IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 27 CRIMINAL APPEAL NO. 582 OF 2026 AKSHAY BALKRUSHNA SHETE VERSUS THE STATE OF MAHARASHTRA AND ANOTHER ... Mr. Sudarshan J. Salunke, Advocate for Appellant Mr. A. R. Kale, APP for the Respondent/State Mr. Sunil P. Koli and Mr. D. T. Kambale, Advocate for Respondent No.3 Ms. Smita Kasture, Advocate for Respondent No.3 (appointed) CORAM : R. M. JOSHI, J. DATED : 21st SEPTEMBER, 2026 PER COURT :- 1. Appellant seeks regular bail in connection with Crime No. 58/2026, registered with Osmanpura Police Station, District Chha. Sambhajinagar, for the offences punishable under Sections 103(1), 140(1), 140(3), 238, 61(2) and 3(5) of the Bharatiya Nyaya Sanhita (for short ‘BNS), under Section 135 of the Maharashtra Police Act and under Section 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (for short ‘Atrocities Act’). 2. In short, it is the case of the prosecution that the deceased had lent money to accused No.1 and had a dispute with him. Owing to the same, there was a dispute between them. The allegation against the accused persons is 27 APEAL 582.2026.odt 1 of 8 2026:BHC-AUG:42799 that the deceased was abducted by the accused persons and was thereafter killed. Insofar as the present Appellant is concerned, even as per the case of the prosecution, the present Appellant is charged of offence for destruction of evidence. 3. Learned Advocate for the Appellant submits that, though the offence punishable under Section 103 of the BNS is sought to be made out against the accused persons, on the basis of the evidence collected during the course of investigation, the offence attributed to the present Appellant cannot travel beyond Section 238 of the BNS. It is his submission that there is no evidence to show that the Appellant shared a common intention with the co-accused to abduct the deceased or to commit his murder. It is his submission that, since the charge-sheet has now been filed, further custody of the Appellant is not called for. 4. Learned APP and learned Advocate for the Informant opposed the grant of bail to the Appellant. Learned APP drew attention of the Court to the statement of witness Sagar, indicating that the present Appellant had destroyed the mobile phone of the deceased, which, according to him, is sufficient to show the common intention of the Appellant with the co-accused in committing the murder of the deceased. 27 APEAL 582.2026.odt 2 of 8 5. Learned Advocate for the Informant submitted that the statement of co- accused Vishal was recorded before he was made an accused and, as such, the said statement becomes relevant. He also drew attention of the Court to the statement made by accused No.1 under Section 23 of the Bharatiya Sakshya Adhiniyam, 2023, in order to attribute the role of the present Appellant. He drew attention of the Court to the provisions of Section 3(2)(vi) of the Atrocities Act, which, according to him, makes the offence of destruction or disappearance of evidence with an intention to screen the offender from legal punishment also punishable with the punishment provided for that offence. According to him, since the said provision is applicable, the offence punishable against the present Appellant is punishable with imprisonment for life. He placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mahipal Vs. Rajesh Kumar @ Polia and another, (2020) AIR (SC) 670. He referred to paragraphs 11 and 13 of the said judgment. 6. There is no dispute about the fact that, as per the case of the prosecution, the allegations with regard to the abduction and murder of the deceased are attributable to the other accused persons, but not to the present Appellant. Though it is sought to be argued on behalf of the prosecution and the learned Advocate for the Informant that it is a case of common intention being shared by the Appellant with the co-accused, prima facie perusal of the 27 APEAL 582.2026.odt 3 of 8 material collected during the course of investigation does not indicate so. This observation is inevitable in view of the fact that the prosecution as well as the learned Advocate for the Informant have sought to make out a case to that effect. Perusal of the investigation papers indicates the statement of one witness, i.e. Sagar, who states about destruction of the mobile phone of the deceased by the present Appellant. Irrespective of the nature of destruction of evidence, the offence would still remain punishable under Section 238 of the BNS. Insofar as the attribution of the offence under Section 3(2)(vi) of the Atrocities Act is concerned, it would be relevant to take note of the said provision, which reads thus; “3(2)(vi) : knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence” 7. In order to apply/attract the said provision, there has to be evidence indicating that, knowingly or having reason to believe that an offence has been committed under this Chapter, any person causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, which would invite the said provision against him. Prima facie perusal of the evidence collected during the course of 27 APEAL 582.2026.odt 4 of 8 investigation does not indicate any evidence to show that the Appellant herein had knowledge or had reason to believe that an offence had been committed under this Chapter. In the absence of such evidence, this Court finds no reason to accept the contention of the learned Advocate for the Informant that the provision of Section 3(2)(vi) of the Atrocities Act would get attracted qua the present Appellant. 8. The judgment of the Hon'ble Supreme Court in the case of Mahipal (supra) deals with the general conditions which are required to be considered by the Court, which read thus: “11. Essentially, this Court is required to analyse whether there was a valid exercise of the power conferred by Section 439 of the CrPC to grant bail. The power to grant bail under Section 439 is of a wide amplitude. But it is well settled that though the grant of bail involves the exercise of the discretionary power of the court, it has to be exercised in a judicious manner and not as a matter of course. In Ram Govind Upadhyay v Sudarshan Singh5, Justice Umesh Banerjee, speaking for a two judge Bench of this Court, laid down the factors that must guide the exercise of the power to grant bail in the following terms: “3. Grant of bail though being a discretionary order-but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case...The nature of the offence is one of the basic considerations for the grant of bail — more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter. 4. Apart from the above, certain other which may be attributed to be 27 APEAL 582.2026.odt 5 of 8 relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being: (a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 13. The principles that guide this Court in assessing the correctness of an order passed by the High Court granting bail were succinctly laid down by this Court in Prasanta Kumar Sarkar v Ashis Chatterjee, (2010) 14 SCC 496. In that case, the accused was facing trial for an offence punishable under Section 302 of the Penal Code. Several bail applications filed by the accused were dismissed by the Additional Chief Judicial Magistrate. The High Court in turn allowed the bail application filed by the accused. Setting aside the order of the High Court, Justice DK Jain, speaking for a two judge Bench of this Court held: 9. … It is trite that this Court does not, normally, interfere with an ― order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: 27 APEAL 582.2026.odt 6 of 8 (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. … 12. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal…” 9. In the present case, the only allegation against the present Appellant is with regard to destruction of evidence, which offence is punishable under Section 238 of the BNS. The Appellant has no criminal history. The Appellant does not reside in the said village from where the deceased hailed. Having regard to these facts, this Court finds no reason to accept the contention of the learned Advocate for the Informant that, on release on bail, the Appellant would cause interference with the evidence of the prosecution. Thus, this Court finds no hesitation to allow application as the judgment cited supra support present circumstances in which bail could be granted. 10. Though the arguments were advanced by the learned Advocate for the 27 APEAL 582.2026.odt 7 of 8 Informant, at the request of this Court, Ms. Smita Kasture, learned Advocate, assisted this Court in deciding the Appeal. 11. Hence, the following order: ORDER (i) Appeal is allowed. (ii) Appellant in connection with Crime No. 58/2026, registered with Osmanpura Police Station, District Chha. Sambhajinagar, for the offences punishable under Sections 103(1), 140(1), 140(3), 238, 61(2) and 3(5) of the Bharatiya Nyaya Sanhita, under Section 135 of the Maharashtra Police Act and under Section 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, he shall be released on bail on furnishing PB and SB of Rs.15,000/- (Rupees Fifteen Thousand only) with one solvent surety in the like amount. (iii) He shall not contact the witnesses directly or indirectly. (iv) He shall not interfere with the evidence in any manner whatsoever. (v) He further directed to cooperate the investigating agency for further investigation. (vi) He is directed to appear each date of hearing. (vii) The fees of the appointed Advocate is quantified at Rs. 10,000/- (Rupees Ten Thousand only). 12. Learned APP for the Respondent/State to communicate this order to the concerned Police Station. ( R. M. JOSHI, J.) ssp 27 APEAL 582.2026.odt 8 of 8