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B.A. 1154/24
MHCC020071082024
IN THE COURT OF SESSION FOR GREATER BOMBAY
CRIMINAL BAIL APPLICATION No.1154 OF 2024
1. Kartik Praful Samant
Adult, Indian
Age – 39 years, Occ : Service,
Add – Ganga Jamuna Society,
Bldg. No.16, Room No. 6, B Wing,
Sector No. 15, Nerul, Navi Mumbai.
2. Dipesh Prabhakar Mhatre
Adult, Indian
Age – 28 years, Occ : Service,
Add – Room No. 301, Raghunath Nivas,
Plot No. 28, Sector No.12, D. Bonkavde
Gaon, Koparkhairne, Navi Mumbai.
– Versus The State of Maharashtra
(At the instance of Vashi Railway Police
Station, vide CR. No.192/24)
… Applicant’s
… Respondent
Appearance :Adv. Advani Sachwani and Heera a/w Adv. Rizwan Merchant for the
applicant.
APP Mr. Iqbal Solkar for the respondent / State
CORAM : RAJESH A. SASNE,
ADDITIONAL SESSIONS JUDGE,
COURT ROOM No. 30.
DATED : 08/05/2024.
ORDER
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B.A. 1154/24
This is bail application filed by the accused u/sec.439 of
The Criminal Procedure Code for releasing them on bail in connection
with CR. No.192/2024 registered with Vashi Railway police station,
Mumbai for the commission of offences punishable u/sec. 304 of The
Indian Penal Code, 1860.
2.

It is the contention of the applicants that they are innocent
and falsely implicated in the present case. They are arrested on
22.04.2024. They have undergone custodial interrogation. The
investigation is completed. The applicants are the sole earning member
in their family. There is no point in keeping them behind bars till
conclusion of trial. There is no criminal antecedents against the
accused. The incident spot was the restricted area not open to the
public. There was fencing. There was no right to access the said plot.
Section 304 is not applicable to the facts at the most it could Section
304-A. The applicants are permanent resident of their given addresses
therefore, they prayed for releasing them on bail.
3.

The prosecution opposed the application by filing reply
vide Exh.3. It is the contention of the prosecution that if the accused are
released on bail, there are chances that they may flee away from justice.
Investigation is in progress. If the accused are released on bail, there are
chances of threatening of prosecution witnesses and tampering of
prosecution evidence. Hence, prosecution prayed for rejection of the
application.
4.

Read the application, say filed by the prosecution. Heard
the ld. Advocate for the applicant, ld. APP for the respondent / State.

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5.

B.A. 1154/24
I have gone through the application, reply, documents filed
on record. It is the case of the prosecution that six year old child Master
Ayush Shegaonkar fell in the dug up cavity in the place where
construction work of the company of the applicants was being carried
out. Said child died in the said incident. Therefore the report is filed
and offence is registered. The applicants are arrested as the applicant
No.1 is Engineer and applicant No.2 is the Supervisor. They are arrested
on 22/04/2024.
6.

The Ld advocate for the applicant disputed the applicability
of Section 304 of IPC. Without admitting the allegations, he submits
that at the most the offence ought to have been registered under
Section 304 A of the IPC. He relied upon following judgments :1.

Mahadev Prasad Kaushik VS State of UP. (Criminal Appeal
No. 1625/2008 decided by the Hon’ble Supreme Court, on
17/10/2008).

2.

State through P. S. Lodhi Colony VS Sanjeev Nanda, (2012)
8 Supreme Court cases 450.
I have gone through the ratio laid down in this judgment.

In Mahadev Kaushik’s case issuance of summons under Section 304 of
IPC was challenged where in there was case of medical negligence. The
ingredients of “intention” and “knowledge” are discussed and it was
held that process under Section 304 of IPC is ill-conceived. In P S Lodhi
colony’s case there was case of rash and negligent driving. In case
before me there are allegations that the accused were responsible for
not taking care and protection to avoid the mishap which resulted into
death of a kid of 6 year old. During the investigation it was revealed
that the work of excavation of ditches was going on adjacent to the
platform No.2 of Mankhurd railway station. The ditches were 9 to 10
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B.A. 1154/24
feet in depth. There was knowledge to the company of the applicants
that the local residents are daily using the said plot of land where the
work was going on. It was revealed in the investigation that the proper
care was not taken by the applicants. Due to which a small kid fell
down in the water logged in the ditches and it resulted into his death.
7.

It is the case of prosecution that the total responsibility in
respect of the construction work was of the applicants. It is revealed
that inspite of directions given by the owner of the company, the
applicants have failed to take the safety measures or proper care and
caution to avoid any mishap. The ditches were adjacent to the platform.
Therefore, high degree of care was expected. Omission to take such care
and the surrounding circumstances show that it was within the
knowledge of the applicants that there act will result into such mishap.
Therefore, prima-facie there was knowledge to the applicants. The spot
of incident was adjacent to the railway platform. There was water in the
ditches.

Therefore, it can not be said that the applicants were not
aware of the fact that proper care and caution was excepted to avoid
any mishap. The ratios of the aforesaid judgments will not be helpful to
the applicants. It is case of knowledge to the applicant.
8.

As aforesaid the investigation in the offence of death of six
years old kid is going on. It is at primary stage. The release of accused
will hamper the investigation. The offence is serious one. Detail
investigation is necessary. If accused are released on bail, they will
tamper with the prosecution evidence. There is possibility of
pressurizing the witnesses. There will be threat to the witnesses. Hence,
I am of the view that the applicants are not entitled for bail. In the
result I pass the following order :-
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B.A. 1154/24
ORDER
Criminal Bail Application No.1154 of 2024 is rejected and disposed off
accordingly.
RAJESH
ANIRUDDHA
SASNE
Date : 08/05/2024
Dictated on
: 08.05.2024
Transcribed on
: 08.05.2024
Signed by HHJ on : 08.05.2024
Digitally signed
by RAJESH
ANIRUDDHA
SASNE
Date: 2024.05.10
16:10:06 +0530
( RAJESH A. SASNE )
Additional Sessions Judge,
Gr. Mumbai.

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B.A. 1154/24
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
ORDER.”
10/05/2024
4.07 p.m.

UPLOAD DATE
TIME
Pranit Ghodke
NAME OF TYPIST
Name of the Judge (With Court H. H. Additional Sessions Judge Shri.
Room No.)
R.A. SASNE, Court Room No. 30.
Date of Pronouncement of ORDER 08/05/2024
ORDER signed by P.O. on
10/05/2024
ORDER uploaded on
10/05/2024