1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.3889 OF 2009 Shankarrao s/o Sahebrao Salpe ... APPLICANT VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri A.B. Tele, Advocate for the applicant Mrs. Vaishali More, A.P.P. for respondent No.1/State Shri Gajanan Kadam, Advocate for respondent No.2. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 26th March, 2010. Date of reserving order : 15th March, 2010. Date of pronouncing order : 26th March, 2010. ORDER: 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant requesting to cancel the bail granted to the respondent No.2 in connection with C.R. No.114/2009, registered at Nanalpeth Police Station, Parbhani, Taluka Parbhani, District Parbhani for the offence punishable under Section 302 of the Indian Penal Code and 2 also requesting to put the respondent No.2 in judicial custody, by quashing and setting aside the order passed in Criminal Misc. Application No.553/2009, on 16.10.2009, by learned Additional Sessions Judge-2, Parbhani. 3. At the outset, the respondent No.2 preferred Criminal Misc. Application No.449/2009 before the Additional Sessions Judge-2, Parbhani for grant of bail, but same was rejected by learned Additional Sessions Judge-2, Parbhani by order dated 31.8.2009. Subsequently, the respondent No.2 preferred successive application for grant of bail i.e. Criminal Misc. Application No.553/2009 and same was allowed by learned Additional Sessions Judge-2, Parbhani by order dated 16.10.2009 and petitioner therein was directed to be released on bail on executing P.R. bond of Rs.25,000/- with one or two sureties in the like amount and imposing the conditions that the petitioner therein i.e respondent No.2 herein shall not tamper the prosecution witnesses and shall not enter into locality where the witnesses reside. Being aggrieved and dissatisfied by the said order of grant of bail dated 16.10.2009, the applicant i.e. original complainant has filed the present application for the cancellation of the said bail. 4. The applicant (original complainant) contends that, the respondent No.2 intentionally and knowingly gave blow to the 3 deceased on his vital part of the body and he knew that due to the said act, the son of the complainant was likely to die. It is also urged that there are eye witnesses to the said incident which took place in the public place i.e. on the road in front of Hotel R.K., as well as there are independent witnesses to support the case of the complainant. It is also submitted that merely because the single blow was given to the victim and no previous rivalry stated by the complainant in his complaint, does not mean that there was no intention to kill the son of the complainant. It is further submitted that, it cannot be said at that stage without leading any evidence that there was no intention of respondent No.2 to kill the son of complainant. It is also canvassed that there is prima facie evidence against the respondent No.2 and there is every likelihood of tampering of the witnesses by threats or illegal means since the witnesses as well as the accused are residents of the same locality. 5. The learned counsel for the applicant relied upon the observations made by Hon'ble Supreme Court in the case of Brij Nandan Jaiswal Vs. Munna Alias Munna Jaiswal and another, reported at (2009) 1 Supreme Court Cases 678, wherein it has been observed that : "The complainant can always question the order of granting bail if the said order is not 4 validly passed. It is not as if once a bail is granted by any Court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also." 6. The respondent No.2 opposed the present application vehemently and submitted that the applicant has come before the Court only on the assumptions and presumptions that the respondent No.2 may tamper with the witnesses. The respondent No.2 also contended that there is no allegation in the present application that respondent No.2 played any fraud upon the Court while making successive bail application nor it is the case of applicant that the respondent No.2 has misused the liberty granted by the Sessions Court, Parbhani nor it is the case of the complainant that the respondent No.2 has made any breach of the conditions imposed upon him. Hence, the respondent No.2 submits that the applicant has failed to make out the case for cancellation of bail and, therefore, submitted that present application bears no substance and same be dismissed. 7. The learned counsel for respondent No.2 relied upon the observations made by Hon'ble Supreme Court in the case of Savitri Agarwal and others Vs. State of Maharashtra and another, reported at (2009) 8 Supreme Court Cases 325, wherein it is observed that : 5 "Very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted. In the instant case, nothing was brought on record from which it could be inferred that appellants had not cooperated in the investigation or had in any manner abused concession of bail granted to them." 8. After considering the rival submissions advanced by the learned respective counsel for the parties, while granting the bail to respondent No.2 in Criminal Misc. Application No.553/2009 by order dated 16.10.2009, the learned Additional Sessions Judge-2, Parbhani has discussed the matter and prima facie observed that there was no pre-meditation since single blow was inflicted upon the deceased in sudden quarrel in the hit of passion and, therefore, Section 304 Part I or Part II may be attracted and not Section 302 of the Indian Penal Code. It is also observed that there is no previous history of rivalry between the accused and victim and since the investigation was completed and charge sheet was filed, there was no propriety in keeping the applicant (respondent No.2 herein) in custody and, therefore, enlarged him on bail. Apparently, the said observations are prima facie observations and the learned 6 Additional Sessions Judge-2, Parbhani has not drawn any final conclusion and those were the prima facie observations while granting bail to the respondent No.2 and, therefore, there is no necessity to the applicant to make any grievance therefor. 9. Moreover, the applicant has not come out with a case that the respondent No.2 has misused the liberty granted to him nor the applicant has pointed out that the respondent No.2 has committed any breach of the conditions imposed upon him. Hence, it is apparent that the applicant has failed to make out the case for cancellation of the bail which is granted to respondent No.2 herein. 10. On perusal of the contents of the bail order dated 16.10.2009, passed by learned Additional Sessions Judge-2, Parbhani, it appears that the learned Judge has discussed the facts and law and passed a reasoned order and no any perversity is found therein and, therefore, no interference therein is warranted since there are no overwhelming circumstances and cogent evidence warranting cancellation of bail which is already granted to respondent No.2, and the observations made by Hon'ble Supreme Court in the case of Brij Nandan Jaiswal Vs. Munna Alias Munna Jaiswal and another (supra) cannot be of any aid and assistance to the applicant herein. 7 11. In the circumstances, present application bears no substance and same is devoid of any merits and, therefore, same deserves to be dismissed. 12. In the result, present application being sans merits, same stands dismissed. (SHRIHARI P. DAVARE, J.) fmp/cri3889.09