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1996 DIGILAW 4 (BOM)

Babulal Chottelal Shah v. State of Maharashtra

1996-01-03

VISHNU SAHAI

body1996
JUDGMENT - VISHNU SAHAI, J. :---Heard Mr. M.S. Mohite for the petitioner and Ms. J.S. Pawar for the State of Maharashtra. Rule returnable forthwith by consent. The A.P.P. waives service. By means of this application preferred under section 482/439 Cr.P.C. the petitioner prays that the order dated 27-2-1996 passed by the Additional Sessions Judge, Pune cancelling the provisional bail order dated 5-12-1994 passed in favour of the petitioner by the Additional Sessions Judge, Pune be quashed. The facts giving rise to this application may be briefly set out as under:- It appears that the petitioner is being prosecuted for offences under sections 307/341/352/506(2)/109, 120-B r/w 34 I.P.C., section 3 r/w, some other sections of Indian Arms Act and section 37(i) r/w 135 of the Bombay Police Act. 2. Certain facts in the instant case are not disputed by the counsel for the parties. They are:- a) The petitioner was granted provisional bail vide order dated 5-12-1994 passed by the Additional Sessions Judge, Pune on the ground that though six months had elapsed but, no material connecting him with the crime had been collected by the police; b) That right from 5-12-1994 till today, the petitioner is on provisional bail granted to him; c) There is no allegation about the petitioner misusing the provisional bail granted to him; and d) That the petitioner is not one of those, who actually assaulted the two victims but, he is the arch conspirator. 3. It appears that in the instant case an application for further investigation under section 173(8) of Cr.P.C. was moved before the concerned Magistrate and the same was allowed. It also appears that pursuant to that investigation, it was revealed that the petitioner was an arch conspirator. In view of this, additional material, the State of Maharashtra moved for cancellation of the petitioner's bail and the same was cancelled by the Additional Sessions Judge, Pune vide order dated 27-2-1996. Hence, this application. 4. Mr Mohite, learned Counsel for the petitioner strenuously urged that the learned Additional Sessions Judge gravely erred in cancelling the petitioner's provisional bail. He further urged that the petitioner was on provisional bail for over 16 months and it is not the case for the prosecution that he misused the same in any manner. Hence, this application. 4. Mr Mohite, learned Counsel for the petitioner strenuously urged that the learned Additional Sessions Judge gravely erred in cancelling the petitioner's provisional bail. He further urged that the petitioner was on provisional bail for over 16 months and it is not the case for the prosecution that he misused the same in any manner. He invited my attention to the decision of the Apex Court reported in A.I.R. 1984 Supreme Court page 372 wherein the Apex Court has held that the only two material considerations for cancellation of bail are:--- (i) Apprehension of the accused absconding and (ii) of his tampering with prosecution witnesses. He further urged that in the instant case, none of these two grounds were pleaded by the State for the cancellation of bail. He therefore urged that the impugned order is vitiated in law. Even on facts, he urged that the petitioner has a good case for bail for the allegation against the petitioner is not of assaulting either of two victims, but, only that of hatching a conspiracy in respect of the assault. He further urged that normally in a case under section 307 I.P.C., it takes 3 to 4 years before the trial commences and it would be far too oppressive if the impugned order is permitted to stand and the petitioner is directed to be taken into custody. 5. Ms. Pawar on the other hand vehemently contended that the bail granted to the petitioner was only a provisional one and once if after the investigation, there was fresh material against the petitioner, it was within the province of the Additional Sessions Judge to cancel the bail of petitioner. I regret that I am not able to accede to the contention canvassed by Ms Pawar. The question is not one of jurisdiction but of propriety. The Apex Court pointed out in A.I.R. 1984 Supreme Court page 372 (supra) that the issue in an application for cancellation of bail is not whether bail has been rightly granted or not. The issue is whether any of the considerations mentioned in the preceeding paragraph exist. In the instant case they do not. 6. For the above reasons, I feel that it would be wholly improper if the impugned order is allowed to stand. Accordingly I quash the order dated 27-2-1996 passed by the Additional Sessions Judge. The issue is whether any of the considerations mentioned in the preceeding paragraph exist. In the instant case they do not. 6. For the above reasons, I feel that it would be wholly improper if the impugned order is allowed to stand. Accordingly I quash the order dated 27-2-1996 passed by the Additional Sessions Judge. Pune cancelling the bail of the petitioner in Criminal Miscellaneous Application No. 156/1996. Rule issued earlier is made absolute.