1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.811/2009. Vinod s/o Bhimrao Bedse - APPLICANT VERSUS 1) The State of Maharashtra and others. - RESPONDENTS ***** Mr.AA Jagatkar, Advocate for Applicant; Mr.PM Shinde, APP for State; Mr.Joydeep Chatterji, Adv. h/for Mr. Vijay Sharma Advocate for Respondent Nos. 2 to 4. ----- CORAM : K.U.CHANDIWAL, J. DATE : 12th August, 2009. PER COURT : . Heard both learned Counsel extensively. 2) The order granting bail to the accused dated 16th January 2009 (Rahul) and 31st January, 2009, to the accused Pawba Jatan Pimpale and Ravindra Pawba Pimpale, is subject of criticism by the complainant and the complainant seeks to cancel the same. 3) The facts in nutshell are : on 10th January, 2009, in the afternoon the complainant with his deceased father Bhimrao Soma Bedas and 10 other family members, including the distant relatives, went to the matrimonial home of the 2 complainant to fetch his wife - Ratnabai to his home. Since the in-laws of the complainant were not happy with the visit of the complainant and other family members, there were heated discussion. The complainant and family members were allegedly commanded that they should not even touch or enter the platform (ota) of the premises. The heated discussion reached its peak. Sensing the danger, deceased Bhimrao tried to intervene and it was at this stage, the accused Ravindra, Rahul and Pawba, caught hold him, assaulted him, when he, owing to such assaults fell down, it was Pawba, landed a kick blow on the private part of Bhimrao, resulting in Bhimrao getting unconscious. The incident was not discontinued. Even the other members in the group were assaulted by Ravindra, which made Pravin to suffer head injury. Rahul has assaulted other members in the group. Since the deceased Bhimrao was motionless, he was taken to the hospital. However, he had his last breath owing to the assault. 4) The manner in which the investigation was carried, was suspected by the complainant since inception, making him to resort by a confidential letter to the Superintendent of Police to transfer the investigation from the Investigating Officer to other competent officer. 5) The learned Judge, while entertaining 3 the bail applications of Rahul and other two persons, named above, Ravindra and Pawba, has observed that, barring the act of landing kick blow from Pawba at the private part, there was no role played by Ravindra or Rahul. This is apparently contrary to the F.I.R. That apart, the learned Judge did not consider the statement of the witnesses. Thus, the order of bail on this count by the learned Judge is vitiated by serious infirmities. The powers of this court under Section 439(2) of Cr.P.C., indicate to invoke jurisdiction when there is apparent perversity in the order under challenge. 6) The other aspect in the matter is the accused have thereafter to coerce, humiliate and intimidate the complainant and family members, have used Ratnabai as a tool and they forced the complainant and other family members to withdraw the proceedings or settle the controversies, else proceedings under Section 498A will be initiated. The complainant and the family members were apprehending physical harm to them as they indicated so by their grievance dated 11th February, 2009. 7) Taking these aspects into consideration, in a matter of this nature, having occasioned on 10th January, 2009, the postmortem notes should have been taken into consideration in proper perspective before making wild surmises, as has 4 been done. 8) The Counsel for the accused indicated, it was a sudden provocation and rage that has taken the events resulting in sad demise of Bhimrao and it was not a premeditation as the group of the complainant had been to the house of the accused. These aspects may be correct, however, for the purposes of entertaining bail or its cancellation in terms of Section 439(2) Cr.P.C., they will not translate into a substance to be dealt with. Hence order - 9) The order of the learned Additional Sessions Judge dated 16th January, 2009 in Criminal Appeal No.8/2009 and in Criminal bail application No.9/2009 dated 31.1.2009, directing release of the accused on bail is cancelled and set aside. 10) The applicant/accused shall surrender before the Investigator on 25th August, 2009. ( K.U.CHANDIWAL ) JUDGE bdv/cran811.09