TEMPORARY BA EXHS.258, 259 & 260 in SC 136/2016 ::1::
MHCC050013712016
IN THE COURT OF SESSIONS, AT DINDOSHI (BORIVALI DIVISION), GOREGAON, MUMBAI TEMPORARY BAIL APPLICATIONS EXHIBITS 258, 259 & 260 IN SESSIONS CASE NO.136 OF 2016 (C.R.NO.444/2015) (CNR NO.MHCC050013712016) 1. Pradeep Pannalal Rajbhar Age 22 Years, Residing at R.No.111, Near Durgamata Samiti Chawl, Behind Nurani Masjid, Laljipada, Kandivali W, Mumbai. …Applicant/Accused No.2
2. Chintan Vidyasagar Upadhyay Age 43 years, Residing at 89, Pocket, F Shaikh Saray, Phase 1, Delhi 17. …Applicant/Accused No.4
Vs State of Maharashtra Kandivali Police Station, Mumbai. …Respondent
None for the applicants/accused. Ld. Spl.P.P. Mr. Vaibhav Bagade for the State.
CORAM: H.H.THE ADDITIONAL SESSIONS JUDGE SHRI D.D.KHOCHE (C.R.NO.13) DATE : 1ST JULY, 2021. TEMPORARY BA EXHS.258, 259 & 260 in SC 136/2016 ::2::
COMMON ORDER These applications (Exh.258 & 259) are filed by Pradeep Pannalal Rajbhar for grant of interim bail, in view of the situation of Covid19 black fungus. He contended that old aged parents and younger brother are in his house. There is no one to take their care. The Hon’ble Supreme Court has given guidelines to grant bail to the under trial prisoner. Therefore, Court to consider his situation and to grant him temporary bail.
2. An application (Exh.260) is filed by Chintan Vidyasagar Upadhyay. He contended that he is arrested on 22/12/2015 by Kandivali Police Station in present crime. Since then he is in judicial custody and lodged at Thane Central Prison. There is colossal surge of Covid19 and its second wave and variant. Its lethal attack on human and humanity left the whole country in shock. People everywhere are grim and mourning for their nearers and dearers. The variant is fast spreading, uncontrollable and unpredictable. Its asymptomatic character makes it hide in many cases and show negative result but only after a major damage, it shows its presence in testing. That makes it more disastrous. Further, it came with fungal infection called as mucormycosis. It has taken death toll on the high point. No scientist nor institution have projected time of normalcy in recent future. There is fear of third wave of Covid19. In these circumstances, applicant/accused Chintan is worried about his family and parents health. His parents are senior citizens. His father is 73 years and mother is 68 years old and more at high risk due to the nasty virus. He is the only son and his parents are dependent on him physically, mentally, TEMPORARY BA EXHS.258, 259 & 260 in SC 136/2016 ::3:: psychologically, socially and even financially. His parents never met him since last five and half years. He feels duty bound to take care of them in this tough times. Further, in view of situation of Pandemic Covid19, there is scarcity of oxygen, vaccine and medical facilities etc. There are chances of his being also affected. The Hon’ble Supreme Court ordered to expedite the trial. Even it is made time bound. However, said period passed ago. He hails from a respectable family and he is well known Artist nationally and internationally. He has a deep root in the society and permanent place of residence. He is not involved in any way in the offence. There is no positive evidence against him at all. Not only this, but the section 396 of IPC is not applicable against him. Relying on these contentions, he prayed to allow the temporary bail.
3. Both the applications are countered by the say of Crime Branch, Ghatkopar, Mumbai.
4. In short, it is contended that a lady by name Hema and her Ld. Advocate Mr. Bhamwani, both were found missing and subsequently found killed. It was found during investigation that present applicant/accused Pradeep was involved in said offence. During the investigation, it is revealed that said Pradeep and other accused were in contact with the applicant/accused Chintan. Applicant/Accused Chintan had promised them to pay Rs. 20,00,000/ (Rupees Twenty Lakhs only) for the murder of his wife Hema. Thus, they conspired and accordingly, crime is given effect. TEMPORARY BA EXHS.258, 259 & 260 in SC 136/2016 ::4::
5. Crime Branch contended that it is found in the investigation that applicant/accused Chintan is the conspirator and main culprit in the offence. It is further submitted that applicants/accused are involved in the offence of committing double murder with dacoity. Punishment prescribed is imprisonment of life or capital punishment. Therefore, they cannot be released on temporary bail. It is further contended that though there is a fear of Covid 19, jail authority takes utmost care of the prisoners. It does not allow any new prisoner to be entered in the jail unless and until his test of suffering from Covid 19 is done. Therefore, there is no need for the applicants/accused to fear to the said disease. It is further contended that the guidelines of the Hon’ble High Power Committee of the Hon’ble High Court never recommended that the accused in the case of murder are to be granted bail.
6. In addition to this, it is contended that since applicant/accused Pradeep does not have his home in Mumbai, it is not proper to release him on temporary bail. In the case of applicant/accused Chintan, it is mentioned that though his parents are senior citizens, Government has made available free vaccination for them, and therefore, applicant/accused Chintan need not be worried about them. It is further contended in the application in various points that there is ample material against applicant/accused Chintan in the offence. Further, he is also not resident of Mumbai permanently. Consequently, it is prayed to reject to both the bail applications. TEMPORARY BA EXHS.258, 259 & 260 in SC 136/2016 ::5::
7. Court heard the applicants/accused Pradeep and Chintan in person on last date. Court also heard Ld. SPP Mr. Vaibhav Bagade for the State.
8. Applicant/accused Chintan raised all the points which are contended in his application and submitted to release him on bail. He specifically pointed out that the Hon’ble Supreme Court was pleased to expedite the trial and to dispose of the case at the earliest. However, still this Court could not complete the trial and this is an injustice with the applicants/accused. He submitted to consider this point particularly and to release him on bail. Applicant/accused Pradeep also submitted in the similar words putting his personal difficulties before the Court.
9. Per contra, Ld. SPP for the State submitted that there is ample material against applicants/accused. Since the jail are taking appropriate care, the effect of Pandemic Covid19 is least inside the jail. Furthermore, the guidelines of the Hon’ble High Power Committee appointed by the Hon’ble High Court did not recommend to release the accused of murder. Consequently, these applications are proper to be rejected.
10. Court went through the chargesheet minutely. This is case mainly based on circumstantial evidence. However, at this initial stage that evidence has to be given weight. Not only this, but prosecution examined near about 26 witnesses. They have brought some considerable material before this Court. There is also CCTV footage to support the TEMPORARY BA EXHS.258, 259 & 260 in SC 136/2016 ::6:: prosecution case and to corroborate its evidence. In aforesaid circumstances, when the trial itself is in progress, Court cannot consider the bail application on merits.
11. In aforesaid circumstances, even though the submission of applicant Chintan of nonapplicability of section 396 of IPC may be true, still it is not stage to decide the same. Even for said purpose, Court has no alternate but to go from the evidence of entire prosecution witnesses and to decide it finally. Therefore, submission of applicant/accused Chintan that he is not involved in the offence and that section 396 of IPC is not applicable against him, only can be decided at fag end of the trial. Coming to the merits of bail application, certainly the Hon’ble Supreme Court has directed to expedite the trial and accordingly, it is expedited. However, it cannot be forgotten that only after considering all the situations, the Hon’ble Supreme Court is pleased to reject bail applications of the present applicants/accused. Therefore, applicants' submissions on merits cannot be given much more weight, at this stage.
12. Submissions of applicant/accused Chintan that trial could not be completed within the given period is correct. That cannot be denied and it is a fact. However, it must be noted that Court has examined near about 26 witnesses. Further, as far as possible, trial is being conducted at least for twice in a week. Court is taking hard efforts to complete the trial. Unfortunately in Pandemic Covid19 situation, applicants/accused are required to stay in jail for some prolonged period. Though it is so, still on the background of the bail rejection order of the Hon’ble Supreme Court TEMPORARY BA EXHS.258, 259 & 260 in SC 136/2016 ::7:: and merits, the same cannot be given weight and the applicants/accused cannot be considered on said ground to be released on bail.
13. Coming to Covid 19 situation, it also cannot be denied. However, there are some points to be considered. As rightly submitted by Ld. SPP, Pandemic Covid 19 could not succeed in entering and affecting prisoners in jail. Jail authorities are taking care at their level best, and therefore, it is the successes that the Pandemic Covid 19 could not spread effectively in jail. Rather, as compared with the daily working people in the society who are usually exposed to outside social atmosphere, applicants/accused can be observed as comparatively in secure situation in jail. Another thing is that the second wave of pandemic Covid19 is now under control. Third material thing is that though this Court may understand the feelings of the applicants/accused and even pains that they are kept in jail under this fearful situation of Covid 19, in view of the proceeding of the trial and for want of the recommendation to release the accused in a murder case on interim bail. Court cannot consider their situation, because it is the case beyond the limitation of the Court. The submission of applicants/accused Chintan and Pradeep that they cannot see their family members is also correct but overall situation discussed above, does not make this Court to take into consideration that only fact and to release them on temporary bail.
14. Court is trying at his level best to take expedite trial and to dispose of the matter. The routine is coming to the normal situation and either in this week or in next week, Court will start with full fledge TEMPORARY BA EXHS.258, 259 & 260 in SC 136/2016 ::8:: working. Thus, taking into consideration, all these aspects, temporary bail application filed by both the applicants/accused cannot be considered. Hence, following order ORDER Temporary Bail Applications (Exhs.258, 259 & 260) in Sessions Case No.136/2016 stand rejected. (Dictated and pronounced in open Court)
Date: 1.7.2021 (D.D.KHOCHE) THE ADDL.SESSIONS JUDGE CITY CIVIL & SESSIONS COURT, BORIVALI DIVISION, DINDOSHI
Dictated on : 1.7.2021 Transcribed on : 5.7.2021 Checked & corrected on : 5.7.2021 Signed on : 5.7.2021 Sent to Dept. on : TEMPORARY BA EXHS.258, 259 & 260 in SC 136/2016 ::9::
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED ORDER”
7.7.2021 AT 9.47 A.M. MRS.M.S.PENDKHALKAR
Name of the Judge HHJ D.D.KHOCHE (With Court Room No.) (Court Room No.13) Date of Pronouncement of ORDER 1.7.2021 ORDER signed by P.O. on 5.7.2021 ORDER uploaded on 7.7.2021