JUDGMENT :- Heard Mr. Borulkar learned P.P. for the State. Mr. S. R. is, learned senior counsel for the respondent-accused and Mr. Rajiv Patil, counsel for the complainant. 2. Rule, returnable forthwith. By consent taken up for final hearing. Mr. is, learned senior counsel waives service for respondent-accused. 3. The facts and circumstances against which these petitions are filed are on, the prayers made therein are similar and hence they are being disposed common order. The State, in the first petition though have invoked the provisions contained in section 439(2) and section 482 of the Code of Criminal, ure, 1973 (for short "the Code") seeking cancellation of the anticipatory granted to the respondent-accused, their application basically challenges the dated 13-12-2005 passed by the Sessions Court on Criminal Bail lication No. 604 of 2005. In the second petition, filed by the original lainant, his father and brother, they have prayed for quashing and setting. the aforesaid order dated 13-12-2005, insofar as accused - Pratapsinha @ ay Chavan is concerned, whereby anticipatory bail has been granted to him his parents. 4. Mr. Borulkar, learned P.P. fairly stated that he has instructions not to press their application seeking cancellation of bail against accused No.2 and 3, nts of accused No.1. In view of the statement made by Mr. Borulkar, their lication against respondent Nos. 2 and 3 stands dismissed as not pressed. For sake of brevity, hereinafter, the original complainant - Shri Madhav J. Jamdar accused - Pratap Sinha Chavan will be referred to as "the complainant" and "the accused" respectively, whereas the petitioner - "The State of Mahara will be referred to as the "State". 5 The impugned order dated 13-12-2005 was passed by the Sessions III Cnmmal MIscellaneous Application No. 604 of 2005, after it was remaing by this Court vide order dated 17th November, 2005 in Criminal Applicatio 6726 of 2005. That application was filed against the common order dated 2005 passed in Criminal Miscellaneous Application No. 566 of 2005 Criminal Application No. 604 of 2005. Criminal Miscell.a~eous App~ication No. 566 of 2005 was filed by the for cancellatIon of antIcipatory ball granted to the accused on 29th June when the offence was registered by Khopoli police station on the basis of Fit lodged on 17-6-2000 by the complainant bearing c.R. No. 57/2000 under section 498-A and 306 of Indian Penal Code (for short "IPC"). Whereas Cri Micllaneous. Whereas Cri Micllaneous. Application No. 604 of 2005 was filed by the accused seeking antlcilpatory bail after the charge was altered and the offence was registered sectIon 302, Indian Penal Code on 12-8-2005 by the learned Magi Khalapur. Both these applications were disposed of by the Sessions Cou order dated 4-10-2005 by which the application of the State for cancellati anticipatory bail was ~llowed and the application seeking anticipatory bai by the accused was rejected. That order was challenged before this Court aforesaid Criminal Application No. 6726 of 2005. This court, vide order dated 17-11-2005 disposed of that applicatio restored Cnmmal Miscellaneous Application No. 604 of 2005 to file a Sessions Court was directed to decide it afresh within time frame. The Se Cou.rt has thereafter considered and granted the prayer of anticipatory bail SectIon 43.8. of the Code afresh and it is this order which is impugned mstant petItIons. 6. This matter has a checkered history. However, I would like to reference factual matrix that would be relevant and necessary for deciding these Petitions challengmg the order passed by the Sessions Court gr antIcipatory ball to all the accused. The accused at the relevant time was w with Wartsila Ltd. as the Production Manager and was staying with the de and their son in the residential quarters provided by the company with campus of the factory at Khopoli. On the fateful day i.e. 14-6-2000 after h left for school he claims that he also left at 8.00 a.m. and thereafter the dec alone was at home. At about 12.15 p.m. he received a call from his neighbour Mrs. Ambulkar In response thereto he immediately rushed to his house and opened the doo his keys, in the presence of Mrs. Ambulkar and their maid servant - Farja found, that his Wife, deceased - Pooja was lying in the kitchen in a condition. He immediately informed the police at Khopoli police station I recorded his statement and seem to have registered an accidental death reponse. In the report, it was specifically mentioned by the accused th committed suicide by pouring kerosene on her person and setting herself as she was fed up with her mental disorder which she was suffering fro several years and more particularly after she was operated three years prior to the inmcident. The mental disorder which the deceased was suffering is described as “maniac” Depressive disorder ”. The mental disorder which the deceased was suffering is described as “maniac” Depressive disorder ”. The alleged incident was thereafter informed to plainant, who rushed to Khopoli with his family members. On 17-6-2000, was lodged by the complainant, brother of the deceased, and pursuant the crime bearing C.R. No. 5712000 under sections 498-A and 306 of Penal Code was registered. The accused, thereafter obtained anticipatory bail on 29-6-2000. The sessins Court while granting anticipatory bail to the accused, directed him to to Khopoli police station between 6.30 pm to 8.30 pm until filing of the charge-sheet and was also directed not to leave Khopoli without permission of uft. 7. It appears that on 21-2-2001 after the investigation was completed the submitted "A" summary report which learned Magistrate granted on the same day. The complainant being aggrieved by the order "A" summary by the Court, filed Criminal Writ Petition No. 971 of 200 I for seeking reigation in c.R. No. 5712000. This Court vide the order dated 1-8-2001 set the order dated 21-2-2001 and directed the learned Magistrate to consider port submitted by the police seeking "A" summary afresh after hearing the lainant. The learned Magistrate by the order dated 6-10-2001 after hearing the lainant directed further investigation. On 2-3-2002 after re-investigation in C.R. CR. No 57/2000. offence, once again "A" summary was sought by the police. Before the strate could pass any order thereon, the complainant once again approached Court in Criminal Writ Petition No. 456 of 2002 seeking re-investigation of crime. This Court vide order dated 3-5-2002 allowed the prayers made in the petition and transferred the investigation from Khopoli police station to State .I.D, and further directed them to complete the investigation, as far as pssible, within six months. It appears that the State - C.LD. after taking over the investigation recorded statements of various witnesses. The complainant also took several steps in helping the investigating agency in the investigation of the crime. The fresh ment of the complainant was also recorded in June, 2004 and on the basis of her investigation the C.LD. approached the learned Magistrate for alteration harge on 12-8-2005 and the offence under section 302 was registered against accused persons on that date. 8. Against the backdrop of the facts aforestated, I heard Mr. Borulkar, learned P.P. for the State. Mr. approached the learned Magistrate for alteration harge on 12-8-2005 and the offence under section 302 was registered against accused persons on that date. 8. Against the backdrop of the facts aforestated, I heard Mr. Borulkar, learned P.P. for the State. Mr. Chitnis, learned senior counsel for the accused and Rajiv Patil, learned counsel for the complainant at great length. They took through the entire record placed before me as also through several judgments the Supreme Court in support of their contentions. 9. Mr. Borulkar, at the outset submitted that the Court below ought not to have granted anticipatory bail to the accused who is charged of the offence under tion 302, Indian Penal Code, as a result of which no progress in the estigation could be made by the investigating agency. The offence in question took place in June, 2000 and since then the accused is enjoying freedom. The estigating officer did not get an opportunity to interrogate him in custody. He n submitted that even after the charge was altered on 12-8-2005 the C.LD. made all efforts to get custody of the accused for interrogation. But their efforts werein vain. He took me through several documents in support contentions and in particular spot panchnama, inquest panchnama, inquestr, photographs and experts opinions which form part of the record includmg the opmion expressed by two doctors of the Grant Medical College contend that the deceased was first killed and then burnt and her burnt bod kept in the kitchen to make a show that she committed suicide in the kitch invited my attention to the spot panchnama to contend that the situation of articles an the condition of the walls clearly demonstrate that alleged inci burnmg dId not take place in the kitchen as tried to be demonstrated accused. The investigating officer did not take prompt steps, as he was ex either by arresting the accused or recording the statements of neighbour. drawing panchnama of the entire flat. The attitude of the investigating offiicer seen from the sequence of events, clearly demonstrates that the investigtion officer was trying to save the accused. He also took me through the oder anticipatory ball granted by the Sessions Court and submitted that it is and is based on erroneous considerations. drawing panchnama of the entire flat. The attitude of the investigating offiicer seen from the sequence of events, clearly demonstrates that the investigtion officer was trying to save the accused. He also took me through the oder anticipatory ball granted by the Sessions Court and submitted that it is and is based on erroneous considerations. He submitted that the learned has misread the report of Grant Medical College to record the finding that because the tongue was protruding it cannot be positively said that the death of deceased has occurred due to some other cause and not by burning. He next invited my attentIon to the observations in paragraphs 4 and 7 of the imunged order in particular to contend that the learned Judge committed grave error of law applying the settled principles which could be relied upon at the stage Judgment after trial. The principle that if two views are possible, the favour of the accused should be accepted and that the occular version should accepted and against the experts opinion were wrongly employed by the learned Judge whIle grantmg anttcipatory bail to the accused. If such a view is accepted and endorsed by this Court every accused in every case will have to be e on bail. Lastly, he submitted that the accused may not be allowed advantage of the defective investigation or tainted investigatio contammated conduct of the investigating officer should not stand in further investigation otherwise the investigation would not make any p and the real culprit would never be booked for the alleged offences. 10. Mr. Patil, learned counsel for the complainant also took me several documents and in particular the opinions expressed by the Medi experts, namely, Dr. Phatnani, Dr. Parikh as also the opinion expressed Grant Medical College and submitted that the learned Judge committe error in granting anticipatory bail to the prime accused in the offence of He further submitted that besides the order being erroneous and perv learned Judge ought not to have discussed the merits and demerits evidence while giving reasons for grant of bail when the matter is sti investigation. Mr. Patil further submitted that the experts report amply. Mr. Patil further submitted that the experts report amply. and establIsh that there is every reason to believe that death occurred burn injuiries and therefore investigation with regards to said area is requ then Iinvited my attention to the sequence of events right from the date of till this date to contend that the investigating agency initially tried to accused and as a result of which the complainant had to approach this two earlier occasions. Firstly, for getting "A" summary report filed after re-investigation and k transfer of investigation from the local investigating agency to C.I.D. ese occasions this Court passed the orders in favour of the complainant whuch claarly demonstrates that the investigation was not only tainted but to save the accused from the charge under section 302, Indian Penal this case did not draw panchnama of the entire flat which was necessary in land also to record the statements of the neighbours immediately after deence. The defence of alibi propounded by the accused at this stage considered. The investigation is in progress and also in view of the fact that the place of occurrence and the place of work of the accused were within the 500 sq. mtrs. Mr. Patil also invited my attention to the order of ory bail dated 29-6-2000 when the offence was registered only under 498-A and 306 of Indian Penal Code and submitted that the applicant observe the conditions imposed on him by the Court while passing that order. He did not report to the police station at all. It was then submitted that the without permission of the Court left India on several occasions for quite e which also hampered the investigation and, therefore, on these grounds bail deserves to be cancelled. Both Mr. Borulkar and Mr. Rajiv Patil in of their contentions placed heavy reliance upon the following judgments of the Apex Court: R. Rathinam vs. The State and anr, AIR 2000 SC 1851 ; vs. Rambildas and anr, AIR 2001 SC 2023 ; Pokar Ram vs. State of han and others, AIR 1985 SC 969 ; Gurcharan Singh and others vs. State (Delhi Administration), AIR 1978 SC 179 ; Anwari Begum vs. Sher Mohammad and anr, (2005) 7 SCC 326 ; Munshi Prasad and others vs. State of Bihar, 2002 (Cri.) 175 and Kamel Singh vs. State of Madhya Pradesh, (1995) 5 SCC. 11. Per contra, Mr. 11. Per contra, Mr. Chitnis, learned senior counsel for the accused at the outside, after inviting my attention to the order passed by the learned Sessions e dated 13-12-2005 granting anticipatory bail, submitted that by no stretch of ination the said order could be termed as perverse or stated to have based on levant considerations or it was passed ignoring material on record. He took through paragraphs 4 to 7 of the order in particular and submitted that it onstrates the application of mind to every piece of paper that was produced orer him and, therefore, such order in any case, cannot be interfered with in the ence of the allegations such as tampering of evidence or that the accused conducted himself or that he has attempted to interfere with the investigation. Mr. Chitnis further submitted that since his release on bail in June, 2000 until the lication for cancellation of bail was filed in 2005 the applicant-accused was never called by the Investigating Officer for interrogation which itself would w that the custody of the accused is not required for any purpose whatsoever. On the other hand the applicant was always ready to co-operate with the vestigation and was available for interrogation since after the order of participatory bail was passed in June, 2000. He did not leave Khopoli for four ars. No concrete instances of tampering of evidence were pointed out either by e prosecution or by the complainant and, therefore, under no circumstances the bail deserves to be cancelled. My attention was invited to the letter dated 21st bruary, 1989 written by the father of deceased - Pooja to contend that it clearly discloses that Pooja was sufferring from some mental disorder and as a fact she was continuously treated by the Doctor, who are known to be renowed Psychiatrist. He then submitted that the fact of her mental illness mentioned by the complainant in the FIR dated 17-6-2000. The act of co suicide was the result of the illness, she was sufferring from. The accus stated in the accidental death report dated 14-6-2000. That report furt that she was operated three years prior to the alleged incident and she w with her illness and in that state of mind she committed suicide. Inso submissions of Mr. Borulkar and Mr. The accus stated in the accidental death report dated 14-6-2000. That report furt that she was operated three years prior to the alleged incident and she w with her illness and in that state of mind she committed suicide. Inso submissions of Mr. Borulkar and Mr. Rajiv Path based on the documents namely, spot panchnama, inquest panchnama, post-mortem notes opinions expressed by different medico-legal experts is concerned, Mr. submitted that the learned Sessions Judge while granting anticipatory taken all that into consideration and it is reflected in the order itself. He submitted that merely because Dr. Phatnani and Dr. Parikh have opined death was homicidal and it was not suicide, that by itself cannot be a ground cancellation of bail. The investigating agency had sufficient time and op to investigate the offence or to interrogate the accused. As a matter of Court had directed the investigating agency to complete the investigati six months vide order dated 3-5-2002. Despite that it was neither copmleted within the time stipulated nor the investigating agency approached this extension of time. For more than three years they did not make any pr the investigation. Even in one of the petitions filed in this Court the affi filed by the investigating officer that the investigation was almost over would file the charge-sheet soon. That affidavit was filed by the inve officer in Criminal Application No. 79 of 2006 in February, 2006 whi shows that the custody of the accused is not necessary. He then submitted investigating officer slept over the matter for three years and except r some statements in 2004 has not done anything and in view of the order 5-2002, it was incumbent upon the officer to inform this Court about pr the investigation and specifically the reasons why the investigation coul completed. He then submitted that the proviso to section 167 of the Cod to the order of this Court recorded on 3rd May, 2002 and, therefl observations of the Supreme Court regarding proviso to section 20, sub-section 4(bb) of T ADA in the case of Hitendra Vishnu Thakur vs. State of Ma AIR 1999 SC 2623 clearly stand attracted. The reliance was also place judgment of the Supreme Court on Aslam Babulal Desai vs. Maharashtra, AIR 1999 SC 1 . The observations of the Supreme Court in Andhra Pradesh vs. P. V. Pavithan 1990 (2) SCC 340 , according to Mr. The reliance was also place judgment of the Supreme Court on Aslam Babulal Desai vs. Maharashtra, AIR 1999 SC 1 . The observations of the Supreme Court in Andhra Pradesh vs. P. V. Pavithan 1990 (2) SCC 340 , according to Mr. also stand attracted in view of the fact, after the order of the Divisio dated 3-5-2002 to complete the investigation within six months, no inve has been carried out at all till obtaining medical opinion of the Doctors Hospital and police surgeon. In this backdrop, according to Mr. Chitnis, i that there was no investigation during this period and, therefore, the qu cancelling anticipatory bail granted by the Sessions Court based of reasons does not arise. My attention was specifically drawn to the opini Doctors of Grant Medical College and J. J. Group of Hospitals as also finding recorded by the Sessions Court in the impugned order to contend that in. any case in canot be definitely cannot be definitely said that Pooja died homicidal death and that is the only conclusion, which could be drawn at this stage. Then my attention was drawn to the observations of the Division Bench of this Court in Maharashtra vs. Vishwas Shripati Patil and others, 1978 Mh.L.l. 746 = riLl. 1403 to contend that the principles to be applied and borne in mind aling with an application for cancellation of bail inter alia could be taken to while considering the application for cancellation of anticipatory bail he reliance was also placed upon the following judgments of the Supreme wherein the Supreme Court has laid down the principles to be taken into consideration while considering the application for cancellation of bail: State vs. Gandhi, AIR 1978 SC 961 ; Gurbaksh Singh Sibbia etc. vs. The State of , AIR 1980 SC 1632 ; Bhagirathsinh slo Mahipat Singh ludeja vs. State of t, (1984) 1 SCC 284 ; Mahant Chand Nath Yogi anr. vs. State of Harayan, (2003) 1 SCC 326 ; Satich Dhond vs. State of Go a, 2006 ALL MR (Cri.) and Shantaram Baburao More vs. State of Maharashtra, 2002 ALL MR .1286. Let me mention that Mr. Chitnis took me through the passages of judgments cited by him in support of aforesaid submissions. vs. State of Harayan, (2003) 1 SCC 326 ; Satich Dhond vs. State of Go a, 2006 ALL MR (Cri.) and Shantaram Baburao More vs. State of Maharashtra, 2002 ALL MR .1286. Let me mention that Mr. Chitnis took me through the passages of judgments cited by him in support of aforesaid submissions. Lastly, he settled that the order of Sessions Court dated 13-12-2005 cannot be said to be ous or perverse and, therefore, needs no interference by this Court in the petitions . 12. The Supreme Court in San jay Gandhi (supra) has observed that rejection of bail when the bail is applied for is one thing; cancellation of bail y granted is quite another. It is easier to reject a bail application in a nonIe case than to cancel a bail granted in such a case. Cancellation of bail sarily involves the review of a decision already made and can by and large rmitted only if, by reason of supervening circumstances, it would be no er conducive to a fair trial to allow the accused to retain his freedom during the trial. It is also settled by the Supreme Court in several pronouncements that the iderations applicable to grant of bail and consideration for cancellation of order of bail are independent and do not overlap each other. The bail once granted could be cancelled only if grant of bail is unjustified, arbitrary, or otherwise vitiated by serious infirmity or wrong exercise of discretion, as also bail conduct of the accused being not conducive for further investigation. or a fair trial or change of circumstances which would require the accused to , custody. The Supreme Court in the State of U.P. vs. Amarmani Tripathi, 2005(8) SCC 21 has observed that in an application for cancellation of bail, conduct equent to release on bail and the supervening circumstances alone are vant. But in an appeal against grant of bail, all aspects that were relevant er section 439 read with 437 of the Code, continue to be relevant. The Supreme Court in Puran vs. Rambilas and anr. (supra) while sidering the application for cancellation of bail has observed that the concept setting aside the unjustified, illegal or perverse order is totally different from concept of cancelling bail on the ground that accused has misconducted elf or because of some new facts requiring such cancellation. The Supreme Court in Puran vs. Rambilas and anr. (supra) while sidering the application for cancellation of bail has observed that the concept setting aside the unjustified, illegal or perverse order is totally different from concept of cancelling bail on the ground that accused has misconducted elf or because of some new facts requiring such cancellation. This position was also made clear by the Supreme Court in Gurcharan Singh Administration (supra). It is true that generally speaking the grounds for cancellati broadly are interference or attempt to interfere with the due administration of justice or evasion or attempt to evade the due cours or abuse of the concession granted to the accused in any mann Supreme Court in Puran vs. Rambilas (supra) has observed that ground for cancellation of bail would be where ignoring material and evidence record a perverse order granting bail is passed in a heinous crime of like bride burning and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require perverse order be set aside and bail be cancelled. It must be reme such offences are on the rise and have a very serious impact on the Therefore, an arbitrary and wrong exercise of discretion by the trial Court be corrected." Keeping these principles, enunciated in the various judgments learned counsel for the parties in view, I would like to examine the submissions advanced by the learned counsel. However, while doing so it also borne in mind that in the present matters what is being challenged is granting anticipatory bail to the accused, who right from the inception freedom and was never made available to the investigating agency interrogation. In other words, in the instant petitions the anticipat sought to be cancelled not on the ground that the liberty granted to would not be conducive to a fair trial or he misconducted himself ground that the impugned order was unjustified, illegal and perverse custodial interrogation is necessary to unfold the truth. 13. What broadly emerges from the above discussion and, w opinion, will have to be borne in mind, while considering the challenging the order of grant of anticipatory bail, is outlined Cancellation of bail when the bail is applied for is one thing and can ‘Anticipatory Bail is quite another. 13. What broadly emerges from the above discussion and, w opinion, will have to be borne in mind, while considering the challenging the order of grant of anticipatory bail, is outlined Cancellation of bail when the bail is applied for is one thing and can ‘Anticipatory Bail is quite another. In other words, the consid cancellation of bail of the accused, who was in custody for someti released on bail by the Court, with or without conditions, woul different. If cancellation of anticipatory bail is sought on the grou custody of the accused for further investigation/interrogation is neces if the order granting such freedom is perverse or is based on considerations it could be set aside irrespective of the fact whether a anticipatory bail the accused has misconducted himself or committ the conditions or has not endeavoured to tamper with the evidence. upon the facts of each case. There could be a case where accus indulge in any such activity providing ground for cancellation custody becomes necessary to unearth the truth or the order granting bail is found to be unjustified, perverse and illegal and based on considerations, looking to nature and gravity of the charge or when cogent and overwhelming grounds or circumstances necessitating sett such order and consequently cancellation of anticipatory bail. In othel concept of setting aside the unjustified, illegal and perverse order is totally different from cancellation the bail on the ground that accused has misconducted If or because of some new facts requiring such cancellation, besides the grounds such as interference or attempt to interfere with the due course of igation or administration of justice, committing similar crime while on bail used is likely to abscond etc. 14. In the present case, my attention was mainly drawn to the post-mortem dated 14-6-2000, inquest panchnama dated 14-6-2000, spot panchnama 14-6-2000 and to the opinions of the medico-legal experts placed on , to contend that the discrepancies between the post-mortem notes and the st panchnama in respect of description of the dead body, pieces of clothing on the body and findings with respect to the location, extent and depth of injuries, show that it was homicidal death and not the suicide, as has been ted right from the inception. 15. I perused all the aforesaid documents as also several other documents the assistance of both the learned counsel for the parties. 15. I perused all the aforesaid documents as also several other documents the assistance of both the learned counsel for the parties. The spot panchnamaama and the photographs placed on record, prima facie, show that the kitchen, where the deceased was found lying burnt, all the articles were seen. Ceiling and at their place and were not scattered and affected at all. The walls, ng and other articles were also not affected by the smoke and/or heat. Even urtains of combustible material, remain unaffected. There was no blackening ceiling or any of the articles lying in the kitchen. According to the accused more particularly his statement recorded by the police on the date of ence, the deceased used the kerosene to pour on herself and set herself from the stove in the kitchen. The said stove is clearly visible in one of the ographs placed on the record. It was at some distance from the dead body which is also seen in the photograph. The lid of the kerosene tank of the stove open, however, its disk and burner cap, which are loose parts of the stove, were in place. The floor of the kitchen around the stove and the articles close to body, prima facie do not show any indication of alive person was being, besides the fact whether it was homicidal death or suicide. According to post-mortem notes 95% of the body was found burnt but none of the articles wall was found blackened. Even the plastic articles kept on the floor of the hen such as bucket was also found intact and unaffected due to heat. The led kerosene was also found beneath the head. The photograph and the spot chnama does not show any spillage of kerosene around the stove. Though, I not wish to record my impression on the basis of the spot panchnama and the post-mortem notes as to what could have happened, it certainly creates doubt as the claim made by the accused that the deceased poured kerosene from the ve and set herself ablaze in kitchen, where, she died of receiving 95% burn injuries. Something more seems to have happened which is not forthcoming. 16. That takes me to consider the post-mortem report on which the learned nsel on both the sides advanced their submissions at great length. The mplainant sought Medico-legal opinion of late Dr. Something more seems to have happened which is not forthcoming. 16. That takes me to consider the post-mortem report on which the learned nsel on both the sides advanced their submissions at great length. The mplainant sought Medico-legal opinion of late Dr. Phatnani, the then known die a-legal consultant. The opinion was placed on record and it was also fore the learned Sessions Judge, who granted impugned anticipatory bail to the used. The opinion was expressed on the basis of the post-mortem notes, inquest panchnama, spot panchnama and the letter of the complainant addressed to the Superintendent of Dr. Phatnani in his report before recording his conclusions has Conclusion has pointed out several discrepanicies and inconsistencies between the post-mortion notes and spot and the spot and inquest panchama. He has specified made reference that the post-mortem notes which record that the the tongue inside the mouth. Unlike inquest panchnama, it records only burning hand and not both the hands and most importantly, does not mention condition of the face and the soles and the presence of blisters as n inquest panchnama. The another aspect which he had noticed in column No. 20 in the post-mortem notes was recording of presence tracheobronchial tree. It only mentions that the larnyx, trachea and filled with small amount of red frothy fluid. It further records both I congested, carbon pigmented and on cut section, showing frothy red frothy expressed that the said carbon pigmented appearance of the lungs presence of anthrocotic pigments, which are present in the lungs individual who has respired urban air polluted with suspended partie and carbon containing vehicular exhaust fumes. This is not the same of soot, that is, carbon particles in the tracheobronchial tree, which is to inhalation of smoke when a person is alive and burning, which ges the mucous membrane of the larynx and tracheobronchial tree. On the base of aforesaid finding and other findings in the report he has opined that column No. 18 of the post-mortem notes that the bum injuries are must be viewed with suspicion. The report of Dr. Phatnani is annexed Petition No. 405 of 2006 filed by the complainant. It is dated 10-7-200 no dispute that the report forms a part of the record. It would be adva reproduce the relevant portion of the "conclusions" arrived at by Dr after examining the aforestated documents. The report of Dr. Phatnani is annexed Petition No. 405 of 2006 filed by the complainant. It is dated 10-7-200 no dispute that the report forms a part of the record. It would be adva reproduce the relevant portion of the "conclusions" arrived at by Dr after examining the aforestated documents. The conclusions read thus: (a) The absence of soot in the larynx and the tracheobronc highly suggestive of body having already been dead before it fire. There is no evidence of sudden high intensity flash fire or to justify the absence of soot in the larynx and tracheobronchi (b) Extensive involvement of the anterior surface of the b scattered involvement of the posterior surface suggests probabilities, the combustible material was either poured or s the body when the deceased was in a supine position, that is her back. (c) The buccal cavity, tongue, pharynx and oesophagus a which shows that there was no effect of inhalation of hot gases which is a further suggestive of the probability of body being being burnt. (d) It is highly unusual that a person who has allegedly conte commit suicide by pouring kerosene on her person and setting fire, would not remove the towel wrapped around her head. The presence of towel in the said manner on the person of the suicide sugge all probabilities she had come out of bath before the said include place. (e) In view of the absence of burning of any other structure kitchen, particularly the curtain which although of combustible materials was found to be intact, and absence of blackening of either the ceiling or surroundings, the possibility of body having burnt elsewhere and brought into the kitchen, cannot be ruled out. (f) The Spot Panchanama describes pool of unburnt kerosene lying under and around the body. This is rather unusual because when the body is burning and the fuel which has been allegedly used to ignite the body, would obviously burn till it is consumed, being a combustible material itself. (g) While certifying the cause of death, the autopsy surgeon has given the final cause of death as "Cardiorespiratory failure due to shock due to 95% superficial to deep bums. However, the viscera are preserved for chemical analysis for final cause of death." Surprisingly, contrary to his own statement, he has certified the death as due to bums without awaiting the results of the chemical analysis. However, the viscera are preserved for chemical analysis for final cause of death." Surprisingly, contrary to his own statement, he has certified the death as due to bums without awaiting the results of the chemical analysis. Such conclusion drawn by the autopsy surgeon is unscientific, particularly when no soot was found in the larynx and the tracheobronchiolar tree. There is every likelihood that the deceased could have died due to reasons other than burns and the body was set onfire subsequently".(emphasis supplied) 17. There is yet another opinion of one Dr. Parikh, Medico-legal ultant on record dated 15-1-2005. The investigating agency has also dedcided the statement of Dr. Parikh and have taken her written opinion on Dr. Parikh has also offered her comments on the opinion expressed by Dr. ani as also by Dr. S. S. Parmar, who conducted autopsy of the dead body of Pooja. From perusal of the report of Dr. Parikh it appears to me that there is ble consistency in the opinion expressed by Dr. Parikh and Dr. Phatnani. 18. In pursuance of the order of this Court dated 3-5-2002 in Criminal Writ on No. 456 of 2002 the comments of Dr. Parmar were also sought by the invesigating agency and it appears that he had admitted some Comissions on his in noting certain aspects while performing post-mortem on the deceased. It would be relevant to reproduce the relevant comments offered by Dr. parmar dated 8-1-2004 on the questions put to him in pursuance of the order of Court. Ans : a. In all antemortem bum presence of carbon particles in Larynx, Trachea Bronchi is not must. b. It is not necessary that the soot should be noted in case of hOmicidal or suicidal bum. c. In my opinion in this case the body was not being first killed then burn by kerosene. a. As per panchanama it is stated that the tongue is protruded out of mouth. But at the time of post-mortem examination, the tongue was inside the mouth. b. It is not necessary that in every burn case tongue should protrude out of mouth. c. Tongue protrudes out of mouth in case of - Decomposed body - Typical Hanging. Ans.3. For answer of Q.3 see column No. 17 of P.M. no upper limbs burnt. Ans 4 For answer of QA see column No. 17 of P.M. notes neck burnt. Ans.5. For ans. c. Tongue protrudes out of mouth in case of - Decomposed body - Typical Hanging. Ans.3. For answer of Q.3 see column No. 17 of P.M. no upper limbs burnt. Ans 4 For answer of QA see column No. 17 of P.M. notes neck burnt. Ans.5. For ans. of Q.5 SCC column No. 17 of PM notes as a)limbs burnt below m/3 of thigh but burn marks s sole is not mentioned, b) it is not necessary that should get burnt in suicidal burn. However, pal affected in suicidal burn. Ans.6. Description of burn over parts of body is written in 17 of PM notes. Whereas percentage of burn is written No. 23 of opinion as to the probable cause of death. Ans.7. For the answer of Q.7 please take experts opinion and treating family physician of the deceased. Ans.8. Possibility cannot be ruled out that kerosene was the body after the death of Puja. Ans.9. The reason that kerosene under the surface of bo have come in contact with which remained Panchanama. Kindly accept my opinion (emphasis supplied) From bare perusal of the aforesaid opinion, it is clear that Dr. absolutely casual in responding to the queries made to him. As a his reply to question No. 2 in respect of protruding of tongue ou straight forward. He has avoided to reply the query in straight-for and has simply expressed that it is not necessary in every burnt case should protrude out of mouth. It is nobodys case that tongue prot case of burn. In fact it is other way round. The protruding of tongue death by burn, according to Dr. Phatnani, Dr. Parikh and also two Doctors of Grant Medical College Grant Medical College is not possible. Interestingly, in reply to question Parmar has expressed the opinion that possibility cannot be kerosene was poured on the body after the death of Pooja. This is c answer to the first question i.e. l(c). I deem it appropriate to comments offered by Dr. Parikh on the report of Dr. Parmar, which by the investigating agency: (a) On page 1 Of his said opinion, Dr. Parmar has opined observation given in column No. 16, Position of limbs-Bo lower limbs are flexed and abducted at their respective joi to this position it happens only in antemortem burn an suggests an antemortem burn (Pugilistic position)". The sa Dr. Parmar, which by the investigating agency: (a) On page 1 Of his said opinion, Dr. Parmar has opined observation given in column No. 16, Position of limbs-Bo lower limbs are flexed and abducted at their respective joi to this position it happens only in antemortem burn an suggests an antemortem burn (Pugilistic position)". The sa Dr. Parmar is scientifically incorrect as it is medically we that the pugilistic attitude results from stiffening and con muscles due to the coagulation of proteins of the dehydration; and that a body can assume such pugilistic .at when burnt after death. Therefore, presence of pugilistic a deceased, in itself, does not mean that in the instant case, the antemortem, particularly in the absence of soot in the larynx. (b) Dr. Parmars explanation that the "P.M. notes has not mentioned soot in the larynx is an act of omission", is questionable. While recording his findings during the post-mortem examination against column No. 20(c), he has recorded "Larynx, Trachea and Bronchi: Filled with small amount of red frothy fluid", which indicates that he did examine these structures and recorded all his findings related thereto. Therefore, had he found the soot deposited in these structures, which is a very vital finding in a case of bums, then he would have certainly mentioned as such in the post-mortem notes. Further, Dr. Parmar, even in his earlier opinion, dated 28-1-2002, addressed to the API, Khopoli Police Station, which he gave after having perused late Dr. Pritam Phatnanis opinion, which emphasized absence of soot in the respiratory passages to be highly suggestive of the bums being post-mortem in nature, has not mentioned anything in respect of such absence of soot in his earlier report, while dealing with his various notings in the post-mortem notes, and giving his opinion as to why in the instant case the death was due to antemortem bums. (c) The very fact, that Dr. Parmar did not mention the presence of soot, both, in the post-mortem notes as well as his earlier opinion, strongly suggests that it was not an act of omission, as is made out to be now as an afterthought, but that he did not find soot in the larynx, trachea and bronchi . (d) Had there been soot in the said structures, and the bums been antemortem in nature, then Dr. (d) Had there been soot in the said structures, and the bums been antemortem in nature, then Dr. Parmar ought to have found the effects of heat and burning process in the buccal, cavity, teeth, tongue and pharynx. However, during the post-mortem examination, he found and reported the said structures to be absolutely normal, as is seen from his notings in the post-mortem notes, against the column No. 21 "Buccal Cavity, teeth, tongue and Pharynx: NAD (no abnormality detected)". It is illogical and inconceivable that the mouth and the larynx, trachea and bronchi, which the hot gases and smoke formed due to burning have to pass through to reach the lungs, should remain absolutely normal, and the lungs should be charred. (e) Dr. Parmar, on page 2 of his said opinion, has further opined "As per the column No. 20, both lungs are oedematous and shows frothy fluid, also suggests an antemortem process". However, while recording his findings against column Nos. 20(d) and 20(e), in the post-mortem notes, Dr. Parmar has not mentioned that the lungs were oedematous; nor has he mentioned about this in his earlier opinion dated 28-1-2002. Besides, lungs ooze blood stained frothy fluid even in cases of death due to asphyxia due to other causes. (f) Dr. Parmar, on page 2 of his said opinion, has further opined "Being a ladies, she was not a smoker and whatever CO deposit found in lungs strongly suggests an antemortem inhalation of fumes and carbon monoxide deposition in the lungs". The said opinion of Dr. Parmar is unscientific and once again inconsistent with his own findings recorded in the post-mortem notes, wherein he has not mentioned anything about carbon monoxide, while recording his findings in the lungs. In fac he has mentioned against column Nos. 20(d) and 20(e), while describing lungs is, "carbon pigmented". Carbon monoxide is not the s carbon. Carbon monoxide essentially exists in the gaseous form such cannot be deposited in the lungs, as opined by Dr. Parmar. . (g) As is explained in late Dr. Pritam Phatnanis opinion, "The pigmented appearance of the lungs, mentioned in the post-morte is due to the presence of anthrocotic pigments, which are prese lungs of every individual who has respired urban air poilu suspended particulate matter and carbon containing vehicular fumes. Parmar. . (g) As is explained in late Dr. Pritam Phatnanis opinion, "The pigmented appearance of the lungs, mentioned in the post-morte is due to the presence of anthrocotic pigments, which are prese lungs of every individual who has respired urban air poilu suspended particulate matter and carbon containing vehicular fumes. This is not the same as presence of soot, that is, carbon in the tracheobronchial tree, which is found due to inhalation of smoke when a person is alive and burning, which gets stuck to the membrane of the larynx and tracheobronchial tree". In fact, the of carbon monoxide in the bums cases is always ascertained by the blood for estimation of carboxyhaemoglobin level, which done by Dr. Parmar in the instant case. 19. I do not wish to express any opinion on the opinions expr different Doctors as also aforesaid comments of Dr. Parikh on the repa Parmar, who performed autopsy. However, one thing is clear that Dr. P either casual or negligent while performing the post-mortem or has del" committed material omissions while performing post-mortem and ev replying the queries made to him in pursuance of the order passed by t dated 3rd May, 2002. It is a matter of investigation, and I express no op way or the other. 20. I would also like to refer to the opinion given by the Dep Forensic Medicines, Grant Medical College and J.J. Group of Hospitals, Mumbai dated 13-6-2005, jointly given by Dr. C. R. Dode, Professor, Department of Forensic Medicine and Dr. R. S. Bangal, Associate"Department of Forensic Medicine, Grant Medical College. Mr. Chitni senior counsel in the course of arguments submitted that no other opini the one expressed by Department of Forensic Medicine, Grant Medic" could be looked into consideration, insofar as autopsy report is con view of the submissions of Mr. Chitnis I deem it appropriate to the relevant part of the opinion dated 13-6-2005 placed on reco prosecution: "I have perused all the documents and photographs submitt along with your letter referred to above. I have also interrogatory submitted by you. In response to the interrogato to state serially as follows: (1). There are no external injuries mentioned in the post-mo over the neck, face etc. to indicate that Pooja was either s smothered to death. The question whether she was set on fire after she unconscious by some means needs further police investigations. I have also interrogatory submitted by you. In response to the interrogato to state serially as follows: (1). There are no external injuries mentioned in the post-mo over the neck, face etc. to indicate that Pooja was either s smothered to death. The question whether she was set on fire after she unconscious by some means needs further police investigations. In such a situation there should have been signs of struggle over the body, neck, face etc. However, the possibility of disappearance of such superficial sign of struggle due to burns, cannot be ruled out. (2) and (3) Kindly directs these questions to Dr. Ramani, the neurosurgeon in this case. (4) Protrusion of tongue does not indicate suicidal nature of bum injuries. (5) The photographs clearly show that the tongue was protruded out. There is no question of the tongue going inside the mouth once the rigor mortis sets in that the tongue is inside mouth is wrongly mentioned in the post-mortem report. (6) Irrespective of whatever mentioned in the post-mortem notes, the photographs clearly reveal that the palms and soles were not bum. Burning or not burning of palms and soles does not throw any light on the nature of injuries. Whether suicidal, homicidal or accidental. The fact has to be interpreted as per the prevailing circumstances of each case. (7) It is not necessary that a person committing suicide will not pour kerosene over his/her head and face. Also, the head and face can be burnt even when kerosene is not poured over the head, as the flames travel upwards. It cannot be commented whether in this case the kerosene was poured over the head or not. The medical officer has neither mentioned any smell of kerosene in the hair, nor has he preserved the hair samples for chemical analysis, which might have helped in throwing light on this subject. (8) In this case, as the photographs reveal, the genitalia and perennial region were completely burnt. (9) The fluid from the blisters should have been sent for chemical analysis to determine its contents. This would have helped in determining whether the blisters were antemortem or post-mortem in nature. The blood should have been sent for determination of the CO (Carbon Monoxide) level. This again would have helped to conclude whether the deceased was alive and respiring at the time of sustaining burn injuries. (10) 90 to 95% . This would have helped in determining whether the blisters were antemortem or post-mortem in nature. The blood should have been sent for determination of the CO (Carbon Monoxide) level. This again would have helped to conclude whether the deceased was alive and respiring at the time of sustaining burn injuries. (10) 90 to 95% . (11) Kindly refer this question to the doctor who has drawn such a conclusion. (12) When a person is alive and breathing while he/she is burning the black soot particles get deposited over the mucous of larynx, trachea, tongue etc. In this case it is not mentioned in the post-mortem report. The medical officer has obviously confused between the soot deposition in larynx, the lung pigmentation and CO level in blood. All these are different parameters and should not be confused as one and the same thing. The carbon pigmentation in lungs mentioned by the medical officer, is not the same as "soot deposition" in larynx. The reason why the medical officer has not mentioned the deposition" in larynx, might be that he did not notice any such deposition". (13) Congestion of organs (brain, lungs and heart) is one of the si violent asphyxial death. However, it is also observed in cases of due to burns or poisoning. (14) Postmortem notes mentions "distinguishable food conte stomach". However, the nature of food (that is distinguishable) mentioned. Also, the quantity of food is not mentioned. Considering that the death occurred in morning hours, it e approximately concluded that the time since death is 1 to 2 hours her last meal/breakfast. (15) Congestion of liver spleen and kidneys are typical signs of asphyxial death. However, such congestion is also seen in cases of due to burns or poisoning. (16) The description of small and large intestines and that of the urinary bladder is not diagnostic of asphyxial cause of death. Though in cases of violent asphyxial death, purging (involuntary passage of and fecal matter) is seen, the medical officer has not mention evidence of purging in this case. (17) Congestion of lungs is one of the important signs of Asphyxial death. It is not correct that the frothy fluid coming out on cross see lungs is due to "charring process" as stated by the medical officer. (18) It is not true that pugilistic attitude is attained only in antemortem burns. (17) Congestion of lungs is one of the important signs of Asphyxial death. It is not correct that the frothy fluid coming out on cross see lungs is due to "charring process" as stated by the medical officer. (18) It is not true that pugilistic attitude is attained only in antemortem burns. It is also seen if the dead body is exposed temperature burning. (19) This question may be directed to forensic need science labo ilnd it also needs further investigation. Opinion: There are many lapses in the post-mortem report. Hence, in the alleged facts and circumstances of the case, in my opinion, the needs further police investigations. This Medico-legal opinion must be regarded as Expert guid the process of investigation and not the evidence for the purpose of trial. It is true that the P.M. report is not the subject-matter in this petiti are we trying Dr. Parmar. However, I found it necessary to reproduce diffrent reports, as afore stated, to show consistency on certain points which de creates doubt as to the happenings at the relevant time within the four the house of deceased and the accused. The opinion of Forensic Depart Grant Medical College clearly indicate that protrusion of tongue out d indicate suicidal nature of burn injuries. The Sessions Court has over these findings recorded in the opinion of Grant Medical College. The rep mentions that when a person is alive and breathing while he/she is bumi black soot particles get deposited over the mucous of larnyx, trachea ton and have further opined that in the present case it is not mentioned in the post mortem report. The benefit is, however , given to Dr. Paaarmar , by Dode and Dr. Bungal furher observing that the officer was between the soot deposting in larynx, the lung pigmentation and Co level in blood. However, confused as one and the same thing. However, we also stated that all these are different parameters and should not be confused as one and the same thing. It is further stated that the Medical Officer mentioned "soot deposition" in larynx, might be because he did not any such "soot deposition". However, at the end of opinion they have stated that there were many lapses in the post-mortem report and the gation case needs further investigation. It is further stated that the Medical Officer mentioned "soot deposition" in larynx, might be because he did not any such "soot deposition". However, at the end of opinion they have stated that there were many lapses in the post-mortem report and the gation case needs further investigation. The opinions expressed by doctors on the basis of inquest panchnama, spot panchnama and postnotes, indubitably create doubt as to the cause of death mentioned in the ortem notes and, therefore, further investigation has become inevitable. The deceased appear to have had died homicidal death as indicated by the medico-legal experts, though, at this stage I do not wish to express any opinion the cause of death recorded in the post-mortem notes. 21. That takes me to consider the impugned order by which the accused granted anticipatory bail. The learned Sessions Judge after narrating few in the first 3 paragraphs, in paragraph 4 of the order has made reference to ee circumstances which according to him cannot be the grounds for the Grant medical Collegein respect of protruing anticipatory bail to the accused. He has taken into account the report of ant Medical College in respect of protruding of tongue out to hold that “it cannot be conclusively said that protruding of tongue out, in the present case, was sign of homicidal death". Next, after considering the spot panchnama and icular the position of the stove and match stick found at the scene of offince, as also blackening of wall, he has observed that, "it cannot be usively said that it was homicidal death". The learned Judge has though, in the impugned order that he perused all the papers on record, either he did not go through all the papers or did not consider them in proper prespective. But one thing is clear that he did not refer to the opinion of Dr. Parikh and to the response of Dr. Parmar, to the questions put to him pursuant to the order of this dated 3-5-2002. The reference to the mental disorder of the deceased has also been made in graph 5 of the impugned judgment. In that regard it was submitted that after operation of the deceased, three years prior to the alleged occurrence, as in A.D. report, there is nothing on record to indicate that the severity of her Ie continued or increased so as to drive her to commit suicide. In that regard it was submitted that after operation of the deceased, three years prior to the alleged occurrence, as in A.D. report, there is nothing on record to indicate that the severity of her Ie continued or increased so as to drive her to commit suicide. It was then submiitted that the circumstances indicate that atleast on the day of the Occurrence was not having any such trouble. The record reveals that in the morning she talked to the complainant, who informed her about the engagement ceremony of the eir cousin. She in turn, as stated by the complainant, had talk to her cousin atulating him for engagement. Thereafter at about 10.00 a.m. the accused talked to her on telephone. Wrapping of towel on the head also, prima facie, that she had bath before the alleged occurrence. This all, according to Mr. Borullkar and Mr. Patil, prima facie, indicate that the cause stated by the accused A.D. report of the deceased committing suicide is not correct and it was ading. It is not possible to express any opinion, though, it cannot be completely overlooked as is done by the learned Sessions Judge. The learned Sessions Judge, then proceeded to take recourse to the principles in law which, in my opinion, could be taken recourse to for benefit to the accused only after full fledged trial and not at the s investigation or while considering the prayer for bailor pre-arrest paragraph 4 he has observed that from the facts and circumstances of the two views are possible, the one in favour of the accused should to be a and, then in paragraph 7 after relying upon the judgment of this Shantaram Baburao Gore and anr. vs. State of Maharashtra, 2002 A (Cri.) 1286, he has observed that if there is inconsistency between the evidence and occular version the Court should approach the case with and caution while appreciating the evidence on record. I fail to underst how those principles could be taken recourse to at this stage. If such p are applied or taken recourse to at the stage of investigation, perha accused will have to be released on bail. In my opinion, on this count order of bail is perverse and is based on irrelevant considerations. The learned Judge has further placed reliance upon M. P. Lohia State of West Bengal and others, 2005 AIR SCW 767. In my opinion, on this count order of bail is perverse and is based on irrelevant considerations. The learned Judge has further placed reliance upon M. P. Lohia State of West Bengal and others, 2005 AIR SCW 767. The reliance plae judgment was also misplaced. In that case there is clear observation had been attempt on the part of both the sides to create documents establish the criminal case against the appellants or on the part of the a to create evidence to defend themselves from such criminal charges a that backdrop the Supreme Court held that correctness and genuinen documents can be gone into only after full fledged trial and it will not place reliance on any such document at that stage and, therefore, the Court had refused to comment on the genuineness of those document not the case in the present petitions. Here the prosecution as we complainant has relied upon the documents which form part of the ree is nobodys case that these documents were created by the complai Chitnis did submit that the opinion of Dr. Phatnani was obtained complainant and it cannot be looked into for any purpose. The opinin Phatnal is a part of record and it was taken into consideration evidence Division Bench of this Court which is seen from the order dated 3-5-2 case it cannot be said that it was created by the complainant. Even the judgments relied upon by the learned Judge in State of Maharashtra Kachrusingh Santram Rajput. 1994 Bombay Criminal Cases 504; M lamshed Andejania and others vs. State of Maharashtra, 1993 CriLl, of no avail to the accused and were wrongly relied upon in view of the facts and circumstances of the case. The relevant observations in the order of the learned Judge, in my opinion, need to be reproduced which would further demonstrate that the pow anticipatory bail was exercised erroneously and is based on considerations, ignoring the relevant material in the documents su panchnama, inquest panchnama, post-mortem notes, opinions expres doctors and referred to in the foregoing paragraphs and/or has rnis documents. The original order granting anticipatory bail is in Mara translated from the official translator’s office in the High Court. The relevant observations in paragraph four to seven read thus: "4. The original order granting anticipatory bail is in Mara translated from the official translator’s office in the High Court. The relevant observations in paragraph four to seven read thus: "4. Upon taking over the investigation by the Criminal Investigation Department, in the report at Ex.8, it is found (7) as to exactly which circumstances had come before the investigating officer thereby the applicant accused No. 1 Pratapsinha had given the false information of accidental death nor there is mentioning of other particulars. But from the detailed submissions made by both the parties today and whichever facts set out by deceased Pooja's father Jayajirao on this day in his affidavit, in totality, it is only found that the new line of the investigation is determined pursuant to the defects (lacunae) expressed by the Grant Medical College's Forensic Department, in its opinion (from the Medical view point) dated 13-6-2005, in respect of the earlier investigation into the offence. By submitting the facts about the Post-Mortem Report of the deceased Pooja and the Special Expert's opinions obtained from time to time in that regard contradictory to (the said opinion, a opinion) that Pooja's tongue had come out of the mouth (in fact in the post-mortem report it is mentioned that the tongue was inside) and thereby submitted that it appears to be false that Pooja's death was a suicide and the mentioning of tongue was inside, in the post-mortem report and other circumstantial evidence appear to be false, it is further submitted that the, inference/opinion that the deceased might not have committed suicide merely on the fact that her tongue was out (of the mouth) cannot basically lead to an only definite conclusion that it was not a suicide but might be a murder. It is mentioned in the Panchnama that the deceased Pooja was found dead in the kitchen-room and the stove without lid, match box around her and kerosene spilled all over on the flooring. It is mentioned in the Panchnama that the deceased Pooja was found dead in the kitchen-room and the stove without lid, match box around her and kerosene spilled all over on the flooring. If the fire incident had occurred in actuality then soot (smoke stains) should I have been found on the wall; but in fact there is no mentioning in the scene of incident panchnama about causing soot (smoke stains) at the said place, in this regard on behalf of the prosecution it has been submitted that Pooja might have been killed and might have been made unconscious (7) elsewhere and her dead body might have been brought and placed in the kitchen-room and false evidence, showing that she got burnt might have created. Even this submission cannot strike out the earlier conclusion drawn about the death of Pooja that she might have committed suicide nor does it show (indicate) conclusively that only the murder of Pooja was caused. The facts which have been mentioned in the scene of incident panchnama, in the inquest panchnama of the deceased Pooja and in the post-mortem report of her dead body, are intact, no change seems possible therein. If the same inference drawn by construing these facts from different angle then, the earlier inference could have been struck out undisputedly and it should have been seen that those inference were not based on the facts. It would be courageous to state here that in the criminal justice, if a particular fact could be stated in two (either) ways then the observation, which is in favour of the accused, is required to be accepted. 5. It is unfortunate that death of the deceased Pooja, before her death she was grappled with mental illness and she was under treatment. Her letters have been produced along with the documents produced today which also, it does not find that there was any dispute betwee and wife. 6. Therefore while considering the anticipatory bail applicatio particulars (facts/aspects) are required to be considered, whe one hand motive of the murder, evidence gathered against and on the basis of which the prima facie offence and its n against him and as well as if the anticipatory bail is granted the same would cause any obstruction in the investigation of crime etc. on the other hand whether the personal liberty of the ace individual would endanger (infringe) by denying the bail, aspects are required to be considered subjectively. In this observed in the case viz. State of Maharashtra vs. Kac Santram Rajput, (1994) Cr. C. 504. Moreover, it is also Nancy lamshed Adjania and others vs. State of Maharas CriLl. 35(5) as to what Law Commission has stated about of anticipatory bail. On this day, in support of this appli applicants relied on the decision of M. P. Lohiya and othe Bengal State and others, (2005) AIR SCW 7(7). In this d especially (mainly) dealt with as to how the documentary gathered from the relatives of the parental family. Wherein d evidence in support of their respective say had been fathered parties accordingly. However, in the present matter, it is Pooja's parental family only, their anxiety, worry i understandable but from the view point of justice these senti to be kept slightly aside". 7. On behalf of the applicant this Court, attention is drawn High Court case wise Shantaram Baburao More 2002 ALL' 1286. Wherein it has been ruled that if there is a constructi' the eyewitness account and medical expert's opinion then the account (evidence) is held valid (upheld). Even in this matter put forth that only on the opinion expressed by the aba medical college, Superintendent, new directiolJ. (angle) had the investigation of crime, even such expression of opinion kind of expressing the different opinion by Medical Experts basis of circumstantial evidence, but the facts and circu intact, but, only different meeting has been drawn from such inferences which were drawn from such facts. The infere were drawn earlier, at the end of the investigation, such in prima facie No. 1 found to be failed in any manner wha account of this new inferences drawn by the medic' Considering all these grounds there is no reason to deny antic' to accused No.1". (emphasis supplied) 22. From bare perusal of the order, it is clear that the leame written the order of anticipatory bail, as if he was writing the judgement of acqulttal after evidence. The question of benefit to be given to the act two views are possible, as observed earlier, does not arise at this stage be considered only during trial when the entire evidence is before the . The question of benefit to be given to the act two views are possible, as observed earlier, does not arise at this stage be considered only during trial when the entire evidence is before the . He has committed gross error of law in relying upon the aforesaid iples at the stage of investigation and while considering the application for 'patory bail. 23. The learned Sessions Judge ought not to have substituted his opinion in the of protruding of tongue out when the positive opinions of the experts on record including of the Doctors of the Department of Forensic Medicine, Medical College, stating that "Protrusion of tongue out does not indicate al nature of burn injuries". The Courts are expected to consider the material it very carefully and not in a casual manner taking one or two stray circumstances to hold that the circumstances do not indicate the complicity of the ed beyond reasonable doubt at the stage of investigation. In my opinion, in the prssent case, the accused had not made out any compelling circumstances for ing him anticipatory bail who was charged of the offence of murder of his. The findings recorded by the learned Judge, in my opinion, were recorded without considering the material on record in proper perspective. He has exersied the discretion erroneously on irronously considerations and, therefore, verse and deserves to be set aside. 24. Mr. Chitnis, learned senior counsel placed reliance upon several ents. He also took me through passages from some of the judgments and I had that in most of the judgments the Supreme Court has laid down the principles to be applied and borne in mind while dealing with the application for ellation of bail. It is true that normally very cogent and overwhelming ds or circumstances are required to cancel the bail already granted. However, while granting anticipatory bail if the learned Sessions Judge exercises judicial discretion either contioneously or on any irrelevant considerations and if order is found to be perverse, the principles laid down in the judgments relied by the accused would not come in the way for setting aside the order ting anticipatory bail. And in that case the considerations such as whether the accused misconducted himself after grant of bail? Whether he endeavoured to er with the evidence? whether he attempted to commit similar offence ? there he co-operated with the investigation ? And in that case the considerations such as whether the accused misconducted himself after grant of bail? Whether he endeavoured to er with the evidence? whether he attempted to commit similar offence ? there he co-operated with the investigation ? whether he made himself ilable for interrigation ? or he is likely to abscond, render inconsequential. In present case, I have already observed that the order granting anticipatory bail erverse and based on irrelevant consideration and in view thereof, in my ion, the judgments relied upon by Mr. Chitnis are of no avail to the accused. 25. In this case the prayer for setting aside the order of anticipatory bail or cancellation of anticipatory bail will have to be viewed from another angle. It is now well settled that in the case of a defective investigation the Court to be circumspect in evaluating the evidence and it would not be right in uitting the accused persons solely on account of the defect; to do so would amount to playing into the hands of the investigating officer if the estigation is designedly defective. This is settled by the Supreme Court in mel Singh vs. State of M.P. (supra). The contaminated conduct of the estigating officer should not stand in the way of further investigation; erwise the designed mischief would be perpetuated and justice would be ied to the complainant party. The primacy will have to be given to such designed or negligent investigation, to the omission or lapses by investigation or omissions, otherwise the faith and confidence a would be shaken not only in the law enforcing agency but administration of justice. Therefore, when investigation is found to defective and if it is noticed by the Court either in the cours investigation, the Court cannot turn its blind eye towards it. The Court cases, should pass appropriate direction/order including further inv for that purpose, if necessary, can proceed to cancel the bail or pr, Because the accused, in such cases, need not do anything to provide cancellation of bail since the investigating agency does every thin accused. These observations are not general in character and may n as aspersions on the police machinery at large. However, there exceptions to the rule and I wish to examine the prese.nt case fro.m find out whether the investigation in the present case is such which category. 26. These observations are not general in character and may n as aspersions on the police machinery at large. However, there exceptions to the rule and I wish to examine the prese.nt case fro.m find out whether the investigation in the present case is such which category. 26. It is true that the investigating agency, in the present ca the matter for quite sometime. But that by itself would not succeeding investigating agency from carrying out further investing apply for cancellation of bail. Looking to the overall facts and clre the case and the documents referred to above, I am of the opinion th more had happened, within the four walls where the dead body W, burned condition. The investigating agency has made no efforts to in offence in that direction. The accused, who was in the company of last, might know about the same. The investigation officer will not be the case to its logical conclusion unless and until he is given free out further investigation. 27. The alleged incident occurred sometime between 8.00 am to p.m. on 14-6-2000. The accused immediately reported the occurr police and within an hours his statement was recorded and it was reistered accidental death report bearing No. 17/2000. In that statement he gave the alleged occurrence between 8.00 am and 12.15 pm. The A.D. registered at 13.15 pm. In the statement he had mentioned the reas committed suicide and expressed that there was nothing to suspee death and that he had no complaint. It appears from the record that ti the deceased was alive. The accused had a telephonic talk with deee around that time. After lodging the report at 1.15 pm, it reveals, informed the complainant and other family Judge members the incident at pm. The complainant and the other family member reached Khopoli same day in the evening. The FIR was recorded in the intervening in 16-6-2000 and 17-6-2000 and the crime was registered around 5.05 2000 under sections 498-A and 306, Indian Penal Code. The accus anticipatory bail on 29-6-2000. The explanation as to why the ste accused were not taken between 17-6-2000 and 29-6-2000 is not forth. 28. The police completed the investigation and sought "A" su was granted by the learned Magistrate on 21-2-2001. No notice was is complainant before the order granting "A" summary by the Magistrate was though such notice was necessary in law. The explanation as to why the ste accused were not taken between 17-6-2000 and 29-6-2000 is not forth. 28. The police completed the investigation and sought "A" su was granted by the learned Magistrate on 21-2-2001. No notice was is complainant before the order granting "A" summary by the Magistrate was though such notice was necessary in law. It appears from the record that 17-6-2000 and 21-2-2001 the complainant had quite few occasions to opoli and to meet the investigation officer to enquire about the progress by them in investigation and every time he was told that it was in progress. Complainant also had an occasion to obtain a copy of FIR and other. documents during this time and on the basis thereof he had addressed a detail dated 29-12-2000 bringing to the notice of the concerned police authorities mious circumstances creating doubt and requesting them to register the offence under sections 302 read with sections 109, 115, 120-B and 201, Indian Code. The reminder was also sent on 15-1-2001. On 28-1-2001. 28. The investigation officer by their letter informed the lainant that there was no strong and reliable evidence against the accused. Complainant had immediately rushed to Khopoli to enquire about the said and on 6-2-2001 he sent another letter to the Superintendent of Police, g, Dist. Raigad and Inspector of Khopoli police station requesting him to int some high ranking responsible officer to carry out further investigation. reference to the letter dated 29-12-2000 was also made in the said letter dated 001. 29. The complainant in view of the order dated 21-2-2001 passed by the passed Magistrate granting "A" summary filed Criminal Writ Petition No. 971 of 20001 for setting aside the said order and for seeking re-investigation in C.R. .57/2000. This Court provides its letter dated 1-8-2001 quashed and set aside the passed by the Magistrate and remanded the matter with directions to hear complainant and decide "A" summary report filed by the police afresh. The re-investigation as per Magistrate after remand vide his order dated 6-10-2001 rejected "A" ary report and directed further investigation. After re-investigation as per the order dated 6-10-2001 passed by the learned Magistrate once again on 2-4-2002 the investigating officer filed "A" ary before the learned Magistrate. The re-investigation as per Magistrate after remand vide his order dated 6-10-2001 rejected "A" ary report and directed further investigation. After re-investigation as per the order dated 6-10-2001 passed by the learned Magistrate once again on 2-4-2002 the investigating officer filed "A" ary before the learned Magistrate. The moment complainant came to know ut it he once again approached this Court in Criminal Writ Petition No. 456 of 2 seeking re-investigation of the crime in c.R. No. 57/2000. This Court vide er dated 3rd May, 2002 disposed of the writ petition and while so doing made fol1owing observations: "There is a medical report of the expert Phatnani and the learned APP was asked to seek comments of Dr. Parmar on the said report. Dr. Parmar has admitted that there is some omission on their part in noting certain aspects while performing the post-mortem considering this aspect and the allegations alleged and the fact that once in the past "A" Summary was rejected by the Magistrate, we direct that the further investigation be done by the State, C.I.D. The Additional Director General of Police is directed to assign the said matter to the State cm. State cm to register appropriate offence whatever is disclosed in the investigation. Investigation should be completed as far as possible within six months from today". 30. It is true, as submitted by Mr. Chitnis, learned senior counsel that it s incumbent upon the investigating agency to complete the investigation within the time stipulated in the above order and since it could not be, they ought to have approached this Court explaining the difficulties why they coul complete the investigation and sought further time to complete investigation Chitnis submitted that now it is not open after three years to seek further till custody of the accused for interrogation without disclosing the reasons as to they could not complete the investigation within the time stipulated b aforesaid order. He then submitted that the aforesaid order of this Court flouted by the investigation officer. He further submitted that proviso to s 167 of the Code is akin to the order dated 3-5-2002 and therefor observations in Hitendra Thakur (supra) and P. V. Pavithan (supra) clearly attracted. In my opinion, these judgments of the Supreme Court, in view peculiar facts of this case, are of no avail to the accused and are not attracted. However, Mr. In my opinion, these judgments of the Supreme Court, in view peculiar facts of this case, are of no avail to the accused and are not attracted. However, Mr. Chitnis, was justified in contending that the investi ought to have been completed long back and if at all the investigating a wanted custody of the accused they should have approached the Court seeking such prayer at the very inception. As a matter of fact the grievance made Chitnis, supports the allegation made by the petitioners that the investigati either negligent or designedly defective. 31. In the present case, it may be noticed that the complainant did not a single stone unturned for moving the investigating agency from time to ti appears that he made several trips to Khopoli and made representations concerned authorities and filed writ petitions from time to time. Despite that no remarkable progress was made by the investigating agency. From the conduct of the investigating agency, there is a scope to hold that investigatio designedly defective. Their lapses and omissions cannot be overall otherwise the designed mischief would be perpetuated and justice would denied to the complainant party. There was no reason why they were mo the snail's pace. 32. Mr. Patil, learned counsel for the complainant, submitted that thought not fully, to some extent the accused was also responsible for this delay the period between 1st June, 2002 and 23rd May, 2006 the petitioner at in went out of India on eight occasions and all those visits were after the or this Court dated 3rd May, 2002. The investigating agency did not take obj for his seven visits to Kenya till 25th September, 2005. It appears that the his passport was seized in pursuance of the impugned order dated 13-12-2 33. It may be noticed, at this stage, that while granting anticipatory the accused vide order dated 29-6-2000 the conditions were imposed Court that he shall not leave Khopoli without permission of the Court and shall report to the Khopoli police station daily between 6.30 to 8.30 pm filing of the charge-sheet. Admittedly, neither did he report to the police s as per directions of the Court nor did he observe the condition not to Khopoli without permission of the Court. Mr. Admittedly, neither did he report to the police s as per directions of the Court nor did he observe the condition not to Khopoli without permission of the Court. Mr. Chitnis, endeavoured to justi lapse on the part of the accused contending that since he was not arrested police after the order dated 29-6-2000, there was no question of the reporting the police station. He further submitted that even the police did not call h' interrogation at all. Therefore, according to Mr. Chitnis, the accused can said to have committed any breach of the order dated 29-6-2000. The sub of Mr. Chitnis, that he did not leave Khopoli for a period of four years after dated 29-6-2000 does not appear to be correct because on his own showing nt to Kenya on 1st June, 2002 then on 2nd November, 2003 and on 27th January, 2004. This all clearly show that after grant of anticipatory bail the accused violated the conditions imposed by the Court. The investigating agency of even find it necessary to call him for interrogation after his release on bail order dated 29-6-2000. The questions, why the police did not even bother to out whether he was available in Khopoli ? why he was not attending the police station as per the order dated 29-6-2000 ? Why did they not move the for cancellation of bail?, remained unanswered. This conduct creates us doubt about their role. It also reveals from the statement of the wife of the complainant - Pratibha, rded in 2004, that immediately after the occurrence when they had reached poli, she had noticed blackening of other room and that was shown to several hours. The investigating agency was also informed about it. However, they are no answer as to why her statement was not recorded immediately after resistration of the offence on 17-6-2000. They even did not bother to draw hnama of the entire flat which was necessary in the facts and circumstances this case. Even the conduct of the Doctor, who admitted his lapses while ducting the post-mortem, creates serious doubt about his intention and moives. 34. It appears that during 3-5-2002 and 12-8-2005 the statements of several esses were recorded and even the opinions of medico-legal experts were sought and in pursuance thereof the charge was altered under section 302, Indian Code on 12th August, 2005. 34. It appears that during 3-5-2002 and 12-8-2005 the statements of several esses were recorded and even the opinions of medico-legal experts were sought and in pursuance thereof the charge was altered under section 302, Indian Code on 12th August, 2005. It is from that stage the investigating agency seem to have taken the things seriously since they had collected sufficient terial to prima facie establish that it was an offence under section 302 and not er section 306. 35. A bare look at the sequence of the events, as aforestated, one would that the conduct of investigating officer right from the inception was tainted contaminated. Twice the complainant had to approach this Court for either ting the order granting "A" summary set aside or seeking directions for further estigation when the second "A" summary report was filed before the registrate and on both these occasions the Division Bench of this Court prima ie found substance in the contentions of the complainant. This Court had not y set aside the order granting "A" summary, but looking to the overall facts circumstances of the case had to pass order transferring the investigation From Khopoli police station to C.I.D., which, in my opinion, tantamounts to ress no confidence in the local police station. It is very pertinent to note that C.I.D., after further investigation, may be at belated stage, approached the court seeking permission to alter the charge and they were allowed to register the 'me under section 302, Indian Penal Code. Thus, it is clear that had the investigating agency taken prompt action/steps, immediately after the occurrence, probably, that would have changed the complete complexion of the matter. 36. I am satisfied that this is a fit case where the order of the trial Court serves to be quashed and set aside. In the result, the rule is made absolute in Howing terms : (a) The order dated 13-12-2005, granting anticipatory bail to the under section 438 of the Code, is quashed and set aside consequence thereof the anticipatory bail stands cancelled. (b) Criminal Application No. 882 of 2006, insofar as responde and 3 are concerned, stands dismissed as not pressed. (c) Liberty to the accused to apply for bail only on expiry of one after his surrender. (b) Criminal Application No. 882 of 2006, insofar as responde and 3 are concerned, stands dismissed as not pressed. (c) Liberty to the accused to apply for bail only on expiry of one after his surrender. (d) The accused is directed to surrender on or before 15-9-2006 made clear that no extension to surrender shall be granted on any whatsoever. Order accordingly