Sunday, 17 May 2020

Whether accused can get bail relying on guidelines issued by the government for the release of the prisoner during COVID 19?

 The learned Counsel for the applicant has placed reliance upon the
guidelines dated 14/5/2020. It is submitted that the applicant is not being
prosecuted under any special act and therefore, the applicant deserves to
enlarged on bail. It is also submitted that the case of the applicant does not
fall into any of the exceptional cases carved out by the said guidelines.
6. However, the guidelines read as follows :
“It is clarified that rest of clauses (iv) to (x) of the decision dated
25/3/2020 of this Committee shall apply and shall form the part
of the present decision.”
7. In view of this, it would be necessary to read the guidelines dated
25/3/2020. The guidelines of 25/3/2020 read as follows :
“The prisoners who fall in the class or the category spelt out by
this decision will be entitled to be released in accordance with
law in considering every case for such reliefs, the nature of the
offence and severity of the offence shall be considered. The
possibility of the prisoner committing offence in case of
temporary reliefs(such as habitual offenders or likelihood of
his/her absconding should also be considered as important tests
to decline such request for temporary release.”
8. The learned APP has submitted the list of offences registered against
the present applicant. The applicant is being prosecuted. That the
applicant is being prosecuted in Crime No.97 of 2007 for offence
punishable under section 302 of the Indian Penal Code. The case is
pending and is registered as Sessions Case No. 150 of 2007. Besides that,
the applicant is also charge-sheeted prosecuted for serious offences. The

applicant is charge-sheeted in 17 cases. Preventive measures have been
taken against the applicant on more than 7 occasions and that the
applicant has created a terror in the said area. It is submitted by the
learned APP that the applicant is a habitual offender.

12. Hence, in view of the guidelines dt. 25.3.2020 the applicant cannot
claim benefit by the guidelines dated 14.5.2020. It would be necessary to
also take into consideration the merits of the matter, the gravity of the
offence and the attitude of the accused of indulging into criminal activities
despite preventive measures, the applicant cannot take benefit of the
circular dated 14/4/2020 and does not deserve temporary bail. Hence, the
application stands rejected.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
LD VC BAIL APPLICATION NO.49 OF 2020

Mahesh B. Patil  Vs. State of Maharashtra

CORAM : SMT. SADHANA S. JADHAV, J.
DATE : 15th MAY 2020.


1 Heard the learned Counsel for the applicant and the learned APP for
State.
2 The applicant herein is an accused in Crime No. 707/2017 dated
22/12/2017 registered with Manpada Police Station, Dombivali, District
Thane, for offences punishable under section 120B, 302, read with 115 of
the Indian Penal Code and under section 3 read with 25 of the Indian Arms
Act. The applicant had filed Bail Application No. 896 of 2018 in this Court,
which was rejected by an order dated 1/8/2018 on merits. This Court

(Coram : A.S. Gadkari, J) had considered the merits of the matter and had
discussed the material against the applicant in detail. At that stage, it was
submitted by the learned Counsel for the intervenor that there are eye
witnesses in the present case and in one of the cases where the accused is
being prosecuted under section 302 of the Indian Penal Code. The trial was
in progress. This Court had observed that there are four witnesses, who
have in an unequivocal term stated about the conspiracy hatched by the
applicant and co-accused Sujit Nalawade in the office of the applicant with
Vijay Menbansy. Be that as it may, the subsequent application seeking
enlargement on bail was withdrawn. The order dated 1/08/2018 was
impugned before the Supreme Court and the same was rejected.
3. As on today, it is the contention of the applicant that he deserves to
be enlarged on bail in view of the directions/orders of the High Power
Committee which were convened through the Maharashtra State Legal
Services Authority functioning under the Chairmanship of the Hon'ble the
Chief Justice and in view of the same the applicant has prayed for interim
bail for 45 days in the light of binding guidelines.
4. At the threshold, learned APP has submitted that the application
seeking enlargement on bail was rejected on merits and this would be a
subsequent application.

5. The learned Counsel for the applicant has placed reliance upon the
guidelines dated 14/5/2020. It is submitted that the applicant is not being
prosecuted under any special act and therefore, the applicant deserves to
enlarged on bail. It is also submitted that the case of the applicant does not
fall into any of the exceptional cases carved out by the said guidelines.
6. However, the guidelines read as follows :
“It is clarified that rest of clauses (iv) to (x) of the decision dated
25/3/2020 of this Committee shall apply and shall form the part
of the present decision.”
7. In view of this, it would be necessary to read the guidelines dated
25/3/2020. The guidelines of 25/3/2020 read as follows :
“The prisoners who fall in the class or the category spelt out by
this decision will be entitled to be released in accordance with
law in considering every case for such reliefs, the nature of the
offence and severity of the offence shall be considered. The
possibility of the prisoner committing offence in case of
temporary reliefs(such as habitual offenders or likelihood of
his/her absconding should also be considered as important tests
to decline such request for temporary release.”
8. The learned APP has submitted the list of offences registered against
the present applicant. The applicant is being prosecuted. That the
applicant is being prosecuted in Crime No.97 of 2007 for offence
punishable under section 302 of the Indian Penal Code. The case is
pending and is registered as Sessions Case No. 150 of 2007. Besides that,
the applicant is also charge-sheeted prosecuted for serious offences. The

applicant is charge-sheeted in 17 cases. Preventive measures have been
taken against the applicant on more than 7 occasions and that the
applicant has created a terror in the said area. It is submitted by the
learned APP that the applicant is a habitual offender.
9. At this stage, learned Counsel for the applicant has drawn the
attention of this Court to the definition of “habitual offender” as per
Habitual Offenders Act, 1959 and submits as follows :
“Habitual offender means any person who since his attaining the
age of 18 years during any consecutive period (I) whether before
or after commencement of this Act or partly before or partly after
such commencement) of five years has been sentenced on
conviction on not less than three occasions to a substantive term
of imprisonment for one or more of the scheduled offences
committed on separate occasions, being offences which are not so
connected together as to form parts of the same transaction.
10. According to the learned Counsel for the applicant, it cannot be said
that the present applicant is a habitual offender.
11. Black's Law Dictionary defines “Habitual Offender” as a recidivist. A
recidivist is one who has been convicted of multiple criminal offences
usually similar in nature; “a repeat offender”. This has to be read in
consonance with recidivism, which indicates a tendency to relapse into a
habit of criminal activity or behaviour. By this definition, it would be more
than clear that the applicant has criminal antecedents and that he is into a

habit of indulging into criminal activities and that it is not possible for the
State machinery to control his activities, despite the fact that preventive
action has been taken against him on several occasions.
12. Hence, in view of the guidelines dt. 25.3.2020 the applicant cannot
claim benefit by the guidelines dated 14.5.2020. It would be necessary to
also take into consideration the merits of the matter, the gravity of the
offence and the attitude of the accused of indulging into criminal activities
despite preventive measures, the applicant cannot take benefit of the
circular dated 14/4/2020 and does not deserve temporary bail. Hence, the
application stands rejected.
(SMT. SADHANA S. JADHAV, J.)
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