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2018 DIGILAW 373 (BOM)

Prashant v. State of Maharashtra

2018-02-07

S.B.SHUKRE

body2018
JUDGMENT : S.B. SHUKRE, J. 1. Heard. Rule. Rule made returnable forthwith forth with. Heard finally by consent. The order dated 1.2.2018 directing the petitioner to remain present in the Court on 9.2.2018 at 2.45 pm passed by the Additional Sessions Judge, Gadchiroli is under challenge in the present case. 2. The contention of the learned counsel for the petitioner is that the order has been passed by the Additional Sessions Judge without any application of mind. Learned Additional Public Prosecutor submits that the jurisdiction has been properly exercised by the Additional Sessions Judge. 3. On going through the application filed by the State and the impugned order passed by the Additional Sessions Judge, I find that the order is the result of non-application of mind on the part of learned Additional Sessions Judge. The reason being that the application of learned Public Prosecutor is false and the impugned order simply ignores the false reason stated in the application. 4. The application dated 1.2.2013 categorically states to the effect "The Hon'ble Court granted ad-interim bail to the applicant but he disobey the direction issued by this Hon'ble Court. He had not appeared before I. O. nor cooperate the investigation agency." These statements, particularly the statement that the petitioner disobeyed the direction issued by the Additional Sessions Judge, run inconsistent with the order passed by the Additional Sessions Judge on 15.1.2018. No direction whatsoever and no condition of any nature has been imposed under the said order. Yet, the application dated 1.2.2018 states that the direction issued by the Court, has been disobeyed by the petitioner. It is obvious that the impugned order which does not consider these facts, has been passed without any application of mind by the Additional Sessions Judge. Ordinarily, I would not have preferred to make any interference with the impugned order as the petitioner is already granted interim bail. But, such protection, as the law goes, as a matter of right would not be available to the petitioner just in case his bail application is rejected and in that eventuality, the matter would be within the discretion of learned Additional Sessions Judge exercising jurisdiction under Section 438 Cr. But, such protection, as the law goes, as a matter of right would not be available to the petitioner just in case his bail application is rejected and in that eventuality, the matter would be within the discretion of learned Additional Sessions Judge exercising jurisdiction under Section 438 Cr. P.C. So, there is a possibility of valuable right of the petitioner being prejudicially affected by the impugned order in the present case and when the root cause of such possibility has been an order which has been passed without any application of mind, I would choose to interfere with the impugned order, just to uphold the valuable rights of the petitioner. In the result, the writ petition is allowed. The impugned order is hereby quashed and set aside. Application dated 1.2.2018 filed by the prosecution is remitted back to the Court of Additional Sessions Judge, Gadchiroli for its consideration afresh and decision in accordance with law. The Additional Sessions Judge, after deciding this application in accordance with law, shall finally dispose of the main application under Section 438 Cr. P.C. The order be informed to the Additional Sessions Judge by both the sides. Authenticated copy be supplied to both the parties. Rule made absolute in above terms.