1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD Criminal Application No.4183 of 2008 Sakharam s/o Kerba Chitte, Age: 65 years, Occu. Agri. r/o. Wahad, Tq. Kandhar, Dist. Nanded. ...PETITIONER versus 1. The State of Maharashtra. 2. Ramesh s/o Uddhavrao Gomare, Age: 40 years, Occu. Agri. & service, r/o Kurula, Tq. Kandhar, Dist. Nanded. 3. Balu @ Laxman Udhavrao Gomare, Age: 30 years, Occu. Agri. r/o Kurula, Tq. Kandhar, Dist. Nanded. ...RESPONDENTS ... Mr. A.M.Gaikwad, Adv., for the applicant. Mr. K.M.Suryawanshi, APP for respondent State. Mr. R.J.Godbole, Adv., for respondent nos. 2 and 3. ... CORAM: K.U.CHANDIWAL, J. DATE: 11/8/2009 P.C.:- 1. Heard learned Counsel for respective parties. 2 2. Rule. Heard forthwith. Counsel for respondents waive service. 3. The order dt.5th Nov.,2008, recorded by the Ad hoc Additional Sessions Judge, Kandhar, in Miscellaneous Criminal Application No.178/2008, thereby releasing the accused nos. 1 and 2 ( present respondent nos. 2 and 3) is subject of challenge by the complainant, by virtue of provisions of Section 482 of Cr.P.C. 4. The facts in brief are: Sakharam Kerba Chitte, with his son-in-law Narhari N.Mukkanar were proceeding on their way to their village in the evening. The accused persons, who were belonging to the other faction of a political party, challenged the complainant and his son-in- law Narhari as to why they are not joining Shiv Sena and as to why they are activating for Congress (I) and, consequently, the accused Ramesh Uddhav Gomare, who was armed with a knife, assaulted Narhari, at his head while Balu @ Laxman Gomare took a boulder and hit it. The brutality reached its height and Narhari N.Mukkanar expired due to severe attack instanstaneously. The complainant also indicted role of Vitthal Hake, Madhav Hake and Manik Naik having inflicted kick and fist blows. The matter, indeed, was witnessed by Bus Driver Kedare who was from the same village and he has given immediate report to 3 the concerned Police on 21.9.2008 at 21.30 hours. He has even given name of deceased to be Narhari. This was giving rise to AD No.5/2008. There was report dt.22nd Sept.,2008,at 11 a.m. by the complainant. Inspite of these aspects, the learned Additional Sessions Judge has observed that there was belated information to the Police. This is obliterating the record. 5. Learned Judge, at the stage of entertaining bail application, has virtually pre- empt the evidence of the complainant to castigate him that he could not be an eye witness. These observations were uncalled for and, consequently, its benefit was to the shoulders of the accused. The arrest of the accused was dt.18.10.2008. By virtue of the order dt.5th Nov.,2008, they were directed to be released on bail. 6. During the course of submissions, it is pointed out that the antecedents of the accused are dangerous and hazardous to the commonity, they are externed for periods of festival, for which record is produced. 7. The observations of the learned Judge, coupled with the above facts, including the reasons which are basically contrary to the record, makes it imperative for this Court to cause interference in the order of grant of bail. 4 8. I quite see that one year is elapsed, however, the fact remains, immediately after the order dt.5th Nov.,2008, the aggrieved complainant approached this Court on 5th Dec.,2008 and on 6th Jan.,2009, the first order was passed. There is, indeed, no delay on the part of the complainant to seek re-appraisal. Section 439(2) of Cr.P.C. empowers the Court for cancelling the bail if it is granted on erroneous grounds. The circumstances indicated hereinabove amply demonstrate that the grant of bail was certainly turning into abuse and persecution to the complainant whose son-in-law was brutally done to death in his presence which, indeed, could not have been treated lightly, as has been done. 9. The application seeking cancellation of bail allowed. The accused (respondents no. 2 Ramesh s/o Uddhavrao Gomare and No.3 Balu @ Laxman Udhavrao Gomare) shall surrender before the investigator upto 25th August, 2009. Rule made absolute accordingly. (K.U.CHANDIWAL) JUDGE ... agp/4183-08crapl