Aakash Raju Gawade v. The State Of Maharashtra

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

by KANCHAN VINOD MAYEKAR Date: 2025.03.13 20:56:02 +0530 KANCHAN VINOD MAYEKAR CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO. 689 OF 2025 Aakash Raju Gawade ..... Applicant

VERSUS

State of Maharashtra ..... Respondent Mr. Monish Bhatia for the Applicant.

Mr. Nitin B. Patil, A.P.P. for the State.

Mr.Dinesh V. Shirke, Head Constable, Vitthalwadi Police Station, Ulhasnagar - 4 present.

CORAM : RAJESH S. PATIL, J.

DATE : 12th MARCH,2025 P.C. :- It is the case of the prosecution that near the children's cremation, there was a temple of Kal Bhairav. The father of the applicant viz. Raju Gawade was granted a job of maintaining the cremation and to cremate the dead bodies. He was also supposed to look after the temple. After the death of the said Raju Gawade, his son, the present applicant took over the charge of the job of his father and started maintaining the cremation and the temple. He also started residing temporary at the cremation. The land of the

2/6 cremation belongs to the Municipal Corporation. The Kal Bhairav Temple was in existence of the said land since the year 1960 and the people used to perform several rituals in the temple. On 20th December, 2024, in the night hours, someone had vandalized the Temple and the idol of Kal Bhairav was removed. Upon enquiry, it was made to understand that the present applicant had destroyed the idol of Kal Bhairav and buried the same in the said land. On the basis of which, an FIR has been lodged.

2.

The applicant moved anticipatory bail application before the Sessions Court. By an order dated 24th February, 2025 the said anticipatory bail application was rejected. Hence, the present anticipatory bail application has been filed in this Court. 3.

Mr.Bhatia, learned counsel appearing on behalf of the applicant submits that the applicant is in possession of the said land for last 60 years under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. He submits that the applicant had no option but to demolish the temple as the temple had become dilapidated being 60 years old. The idol of Kal Bhairav was buried in the land where the

3/6 temple existed. He submits that no offence has been committed by the present applicant as the land in possession of the present applicant is for last 60 years.

4.

The learned A.P.P. submits that the present applicant has no permission in law to demolish any temple. So also, he had no permission to bury the idol of Kal Bhairav. On instructions, he submits that there was an Yatra of God Kal Bhairav celebrated by local people every year in the Temple. By the applicant removing the idol from the Temple and burying, he has hurt the feelings and sentiments of the people. The applicant is in contact with the developer and wants to grab the land belonging to the Corporation. By demolishing the temple, it has been proved that the applicant wants to create third party rights in the said land. There is CC TV footage in which it was seen that the applicant is removing the idol of God Kal Bhairav from the temple. Hence, the applicant has committed offence punishable under Section 298 of the Bharatiya Nyaya Sanhita, 2023. 5.

I have heard learned counsel for both the sides and I have gone through the documents on record. There is no dispute that the idol

4/6 was removed from the temple and the same was buried in the land by the applicant. It is applicant's case that the temple itself was in dilapidated condition, hence he demolished the same. 6.

I am not persuaded at all, in my view even a Planning Authority does not have a right to demolish the structure though dilapidated, without following due process of law. The applicant herein has no authority to demolish the structure which according to him was dilapidated and more particularly the temple where the people used to worship, and further remove the idol and bury the same in the land. 7.

A notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was issued to the applicant. The applicant did not bother to attend the police station.

8.

The Supreme Court in case of Sumitha Pradeep vs. Arun Kumar C.K. and another1 in paragraph 12 has held as under :- "........... In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a (2022) 17 SCC 391

5/6 serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail." (Emphasis supplied) 9.

A similar view has been taken by the Supreme Court in the case of the C.B.I. vs. Anil Sharma2, in paragraph 4 which reads as under:- "4.

We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 of the Code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring would not conduct themselves as AIR OnLine 1997 SC 797

6/6 offenders."

(Emphasis supplied) 10.

Considering the law laid down by the Supreme Court and the facts noted above, I am satisfied that no case is made out to grant protection to the present applicants. This anticipatory bail application is rejected.

[RAJESH S. PATIL, J.]