1 Cri-A-5823-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 5823 OF 2010 Prabhakar Ratan Jadhav ... Applicant (Complainant) Vs. Sunil Harpal Singh @ Chotta Kalwa & Anr. Respondents (Respondent No.1 -Accused No.1) Mr. S.D.Rupwate i/b. Shri Santosh Parad i/b. Milind Ingole,Advocates, for the applicant. Mr.Vikram R.Chavan,Advocate for the respondent No.1. Smt. G.P.Mulekar, APP, for the respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 1st March, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. This application is filed by the original informant for cancellation of bail granted to the accused Sunil @ Chota Kalwa by the Sessions Court as per the order dated 9.12.2010 in Crime No.131/2010 registered with Ulhasnagar Police Station under Sections 143, 147, 148, 302 read with Section 149 of IPC and under the Arms Act. 2 Cri-A-5823-11.sxw 3. The applicant is the real brother of the deceased Deepak Jadhav. They were residents of Mukand Nagar, Behind Police Colony at Ulhasnagar. On 26.5.2010 at about 13.00 hrs., the accused Sunil and his companions misbehaved with certain journalists at the office of Muncipal Corporation, Ulhasnagar and at that time, deceased Deepak Jadhav intervened. Therefore, some quarrel had taken place between Deepak Jadhav and the accused. However, some people intervened and separated them from physical quarrel. The accused had at that time threatened said Deepak Jadhav. However, Deepak Jadhav did not lodge any report to the police. 4. During the following night i.e. on 27.5.2010, at about 00.30 hours, the complainant Prabhakar Jadhav was present at his house. He heard somebody shouting that Deepak Jadhav was being assaulted by some persons near the Police Colony. He immediately came out from the house and rushed towards the Police Colony. At that time, he saw 8 - 10 persons assaulting one person. The assailants then ran away towards the side of the complainant. They were all armed with sharp weapon like choppers and guptis. One of them was accused Sunil and he was identified by the complainant. The complainant rushed to the person lying on the ground and identified him as his brother Deepak Jadhav, who had several bleeding injuries on his person. On enquiry by the complainant, Deepak Jadhav 3 Cri-A-5823-11.sxw told him that Sunil @ Chota Kalwa and his associates had assaulted him because of the earlier quarrel. Immediately, the complainant and some other people from the locality took Deepak Jadhav to the Central Hospital. The doctor on examination declared him dead. Immediately the complainant lodged the report at the police station. On the basis of that offence came to be registered. 5. From the material collected by the police, there is sufficient evidence to show that a quarrel had taken place between the deceased and the accused Sunil at Municipal Corporation Office and at that time, not only the accused had assaulted Deepak Jadhav, but had also threatened him. It is true that some people had intervened and separated the quarrel. The quarrel between the deceased and the accused at the office of the Municipal Corporation was recorded in the video film by the journalists, who were present. That incident had occurred at about 1 p.m. and within 12 hours after that at about mid-night, deceased Deepak Jadhav was assaulted by 8-10 persons armed with guptis and choppers. It is true that at that place, there was some darkness. The residential houses were at the distance of 100 feet from the spot of incident. After hearing shouts, some people had assembled and at that time the assailants ran away. The complainant claims that as soon as he heard shouts that his brother Deepak was being assaulted by some persons, he ran out and at that time he saw the assailants armed 4 Cri-A-5823-11.sxw with the choppers and guptis running away and he identified Sunil @ Chota Kalwa among them. He also claims that he asked his brother Deepak as to who had assaulted and he had specifically stated that Sunil @ Chota Kalwa and his associates had assaulted him. He had number of bleeding injuries on his person which proved to be fatal. The record shows that he died by the time he was taken to the hospital. It appears that Walmik Jagtap and Deepak Shirsat helped the complainant in taking his brother to hospital. Deepak Shirsat was not knowing the names of the assailants as that time. Similarly, one Samadhan Nikam was also an eye-witness, but he was not knowing the names of the assailants. Later on, during test identification parade held on 12.8.2010, Deepak Shirsat and Samadhan Nikam identified the accused Sunil as one of the assailants. It is true that the identification parade took place about 2-1/2 months after the incident, but at this stage, merely because of the delay, the identification of accused Sunil cannot be ignored. Besides this, during investigation, blood stained clothes and blood stained choppers were recovered on the basis of information given by the accused. The C.A. report reveals that on the shirt of the accused and the chopper recovered from him human blood was found, though group of the blood could not be determined. 6. Taking into consideration the material noted above, it appears that 5 Cri-A-5823-11.sxw there was motive for the accused and within 12 hours after the quarrel which had taken place between them, Deepak Jadhav was assaulted by 8-10 armed persons. The complainant himself saw the accused Sunil among the assailants who were going away from the spot. Not only this, two other eye-witnesses i.e. Deepak Shirsat and Samadhan Nikam also identified him as one of the assailants. There was recovery of blood stained clothes and the weapon used in the commission of offence on the basis of information given to the police. Post mortem report revels that deceased Deepak Jadhav had suffered in all eleven injuries, including stab and incised wounds. The stab wounds were mainly on or near the chest. The post- mortem report also shows that death had occurred due to injuries to vital organs and hemorrhagic shock due to stab wounds. The manner in which the injuries were caused and their nature goes to show that assailants had intention to cause death. 7. Even the learned trial Court noted the prosecution evidence in the impugned order, but he did not give due importance to the evidence collected during the investigation. Firstly, the learned Addl. Sessions Judge noted that even though the quarrel had taken place in the office of Municipal Corporation, that was settled. In fact, there is nothing on record to show that quarrel was settled. What is revealed by the statement of witnesses is that some people had intervened 6 Cri-A-5823-11.sxw and separated. Separation of the quarreling parties at the time of physical quarrel does not amount to amicable settlement between them. There is material to show that at that time, the present accused had threatened. This aspect was ignored by the trial Court. The trial Court gave importance to two factors. Firstly, that even though the complainant claims that deceased had told him that he was assaulted by Sunil @ Chota Kalwa and his associates, other two persons who had accompanied him to hospital did not make any statement about oral dying declaration. One should not forget the condition of the deceased at that time. On enquiry by his brother, he disclosed that he was assaulted by Sunil and his associates. Other witnesses, who also came there and helped in taking him to hospital, might not have made any enquiry and therefore he did not tell them that he was assaulted by Sunil. Merely because those two persons did not ask and were not informed about the assault by the deceased himself, the oral dying declaration before his brother cannot be ignored. The Addl. Sessions Judge also noted that the test identification parade was held about three months after the incident. The incident had occurred on n 27.5.2010 and T.I. parade was held on 12.8.2010 i.e. about 2-1/2 months after. It is true that normally T.I. parade should be held as early as possible but merely because of delay, identification of the assailants by he two eye-witnesses cannot be brushed aside at this stage. The trial Court did not give importance to the recovery of blood stained clothes and the 7 Cri-A-5823-11.sxw weapon from the accused. The learned Additional Sessions Judge also did not give much importance to the manner in which the deceased was murdered. 8. The learned Counsel for the accused contended that the Sessions Court had appreciated the evidence while granting bail and therefore the High Court is not expected to re-appreciate the evidence or coming to a different conclusion and therefore, the High Court should not interfere in the bail granted by the Sessions Court. It is settled position of law that the considerations for grant of bail and the considerations for cancellation of bail are different. It is true that normally, the High Court will not interfere in the order granting bail passed by the lower Court unless the order appears to be perverse, illegal or per-se wrong. The High Court has also to consider gravity of the offence while considering the application for cancellation of bail. The High Court is not completely powerless when it finds that the bail has been granted by ignoring the vital aspects in the matter. 9. In Puran vs. Ramblas and Anr. 2001 (6) SCC 338, the Supreme Court observed thus in para 10 :- 8 Cri-A-5823-11.sxw "10. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram v. State of Haryana. In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected." 9 Cri-A-5823-11.sxw 10. The same principle was reiterated buy the Supreme Court in Subodh Kumar Yadav v. State of Bihar & anr. AIR 2010 SC 802. Their Lordships observed thus in para 9 :- "9. Learned counsel for the appellant contended that cancellation of bail can be only with reference to conduct subsequent to release on bail and the supervening circumstances. According to him an application for cancellation will not be maintainable with reference to what transpired prior to the grant of bail. He relied upon the following observations in State of U.P.vs. Amarmani Tripathi [(2005) 8 SCC 21]: (2005 AIR SCW 4763, Para 18), in support of the said contention :- "The decisions in Dolat Ram v. State of Haryana [1995 (1) SCC 349]: (2004 AIR SCW 4970) and Samarendranath Bhattacharjee v. State of West Bengal [2004 (11) SCC 165] relate to applications or cancellation of bail and not appeals against orders granting bail. In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read with section 437, continue to be relevant. We, however, agree that while considering and deciding the appeals against grant of bail, where the accused has been at large for a considerable time, the post-bail conduct and 10 Cri-A-5823-11.sxw supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail." 11. Thus, the legal position is clearly settled by the Supreme Court in respect of the considerations for cancellation of bail. In the present case, as noted above, the Sessions Court had not considered the evidence and material on record and had granted bail. The learned APP pointed out that the present respondent- accused is a dangerous person and he has antecedents beginning from 1999. Besides the present case, there are number of criminal cases registered against him. Some of them are against body and some are against property. He was also externed for two years under the provisions of Bombay Police Act in 2004. It appears that these aspects were not brought to the notice of the Sessions Court when the impugned order was passed. Even if these antecedents are not taken into account for a moment, still prima facie there is strong evidence against the accused-respondent. It is a serious offence of murder and if bail is granted to accused in such case, there may be reasonable apprehension of tampering with prosecution evidence. In view of the facts and circumstances, I find that the learned Additional Sessions Judge committed serious error in granting bail to the accused and therefore, it is necessary for this Court to interfere. 11 Cri-A-5823-11.sxw 12. For the aforesaid reasons, the application is allowed and the impugned order is set aside. The accused to surrender before the Sessions Court by 4th March, 2011. 13. The learned Counsel for the accused-respondent seeks stay of this order as he intends to challenge the order before the Supreme Court. The request is turned down. (J.H.BHATIA,J.)