1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO.35/2011 [Smt. Asha wd/o Prashant Nakade .vrs. State of Maharashtra and one] ................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... Shri N.S. Khandewale, Advocate for applicant, Shri S.M. Bhagde, APP for non-applicant no.1/State, Shri A.S. Manohar, Advocate for non-applicant no.2. .......... CORAM : M.N. GILANI, J. DATE : AUGUST 12, 2011 1. This is an application under Section 439(2) of the Code of Criminal Procedure for cancellation of bail granted to non-applicant no.2/the accused, who is facing trial for the offence punishable under Section 302 of the Indian Penal Code. 2. One Nita, sister of Prashant Nakade (the deceased) had married the accused in the year 1984. Out of this wedlock, they have a son and a daughter. The accused is the Medical Practitioner, having his clinic at Sakoli, District-Bhandara. There was matrimonial discord between Nita and the accused. The accused was not in favour of Nita visiting her parents house. In the month of September, 2010 Nita 2 had come to her parents house to see her ailing mother. Since then, the accused was insisting upon Nita to return to her matrimonial home. 3. On 12.2.2011, to attend the marriage of their relations, Nita and her parents had come to Nagpur. The accused had also come to attend the said marriage. After the marriage ceremony was over at about 3 to 4 pm, the deceased, his wife and other relations boarded a jeep to return to their place of residence. At that time, the accused armed with revolver, came near the vehicle on driver side. He fired two shots at the deceased. The deceased was rushed to the hospital, however, he was declared dead by the doctor who examined him. In the post- mortem notes, cause of death is given as haemorrhagic shock due to firearm injury to vital organs. On the basis of report lodged by the complainant, offence came to be registered. On completion of investigation, charge sheet came to be submitted to the Court of Judicial Magistrate, First Class and, thereafter, the learned Magistrate committed the case to the Court of Session. 4. The accused filed an application being Misc. Criminal Application No.957/2011 for seeking his release on bail. The learned District Judge-7 and Additional Sessions Judge, Nagpur considered the bail 3 application and directed his release on his executing P.R. Bond of Rs.50,000/- with one surety in the like amount. This very order is impugned in this application on the following grounds : (i) The learned Additional Sessions Judge committed an error in releasing the accused on bail by ignoring the seriousness and gravity of offence; (ii) Despite the fact that earlier bail application was rejected, without there being any change in circumstance, the learned Additional Sessions Judge considered the bail application particularly when he was in-charge of the Court of Ad-hoc District Judge–1 and Additional Sessions Judge, Nagpur; (iii) The learned District Judge-7 and Additional Sessions Judge hurriedly passed impugned order when, the Presiding Officer of the Court of Ad-hoc District Judge-1 and Additional Sessions Judge, who had rejected earlier bail application, was on leave. (iv) The accused is an influential person and there is strong possibility of threatening the witnesses. (v) His release on bail by considering irrelevant material would be prejudicial to the right of the victim to claim fair trial. 4 5. The accused filed reply justifying the order releasing him on bail. According to him, the bail once granted can be cancelled only if accused has violated the terms and conditions imposed upon him by the Court while releasing him on bail. It is further averred that there is not even an allegation that the accused has violated any of the conditions imposed upon him by the learned Additional Sessions Judge. The apprehension that the accused would tamper with the witnesses is without any foundation. On merits of the case, it is averred that the case under Section 302 of the Indian Penal Code is not made out against him. 6. It is well settled law that if there are reasonable grounds for believing that a person is guilty of an offence punishable with death or imprisonment for life, the Court must not be too liberal in granting bail. There is greater justification for denying bail to persons charged with serious offence like murder. The nature and seriousness of the offences, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial, reasonable apprehension of witness being tampered with, the larger interest of the public or the State and similar other considerations 5 should weigh with the Court while considering the bail application. While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances which would reflect that the liberty granted to the accused has been misused. Bail once granted to an accused should not be cancelled in a mechanical manner. However, if a bail has been granted illegally or improperly by erroneous and arbitrary exercise of discretion, the same is liable to be cancelled even if there is absence of supervening circumstances. 7. The consideration which weighed with the learned Additional Sessions Judge in considering the second application for bail may be stated thus : (i) On filing of the charge sheet, the second bail application can be considered; (ii) The culpability of offender is a matter to be considered at the time of the trial; (iii) The revolver seized from the possession of the accused revealed that it was fully loaded and there was an opportunity for accused to fire at other persons. However, he did not engage in firing at other persons. (iv) The accused has no criminal antecedents. He is a Medical Practitioner by profession and has roots in the society. 6 (v) The trial in the matter will take considerable time. 8. As regards merits of the case, the learned Additional Sessions Judge was fully satisfied that the accused with fully loaded revolver appeared at the scene of offence i.e. the place where the marriage was solemnized. When the deceased had boarded a jeep for returning to his native place, he fired two rounds at the deceased and killed him on the spot. It is obvious that the accused was not carrying fully loaded revolver for his self defence, particularly when he was to attend the marriage ceremony of his relations. The circumstances indicate that he had made up his mind and with intention to fire at the deceased, he carried fully loaded revolver with him and after getting an opportunity, fired two shots at the deceased. As per first information report, on 27.9.2010 Nita had left him. This incident occurred on 12.2.2011. As such, there is no ground to say that the act of the accused was out of grave and sudden provocation. Of course, there is a evidence that he had picked up a quarrel with some relations on the ground of Nita deserting him. However, this cannot be taken as a reason for he getting provoked so as to go to the extent of firing at the deceased. Admittedly, there was no quarrel between him and the deceased. It is thus obvious that 7 the learned Additional Sessions Judge did not consider the gravity and seriousness of the offence. Although a detailed examination of the evidence i.e. the material collected by the prosecution is to be avoided and to ensure that there is no prejudging and no prejudice, a brief examination of the evidence about the existence or otherwise of a prima facie case is necessary. 9. The learned counsel for the accused relied upon the decision in the case of State of Kerala .vrs. Raneef, 2011 (2) Bom. C.R. (Cri.) 767. It was the case of the accused/Dentist by profession, who treated assailants, who was allegedly member of Popular Front of India (PFI) a terrorist organizations. Their Lordships observed as follows : “In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case ? Of course this 8 is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.” Admittedly, the facts of the present case stand on different footings. 10. The next decision relied upon by the learned counsel for the accused is in the case of Central Bureau of Investigation, Hyderabad .vrs. Subramani Gopalakrishnan and another, (2011) 5 SCC 296. Their Lordships enumerated the grounds which are relevant for cancellation of bail. It was held that very cogent and overwhelming circumstances are necessary for order directing cancellation of bail already granted. Bail once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow accused to retain his freedom by enjoying concession of bail during trial. 11. In the present case the accused went to attend the marriage ceremony armed with fully loaded revolver. He opened the talk with some relations about Nita residing with her parents. Thereafter, in presence of all, he went close to the deceased and fired at him. The learned Additional Sessions Judge ignored the evidence on record and 9 without giving the reasons, granted bail. The reasons given by the learned Additional Sessions Judge are irrelevant. Such an order becomes vulnerable it being contrary to well established principle of granting bail in a case when the accused is charged with offence punishable under section 302 of the Indian Penal Code. 12. In Masroor .vrs. State of Uttar Pradesh and another, (2009) 14 SCC 286, the Hon’ble Supreme Court held that : “Valuable right of liberty of an individual and interest of society in general has to be balanced. Liberty of a person accused of an offence would depend upon exigencies of the case. It is possible that in a given situation, collective interest of community may outweigh right of personal liberty of individual concerned.” Their Lordships were dealing with the case in which bail was granted to the accused against whom offences punishable under sections 147, 148, 149 and 302 of the Indian Penal Code was in question. Their Lordships further observed that while granting bail in such cases, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted. Mere recording of statement of counsel for 10 both parties not enough. Order must show consideration of factors like nature of offence, evidence collected by the prosecution and forming part of charge sheet and circumstances under which offence was committed. 13. In Dinesh M.N. (S.P.) .vrs. State of Gujarat, (2008) 5 SCC 66, Their Lordships observed that when bail is granted on untenable ground, the plea of absence of supervening circumstance has no leg to stand. 14. While directing release of the accused on bail, the learned Additional Sessions Judge went on narrating the facts of the case and reproducing the submissions advanced at bar. The fact that the accused charged with serious offence of committing murder of his close relation, would certainly indulge in tampering with the witnesses or influencing them as well as seriousness of the offence was not at all considered. Moreover, earlier bail application being Misc. Criminal Application No.635/2011 was rejected by the learned Ad-hoc District Judge-1 and Additional Sessions Judge on 27.4.2011. Considering the totality of the circumstances, I am of the view that the order granting bail cannot be sustained. 15. The impugned order is set aside. The matter is remitted to the learned Ad-hoc District 11 Judge-1 and Additional Sessions Judge, Nagpur to decide afresh the application for bail. The learned Ad-hoc District Judge-1 and Additional Sessions Judge, Nagpur shall decide the application within two weeks from the date of receipt of this order. Till final decision of this application, non-applicant no. 2/accused shall continue to be on bail. It is made clear that this Court has not expressed any opinion on the merits of the case. 16. To the above extent, the application is allowed. Let the parties appear before the learned Ad-hoc District Judge-1 and Additional Sessions Judge, Nagpur on 20th August, 2011. JUDGE Gulande