Dismissed

Sandeep Bhanudas Kotkar and Ors. v. the State of Maharashtra and Anr.

Bombay HC25 Nov 2011APPLN/4393/2011

Case brief

AI extract

What is this about?

The High Court upheld the validity of an order directing police investigation under CrPC 156(3) instead of proceeding under CrPC Sections 202 onwards, finding no constitutional violation. The Court rejected the applicants' plea to modify a prior order limiting bail for six weeks, holding the original order was based on prevailing law. Consequently, the anticipatory bail applications were dismissed

What did the court decide?

Anticipatory bail applications rejected; interim protection continued until 16.12.2011.

Sandeep Bhanudas Kotkar and Ors. Vs the State of… — Anticipatory Bail | Bombay HC (2011)

¶1

( 1 )

¶2

cria4393.11

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶4

CRIMINAL APPLICATION NO. 4393 OF 2011

¶5

1.Sandeep Bhanudas Kotkar,
Age 31 Years, Occup.:Agril./Business,
2.Sachin Bhanudas Kotkar,
Age 29 Years, Occup.:Agril./Business,
3.Amol Bhanudas Kotkar,
Age 26 Years, Occup.:Agril./Business,
4.Sachin @ Somnath Prakash Mehetre,
Age : 35 Years, Occup: Labourer,
(As per Hon’ble Courts order
dated 19.10.2011 deleted the
Petitioner No.4)
All R/o Eknath Nagar, Kedgaon,
Tq. & District Ahmednagar. .. Applicants
Versus
1.The State of Maharashtra
2. The Superintendent of Police .. Respondents
Ahmednagar.
WITH
CRIMINAL APPLICATION NO. 4394 OF 2011
Ajay s/o Santosh Gaikwad
Age : 30 Years, Occup: Driver,
R/o Shastri Nagar, Kedgaon,
Tq.& District Ahmednagar. .. Applicant

¶6

( 2 ) cria4393.11

¶7

Versus

¶8

1. The State of Maharashtra

¶9

2. The Superintendent of Police Ahmednagar. .. Respondents

¶10

...

¶11

Mr. Neetin Pradhan h/f. Mr. N.V. Gaware, Advocate for
the applicant.

¶12

Mr.S.V.Kurundkar,PublicProsecutorfor
respondent/State.

¶13

Mr.N.B.Narwade,Advocate for original complainant.

¶14

CORAM : R.Y. GANOO, J.
 DATED :25TH NOVEMBER, 2011

¶15

PER COURT :-

¶16

1.These are two anticipatory bail applications. It was

¶17

submitted by learned senior counsel Mr. Pradhan that on
the basis of the submissions, which he addressed before
this Court, this Court should modify the order dated
30.11.2009, passed by this Court, in Criminal
Application No. 3720 of 2009, and particularly that part

¶18

of the order by which, it was observed that “protection

¶19

granted would be for a period of six weeks only and
during which period the applicant may apply for

¶20

regularly bail”.

¶21

. The Circumstance under which these anticipatory bail
applications came to be filed are as under.

¶22

2. The deceased Ashok Bhimrao Lande (herein after

¶23

referred as ‘deceased’), at particular spot met with an
accident, on 19.05.2008 at about 10.00 a.m. He was

¶24

admitted to Anandrishi Hospital and he was declared as
dead. Brother of the said deceased, namely, Umesh
Bhimraj Lande filed FIR No. 150 of 2011 with Kotwali

¶25

Police Station. On the basis of said FIR, initially
Crime No. 150 of 2008 was registered under sections

¶26

279, 304-A of the Indian Penal Code read with sections

¶27

184, 134 and 177 of the Motor Vehicles Act. On the
strength of said FIR, the Police authorities, after

¶28

considering the investigation papers, submitted “A”

¶29

Summary Report in Said Crime No. 150 of 2008 before the

¶30

learned Judicial Magistrate First Class, Ahmednagar, on
14.09.2008. The said report came to be accepted by the

¶31

Magistrate on 02.02.2009.

¶32

3. After this development, on 09.09.2009 one person by
name Shankarrao Vitthalrao Raut lodged a private
complaint in the Court of Chief Judicial Magistrate,
Ahmednagar. In the said complaint, detailed information
was provided. According to Mr. Raut,(Hereinafter
referred to as “Complainant”) the incident took place in
the morning on 19.05.2008 near Shivaji Co-operative
Credit Society. At that time, the complainant and his
wife met the deceased. After brief talk, the deceased
started proceeding towards Patil Colony, at that time
one vehicle with red lamp belonging to the Corporation

¶33

came from Mhasoba Chowk side. According to the
complainant, one person by name Sandeep Kotkar,
( applicant No.1) came down and after brief exchange of

¶34

hot words, he started assaulting the deceased with cable

¶35

wire. By this time, the present applicants and other
came at the spot. They were armed with iron bar and

¶36

tommy. One person who was accompanying the applicants

¶37

was armed with sword. According to the complainant,
these persons assaulted the deceased with the weapons,
which they were carrying and thereafter the deceased was
taken towards Bhairavnath Co-operative Credit Society.
It is also case of the complainant that soon thereafter

¶38

the deceased was kept in white Maruti van and taken away
from the mob. The complainant went to the Government
Hospital and there he came to know that Ashok has

¶39

expired. The complainant narrates as to in what way he

¶40

tried to bring these facts to the notice of the
concerned police authorities. According to the

¶41

complainant, concerned Police did not take it seriously

¶42

and that is how ultimately the complainant thought it

¶43

fit to file private complaint against the present
applicants, and some other persons. According to the

¶44

complainant, present applicants, and other assailants

¶45

were responsible for the death of the said deceased and

¶46

that is how he prayed that appropriate action be taken

¶47

against them in accordance with law.

¶48

4. On the basis of complaint, which came to be filed
before the learned Chief Judicial Magistrate, learned
Judicial Magistrate F.C. was pleased to pass an order
under section 156(3) of the Code of Criminal Procedure
on 16.09.2009. He, accordingly, directed the Police

¶49

Station to carry out the investigation and file a
report. The complainant rendered statement and crime was
registered vide FIR No. 302 of 2008 at Kotwali Police
Station,Ahmednagar. Thereafter, the present applicants

¶50

along with other filed Criminal Application No. 3720 of
2009 in this Court for anticipatory bail. On 29.10.2009

¶51

an order was passed thereby granting interim protection.
That anticipatory bail application came to be decided on
30.11.2009 and this Court by the said order protected

¶52

the present applicants and other and ordered that the
said protection would be valid for a period of six
weeks, during which period the applicant and others were

¶53

directed to apply for regular bail.

¶54

5. The present applicants and others did not apply
for bail, as stated in the order dated 30.11.2009,
instead of it, Criminal Application No. 2201 of 2010
filed by the present applicants and others praying for
one week's time to surrender and apply for regular bail.
That application was rejected on 16.06.2010. On the
basis of the record it can be said that the present
applicants as well as other applicant did not apply for
the regular bail. Thereafter, present applicants have
filed these applications for anticipatory bail on
04.10.2011.

¶55

6. Learned Senior Counsel Mr. Pradhan had argued in
support of his anticipatory bail applications.

¶56

7. After the application seeking extension of time to
surrender came to be rejected on 16.06.2010, the present

¶57

applicants did not surrender. Mr. Bhanudas Eknath Kotkar

¶58

came to be arrested on 16.09.2011. The present
applicants filed proceedings in the Supreme Court in the
nature of Special Leave to Appeal (Criminal)
D-18953-2010 challenging the order dated 30.11.2009.
The said petition came to be filed on 26.06.2011.
Thereafter, these two applications came to be filed on
04.10.2011. Thereafter on 09.11.2011 the applicants
covered by these applications sought permission to
withdraw the proceedings filed in the Supreme Court and
order to that effect was passed on 09.11.2011.

¶59

8. Before I proceed to deal with merits of bail
application, it would be convenient to deal with legal

¶60

points raised in the present case, by learned Senior
Counsel Mr. Pradhan. Learned Senior Counsel Mr. Pradhan

¶61

had taken me through the record and submitted that if

¶62

the complaint is perused, it would disclose that
offences alleged to have taken place are exclusively

¶63

triable by Court of Sessions. The learned Senior Counsel

¶64

Mr. Pradhan took me through the provisions of sections
200 onwards of the Code of Criminal Procedure
(Hereinafter referred to as “Cr.P.C.” for short) and

¶65

had submitted that looking to the proviso to sub-section
2 to section 202 of Cr.P.C., it was necessary for the

¶66

learned Judicial Magistrate, First Class to make a note
of the fact that the offences alleged to have been
committed in the complaint are exclusively triable by
the Court of Sessions, and therefore, it was necessary
for the learned Judicial Magistrate First Class to call

¶67

upon the complainant to examine himself and also
examine all witnesses and thereafter learned Magistrate
should have proceeded in accordance with rest of the
provisions of Cr.P.C. The learned Senior Counsel Mr.
Pradhan has submitted that the learned Magistrate did

¶68

not comply with this procedure and instead chose to

¶69

pass an order under section 156(3) of the Cr.P.C.
According to learned Senior Counsel Mr. Pradhan, on

¶70

account of not complying with provisions of sections 200

¶71

onwards of the Cr.P.C. and on account of passing of

¶72

order under section 156(3) of the Cr.P.C., the learned

¶73

Magistrate has committed grave error and that order
passed under section 156(3) of the Cr.P.C. on
16.09.2011, is illegal order. He, therefore, submitted

¶74

that as the order dated 16.09.2011 is illegal order, any

¶75

action taken by the Investigating Agency pursuant to the

¶76

said order will have to be treated as illegal and action

¶77

taken by the Police has resulted in violation of
provisions of Articles 14 and 21 of the Constitution of
India. According to the learned Senior Counsel Mr.

¶78

Pradhan, on account of violation of Articles 14 and 21

¶79

of the Constitution of India, the action taken by the

¶80

State in trying to arrest the present applicants, is
illegal and thus on that count the applicants are
entitled to reliefs asked herein.

¶81

9. The learned Senior Counsel Mr. Pradhan had submitted

¶82

that when the complaint is filed, consisting

¶83

allegations, that offences are exclusively triable by

¶84

the Court of Sessions, the learned Magistrate has to
take steps as per sections 200 onwards of the Cr.P.C.,
and in particular, proviso to sub-section 2 of section
202 of the Code of Criminal Procedure. He relied upon
the following Judgments in support of this proposition :

¶85

(A)Paranjothi Udyar and others Vs.
State and others reported in 1976
Cri.L.J. 598.

¶86

(B)Kamal Krishna De Vs. State
reported in 1977 Cri.L.J. 1492(1).

¶87

(C) Shyamkant Wamanrao Pawar Vs.
State of Maharashtra reported in 1980
Cri.L.J. 1388(1)

¶88

(D) Rosy and another Vs. State of
Kerala reported in (2000)2 SCC 230.

¶89

(E) Videocon International vs.
Securities & Exchange Bord of India,

¶90

reported in 2008(1) Bom.C.R.(Cri.)
724.

¶91

10. Learned Senior Counsel Mr. Pradhan took me through
each and every judgment and had submitted that
submission advanced by him is well supported by these
judgments and therefore, this Court is obliged to act in
terms of the said judgments. Learned Senior Counsel
Mr. Pradhan had relied upon the Judgment in the case of

¶92

“A.R.Antulay Vs. R.S. Nayak and another (1988)2

¶93

S.C.Cases 602” and had contended that if order passed by
the learned Magistrate is in violation of the Articles
14 and 21 of the Constitution of India, the said order
is required to be treated as bad-in-law. Learned Senior
Counsel Mr. Pradhan had submitted that learned
Magistrate failed to comply with mandatory provisions of
law, and hence the order dated 16.09.2009, is illegal.

¶94

11. Mr. Kurundkar, learned Public Prosecutor appearing

¶95

on behalf of the State had opposed the submissions

¶96

advanced by the learned Senior Counsel Mr. Pradhan.

¶97

Mr. Kurundkar, learned Public Prosecutor had submitted

¶98

that law recognises distinction at the time of taking
action on complaint viz action taken on the complaint at
the pre-cognizance stage and post-cognizance stage.
Mr. Kurundkar, learned Public Prosecutor submitted that

¶99

looking to the scheme of sections 156(3), 190, 200
onwards of the Cr.P.C., if Magistrate receives complaint
he may at the stage what is called as pre-congizance,

¶100

pass an order under section 156(3) of the Cr.P.C., in

¶101

that case there is no question of proceeding under

¶102

section 200 onwards of the Cr.P.C.. Mr. Kurundkar,
learned Public Prosecutor submitted that if Magistrate
decides to pass an order under section 156(3) of the
Cr.P.C. at pre-cognizance stage, same cannot be
considered as illegal and the action taken thereafter
will have to be considered as legal. Mr. Kurundkar,

¶103

learned Public Prosecutor ultimately submitted that the
order dated 16.09.2011 directing the investigation under

¶104

section 156(3) of the Cr.P.C. was perfectly correct. In

¶105

support of this submission he relied upon the following
judgments :

¶106

(I) Satish Dwarkaprasad Sharma Vs. State
of Maharashtra and another reported in
2011 All MR (Cri.) 2809; and

¶107

(II) Purna Chandra Sahoo Vs. Santi alias
Sukanti and another reported in 2005 Cri
L.J. 1350.

¶108

12. Mr.Kurundkar, learned Public Prosecutor had also

¶109

in support of aforesaid submissions, relied on the
judgment in the case of Panchabhai Popatbhai Butani and

¶110

others Vs. State of Maharashtra and others reported in

¶111

2010(1) Mh.L.J. 421. Mr. Kurundkar, learned Public
Prosecutor had taken me through the said judgment and

¶112

had submitted that the Full Bench of this Court

¶113

considered the question which came to be referred to the

¶114

Full Bench, and while answering those questions, the

¶115

Full Bench of this Court has equally indicated the

¶116

distinction between the pre cognizance stage and another

¶117

stage which is called as post cognizance. Mr. Kurundkar,
learned Public Prosecutor submitted that in the light of

¶118

this judgment in the case of Panchabhai Popatbhai
Butani,action taken by the learned Magistrate should be
treated as legal and submissions advanced by learned
Senior Counsel Mr. Pradhan should be rejected.

¶119

13. Mr. Narwade, learned counsel appearing for original
complainant, who supported the prosecution had advanced
submission in support of the proposition advanced by the
learned Public Prosecutor. Mr. Narwade, learned counsel
had relied upon the following judgments:

¶120

(III) Devarapalli Lakhshminarayan Reddy
and others Vs. Narayana Reddy and others
reported in 1976 The Supreme Court
Journal 497.

¶121

(IV) Narayandas S/o Hirajalji Sarda and
others Vs. State of Maharashtra and

¶122

another reported in [2009(2) Mh.L.J.]

¶123

14. Mr. Narwade learned counsel had taken me through
the judgment in the case Devarapalli Lakhshminarayan
Reddy and others Vs. Narayana Reddy and others and had
submitted that the Supreme Court had an occasion to deal

¶124

with situation very similar to the facts concerned in
the present case. The Supreme Court has indicated that

¶125

powers to pass an order under section 156(3) of the
Cr.P.C. are different from the powers to take steps
under section 200 onwards of the Cr.P.C., He submitted
power to pass order under section 156(3) of Cr.P.C. and
power to proceed as per section 200 onwards of the
C.P.C. are different. He submitted that it will be open

¶126

for the learned Magistrate to pass an order under
section 156(3) of the Cr.P.C. and if such order is
passed no fault can be found. Mr. Narwade, learned
counsel has submitted that Judgment in the case of

¶127

Narayandas S/o Hirajalji Sarda and others Vs. State of
Maharashtra and another also refers to the judgment in

¶128

the case ofDevarapalli Lakhshminarayan Reddy and others

¶129

Vs. Narayana Reddy and othersand that is how the
Division Bench of this Court has also observed that
power to pass an order under section 156(3) of the
Cr.P.C. is distinct from power to take action under

¶130

section 200 and onwards of Cr.P.C. and the order passed
under section 156(3) of the Cr.P.C. cannot be faulted.
Mr. Narwade, learned Counsel had therefore joined
learned Public Prosecutor in opposing the submissions of
the learned Senior Counsel Mr. Pradhan.

¶131

15. I have perused the judgments, which are cited on

¶132

the aforesaid points and reading of these judgments
would clearly show that the Legislature has recognized
two stages, namely, a stage which is termed as pre-
cognizance stage and another which is recognized as post
cognizance stage. Reading of these judgments as
aforesaid, would clearly show that if the complaint is
presented to the Magistrate, he has power to pass an

¶133

order under Section 156(3) of the Cr.P.C., if he decides

¶134

as not to take cognizance as understood in the light of

¶135

the provisions under sections 200 onwards of Cr.P.C. If
Magistrate passes an order under section 156(3) of
Cr.P.C. the said order will have to be termed as valid.
In the present case, the learned Magistrate chose to
pass an order under section 156(3) of the Cr.P.C. and he
was of the view that action under sections 200 and

¶136

onwards of Cr.P.C. should not be taken.

¶137

16. After having considered the judgments, which are
mentioned above I am inclined to observe that the
submissions advanced by the learned Public Prosecutor as
well as Mr. Narwade, learned counsel appearing on behalf

¶138

of the original complainant will have to be accepted. In
my view the learned Magistrate having acted to pass an

¶139

order under section 156(3) of the Cr.P.C. clearly
indicated that he was at stage of “Pre-cognizance” and
he felt that the investigation needs to be done at the

¶140

hands of Police. In view of this observation the order

¶141

dated 16.09.2009 will have to be treated as order passed
in accordance with the provisions of law, consequently
action taken on the strength of the said order dated
16.09.2009 cannot be termed as illegal as was argued by
learned Senior Counsel Mr. Pradhan. Once it is observed
that the order dated 16.09.2009 is passed in accordance
with provisions of law, there is no question of
violation of Articles 14 and 21 of the Constitution of
India. To that extent argument advanced by learned
Senior Counsel Mr. Pradhan is required to be rejected.
Hence, I hold that the order dated 16.09.2009 is passed
in accordance with provisions of law.

¶142

17. Now I turn to arguments advanced by learned Senior
Counsel Mr. Pradhan on other aspect of the matter. In
these two anticipatory bail applications interim
protection was granted by the order dated 13.10.2011.
These two applications were placed before the concerned

¶143

Court. Learned Judge declined to take these matters on
account of order passed on 09.11.2011. The applications
were placed before this Court as per the present
assignment. The learned Counsels concerned have
therefore argued these applications before this Court.

¶144

18. I have already held that order dated 16.09.2009

¶145

passed by the learned Magistrate on the private
complaint was passed in accordance with the provisions

¶146

of law, and that action initiated by the police on the
strength of the said order will have to be treated as
legal and proper. Insofar as merits of these two
applications are concerned, learned Senior Counsel

¶147

Mr.Pradhan drew my attention to the order dated

¶148

29.10.2009 by which each of the applicant was protected
and order dated 30.11.2009, by which interim protection

¶149

granted was confirmed. Learned senior counsel Mr.
Pradhan further submitted that in the said order dated

¶150

30.11.2009 at the end it was mentioned as follows:

¶151

“In the result, the application is allowed.

¶152

The interim protection granted to the
applicants on 29th October, 2009 is hereby
confirmed. However, it is made clear that
this protection is granted for a period of
6 weeks only, during which period the
applicant may apply for regular bail.
Application stands disposed of accordingly.
(Underline supplied).

¶153

19. Learned Senior Counsel Mr. Pradhan submitted

¶154

that the order dated 30.11.2009 consists two parts,
Part-I is granting anticipatory bail and part -II is
making it clear that the said order would be valid for
six weeks, during which time the applicants will have to
apply for regular bail. Learned Senior Counsel Mr.
Pradhan principally relied upon the judgments in the
case of (1) Siddharam Satlingappa Mhetre Vs. State of
Maharashtra and others reported in (2001)1 Supreme Court

¶155

Cases 694.He also relied upon the following Judgments:

¶156

(2) Shri Gurbaksh Singh Sibbia Vs. State
of Punjab reported in (1980) 2 SCC 565.

¶157

(3) Joginder Kumar Vs. state of U.P.
reported in 1994 SC 1349(1) and

¶158

(4) M.P. Lohia Vs. State of W.B. Reported
in AIR 2005 SC 790.

¶159

20. Learned Senior Counsel Mr. Pradhan had taken me

¶160

through the judgment in the case ofSiddharam

¶161

Satlingappa Mhetre and had pointed out that Supreme

¶162

Court in the aforesaid case came to the conclusion that

¶163

the anticipatory bail, if granted, it would ensure to

¶164

the benefit of the applicant till such time further

¶165

steps are taken by the police and it cannot be
restricted to a particular number of days or up to a

¶166

particular stage of investigation. Learned Senior
Counsel Mr. Pradhan had submitted that the Judgment in
the case ofSiddharam Satlingappa Mhetre shall ensure to

¶167

benefit of the present applicants and it would be

¶168

necessary for this Court to modify the order dated
30.11.2009 and this Court now in the light of the

¶169

judgment in the case of Siddharam Satlingappa Mhetre as
well as otherjudgment cited by him modify the order and

¶170

delete the portion viz. “This protection is granted for
a period of six weeks, only during which period the
applicant may apply for regular bail” from the order
30.11.2009. Learned Senior Counsel Mr. Pradhan had

¶171

submitted that this Court now should offer benefit of

¶172

the observations of the Siddharam Satlingappa Mhetre
case to the applicants in present applications.

¶173

21. Learned Senior Counsel Mr. Pradhan submitted that
on 29.10.2009 when this Court had granted interim

¶174

protection this Court was satisfied that prima facie
case is made out for the purpose of granting protection.

¶175

He further submitted that when this Court passed an
order on 30.11.2009 thereby confirming the order dated

¶176

29.10.2009, this Court was convinced that present
applicants should be protected by the order of
anticipatory bail. Learned Senior Counsel Mr. Pradhan
had submitted that once a Court has come to the
conclusion that prima facie case is made out to protect
the interest of the applicants by grant of anticipatory
bail, in the light of the observations of Siddharam
Satlingappa Mhetre’s case this Court now should revoke
the restrictions imposed by the order dated 30.11.2009.

¶177

22. Learned Senior Counsel Mr. Pradhan had submitted
that present applicants had requested this Court to
grant extension of time to surrender by application No.
2201 of 2010, which application ofcourse came to be
rejected on 16.06.2010. Learned Senior Counsel Mr.

¶178

Pradhan submitted that it is a matter of record that
applicants have not surrendered and despite that the

¶179

police have not arrested the present applicants though
they were available. According to him, no explanation

¶180

is provided by the State and no affidavit in reply is

¶181

filed by the State to show as to why the applicants have
been not arrested though State contends that their
custody is required.

¶182

23. Learned Senior Counsel Mr. Pradhan had submitted

¶183

that no allegations are levelled against the applicants

¶184

as regards tampering of witnesses. He also submitted
that there are no allegations as regards misuse of
liberty, and no incriminating material is placed before
the Court so as to suggest that modification sought by
the present applicant should not be granted. Learned
Senior Counsel Mr. Pradhan therefore, submitted that
present applicants have made out the case for
modification of the order dated 30.11.2009 as submitted
by him and that this court should pass the order
accordingly.

¶185

24. Learned Public Prosecutor Mr. Kurundkar appearing

¶186

on behalf of the State had submitted that order dated
30.11.2009 was passed on merits and this Court had at
that time passed order on the basis of provisions of
Cr.P.C. as well as Judgemade law and had come to the
conclusion that order of anticipatory bail cannot remain
for unlimited period and that concerned applicants must

¶187

may make an application for regular bail within
stipulated period. Learned Public Prosecutor Mr.
Kurundkar had therefore submitted that the order dated
30.11.2009 was passed on merits and now it cannot be
modified.

¶188

25. Learned public Prosecutor had submitted that the
Supreme Court had an occasion to deal with the

¶189

provisions of grant of anticipatory bail and as to how
the application for anticipatory bail be attended to.
Learned Public Prosecutor submitted that nodoubt the

¶190

order passed by the Supreme Court in the case of

¶191

Siddharam Satlingappa Mhetre indicates that if a person

¶192

gets anticipatory bail it cannot be for a particular
period. Learned Public Prosecutor further submitted that
the judgment in the caseSiddharam Satlingappa Mhetre
was delivered on 2nd December 2010 and law which was
expounded by the Supreme Court in the said Siddharam
Satlingappa Mhetre case would operate from 2nd December,
2010 and therefore principle laid down in the case of

¶193

Siddharam Satlingappa Mhetreshould not now made
applicable to the order dated 30.11.2009. He submitted
that the order dated 30.11.2009 was passed on the basis
of law which was then prevailing. Learned Public
prosecutor had therefore submitted that submissions
advanced by the learned Senior Counsel Mr. Pradhan
should be rejected.

¶194

26. Learned Counsel Mr. Narwade, appearing on behalf

¶195

original complainant supported the State and had
brought to notice of this Court that applicants made
efforts to seek more time to surrender by filing

¶196

Criminal Application No. 2201 of 2010 and that effort

¶197

was unsuccessful in as much as order dated 16.06.2010

¶198

was passed and request of the applicants was rejected.

¶199

According to learned counsel Mr. Narwade, on account of
the order dated 16.06.2010, the applicants were required
to apply for regular bail. He pointed out that the
applicants did not apply for regular bail and therefore
the applicants lost their protection which was granted

¶200

to them under order dated 30.11.2009. Learned counsel

¶201

Mr. Narwade, therefore, submitted that no case is made

¶202

out by the applicants, on the basis of judgment in the
case ofSiddharam Satlingappa Mhetre and other cases

¶203

which are cited as the order dated 30.11.2009 was passed

¶204

on the basis of law, which was then prevailing.

¶205

27. Learned counsel Mr. Narwade had further submitted

¶206

that present applicants have not come to this Court with
clean hands, he submitted that present applicants had
filed proceeding in the Supreme Court by filing Special

¶207

Leave Petition on 25.06.2010 against the orders dated

¶208

30.11.2009 and 16.06.2010. He pointed out that said
petition was withdrawn on 09.11.2011. He submitted that

¶209

on the date of filing these two applications on
04.10.2011 proceeding in the Supreme Court were pending.
He submitted that it was not open for the present
applicants to seek orders under these two applications

¶210

when proceeding filed by the applicants challenging the
order dated 30.09.2011 and 16.06.2010 was pending in the

¶211

Supreme Court. According to him, no case is made out by

¶212

the applicants on the basis of judgment in the case of

¶213

Siddharam Satlingappa Mhetre and other cases as the
order dated 30.11.2009 was passed on the basis of law,

¶214

which was then prevailing. He submitted that the
applications seeking modification of the order dated
30.11.2009 should be rejected.

¶215

28. I have considered the the judgments cited

¶216

across the bar. It is noticed that order dated

¶217

30.11.2009 was passed on merits and learned Judge was

¶218

satisfied that anticipatory bail should be granted for
the limited period and that applicants must approach for
regular bail. The order dated 30.11.2009 was passed by

¶219

the learned Judge on the basis of law which was then
prevailing. It is true that on account of judgment in

¶220

the case Siddharam Satlingappa Mhetre there is shift in
the law. The Supreme Court has observed that once order

¶221

of anticipatory bail is granted it should remain in
force till person is arrested. However, this observation
of the Supreme Court and this expression of law would
come into force with effect from 02.12.2010, as the
judgment in the case Siddharam Satlingappa Mhetrewas
delivered on 2nd December, 2010. If this is factual
position, surely the learned Judge, who passed the order
dated 30.11.2009, could not have passed an order as
indicated in the case of Siddharam Satlingappa Mhetre.

¶222

In view of the above observation, I am inclined to
observe that the modification sought by the present

¶223

applicants by way of these two applications cannot be
granted.

¶224

29. It is true that the investigation Agency have not

¶225

arrested the present applicants after they failed to
apply for regular bail to get protection. I do not wish

¶226

to make comment on this aspect of the matter. It is not
necessary for this Court to go into that aspect.

¶227

30. It was also submitted by the learned Senior Counsel

¶228

Mr. Pradhan that there are incidents quoted as regards
tampering of evidence. Insofar as this aspect is
concerned, it must be mentioned that in the course of
hearing of this bail applications substantial material

¶229

has been placed before the Court to show that in the
past the witnesses were put under pressure to make
statements to favour applicants.

¶230

31. It is pertinent to note that the present applicants

¶231

chose to apply for modification of order dated

¶232

30.11.2009, on 04.10.2011 when the proceeding filed
before the Supreme Court was pending. This conduct on

¶233

the part of present applicants clearly indicates that
they wanted to move two Courts at one and same time to
get orders in their favour. These facts were not brought

¶234

to the notice of this Court by applicants. The said
facts were brought to the notice of this Court by the
learned counsel Mr. Narwade, appearing on behalf of the
original complainant. After 09.11.2011 surely the
present applicants had knowledge that the order dated
09.11.2011 was passed so as to withdraw the proceeding
pending before the Supreme Court. This factor also
indicates that the applicants did not approach this
Court with clean hands in the proceedings of above two
applications.

¶235

32. For the reasons mentioned aforesaid, I am inclined

¶236

to observe that the request made by the present

¶237

applicants for modification of the order as suggested on
their behalf cannot be granted and thus two anticipatory
bail applications required to be rejected. Hence,
following order is passed.

¶238

. Both the applications are rejected.

¶239

. Learned counsel for the applicants Mr. Gaware, being
advocate on record and present at the time of dictation
of this order submitted that in these two anticipatory
bail applications interim protection was granted by
order dated 13.10.2011 and said interim protection runs
in favour of the applicants as of today, being the date
on which the matter was posted for passing the order.
Learned Counsel Mr. Gaware submitted that since
applicants stand protected for long time and as
applicants would like to go through the text of the

¶240

order to take appropriate steps, it is necessary that
interim protection granted earlier must continue for

¶241

some reasonable time.

¶242

. Learned Assistant Public Prosecutor Mr. Wagh

¶243

appearing on behalf of the respondent State opposed
this submission and for that he relied upon the judgment
in the case of Naresh Kumar Yadav Vs. Ravindra Kumar and

¶244

othersreported in AIR 2008 Supreme Court 218. Mr. Wagh,

¶245

learned Assistant Public Prosecutor now submitted that
the Court has rejected the anticipatory bail
applications, so interim protection should not be
granted. He also submitted that applicants have not
complied with the terms on the basis of which order
dated 19.10.2011 was passed.

¶246

. Learned counsel Mr. Narwade had submitted that he is
supporting the arguments advanced by Mr. Wagh, learned
Assistant Public Prosecutor.

¶247

. I have considered the rival submissions on the point

¶248

of continuation of interim protection. At this juncture,

¶249

it would not be necessary for this Court to go into
question as to whether applicants have complied the
terms of the order dated 19.10.2011. It is noticed that
applicants required to approach before the trial Court
for regular bail within a period of six weeks. They did

¶250

not do so till filing of these two applications i.e. on

¶251

04.10.2011. There was no interim protection to the
present applicants. For whatever reason the applicants

¶252

have not been arrested. The applicants moved this Court

¶253

by the aforesaid two applicants. The learned Judge, who
entertained these two applications felt satisfied that
interim protection is required to be granted and that is

¶254

how the order dated 13.10.2011 has been passed and

¶255

further order was passed on 19.10.2011. This Court had
continued the ad-interim protection passed on 13.10.2011

¶256

as process of hearing was incomplete. Today I have
rejected the applications. The said applications do
stand disposed off. In my view the present applicants

¶257

must get some chance to go through text of this order

¶258

and if necessary surrender before the concerned Police
authority or challenge the same by following provisions
of law. In my view, in the interest of justice, it is
necessary to continue the protection for some time.
Looking to the facts and circumstances of the case and

¶259

also noting that some time would be required for
transcribing this order and make it available to the
applicants it would be convenient to continue this
protection till 16.12.2011. Accordingly, the request

¶260

made by the applicants is required to be granted for

¶261

peculiar reasons mentioned as above. Hence, it is
ordered that interim protection granted to the present
applicants by order dated 13.10.2011 and which continued

¶262

till today shall continue to operate in their favour
till 16th December, 2011. The request is accordingly
granted.

¶263

 Sd/-

¶264

MTK

Sandeep Bhanudas Kotkar and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Sandeep Bhanudas Kotkar and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Premnath Vishvanath Kokate Vs State of Maharashtra

Ramesh Bapurao Deokatte and Ors. Vs the State of Mah

Ashok Nanabhau Shinde Vs the State of Mah

Gangubai Ramdas Barde Vs the State of Mah and Anr.

Sk. Ikbal Sk. Yusuf Mullah Vs the State of Maharashtra and Ors.

The State of Mah Vs Bhimraj Genuji Avhad