observed that the Court has to construe the said provision reasonably since it is difficult to predict the future conduct of an accused. The said aspect shall be considered having regard to the antecedents, his propensity and the nature and manner in which he is alleged to have committed the offence.
24. In this regard our attention has also been invited to the observations of the learned Single Judge of this Court in case of Mangesh Manik Kanchan and another .vrs. State of Maharashtra - 2016 [1] Bom.C.R. (Cri) 350, wherein it has been held that one cannot be detained in anticipation and apprehension for the offence which he may commit in future. There is no mechanism for the Court to record a finding that the accused would not commit any Rgd.
Judgment apeal786.22 24 offence in future, therefore, the said requirement is to be read in the light of the first requirement which relates to the adequacy of material. In that light once again we had a relook to the material collected against accused. The said material does not travel beyond mere suspicion. Needless to say that under criminal law, the concept of proof is stricter as the guilt is to be proved beyond reasonable doubt. The material falls short to reasonably believe the guilt of accused. In said context on mere anticipation liberty cannot be curtailed.
25. To the last, the learned A.P.P. has attracted our attention to sub-clause [5] of Section 21 of the MCOCA. He would submit that the appellant was released on bail in Special Case no.79/2020 in M.C.A. [MCOCA] No.595/2019 and the existing offence has been committed while he was on bail, therefore, due to rigor of sub-clause [5], he is not entitled to grant of bail. As against this, the learned Senior Counsel would submit that unless there exists reasonable grounds to believe commission of offence in existing crime, the rigor of sub-clause [5] would not come into play. According to him, the Rgd.
Judgment apeal786.22 25 provision of sub-clause [5] is to be read in context with sub-clause 4[b] of Section 21 of the MCOCA. On exemplary basis, he would submit that the police may involve the accused who was released on bail in MCOCA in subsequent offence. Even if there is total absence of material in subsequent crime, then also with the aid of sub-clause [5] he would be detained, amounting to violation of his life and liberty. In this regard he took us through paragraph nos. 62 and 63 of the decision of the Supreme Court in case of State of Maharashtra .vrs. Bharat Shanti Lal Shah and others - [2008] 13 SCC 5, which reads as under:
"62. Having recorded our finding in the aforesaid manner, we now proceed to decide the issue as to whether a person accused of an offence under MCOCA should be denied bail if on the date of the offence he is on bail for an offence under MCOCA or any other Act. Section 21 (5) of MCOCA reads as under:
"21.[5] Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court Rgd.
Judgment apeal786.22 26 that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question"
63. As discussed above the object of the MCOCA is to prevent the organised crime and, therefore, there could be reason to deny consideration of grant of bail if one has committed a similar offence once again after being released on bail but the same consideration cannot be extended to a person who commits an offence under some other Act, for commission of an offence under some other act would not be in any case in consonance with the object of the act which is enacted in order to prevent only organised crime."
In that regard it is submitted that the rider of sub-clause [5] would come into play if subsequently the accused commits a similar offence and not in a case where there is no material at all in the later crime.
26. We are in agreement with the submission that the provisions of sub-clause [5] are to be read along with the condition Rgd.
Judgment apeal786.22 27 embodied in clause 4[b] of Section 21 of the MCOCA. The prima
facie requirement for grant of bail is about satisfaction of the Court that there are no reasonable grounds for believing that the accused is guilty of such offence. The provision is to be read on the canvass of earlier requirement. In above decision of State of Maharashtra [supra] [paragraph no.63], the Supreme Court has explained that the object of MCOCA is to prevent the organized crime, and there can be reason to deny bail if one has committed a similar offence once again, after being released on bail. The legislative intention is to desist a person from repeating the similar offence once again after his release on bail, therefore, one has to prima facie record a finding that in existing crime, the accused has committed similar offence once again. Liberty of a person shall not ordinarily be interfered with unless there exists convincing grounds. Sub-clause [5] of Section 21 of the MCOCA has to be interpreted keeping in mind the legislative object.
27. In above part of the order we have recorded our tentative finding that there is absence of material to reasonably believe that Rgd.
Judgment apeal786.22 28 the accused is guilty of the charged offence. Reading of sub-section [5] in that context would not confine us from exercising our judicial discretion to grant bail. The Court is not expected to mechanically reject the bail only because the accused was arrested under MCOCA, while was on bail. Harmonious reading of the provision would achieve the legislative intent by maintaining right balance.
28. Taking over all view of the entire material, we find that the first information report only speaks about the motive for appellant from the perspective of the informant. The isolated telephonic call with some one else never helps us to draw interference. The so called confessional statement of co-accused is in the nature of hearsay information having inherent daint. In view of above, we have no hesitation in recording a tentative finding that there exists reasonable ground for believing that the accused is not guilty of the offence and thus, he is entitled for bail. We make it clear that the above observations are restricted to the extent of deciding bail application, which will have no impact on the further stages of trial. In view of that, following order is passed. Rgd.
Judgment apeal786.22
29
ORDER
[i] Criminal Appeal is allowed and disposed of.
[ii] The impugned order dated 03.09.2022 passed by the
Additional Sessions Judge, Yavatmal below Exh.3 in Special Case No.7/2022, is hereby quashed and set aside. The appellant/accused namely - Akshay Atmaram Rathod be released on bail on his furnishing P.R. bond in the sum of Rs.50,000/- with one solvent sureties in the like amount.
[iii] The appellant/accused shall not enter into the territorial jurisdiction of entire Yavatmal District, (except for attending Court proceedings), for a period of one year from the date of his actual release.
[iv] The appellant/accused shall furnish his cell number and intended address of his residence to the concerned investigating officer.
[v] The appellant/accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, as also shall not tamper with the prosecution evidence.
JUDGE JUDGE
Rgd.
Signed By:RAKESH GANESHLAL
DHURIYA
Private Secretary
High Court of Bombay, at Nagpur
Signing Date:17.02.2023 16:12