AKSHAY BALKRUSHNA SHETEversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:42799




                          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
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