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Mr.Vijay Ganpat Utekar-vs-Sunny Suresh Jadhav & Ors on 14 January, 2009

Bombay High Court Mr.Vijay Ganpat Utekar-vs-Sunny Suresh Jadhav & Ors on 14 January, 2009
Bench: D.G. Karnik

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.2711 of 2009

Mr.Vijay Ganpat Utekar … Applicant versus

Sunny Suresh Jadhav & ors … Respondents

Mr.Shreekant V. Gavand for the applicant.

Mr.Harshad Bhadbhade for respondent no.1.

Mrs.A.A.Mane APP for the State.

CRIMINAL APPLICATION NO.3502 of 2009

State of Maharashtra … Applicant (original complainant)

versus

Sunny Suresh Jadhav & ors … Respondents

Mrs.A.A.Mane APP for the State/applicant.

Mr.Harshad Bhadbhade for respondent no.1 to 3.

CORAM : D.G. KARNIK, J.

DATED : 14th January 2010

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ORAL ORDER:-

1. Criminal Application No.2711 of 2009 is filed by the father of the deceased Prajakta while Criminal Application No.3502 of 2009 is filed by the State for cancellation of bail. Since both applications are directed against the same order they are disposed of by this common order.

2. Respondent no.1 is the husband of Prajakta (the deceased). Respondent nos.2 and 3 are the parents of respondent no.1. Respondent no.1 was married to Prajakta on 29th April 2008. Prajakta committed a suicide on 15th May 2009 by hanging, allegedly on account of harassment at the hands of respondents. The respondents are charged with an offence punishable u/s.498A, 306 and 304B of the IPC and were arrested on 16th May 2009. They were released on bail by the Sessions Court by an order dated 25th May 2009. By these two applications the father of the deceased and the State pray for cancellation of the bail.

3. Distinction between rejection of bail at the initial stage and cancellation of bail already granted has been brought out succinctly by the Apex Court in its decision in Puran Vs. Rambilas 2001(6) SCC 338, wherein the Supreme Court has held:

” Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram & Ors. 3

vs. State of Haryana reported in 1995 (1) S.C.C.

349. In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse orderbe set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected. 4

Learned advocate for applicant and learned A.P appearing for the .P

State stated that they were not praying for cancellation of bail on the ground that respondents had misused the bail or on a ground of discovery of any new facts requiring cancellation of Bail but were challenging the order of grant of bail on the ground that it was illegal and perverse.

4. I have perused the order passed by the learned Sessions Judge. Learned Sessions Judge has granted bail inter alia on the grounds:

(i) Respondents were permanent residence of Mahad and had immovable property at Mahad.

(ii) There was no possibility of the respondents not being available for trial i.e. there was no possibility of respondents absconding themselves and staying away from trial.

(iii) Respondent nos.2 and 3 were aged persons.

5. Learned counsel for the applicants submitted that the above mentioned grounds were not enough for grant of bail. There was sufficient evidence on record to establish the complicity of the respondents to the crime. He submitted that the fact that there was a prima facie evidence to connect the respondents to the crime and as such the bail ought to have been refused on that ground alone. 5

6. The submission is devoid of merit. If there is no prima facie material against an accused that would be a ground for his discharge. Section 239 of the Code of Criminal Procedure (for short “the Cr.P.C”) says that upon consideration of the police report sent to it under section 173 and the documents sent with it and after hearing the accused and the prosecution, the Magistrate considers charge against the accused to be groundless, he shall discharge the accused. Section 227 of the Cr.P.C contains similar provision in case of a trial by the Court of Sessions. It is only when there is prima facie evidence against the accused that a charge is framed under section 228 or 240 as the case may be, of the Cr.P.C. If there is no prima facie material against an accused, he would be discharged. It is only when there is a prima facie material connecting an accused to the crime that the Court would be required to consider whether in the facts and circumstances of the case, the accused be admitted to a bail.

7. Often, the Court considers the gravity of the offence for rejecting a bail. But that is because graver the offence and harsher the punishment, more the propensity for the accused to flee, as the benefit of being free by avoiding the trial could outway the risk of being caught and being put to a further punishment for jumping bail. The Court also often refuses bail to a habitual offender as that may give rise to a reasonable apprehension that the accused may commit similar or other offences if released on bail. Past background of the accused is considered relevant for assessing whether there is a possibility of the accused committing similar or any other offence if released on bail. The Court also considers whether a reasonable apprehension exists that the 6

accused may tamper with the evidence, threaten or win over witness, if released on bail. The list of grounds/reasons for rejecting the bail cannot be stated exhaustively and the grounds mentioned above are only illustrative. There would be number of other relevant circumstances which the Court would have to consider for grant of bail initially. But these grounds may not be relevant for considering whether the bail initially granted should be cancelled. The grounds relevant for cancellation of bail initially granted would have to be found in the decision of Puran Vs. Rambilas (supra).

8. In the present case, the Learned Sessions Judge has recorded a finding that there was no possibility of the applicants not being available for trial i.e. there was no possibility of they fleeing by misusing the bail. This finding is based on reason and the fact that the applicants have not fled so far gives me a reassurance that this finding is not perverse.

9. The decision in Anil Kumar Tulsiyani Vs. State of Uttar Pradesh 2006 AIR SCW 4339, strongly relied on by the learned counsel for the applicant, is distinguishable on facts. That was a case of the accused being an advocate of long standing, enjoying commanding position in the Society. Taking this fact into consideration the Court felt reasonable apprehension that the witnesses could be tampered with, won over or coerced by him and on that ground cancelled the bail. In the present case the respondent no.1 is an young advocate of 27 years, hardly having any standing in the society or in the practice. No material is placed on record of he being in a commanding position of being able to win over or coerce the witnesses or tamper with the prosecution 7

evidence. In this view of the matter, I find no perversity in the order of the Sessions Judge.

9. Applications are accordingly dismissed.

(D.G. KARNIK,J.)

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