Bom hc bail dhananjay desai 2019

1. 1 1.ba766.18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 766 OF 2018
Dhananjay Jairam Desai. ..Applicant.
V/s.
The State of Maharashtra. ..Respondent.
Mr. Abhijeet A. Desai a/w. Ms. Vrushali Maindad I/b. Desai Legal, advocate
for applicant.
Ms. Pallavi N. Dabholkar, APP for State.
Ms. Rupali Subhash Marathe, sister of Applicant present in court.
CORAM : SMT. SADHANA S. JADHAV,J.
DATE : JANUARY 17, 2019.
P. C. :
1 Heard the learned Counsel for the applicant and the learned
APP for the State.
2 This is a subsequent application seeking enlargement on bail
under section 439 of the Code of Criminal Procedure, 1973. Earlier
application was rejected vide order dated 5th
March, 2015. On 3/6/2014
one Shaikh Mobin Mohamamed Sadik, brother of Mohsin Mohamamed
Sadik lodged a report at the police station that on 2/6/2014 while
returning from offering prayers at masjid, he was chased by some
people. About 20 boys came on 7 to 8 motor cycle and followed the
victim and his companion. The said persons mounted assault on Mohsin
in order to express hatred towards muslims. Mohsin was identified as
Mohammedan and miscreants mounted assault upon him. They had
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attempted to chase his companion. However, his companion Riyaz has
rescued himself. They were also chasing other Muhammadan boys. The
passers by had dialed 100 number and called the police and thereafter,
the miscreants by leaving their motor-cycles on the spot had fled. In the
meanwhile, Mohsin Shaikh was taken to hospital and he was declared
dead on arrival. On the basis of the report, Crime No. 305 of 2014 was
registered against unknown person and investigation was set in motion.
The miscreants were arrested in the first week of June, 2014 and the
applicant was arrested on 10/6/2014.
3 The papers of investigation reveal that there are 17 case
registered against the applicant under section 153A of the Indian Penal
Code. However, police had not taken any coercive action against him
except, filing charge-sheet.
4 While rejecting the earlier bail application, this Court had also
observed that -
“On 19.1.2014, despite the fact that the permission was
rejected, Hindu Rashtra Sena held a public meeting and the
present applicant had delivered speech by which he had
incited feelings of hatred in the minds of Hindus against
Muslims. The language was not only ferocious but the
applicant had made an unconstitutional speech. The transcript
of the said speech is part of the compilation of the charge-
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sheet. The people were urged to wage a war against Muslims
on religious grounds. An attempt was being made to create
imbalance in the social harmony of the society.
This Court had also observed that while chasing muslim, the members
of Hindu Rastra Sena were raising slogan such as “Dhananjay Zindabad”,
Hindu Rashtra Sena Zindabad”.
5 It is the contention of the learned Counsel for the applicant
that the miscreants/accused who were arrested for having caused the
homicidal death of Mohsin Shaikh have been enlarged on bail by this
Court since long. That the applicant was not present at the scene of
offence. This Court had observed that the applicant had given
inflammatory speeches by which the teenagers and youngsters were
instigated to wage war. The present applicant had created violent
disharmony in the society. It was in these circumstances that this Court
was of the opinion that it would be immaterial to consider as to whether
the presence of the applicant at the scene of offence is instrumental or
not.
6 After filing of charge-sheet, the case is committed to the
Court of Sessions and registered as Sessions Case No. 644 of 2014. The
applicant had filed application under section 227 of Criminal Procedure,
1973 for discharging him before the Additional Sessions Judge, Pune.
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The said application was rejected vide order dated 14/6/2016. Being
aggrieved by the Order dated 14/6/2016, the applicant had filed Revision
Application No. 516 of 2016. On 13/4/2017 this Court (Coram : A.M.
Badar, J) has upon consideration of the entire charge-sheet admitted
the revision application and the matter was posted for final hearing after
8 weeks.
7 Alongwith Revision Application, the applicant had also filed
Criminal Application No. 543 of 2017 seeking stay to the trial qua the
applicant. The matter could not be heard finally within 8 weeks. Hence,
this Court (Coram : A.S. Gadkari, J) vide order dated 19/12/2017, in view
of the observations of the Court while admitting the revision application
had passed an order as follows :”In view of the same, the trial arising out
of Sessions Case No. 644/2014 qua the applicant is stayed pending the
revision application.
8 In view of this, the learned Counsel for the applicant had
prayed for enlargement on bail since the prima facie case for discharge
was made out and that the trial against the applicant was stayed.
However, this Court was of the opinion that the trial would be protracted
and that it would be unfair to try the co-accused who are enlarged on
bail in the year 2016 and 2017. Till date, 20 accused are on bail.
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9 The applicant had then filed Criminal Bail Application No.
1310 of 2016 on 22/6/2017. The learned Counsel for the applicant had
withdrawn the said application and hence, the application was dismissed
as withdrawn.
10 Today once again the learned Counsel for the applicant has
prayed for bail on the ground of parity. The learned Counsel for the
applicant has placed implicit reliance upon the judgment of the Hob'ble
Apex Court in the case of Sanjay Chandra v/s. CBI, reported in 2011(8)
Supreme Court 270. The Hon'ble Apex Court has observed as follows :
“Every person, detained or arrested, is entitled to speedy trial, the
question is : whether the same is possible in the present case.
There are seventeen accused persons. Statement of the witnesses
runs to several hundred pages and the documents on which
reliance is placed by the prosecution, is voluminous. The trial may
take considerable time and it looks to us that the appellants, who
are in jail, have to remain in jail longer than the period of
detention, had they been convicted. It is not in the interest of
justice that accused should be in jail for an indefinite period. No
doubt, the offence alleged against the appellants is a serious one in
terms of alleged huge loss to the State exchequer, that, by itself,
should not deter us from enlarging the appellants on bail when
there is no serious contention of the respondent that the accused,
if released on bail, would interfere with the trial or tamper with
evidence.”
11 In any case, the trial qua applicant was stayed. In fact, if the
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trial was not stayed, the Sessions Court would have proceeded with the
trial since the applicant was under-trial prisoner and the same could
have been taken to its logical end by now.
12 The nature of accusation are such that it would create
disharmony amongst the community. The applicant is founder President
of Hindu Rashtra Sena and hence, as on today, this Court is of the
opinion that the applicant deserves to be enlarged on bail on imposing
certain appropriate conditions based on the accusation against him.
13 The learned Counsel for the application submits that he
would give an affidavit/undertaking to this Court that he would get the
stay vacated dated 19/12/2017 passed in Criminal Application No. 516 of
2016. The learned Counsel for the applicant submits that the applicant
would not seek enlargement on bail till he withdraws Criminal
Application No. 543 of 2017 in Criminal Revision Application No. 516 of
2016. He would also give affidavit-cum-undertaking that he would not
give any public speeches and also not run organisation Hindu Rashtra
Sena till the conclusion of the trial. Sister of the applicant is present and
on behalf of the applicant she had conceded to the condition being
imposed upon the applicant.
14 The applicant herein has filed affidavit/undertaking which the
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applicant has signed in the presence of the Jailor Yerwada Central Prison
on 24/1/2019. The undertaking is as follows :
(a) I undertake that, till the conclusion of trial in C.R.
No. 305 of 2014 pending before the Sessions Court, Shivaji
Nagar, Pune, the Applicant shall not in any manner
whatsoever involve in any Public/Political activities related to
or organised at the behest of Hindu Rashtra Sena or even
otherwise;
(b) I undertake that, till the conclusion of trial in the
aforesaid C.R. No. 305 of 2014, I shall not participate or
deliver any public speeches in any manner whatsoever and
shall not work with any other organisation till the conclusion
of trial;
(c) I undertake not to publish/broadcast any speeches
or interviews or bytes on any social media namely WhatsApp,
Facebook, Instagram, Twitter etc. in any manner whatsoever
organisation till the conclusion of trial;
(d) I forthwith undertake to withdraw all the necessary
kiosk, sign-boards, banners and any publication material
related to the organisation Hindu Rashtra Sena with
immediate effect. I also shall restrain in every manner
whatsoever my party workers, activists or my followers from
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publishing any hoardings/banner depicting my
pictures/posters or for that matter any activity pertaining to
my organisation namely Hindu Rashtra Sena organisation till
the conclusion of trial;
(e) I forthwith, unconditionally undertake to withdraw
Criminal Application No. 543 of 2017 pending in Criminal
Revision Application No. 516 of 2016 pending before this
Hon'ble Court wherein this Hon'ble Court was pleased to stay
the trial qua the instant Applicant arising out of Sessions
Case No. 644/2014.
(f) I say that, upon being released by this Hon'ble
Court I shall be residing at “Hindu Gad, Parmar Bungala,
Vitthalwadi, Paud, Pune, Maharashtra-412108. I shall be
accessible on Mobile No. 9767969360;
(g) I undertake to attend the Hadpasar Police station
on every Monday till the end of trial or as per the direction of
this Hon'ble Court;
The undertaking is taken on record and marked as Article X for
identification.
15 In view of the above observations and undertaking give by the
applicant, the applicant deserves to be enlarged on bail. Hence,
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9. 9 1.ba766.18.doc
following order is passed :
ORDER
(i) The application is allowed.
(ii) The applicant be enlarged on bail on furnishing P.R. Bond in
the sum of Rs. 50,000/- and one or more solvent sureties in the like
amount.
(iii) The applicant shall not tamper with the evidence.
(iv) The applicant shall abide by the undertaking given to this
Court till the conclusion of the trial.
(v) The applicant shall attend each and every stipulated date
before the Sessions Court in Sessions Case No. 644 of 2014.
(vi) The applicant shall also give cell phone numbers, landline
numbers and permanent addresses of the sureties.
(vii) For any breach of condition or breach of any undertaking, the
prosecution will be at liberty to file an application under section 439(2) of
the Code of Criminal Procedure, 1973.
16 The application is disposed of accordingly.
[SMT. SADHANA S. JADHAV, J.]
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