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The Bombay High Court on Thursday granted bail to Vikram Bhave, one of the accused in the 2013 murder case of rationalist Narendra Dabholkar.

“It has been stated in a note in the charge-sheet that further list of witnesses will be submitted as investigation under Section 173(8) of the Cr.P.C. is continuing. Thus, there is hardly any likelihood of charges being framed and the trial commencing in the near future.”

A division bench of Justice S S Shinde and Justice Manish Pitale passed the present order while hearing two appeals filed by Bhave through advocates Subhash Jha, Ghanshyam Upadhyay, Virendra Ichalkaranjikar and Hare Krishna Mishra, challenging January and September 2020 orders of the Pune sessions court that had rejected his bail pleas.

The Bench observed that,

“…there is hardly any likelihood of charges being framed and the trial commencing in the near future. Consequently, there is very little chance of the trial being completed in the foreseeable future. Considering the nature of allegations and extent to which the Respondent No. 2, CBI would be examining witnesses in the matter, it can be reasonably concluded that the beginning of the trial and its completion would take a long time.”

Factual Background –

On 20/08/2013, Dr.Narendra Dabholkar, an activist seeking to spread awareness against superstitions, was shot-dead in Pune. Thereafter, a First Information Report was registered at the Deccan Police Station, Pune for the offence punishable under section 302 read with section 34 of the Indian Penal Code (IPC) and section 3 and 25 of the Arms Act, against two unknown persons. On 09/05/2014, the investigation was transferred to the Central Bureau of Investigation (CBI). The investigation continued without much success till 2016, when the CBI found material against one Virendrasingh Tavade of Sanatan Hindu Sanstha. This person was arrested in June 2016 and further investigation led to Sharad Kalaskar and Sachin Andure, the two persons who allegedly shot the bullets, which led to the death of Dr.Dabholkar. Accordingly, charge-sheet was filed against the aforesaid three persons and offence under the Unlawful Activities Prevention Act, 1967 (UAPA) was also added. The charge-sheet was filed for the offence punishable under section 302 read with section 34 of the Indian Penal Code as also section 16 of the UAPA.

Further investigation was undertaken and it was alleged that when reconstruction of the crime scene was undertaken, the said accused named the appellant herein as the person, who had helped them to conduct a recce of the spot where Dr.Dabholkar was shot-dead, about 15 days prior to the date of the incident. It was also stated that the appellant allegedly showed them the way to escape on motorcycle after committing the crime. The said accused also allegedly identified the photograph of the appellant. On the basis of such material, on 25/05/2019, the appellant came to be arrested and a supplementary charge-sheet was filed on 20/11/2019, against the appellant and another accused person, in connection with the said crime.

“The appellant had moved a bail application prior to filing of charge-sheet against him, which was rejected on 17/08/2019. After filing of the aforesaid supplementary chargesheet on 20/11/2019, the appellant filed bail application, which stood rejected by order dated 21/01/2020, which is subject matter of challenge in Criminal Appeal No.187 of 2020.”-stated the plea.

The appellant also had moved another bail application before the Sessions Court on the ground that the said appeal pending before this Court was not being heard as this Court was taking up only urgent matters due to the COVID-19 pandemic. The said bail application was also rejected by the Sessions Court on 15/09/2020, which is the subject matter of challenge in Criminal Appeal No.472 of 2020.

Contentions by Counsels -

Bhave’s learned counsels submitted that the session’s court orders were “erroneous” and that the material brought on record by CBI to connect him to the murder was far-fetched, even if such material against him was to be accepted. They stated the following contentions before the bench,

1. A confession given by the said accused person in a totally unrelated case in the State of Karnataka could not be used against the appellant. By referring to section 19 of the KCOC Act, particularly proviso to sub-section (1) thereof, the learned counsel for the appellant submitted that since the appellant was not accused along with said co-accused Sharad Kalaskar in the case pending before the Court in Karnataka, such confession could not be utilized against the appellant.
2. the proceedings pertaining to reconstruction of the crime scene prepared at the behest of the said accused Sharad Kalaskar, when compared with such proceeding prepared at the behest of accused Sachin Andure would show that there was obvious contradiction.
3. when material placed along with the supplementary charge-sheet, even if accepted as it is, presented a contradictory and improbable connection of the appellant with the said incident, the test contemplated under section 43-D(5) of the UAPA for grant of bail was clearly satisfied by the appellant, as the material against the appellant could not be said to be even prima facie true.

However, the learned counsel for respondent No.2-CBI relied upon judgments of the Hon’ble Supreme Court in the case of NIA v. Zahoor Ahmad Shah Watali (supra), Kalyan Chandra Sarkar v. Rajesh Ranjan,  (2004) and Anil Kumar Tulsiyani v. State of U.P. , (2006)  and observed that,

“the appellant was admittedly convicted in another case and that he was out on bail during pendency of his appeal before this Court where he got involved in the said incident. This was a relevant factor, which the Sessions Court had taken into consideration and therefore, no error could be attributed to the Sessions Court in rejecting the bail applications of the appellant.”

Taking into account the factual matrix of present case the Bench made the following observations-

On UAPA –

“Since respondent No.2-CBI has placed much emphasis on the confessional statement dated 12/10/2018, given by the co-accused Sharad Kalaskar while opposing the present appeals, it would be relevant to consider as to what could be the significance attached to such a confessional statement.”

On KCOC Act –

“the emphasis placed by respondent No.2-CBI solely on the said confessional statement of co-accused Sharad Kalaskar under the KCOC Act, is prima facie misplaced and it is also clear that the Sessions Court could not have placed emphasis on the said confessional statement to conclude that the accusation made against the appellant concerning the incident in question could be said to be prima facie true. Therefore, the first reason stated in the impugned orders passed by the Sessions Court in the present case while rejecting the bail applications, appears to be based on weak material i.e. the said confessional statement.”

On reconstruction of crime scene –

“There is obvious discrepancy in the two proceedings. Apart from this, statement of one of the independent witnesses to the proceeding pertaining to reconstruction of crime scene prepared at the behest of the co-accused Sharad Kalaskar dated 08/09/2018, shows that the said independent witness stated details of the said proceeding. It is also recorded in the statement of the said independent witness as to how the said co-accused Sharad Kalaskar described the actual incident.”

The court noted that,

“A perusal of the impugned orders would show that the Sessions Court has proceeded on the basis that the earlier conviction of the appellant was also for a terrorist offence. But, as a matter of fact, the conviction of the appellant in the other case in which he was released on bail pending appeal before this Court, was not for a terrorist offence. Therefore, the emphasis placed on this aspect by the Sessions Court was misplaced and only for this reason the bail applications of the appellant could have been rejected.”

Thus, the bench granted the bail to the appellant with the following instructions,

i.The appellant shall be released on bail on furnishing PR bond of Rs.1,00,000/- and two solvent sureties in the like amount.

ii. The appellant shall report to the Deccan Police Station, Pune every day between 8.00 am and 10.00 am, for first one month.

iii. The appellant shall attend each and every date of the proceedings before the Trial Court

iv. The appellant shall remain within the jurisdiction of the trial Court/Special Court till the trial is concluded.

v. The appellant shall extend full co-operation during further investigation by the concerned investigation agencies.

vi. The appellant shall not in any manner himself or through any person try to influence or pressurize the prosecution witnesses.

vii. The appellant shall not himself or through any person tamper with the evidence and witnesses.

viii. The appellant shall surrender his passport, if any, before the Special Court, where the trial is being conducted, if not already surrendered.

ix. The appellant shall not indulge in any activity similar to the activities on the basis of which the said F.I.R. stood registered.

x. The appellant shall not try to establish communication with the co-accused or any other person involved directly or indirectly in similar activities, through any mode of communication.

xi. The appellant shall co-operate for expeditious disposal of the trial and in case delay is caused due to him, then his bail would be liable to be cancelled.

xii. In the event, the appellant violates any of the aforesaid conditions, the relief of bail granted by this Court will be liable to be cancelled.

xiii. After release of appellant on bail, he shall file undertaking within two weeks before the concerned trial Court stating therein that, he will strictly abide by the conditions No. (i) to (xii) mentioned herein above.

 

Case title - Vikram Vinay Bhave v. State of Maharashtra, 2021