Pre-arrest bail may be granted if the non-bailable offence's essential mens rea is prima facie absent and custodial interrogation is unwarranted, regardless of the applicant's criminal history, especially when parity with co-accused is established.

P.C.

1. These Applications are preferred for pre-arrest bail.

2. The Applicant is allegedly a gang leader. On 15th February, 2021, the Applicant was released from Taloja Central Prison pursuant to the acquittal in a prosecution arising out of C.R.No.239 of 2014 registered at Kothrud Police Station, Pune. To receive the Applicant, large posse of cars and number of persons reached Taloja Central Prison. A procession was taken out consisting of number of vehicles and the hire-lings of the Applicant. Those vehicles proceeded towards Kothrud without payment of toll and blocked traffic on the Mumbai - Pune Highway. The Applicant and his hire-lings committed breach of the orders which were issued to arrest the spread of COVID-19.

3. With these basic allegations, various crimes came to be registered at different police stations enroute Mumbai – Pune. In C.R.No.48 of 2021 registered with Warje-Malwadi Police Station (subject matter of ABA No.2608 of 2021), the first informant alleged that when the said procession reached Chandani Chowk, Santosh, one of the associates of the Applicant, used criminal force to the police personnel who were trying to restore the order. The Applicant and his associates allegedly proceeded ahead despite an order to stop. They created a sense of terror and also committed breach of the orders promulgated to arrest the spread of contagion. Thus, Balu Gaikwad, Police Head Constable, lodged a report for the offences punishable under Sections 353, 188, 268, 269, 143, 149 of the Indian Penal Code, Section 51(b) of the Disaster Management Act, 2005, Section 3 of the Epidemic Act, 1897 , Section 7 of the Criminal Law Amendment Act, 2013 and Sections 37(1) (3) read with Section 135 of the Maharashtra Police Act, 1951.

4. In C.R.No.120 of 2021 registered with Hinjwadi Police Station (subject matter of ABA No.3053 of 2021), the first informant – Abaso K. Sul, Police Naik, reported that enroute Kothrud, the Applicant accompanied by 100-150 associates who had boarded 30 to 35 four wheelers drove those vehicles in a reckless manner, raised loud slogans, caused annoyance to passers by, abused the persons who were using the road in the other vehicles and thereby created terror. The Applicant and his associates did not stop despite an order to halt the procession. Hence, a report was lodged for the offences punishable under Sections 279, 341, 504, 506 of the Indian Penal Code and Section 7 of the Criminal Law Amendment Act, 2013 and Sections 184 , 199 read with Section 177 of the Motor Vehicles Act, 1985 and Section 135 read with Section 37 of the Maharashtra Police Act, 1951.

5. When ABA No.2608 of 2021 was listed before the Court on 29th October, 2021, this Court was persuaded to grant interim protection. Likewise, in ABA No.3053 of 2021 interim protection was granted by an order dated 20th December, 2021.

6. I have heard Mr. Kharat, learned Advocate for the Applicant and Mr. Palkar, learned APP for the State in both the Applications.

7. Mr. Kharat, learned Advocate for the Applicant would urge that only the offence punishable under Section 7 of the Criminal Law Amendment Act, 2013 is non-bailable. Having regard to the nature of the accusation, in the circumstances of the case, this Court in ABA No.1315 of 2021 and the connected Applications preferred by the co-accused Rupesh Marne, was persuaded to grant pre-arrest bail, opining that mens rea which is necessary for an offence punishable under Section 7 of the Criminal Law Amendment Act, 2013, does not seem to have been prima facie made out. Mr. Kharat would thus urge that the App