Bombay High Court
Sharad Chandraprakash Agarwal vs The State Of Maharashtra on 8 January, 2020
Author: Sandeep. K. Shinde
Bench: Sandeep. K. Shinde
902.BA-3170-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3170 OF 2019
Sharad Chandraprakash Agarwal ...Applicant
Versus
The State of Maharashtra ...Respondent
...
Mr. Raja Thakare a/w Mr. Pratap M. Nimbalkar a/w
Siddharth Jagushte a/w Rohan Hogle a/w Ajinkaya V.
Harne a/w Ms. Sakshee P. Chavan i/by M.K. Kocharekar,
Advocate for the Applicant.
Ms. Sharmila Kaushik, A.P.P. for the State-
Respondent.
Mr. Raju Surve, API, DCB, CID, A.E. Cell.
...
CORAM : SANDEEP. K. SHINDE, J.
DATE : 08th JANUARY, 2020.
P.C.
Heard.
2. Applicant is seeking enlargement on bail in
connection with Crime no. 261 / 2015 registered with
RCF Police Station being renumbered as C.R. No.99 /
2015 for the alleged offences punishable under
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Sections 302, 387, 120-B of the Indian Penal Code, 1860
('IPC' for short) and under Section 3, 7, 25 of Arms Act
and Section 3(i)(ii), 3(2)(4) of the Maharashtra
Organized Crime Act, 1999 ('MCOCA' for short).
3. Applicant was arraigned as accused no.1 in the
said crime. In the course of the investigation,
investigating machinery found that alleged a crime has
been committed by the applicant and his accomplice as
being a syndicate/gang. Thereafter, the sanctioned
provision of MCOCA were invoked and applied to the
present case.
4. On 29.09.2018, the applicant was granted
pardon under Section 307 of the Criminal Procedure
Code, 1973 in the said crime by the learned Special
MCOC Court. Subsequently on 03.10.2018, statement of
applicant came to be recorded under Section 306 of the
Cr. P.C. before the learned MCOC Court. Subsequent to
granting pardon and recording the statement under
Section 306 of Cr.P.C., evidence of the present
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applicant came to be recorded before the learned
Special MCOC Court at Bombay.
5. It is contended that the applicant as a
prosecution witness had disclosed full and true facts
and was thereof examined.
6. The applicant after turning an approver,
sought his release on bail. However, the learned
Special MCOC Court declined to release the applicant
on bail vide order dated 17.10.2019. It is in this
circumstance, that the applicant has approached this
Court for release on bail by invoking inherent
jurisdiction of this Court under Section 482 of the
Cr.P.C.
7. This application has been filed under Section
482 of the Cr.P.C.; it was placed before Justice Revati
Mohite Dere. However since the prayer in the
application was for grant of bail, the learned Judge,
directed the registry to place the application before
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the Court taking up the assignment of bail.
8. The learned Special Court declined to release
the applicant on the bail only in view of the statutory
bar contemplated under Section 306(4)(b) of Cr.P.C.
However, before addressing the issue of statutory bar,
it may be stated that the prosecution before the
Special Court vide application exhibit 152 has
recorded its 'no objection' to release the applicant on
the bail, subject to the condition that applicant
shall remain present before the trial Court on every
date of hearing and shall not tamper with the
prosecution evidence.
9. As it appears though the trial is in progress
on day to day basis, till date only eight witnesses
have been examined out of 41 witnesses and that the
applicant approver is in jail for more than year after
being granted pardon under Section 307 of the Cr. P.C.
10. In the back drop of the aforesaid admitted
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facts, the question is, whether applicant being an
approver could be released on bail?
In view of the statutory bar under Section 306(4)
(b) of Cr.P.C.; which reads as under :
(4) Every person accepting a tender of pardon made
under sub-section (1)-
(b) shall, unless he is already on bail, be
detained in custody until the termination of the
trial.
11. Mr. Thakre, learned senior counsel, in
support of the application for bail has relied on the
following judgments :
(1) Subramaniam Vs. State [2014(1) MLJ(Cri)117]
(2) Sandip Kalangutkar Vs. State [Cri. Bail
Application No. 129/2012]
(3) Suresh Chandra Bahri Vs. State of Bihar [1995 Supp
(1) SCC 80]
(4) Noor Taki alias Mamu Vs. State of Rajasthan [AIR
1987 Rajasthan 52]
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12. In the case of Premchand Vs. State (1985
Cr.L.J. 1534), the full bench of High Court of Delhi
has held thus :
"16. Section 482 of the Cr. P.C. is to the
following effect:
Nothing in this Code shall be deemed to limit
or effect the inherent powers of the High Court
to make such orders as may be necessary to give
effect to any order under this Code, or to
prevent abuse of the process of any Court or
otherwise to secure the ends of justice.
17. The power available under this provision
is notwithstanding anything else contained in
the Code. In case the High Court is satisfied
that an order needs to be made to prevent abuse
of the process of any Court, or otherwise to
secure the ends of justice, the inherent powers
are available, and they are not limited or
affected by anything else contained in the Code.
We are not oblivious that these powers have not
to be ordinarily invoked where specific
provisions are contained in the Code or specific
prohibitions enacted. However, in cases where
the circumstances un-mitigating bring out that
a grave injustice is being done, and an abuse of
process of court is taking place, either as a
result of the acts of the accused taking place,
either as a result of the acts of the accused or
the unavoidable procedural delays in the
Courts, we are of the firm opinion that the
inherent powers should and need to be exercised.
The approver's evidence in the present case has
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already been recorded, and no useful purpose is
being served in his detention. The
administration of justice is not in any manner
likely to be affected by his release. There is
no reason to suppose that the machinery of law
would not be able to give protection to the
petitioner in case any adventurism is sought to
be displayed by his confederates, or he carries
no apprehensions. It would not be, therefore,
correct for the Court to still create such fears
and profess to provide him unsolicited
protection by detaining him for indefinite
period. Thus in the case of A.L. Mehra 1958 Cri.
U 413 (supra) the Punjab High Court released the
approver from confinement in exercise of
inherent powers to prevent the abuse of the
process of court, finding that he had been in
confinement for several months. Similarly the
Madras High Court in the case of Karuppa Servai
1953 Cri LJ 45 (supra) laid emphasis on the
detention of an approver till he has deposed at
the trial in the Sessions Court truly and fully
to matters within his knowledge."
13. The aforementioned judgment of the full bench
of High Court of Delhi was also followed by the High
Court of Madras in the case of Subramanyam (supra) and
had taken a view that a witness even though as an
accomplice, need not be detained for more than what is
essential for procurement or enabling him to give his
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evidence. This personal liberty can therefore be
curtailed, if at all, for beneficial ends of
administration of justice, and once they are served,
his further detention becomes irrelevant.
14. The High Court of Bombay at Goa in the case of
Sandip Kalangutkar (supra), had also taken a similar
view on the basis of the full bench decisions of Delhi
and Rajasthan High Court and held that there is no bar
to grant bail to the accused in a specific
circumstances where trial of case is unduly prolonged.
15. In the case in hand, besides a 'no objection'
of the prosecution to release applicant on bail, yet
the prosecution has to examine 32 witnesses and as
such, the trial is not likely to conclude within the
reasonable period. Apart from that, there is no
grievance by the prosecution regarding the violation
of any terms of the pardon. He is in jail since
05.12.2015 and has infact, been languishing in jail
for more than a year after being granted pardon under
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Section 307 of Cr.P.C. Considering the said aspect and
taking note of the stand of the respondent that the
applicant may be granted bail subject to conditions
and in view of the ratio in the decisions referred to
herein above, I have no reason to refuse bail to the
applicant.
16. In view of the above, I pass the following
order;
ORDER
(i) The applicant is directed to be released on bail on furnishing P.R. Bond of Rs.50,000/- with the one or more sureties in the like amount to the satisfaction of the learned Special Court, Additional Sessions Judge and Special Judge under MCOC Court, Mumbai;
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902.BA-3170-2019.doc between 11:00 am to 01:00 pm commencing from January, 2020 till the conclusion of subject special case;
17. The application is allowed in the aforesaid terms.
(SANDEEP. K. SHINDE, J.) Najeeb 10/10 ::: Uploaded on - 08/01/2020 ::: Downloaded on - 09/01/2020 05:08:20 :::