Bombay High Court
Ajay Motiram Thakre vs The State Of Maharashtra on 27 March, 2023
Author: Prakash D. Naik
Bench: Prakash D. Naik
2023:BHC-AS:9373
4.BA.515.2023.with BA.755.23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 515 OF 2023
Ajay Motiram Thakre ...Applicant
Versus
The State Of Maharashtra ...Respondent
WITH
CRIMINAL BAIL APPLICATION NO. 755 OF 2023
Mayur Motiram Thakre ...Applicant
Versus
The State Of Maharashtra ...Respondent
....
Mr. R.D. Suryawanshi a/w Mr. Suraj Naik Advocate for the
Applicant.
Mr. M.G. Patil, APP for the Respondent - State.
Mr. S.A. Chavan, Peon Manmad City Police Station, Nashik.
CORAM : PRAKASH D. NAIK, J.
DATE : 27th March, 2023.
PER COURT:
1. The Applicants were arrested on 21st November
2016 and 14th November 2016 respectively in connection
with CR No. I-337 of 2015 registered with Ambarnath
Police Station, Dist. Thane for offences punishable under
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Sections 302, 307, 142, 143, 147, 148, 149, 341 of Indian
Penal Code (for short "IPC") and Sections 4 & 25 of the
Indian Arms Act.
2. The First Information Report ("FIR", for short)
was lodged by Vinod Bhor on 25th December, 2015 alleging
that, informant is carrying on business of supplying material
to developers at Ambernath. Municipal Councilor Ramesh
Sahebrao Gunjal @ Pappu Gunjal was conducting business of
supplying building materials and labour to builders and
factories. The first informant was working for him. On 25th
December, 2015, at about 10:15 a.m., the first informant
went to meet deceased Pappu Gunjal at his house. He was
informed that Mr. Gunjal has gone to Saloon at Morivali
Naka. The complainant immediately went to Morivali Naka.
While proceeding through MSEB office, he noticed that
Pappu Gunjal was surrounded by 15 to 16 persons. They
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were armed with weapons like sword and chopper. They
assaulted Pappu Gunjal. The assailants were Sachin Chavan,
Pintya Gaikar, Ramdas, Vishal Jhaveri, Mayur Thakre,
Jagdish Thete, Deepak Kalimbe, Guttu Vargade, Omkar
Gaikar, Keval Gaikar, Ajay Thakre, Shankar Chalwadi,
Ashish Shravane and others. Nitin Gunjal came to the spot
of incident on motor cycle from village Morivali. Shankar
Chalwadi was holding chopperr, Pintya Gaikar was holding
sword. Ramdas Gaikar and Omkar Gaikar were having
choppers in their hand. While assaulting the victim they
were shouting that they should finish the victim. After the
assault, the assailants sat in Innova car and motorcycle and
left towards Morivali Naka. Four months ago, Shankar
Chalwadi and Ashish Shravane had assaulted Lakhiya
Shende, manager of Pappu Gunjal. Pappu Gunjal was taken
to hospital. He was declared dead. Supplementary statement
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of complainant was recorded on 28.12.2015. In the said
statement it was stated that, the deceased was councilor at
Ambernath Municipal Council. Due to his influence he was
getting contracts of material supply and labour supply and
labour supply. Pintya Gaikar, Mayur Thakare, Sachin
Chavan, Vishal Jhaveri were finding it difficult to get
contracts of material/labour supply. Pappu Gunjal was killed
on account of enmity and business rivalry.
3. Accused Gurunath Gaikar preferred application before
this Court seeking bail. The application was rejected by
order dated 07.08.2017. Thereafter he preferred Special
Leave Petition before the Apex Court seeking bail. The
Hon'ble Apex Court did not grant bail but vide order dated
12.04.2018 directed concerned trial Court to expedite the
trial.
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4. The co-accused Jagdish Balwant Thete had preferred
Bail Application No. 1060 of 2018 before this Court, which
was allowed vide order dated 22.03.2019.
5. Gurunath Gaikar preferred another application for bail
before this Court. The Application was rejected by order
dated 11.02.2021. However the trial was expedited.
6. The applicants and Keval Gaikar preferred an
applications for bail before this Court which were rejected
vide order dated 21.11.2019.
7. Accused Ashish Amrut Sawane @ Ashish Amarappa
Sawale had preferred Bail Application No. 345 of 2020
before this Court. The said application was allowed vide
order dated 27.10.2021. While allowing the said application it
was observed that, except the first informant, none of the eye
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witnesses to the incident named the said accused as assailant
or even do not talk of his presence when the deceased was
assaulted. One antecedent against him under Section 395 &
397 of IPC would not keep him away from his release on
bail. He was in custody since 25.01.2017. He cannot be
incarcerated too long in the wake of material compiled
against him in the charge-sheet and deserves to be released
on bail.
8. Another application for bail was preferred by Kewal
Gaikar viz. Criminal Bail Application No. 4502 of 2021.
While adjudicating the said application, it was urged on
behalf of the said accused that, he is in custody from
21.11.2016 and there has been delay in trial. There is no
progress in trial. The prosecution submitted that the trial can
be expedited. The prosecution is willing to proceed with the
matter on day to day basis. The prosecution proposes to
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examine about 25 to 30 witnesses. The prosecution is ready
to proceed with the trial expeditiously. Learned APP had
tendered Report dated 14.03.2022 submitted by the Police
Sub Inspector, Crime Branch. Considering the said report
and without going into the aspects of who delayed the trial,
the application was rejected by order dated 14.03.2022 and
the trial was expedited. The trial Court was requested to
conclude the trial within a period of six months. The said
accused was granted liberty to prefer fresh application for
bail in the event the trial is not concluded within 6 months.
9. Abhishek Dilip Warghade was granted bail by this
Court vide order dated 11.10.2022. While granting bail it
was observed that, although the Court was conscious of the
seriousness of the accusations and role attributed to the said
accused was the Court was persuaded to consider the
argument of learned counsel for the said accused for securing
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his liberty due to long incarceration. Despite the directions
being issued in the year 2018 for the first time and in the
year 2022, for expediting the trial, it is not yet concluded
though an attempt is made on behalf of the prosecution to
submit that the delay is attributed to the accused. The Court
observed that the accused cannot be further incarcerated as
seriousness of the charge though may be looked into, it need
to be balanced when the factors like period of custody and
the period within which the trial is likely to be concluded.
The accused is in custody for over 6 years and the trial is
proceeding at snail speed. Reference was made to the
decision of the apex Court in the case of Union of India vs
K.A. Najeeb1.
10. Accused Santosh Balram Vishe preferred application for
bail before this Court viz. Bail Application No. 1025 of 2021.
1 2021 3 (SCC) 713
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The said application was allowed by this Court vide order
dated 07.12.2021.
11. The Court of Sessions was pleased to grant bail to
accused Pavan Pralhad Khandekar vide order dated
19.11.2022.
12. Accused Kewal Gaikar preferred Bail Application No.
3117 of 2022 before this Court on the ground that he is in
custody for a period of 6 years. The said application was
allowed by order dated 24th January 2023.
13. Learned Advocate for the applicant submitted that the
applicant is in custody for a period of six years. The trial
Court is vacant since last more than one month. Although
the trial has been expedited, it has proceeded with snails
speed. Several persons were granted bail. Co-accused with
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similar role has been granted bail by this Court. The
applicant is entitled for bail on the ground of parity. Except
the first informant no other witness has named the applicant.
Jagdish Thete, Ashish Shravane, Abhishek Warghade were
also named in FIR having assaulted the deceased. They are
granted bail by this Court. Charge was framed on
18.02.2020. Till the month of September 2021, the
prosecution did not submit witness list. In September 2021,
the prosecution submitted list and proposed to examine 74
witnesses. Despite directions of Apex Court, trial was not
heard expeditiously. Vide letter dated 26.11.2018, the
learned District Judge-4 and Additional Sessions Judge,
Kalyan addressed letter to DGP, Thane and informed her to
take positive steps in the case for early disposal. No steps
were taken for expeditious trial. On 14.12.2022, prosecution
preferred application before trial court for adjournment on
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the health ground of Special P.P. The accused filed reply and
stated that there could be no objection on ill health of public
prosecutor. However on the previous date not a single witness
was made available for recording evidence. The trial Court
vide order dated 14.12.2022 had observed that, substantial
number of accused are undertrial and the matter has been
lingering on one or other reason despite trial was made time
bound by apex Court and High Court. On the previous date,
though summons were served witnesses did not appear and
bailable warrant was required to be issued. Mere seeking
issuance of warrants against the absent witnesses would not
absolve, the prosecution of its responsibility to ensure that
witnesses are in attendance so that trial is not hampered.
14. Prosecution submitted that the trial has commenced.
The prosecution will examine 8 more witnesses. The trial is
not delayed by the prosecution. The previous application of
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the applicants were rejected by this Court on merits. There
is no change in circumstances to entertain the present
application for bail. Seventh witness is under examination.
The prosecution would examine 15 to 16 witnesses. The trial
would proceed expeditiously. There is evidence to show
involvement of applicants. Hence, applications may be
rejected.
15. The Applicants are in custody from 21st November
2016 and 14th November 2016 i.e. for a period of more than
six years. The trial was expedited by the apex Court vide
order dated 12.04.2018. While rejecting the application for
bail preferred by co-accused Gurunath Gaikar, this Court
vide order dated 11.02.2021 expedited the trial. Vide order
dated 14.03.2022 passed in bail application of co-accused.
The trial Court was directed to conclude trial within six
months. Jagdish Thete was granted bail by order dated
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22.03.2019. Ashish Sawane was granted bail by this Court
by order dated 27.10.2021. Abhishek Warghade was
granted bail vide order dated 11.10.2022. The Sessions Court
granted bail to Shankar Addirappa Chalvadi vide order dated
07.10.2022. All these accused were named in the FIR as
assailants. While granting bail to Abhishek Warghade this
Court had observed that despite trial being expedited in 2018
and 2022, it is not yet concluded. Bail was granted on long
incarceration of the accused in custody. Kewal Gaikar was
granted bail by taking into consideration that he was in
custody for long period of time. The case of applicants cannot
be distinguished from the other accused who has been
admitted to bail. The learned Sessions Judge while granting
bail to the accused Pavan Pralhad Khandekar by order dated
19.11.2022 has observed that, since the learned Judge had
resumed in June 2022, till date, evidence of PW-2 to PW-7
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was recorded while last lap of cross examination of PW-1
completed before him. The Court is burdened with old civil
and criminal matters and more than 75 criminal cases
wherein accused are under trial. Some of those cases like
present one are made time bound or expedited by High
Court or apex Court. The court would be doing best possible
to conduct expeditious trial, but there are limitations or
practical difficulties which cannot be denied. Both parties in
this matter are represented by counsels who are outstation
counsels and it becomes difficult to accommodate everybody
at all time. These observations of trial Court is
overburdened. Neither parties have attributed the delay in
trial to the Court. Bail is granted by this Court on account
of long incarceration in custody. Considering the
circumstances as above applicants can be granted bail.
16. Hence, I pass the following Order:
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ORDER
i. Criminal Bail Application No. 515 of 2023 and Criminal Bail Application No. 755 of 2023 are allowed. ii. The applicants are directed to be released on bail in connection with C.R. No. I-337 of 2015 registered with Ambernath Police Station, Dist. Thane on executing P.R. Bond in the sum of Rs. 25,000/- each with one or more local sureties in the like amount; iii. The applicants 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 Court or any Police Officer and shall not tamper with the prosecution evidence. iv. The applicants shall not step in Ambernath Taluka till conclusion of the trial.
v. The applicants shall mark their presence before the
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Crime Branch, Thane (Unit-1) on every Friday between 10.00 a.m. to 2.00 p.m. vi. Failure to report to the Police Station as directed, without prior permission of the officer to whom they are reporting on more than two occasions, will entitled the prosecution to move for cancellation of bail. vii. Bail Applications are disposed of accordingly.
(PRAKASH D. NAIK, J.)
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