Mr. Shailesh Phadte vs State

N.A. Britto, J.—The applicant/A2 in Sessions Case No. 9/2008 seeks bail, after the same has been denied to him by the Court of Sessions on four occasions. Charge under Sections 395, 399 IPC has already been framed against the first four accused. The learned Public Prosecutor, upon instructions from the Police Inspector who is present, has submitted that the said charge sheet has been filed against nine persons and accused nos. 5 to 9 have been shown as absconding.

It appears from the complaint filed on 1/12/2007 that Shri Srikrishna Nayak working for Chowgule and Company, Vasco along with three others were proceeding in a Maruti Van bearing No. GA-02-C-9478 with cash of about 42 lacs to pay the wages of their employees at Khandepar, Pale mines and Sirigao mines, when at about 10:50 hrs. on the same day when they had reached at Vaxem Loutolim near Sony Garage, one Maruti Zen came and stopped them and four occupants came out, two of them with fire arms and snatched the personal bag from Mr. Karandikar and removed three bags containing cash from the dicky and fled away in the said Maruti Zen car towards Cortalim side.

The applicant/accused was arrested on 3/12/2007 and as already stated his bail applications came to be rejected on four occasions. While rejecting the last application, the learned Additional Sessions Judge noted that the applicant/accused has not been identified either by the first informant or any of the occupants of the said Maruti Van, but the material collected indicated that during the house search panchanama, besides the pass book, one envelope in the name of Chowgule and Company and a receipt appearing as a pay slip has been attached from the house of the applicant/accused. The learned Additional Sessions Judge has also noted that the statement of Uday Singh, father-in-law of the applicant showed that the applicant had given a sum of Rs. 5,000/-and further under recovery panchanama u/s 27 of the Evidence Act, a cash of Rs. 1.3 lacs, sunglasses and a plastic toy gun were attached at the instance of the applicant. The learned Additional Sessions Judge therefore found that there was prima facie material to show the involvement of the applicant in the said crime.

Shri Teles, the learned Counsel appearing on behalf of the applicant/accused refers to the FIR and submits that the first informant has referred to only four occupants coming out of the car and therefore Section 395 IPC would not be attracted to the facts of the case. Referring to the observations of the learned Additional Sessions Judge and referring to the house search panchanama of 3/12/2007, the learned Counsel submits that no envelope in the name of Chowgule and Company was found in the house of the applicant/accused. Learned Counsel further submits that the recovery of cash of Rs. 1.3 lacs was done on 14/12/2007 from an open gutter and therefore the same could not reasonably connect the accused with the crime. Learned Counsel next submits that considering such evidence, the applicant/accused need to be admitted to bail. It is also submitted that the applicant has two minor children to look after.

On the other hand, Ms. Coutinho, the learned Public Prosecutor as already stated, upon instructions from the Investigating Officer, who is present, has submitted that in all there were nine accused involved in the said crime, four of whom have been prosecuted by filing the charge sheet and others are still absconding and, therefore, Section 395 is very much attracted to the facts of the case. Learned Public Prosecutor further submits that neither the first informant nor the other occupants of the Maruti Van who were with him have been able to identify any of the accused but submits that the said receipt in the name of Chowgule and Company was recovered at the instance of the accused on 5/12/2007 from the house of the in-laws of the accused along with the bags which were used to carry cash and which have been identified by the occupants of the said van.

The learned Additional Sessions Judge has noted the considerations which required to be looked into at the time of grant of bail, in para 10 of the order dated 25/03/2008. The same could also be reiterated with reference to the judgment of the Apex Court in the case of Ram Govind Upadhyay Vs. Sudarshan Singh and Others, wherein the Apex Court has stated that;

While granting bail, the Court has to keep in mind not only the nature of the accusations, but also the severity of the punishment. Reasonable apprehensions of the witnesses being tampered with is another factor to be considered and also there should be prima facie satisfaction that there is evidence to support the charge. The nature of evidence in support of the accusations is another factor to be considered.

As far as the facts of the case go, the contention of the learned Counsel on behalf of the applicant that Section 395 IPC was not attracted has got to be rejected because there were as many as nine persons who were involved in the incident and which presumably included the driver who chose not to come out of the said Zen car and out of them only four occupants came out and surrounded the van of the first informant. Nothing incriminating might have been found in the house of the accused when search was conducted on the very date of the arrest of the applicant/accused on 3/12/2007, but the fact remains that on 5/12/2007 bags and the receipt referred to herein above were found from the house of in-laws of the accused and at his instance. The cash of Rs. 1.3 lacs was apparently found hidden under one of the slabs of the gutter. The aforesaid material sufficiently connects the accused with the crime which is grave and punishment for which is provided is severe. In view of the above, this is not a fit case to admit the applicant/accused to bail. Application rejected.