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2019 DIGILAW 2573 (BOM)

Mahadeo v. State of Maharashtra

2019-11-21

V.M.DESHPANDE

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JUDGMENT : V.M. Deshpande, J. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. Heard Mr. Mirza, learned counsel for applicant, Mr.Jawade, learned Additional Public Prosecutor for non applicant no.1 -State and Mr. Ali, learned counsel for non applicant no.2. 3. By filing the present application under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, the applicant is challenging the order passed by learned Additional Sessions Judge, Magrulpir dated 21.06.2019 in Miscellaneous Criminal Application no. 123/2019 by which learned Judge of Court below allowed said application and cancelled regular bail granted in favour of present applicant. 4. Few facts would to be necessary for decision of the present application. Non applicant no.2 - Suman lodged a report on 18.02.2019 vide Crime No.30/2019 with Police Station, Karanja (Rural), District Washim for an offence punishable under Sections 302, 143, 147, 148, 149, 323 and 506 of the Indian Penal Code against present applicant and four other co-accused. The report was lodged in respect of the occurrence dated 18.02.2019 relating to the assault made by the present applicant and other co-accused persons on her husband Vinayak Shinde in which he lost his life. The applicant was arrested. 5. After arrest, applicant moved an application for regular bail by approaching to learned Additional Sessions Judge, Washim by filing application for bail which was registered as Miscellaneous Criminal Application no.37/2019. The application came to be rejected by order dated 15.04.2019. 6. After rejection at the hands of the learned Additional Sessions Judge, applicant approached this Court by filing Criminal Application (BA) no.385/2019. On 26.04.2019, notice was issued to non applicant-State and application was kept for consideration after Summer Vacation. 7. Be that as it may, it is reveled to this Court that in the meanwhile, prosecuting agency after completion its investigation filed final report before the Court of law. The applicant thereafter moved a fresh application before the learned Judge of the Court below for bail i.e. Miscellaneous Criminal Bail Application No.107/2019 and on 11.06.2019 learned Additional Sessions Judge, Mangrulpir allowed the said application and released the applicant on bail on executing P.R. bonds with certain conditions. 8. Non applicant no.2 thereafter filed an application under Section 439 (2) of the Code of Criminal Procedure for cancellation of bail granted in favour of applicant on 11.06.2019. 8. Non applicant no.2 thereafter filed an application under Section 439 (2) of the Code of Criminal Procedure for cancellation of bail granted in favour of applicant on 11.06.2019. The said application was moved on 12.06.2019 i.e. immediately on the next day of bail. The application was registered as Miscellaneous Criminal Application No.123/2019 and by the impugned order the learned Additional Session Judge cancelled the bail, giving rise to the present proceedings. 9. On 17.07.2019 this Court (Coram : Rohit B. Deo, J.) issued notice and granted interim stay in favour of the applicant. Consequently, as on today the applicant is not arrested in view of the impugned order. 10. The submission of the learned counsel for non applicant no.2 Mr. Ali before this Court is that while presenting the application for bail i.e. Criminal Bail Application No. 107/2019 the applicant suppressed the fact that he has already approached this Court by filing Criminal Application (BA) No. 385/2019. He, therefore, supported the impugned order. 11. The impugned order would show what has weighed in the mind of learned Judge of the Court below for non disclosure the fact of pendency of bail application before this Court. 12. The important fact that has to be mentioned in this order is that on 07.06.2019 i.e. prior to decision on the bail application filed by the applicant which was granted, the applicant withdrew his Criminal Application (BA) no. 385/2019 from this Court. Thereafter, his application for bail was considered favourably in favour of the applicant by the learned Additional Sessions Judge, Mangrulpir. Thus, it is clear that at that time when application for bail was granted on 11.06.2019 by that time no proceedings in respect of bail to the applicant were pending before this Court. 13. The law is well crystallized on this issue way back in the year 1978 in Mohan Singh Vs. Union Territory, Chattisgarh,1978 ALLMROnline 80 (S.C.) by the Hon'ble Apex Court. The facts in the said case and the present case are almost identical. 14. Worth it to mention here that accusation of the first informant against present applicant and also as per prosecution case, on the day of incident i.e. on 18.02.2019 a dispute arose in between the complainant's family and accused's family on account of flowing of waste water and the verbal altercation took place which ultimately culminated into physical assault. 14. Worth it to mention here that accusation of the first informant against present applicant and also as per prosecution case, on the day of incident i.e. on 18.02.2019 a dispute arose in between the complainant's family and accused's family on account of flowing of waste water and the verbal altercation took place which ultimately culminated into physical assault. As per report, co-accused Vishnu Gajbhar assaulted on head of Vinayak by means of iron pipe. At that time co-accused Pandurang Gajbhar assaulted on Vinayak by means of stick. As per the first information report lodged by Sumanbai, the eye witness was present at that time. According to prosecution case, present applicant Mahadeo also came along with stick with an intention to assault on deceased Vinayak however first informant Sumanbai snatched the stick from his hand therefore, he gave kicks and fist blows on deceased Vinayak. Prima facie the allegation against the present applicant is that he assaulted on deceased by fist and kick blows after weapon i.e. stick which was in his hand was snatched away by first informant. 15. It was expected from the learned Judge of the Court below before passing impugned order that bail was granted in favour of applicant after considering his role and other material in charge-sheet. The law is also well crystallized in respect of eventualities when the bail should be cancelled which is availed by the accused. 16. The learned Judge of the Court below ought not to have cancelled the bail only because non disclosure on the part of the applicant in his application for bail about pendency of the bail application before this Court. Especially when at the time of grant of bail there was no application that was pending before this Court. However, it was expected from the learned Judge of the Court below to give weight age to the fact that when the applicant was released on bail that time no proceedings in respect of bail on behalf of the applicant were pending before this Court. In my view, learned Judge of the Court below has taken too technical view for cancelling the bail. Even otherwise, jurisdiction under Section 439 of the Code of Criminal Procedure is concurrent. However, it is a practice that the High Court normally does not entertain the application for bail unless the accused approaches the Court below. In my view, learned Judge of the Court below has taken too technical view for cancelling the bail. Even otherwise, jurisdiction under Section 439 of the Code of Criminal Procedure is concurrent. However, it is a practice that the High Court normally does not entertain the application for bail unless the accused approaches the Court below. Once it was found that no proceedings for bail were pending before this Court and the application for regular bail i.e. Criminal Application (BA) No. 385/2019 was already withdrawn by the present applicant, there was no impediment for the learned Judge of the Court below for considering application for bail i.e. Miscellaneous Criminal Application No.107/2019 and in my view, learned Judge has rightly granted bail in favour of applicant after considering nature of the accusation against the applicant by order dated 11.06.2019. 17. The conspectus of the present case leads me to pass following order: ORDER (1) The application is allowed. (2) Order dated 21.06.2019 passed by learned Additional Sessions Judge, Mangrulpir, Dist. Washim in Miscellaneous Criminal Application No.123/2019 cancelling the bail granted in favour of the applicant is hereby quashed and set aside. (3) The bail granted in favour of the applicant by the learned Additional Sessions Judge, Mangrulpir, Dist. Washim on 11.06.2019 in Miscellaneous Criminal Application No. 107/2019 in respect of Crime No.30/2019 registered with Police Station, Karanja (Rural), Tq. Karanja, Dist. Washim stands restored. Rule is made absolute.