1 Crim. Appln. No.19/09 mmj IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.19 OF 2009 Ramdas Sakharam Pawar ) Age @ 38 years, Indian Inhabitant ) Residing at Pawar Section, Chikroli, ) Ambernath, District Thane )..Applicant Versus 1. The State of Maharashtra ) through the Public Prosecutor, ) High Court, (A.S.) Mumbai ) 2.Shri Raju Vishnu Patil ) Age @ 37 years, Indian Inhabitant ) Residing at Barku Pada, Shiv Mandir Road ) Ambernath District Thane )..Respondents Shri A.P.Mundargi, Senior Counsel i/b Shri J.M.Puranik for the Applicant Smt R.V.Newton APP for Respondent No.1 Shri Shirish Gupte, Senior Counsel a/w Shri Prakash Naik i/b Shri Subodh Desai for Respondent No.2 CORAM : J.H. BHATIA, J. DATED : 14th February, 2011 ORAL JUDGMENT 1 Heard the Learned Counsel for the parties. The Learned APP supports the Application for cancellation of bail. 2 This Application is filed by the First informant and cousin 2 Crim. Appln. No.19/09 of the deceased Santosh Pawar for cancellation of bail granted to Respondent No.2-Raju Patil, who is Accused No.2 in Crime No.50 of 2007 registered at Kulgaon police station under Sections 302, 307, 324, 147, 148, 120(B) of the Indian Penal Code, 427 and Section 4, 27(B) of the Arms Act. 3 According to the Applicant, on 30-10-2007 one Bandu Chairate of Talegaon called deceased Santosh Pawar to see particular piece of land. Accordingly on that day after 3.00 p.m. the Applicant- Ramdas Pawar, his cousin Santosh Pawar and Dattatray Pawar went to Badlapur and met one Bhalchandra Bangur. Said Bhalchandra Bangur asked the first informant and others to go to Boradpada, where his brother was present to show the land. Accordingly they left Badalapur to go to Boradpada. On the way near the Badlapur Railway Station, Bandu Chairate also joined them and they all proceeded towards Boradpada by a car. At Boradpada, Bandu Chairate left their company saying that he was busy somewhere else. At about 5.15 p.m. these persons were at the distance of 1 ½ km from Sabarigaon. At that place one silver colour Tata Sumo MH-05-G-1915 came there and gave a dash to the side of the car of the first informant. From that Tata Sumo car, Accused No.1 Balaram Patil came down and began to assault Santosh Pawar, who was on 3 Crim. Appln. No.19/09 steering of his car and also dragged him out of car and assaulted on his neck and abdomen with knief. When Ramdas tried to rescue he was also assaulted by a companion of Balaram Patil with some weapons, due to which first informant Ramdas collapsed on the ground. He had seen Accused No.2 Raju also coming out from the said car and rushing towards him. Santosh Pawar died on the spot because of several injuries. First informant Ramdas was taken to hospital where his statement was recorded. In the FIR, he had specifically stated that Accused No.1 Balaram Patil, Accused No.2 Raju Patil, Accused No.3 Bandu Chairate and 5 or 6 other persons got down from the car and as per pre-plan they had killed Santosh Pawar and injured his companions. The statement of Dattatray Pawar was also recorded by police on 1-11-2007. He gave the above details and also stated that he himself also was beaten and injured. He has specifically stated that in the said incident Accused No.2 Raju Patil had stabbed on the abdomen and caused injury on neck of Santosh Pawar with a Gupti. During the investigation Accused No.1 Balaram Patil and Accused No.2 Raju Patil, Accused No.3 Bandu Chairate and some other Accused were arrested. Postmortem report of the deceased Santosh Pawar reveals that Santosh Pawar had suffered as many as 13 injuries, out of which 9 injuries were deep penetrating or stab wounds on 4 Crim. Appln. No.19/09 different parts of body including abdomen and neck. Small intestine was also cut. 4 After investigation, charge sheet was filed by the police and the case was committed to court of Sessions. Accused No.2 Raju Patil i.e. Respondent No.2 filed bail application Exhibit-4 before the Sessions Court. He had taken a plea of alibi alleging that on the day and time of alleged incident he was in shiv temple and was performing pooja. In support of this application Accused No.2 also filed affidavit of some persons. That application was rejected by the Learned First Additional Sessions Judge (Shri Y.G.Dhongade) by the order dated 3-5-2008. He observed thus “from perusal of the FIR it is crystal clear that name of the applicant accused is appearing in the FIR disclosing the actual role in the alleged incident. I also perused the statement of eye witness Dattatraya Pawar who had been accompanied with the companion and the deceased and was present at the time of incident and he has disclosed the role of the present applicant that the Accused had committed active part in the said commission of offence”. After referring to this material,s the Learned Additional Sessions Judge also rejected the plea of alibi taken by Accused No.2 Raju Patil. 5 After the rejection of first application for bail, Accused No. 5 Crim. Appln. No.19/09 2 Raju Patil filed another application Exhibit 34 before the Sessions Court for bail raising the plea of alibi as ground and also taking additional ground that he was suffering from Diabetics, High-Cholestrol, Renal Calli of both the side of kidney, with vertigo and General Debility and that he was advised to go for an operation for removal of stone. The same Learned Additional Sessions Judge Shri Y.G.Dhongade allowed that application and granted bail as per the order dated 10-7-2008. While granting the bail, in paragraph 6 of the said order he observed “FIR no where attributes any overt acts to the Applicant from which it can be said that he participated in this offence. Admittedly there is no evidence against the applicant either of any discovery of any weapon or production of any weapon of offence. There is delay in recording statement of the prosecution witnesses.” The Learned Judge also observed that witness Vijay Jayaram Patil had in his statement before the police discloses that Raju was performing pooja in Shiv Mandir at 7 O’clock on day of incident. The Learned Judge also observed that according to the Applicant he was present in the relevant pooja ceremony on day of incident and some persons had filed affidavits in his favour. After referring to the plea of alibi taken by the Accused No.2 Raju Patil, the evidence in support of the same. The FIR, statements of prosecution witnesses and the medical 6 Crim. Appln. No.19/09 ground of Raju Patil, the Additional Sessions Judge granted bail. 6 The Learned Counsel for the Applicant vehemently contended that having rejected the bail application on 3-5-2008 after observing that the role was attributed to Accused No.2-Raju Patil in the FIR and in the evidence of Dattatraya Patil and that the plea of alibi could not be accepted at that stage, the same Learned Additional Sessions Judge granted bail on 10-7-2008 accepting the plea of alibi and observing that FIR and the prosecution witnesses did not attribute any role of Accused No.2 Raju Patil in the said incident. I have pointed out that in the FIR, he is specifically shown to be a companion of Accused No.1 Balaram Patil. It is also stated that Accused No.2 Raju Patil had rushed towards the deceased Santosh Pawar and his companions. However, in the FIR he did not say more than that because the informant Ramdas himself had suffered injuries and fallen on the ground. The statement of Dattatraya was recorded by police on 1-11-2007 wherein Dattatraya Patil specifically stated that Accused No.2 had also stabbed on the abdomen and neck of Santosh Pawar. The postmortem report also shows multiple stab wounds on the abdomen and the neck. Thus specific role was attributed to Accused No.2 in the commission of the said 7 Crim. Appln. No.19/09 offence. The Learned Additional Sessions Judge was per-se wrong when he observed that no role was attributed in the commission of offence to Accused No.2 while granting bail to him. If Accused No.2 Raju Patil was really suffering from some diseases and it was necessary for him to take treatment for the same, bail for limited period could have been granted and that too after necessary investigation by the concerned medical officers in the Government hospital. The order granting bail does not show that the Learned Additional Sessions Judge had referred Accused No.2 Raju Patil to any Government hospital to collect report about his health before coming to the conclusion that he was really required to be released on bail for getting the treatment. The Learned Additional Sessions Judge contradicted himself while granting bail in respect of role attributed to the Accused No.2 Raju, if we look to his earlier order refusing the bail. Taking into consideration these circumstances, it appears that the order passed by the Additional Sessions Judge granting bail was per-se wrong and perverse and was not passed on the merits of the case. 7 Mr.Gupte, Learned Senior Counsel for Accused No.2, vehemently contended that bail was granted by the Sessions Court on 8 Crim. Appln. No.19/09 10-7-2008 and this Application for cancellation of bail was moved on 19-12-2008 and thus there was delay of about 5 months in filing this application. This Application is pending for last more than two years and the bail order itself is now about 2 ½ years old. The charges are likely to be framed soon and the trial may come to an end within a short period. The Learned Counsel also pointed out that in an application filed by Accused No.1 Balaram Patil, this Court (Coram : Kanade, J) has directed that the trial be expedited and the case be decided by August 2011. According to the Learned Counsel, in view of these circumstances, there is no justification for cancellation of the bail at this stage. The Learned Counsel also contended that when the trial court had applied the mind to the facts and granted the bail, unless there are very strong and exceptional circumstances, bail should not be cancelled by the High Court. The Learned Counsel placed the reliance on State Vs. Sanjay Gandhi reported in (1978) 2 SCC 411 and Bhagirathsingh S/o Mahipat Singh Judeja Vs. State of Gujarat (1984) 1 SCC 284. The Learned Counsel for the Applicant contended that if the bail granted by the Sessions Court is perse wrong and perverse, the High Court may interfere and cancel the same. 9 Crim. Appln. No.19/09 8 In Bhagirathsinh s/o Mahipat Singh Judeja Vs. State of Gujarat (1984) 1 SCC 284 and Dolat Ram and Ors. vs. State of Haryana (1995) 1 SCC 349, Puran Vs. Rambilas AIR 2001 SC 2023 and Ramcharan vs. State of M.P. (2004) 13 SCC 617, the Supreme Court has from time to time held that the considerations for cancellation of bail are different from the considerations for grant of bail. It has been held that bail can be cancelled only on existence of cogent and overwhelming circumstances, but not on reappreciation of the facts of the case. It is also settled that cancellation of bail should not be by way of punishment even if prima facie case against the accused is established. On the other hand, the prosecution contended that while granting bail, the Court has to look into the nature and gravity of charges, the character, behaviour, means, position and standing of the accused and reasonable apprehension of the witnesses being tampered with. The learned Counsel for the prosecution relied upon Anil Kumar Tulsiyani vs. State of U.P. and Anr. (2006) 2 SCC (Cri) 565 wherein the Supreme Court observed thus in paras 10 and 11 :- "10. By now it is well-settled principle of law that one of the considerations in granting bail in non-bailable offences is the gravity and the nature of the offence. The High Court has not at all addressed to this issue while granting bail to the respondent. 10 Crim. Appln. No.19/09 11. This Court in state of U.P. v. Amarmani Tripathi in which one of us (Raveendran,J) was a member has considered various decisions of this Court and observed that the circumstances to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail" (SCC p.31, para 18)" In that case, bail was granted to the accused, who was an Advocate and that order was challenged before the Supreme Court. The Supreme Court held that the respondent i.e. accused being an advocate was in commanding position and had standing in the society. In this background, there was reasonable apprehension of the witnesses being tampered with, coerced, threatened or intimidated by using his influence. As these circumstances were not considered by the High Court while granting bail, the Supreme Court set aside that order and cancelled bail. 9 In Puran Vs. Rambilas (supra) the bail was granted by the Sessions Court for the offence under Section 498-A and 304-A of Indian Penal Code, the High Court cancel the bail and that order was challenged 11 Crim. Appln. No.19/09 by the Accused before the Supreme Court. Their Lordships observed thus : 9. Mr. Lalit next submitted that once bail hasbeen 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 & Ors. vs. State of Haryana reported in 1995 (1) S.C.C. 349. 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 setaside 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. 12 Crim. Appln. No.19/09 10. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) reported in AIR 1978 SC 179. In that case the Court observed as under:- "If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under S. 439 (2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court. 12. Our view is supported by the principles laid down in the case of Gurcharan Singh & Others, etc. vs. State (Delhi Administration) reported in 1978 (1) S.C.C. 118. In this case it has been held, by this Court, that under Section 439(2), the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in theinterest of justice, to interfere. 13 Crim. Appln. No.19/09 10 I have already stated facts of the case as disclosed in the FIR and the police statement of eye witness Dattatraya Patil. The postmortem report provides corroboration to the statement of Dattatraya Patil. The Learned Additional Sessions Judge, having considered that material, had rejected the application on 3-5-2008 but on the basis of the same material, on 10-7-2008 he granted the bail holding that no role was attributed to the Accused No.2. That shows the perversity in the approach of the Learned Additional Sessions Judge while granting bail. The bail was granted not on merits but arbitrarily, ignoring earlier order and observation made therein. The manner in which Santosh Pawar was brutally murdered. There may be reasonable apprehension that if the Accused No.2 is granted bail, he may cause danger to the life of eye witnesses also. The Trial Court should have considered the seriousness and the gravity of the offence while considering the bail application filed by Accused No.2. second time. However, the Trial Court ignore the material facts. I am not convinced with the contention of the Learned Counsel for the Accused that it will not be proper to cancel the bail at this stage when the trial is likely to commence shortly. In my considered opinion, this is the appropriate stage when the Accused should be in jail and not on bail. As the charges are likely to be framed shortly and within 14 Crim. Appln. No.19/09 the short period the trial will commence naturally the Accused persons may flex their muscles and try to coerce and pressurise the witnesses at the stage of trial. Therefore, in my considered opinion, there are exceptional circumstances and cogent reasons to cancel the bail granted to Accused No.2 11 Therefore, the Application is allowed. The impugned order passed by the Additional Sessions Judge on 10-7-2008 granting bail to Accused No.2 Raju Patil is hereby set aside. He shall surrender before the Trial Court within one week from this day. 12 At this stage, the Learned Counsel for Accused No.2 seeks more time to challenge this order. However, taking into consideration the circumstances noted above, the request is hereby rejected. (J.H. BHATIA,J.)