The Bombay High Court has clarified that mere presence at the scene of an unlawful assembly, even while armed, does not justify continued judicial custody where no specific overt act linking the accused to the fatal injury is established. This ruling reinforces the principle that bail must be granted when the role is peripheral and the investigation is complete.
Background & Facts
The Dispute
The applicants, Mangesh @ Rajesh Solanke and Mansingh Solanke, were arrested in connection with Crime No. 292/2025 registered at Tamgaon Police Station, District Buldhana, under multiple provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS), including Sections 189(2), 189(4), 191(2), 191(3), 190, 103(1), 118(1), 333, 351(3), 251(3), 61(2), 49, 118(2), and 324(6), along with Section 135 of the Maharashtra Police Act. The case arose from a violent altercation on 28.08.2025, resulting in the death of Rushikesh Mohe, brother of the informant Prajwal Subhash Mohe.
Key Facts
- The First Information Report (FIR) alleged that the applicants’ party, armed with iron rods, spears, and knives, assaulted the informant’s family.
- Rushikesh Mohe was allegedly assaulted during the incident and later died due to injuries.
- The applicants were not alleged to have inflicted the fatal injuries.
- The FIR states that the applicants were present at the scene and were armed with an iron rod, but no specific act of violence against Rushikesh is attributed to them.
- The applicants were arrested on 29.08.2025.
- The charge sheet was filed on 15.01.2026.
- Two co-accused, Datta Ghanshyam Pawar and Ajay Ghanshayam Pawar, were granted bail by this Court on 10.04.2026 in Criminal Application No. 383/2026.
Procedural History
- 28.08.2025: Incident occurred at village Niwana, Taluka Sangrampur, District Buldhana.
- 29.08.2025: Applicants arrested.
- 15.01.2026: Charge sheet filed.
- 10.04.2026: Co-accused granted bail by the same Court.
- 29.06.2026: Present bail application filed and heard.
The Parties' Positions
For the Applicants
The applicants’ counsel argued that:
- The FIR does not attribute any specific overt act to the applicants in causing the death of Rushikesh.
- Their role is limited to being present at the scene with an iron rod.
- The investigation is complete and the charge sheet has been filed.
- Co-accused have already been released on bail, making continued detention of the applicants unjustified.
- Mere presence, without direct participation in the fatal assault, cannot sustain denial of bail.
For the Respondent/State
The State and assisting prosecution contended that:
- The applicants were part of an unlawful assembly with a common object to assault the informant’s party.
- Their presence with weapons and participation in the mob constituted active involvement.
- They allegedly obstructed medical aid to Rushikesh, contributing to his death.
- The role of each accused cannot be isolated as the incident was a collective act.
- The gravity of the offence, including potential murder, warrants denial of bail.
Relief Sought
The applicants sought regular bail, arguing that their minimal role, completion of investigation, and grant of bail to co-accused warranted their release on reasonable conditions.
The Legal Issue
Can an accused be denied regular bail solely on the basis of presence at the scene of an unlawful assembly, armed with a weapon, when no specific overt act leading to the fatal injury is attributed to them, and co-accused have already been granted bail?
Arguments Presented
For the Appellant/Petitioner
The applicants relied on the principle that bail is the rule and jail is the exception. They cited State of Rajasthan v. Balchand and Sanjay Chandra v. CBI to argue that the stage of investigation being complete and the absence of any direct link to the fatal injury are critical factors. They emphasized that the FIR does not allege any specific act by the applicants against the deceased, and that their conduct, if any, was passive. The grant of bail to co-accused with identical or greater involvement further supported their claim.
For the Respondent/State
The State argued that the applicants were integral to an unlawful assembly under Section 141 BNS, and that the common object of the group included causing grievous harm. They contended that the law does not permit bifurcation of roles at the bail stage when the offence is committed collectively. The obstruction of medical aid and the use of deadly weapons, they argued, elevated the applicants’ culpability beyond mere presence.
The Court's Analysis
The Court undertook a careful review of the FIR and investigation papers. It noted that while the applicants were present at the scene and armed, the narrative did not identify them as the persons who inflicted the fatal injuries on Rushikesh. The Court observed:
"It cannot be said that the common object of the assembly was to assault the deceased Rushikesh due to pending litigation, as in fact Rushikesh had joined on the spot of incident at a later point of time. It is possible that the accused persons had only assembled to teach a lesson to the informant's party."
The Court further held that the allegation of preventing medical aid was not substantiated by any independent evidence in the charge sheet. It emphasized that the role of the applicants was significantly lesser than that of the co-accused who had already been released on bail. The Court rejected the State’s argument that roles cannot be distinguished in an unlawful assembly, stating:
"Mere presence on the spot of incident armed with an iron rod is not sufficient to keep applicants behind bars."
The Court distinguished between participation in a collective act and direct causation of harm. It held that the absence of specific allegations against the applicants, combined with the completion of investigation and the grant of bail to co-accused, created a compelling case for their release.
The Verdict
The application was allowed. The applicants, Mangesh @ Rajesh Solanke and Mansingh Solanke, were granted regular bail on the following terms:
- Furnish a personal bond of Rs. 50,000 each with two sureties of like amount.
- Not enter the territorial jurisdiction of village Niwana, Taluka Sangrampur, District Buldhana until the conclusion of the trial.
- Not intimidate, threaten, or tamper with any witness or evidence.
- Provide and maintain a residential address and mobile number with the Investigating Officer, and notify any change in residence.
- Attend every trial date; failure to appear even once shall render bail liable for cancellation.
- The observations made are prima facie and shall not influence the Trial Court during trial.
What This Means For Similar Cases
Presence Alone Is Not Sufficient for Denial of Bail
- Practitioners must argue that in cases involving unlawful assembly, the prosecution must establish a direct link between the accused and the specific harm caused.
- Mere presence, even with a weapon, cannot substitute for evidence of active participation in the fatal act.
- Bail applications should highlight the absence of specific allegations in the FIR or charge sheet.
Bail Parity Among Co-Accused Is a Relevant Consideration
- When co-accused with similar or greater involvement are granted bail, denial to others without distinct justification violates the principle of equal treatment.
- Courts are likely to view inconsistent bail grants as arbitrary, especially when the investigation is complete.
- Counsel should cite prior bail orders in the same case to strengthen the argument for parity.
Role Differentiation Is Permissible at Bail Stage
- Courts may differentiate roles even in collective offences if the evidence permits.
- The burden remains on the prosecution to demonstrate why one accused requires continued custody while others do not.
- This judgment supports the argument that bail decisions must be individualized, not collective.
