1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION No.1548 of 2009 (The State Vs. Bharat Bhimrao Chhavan and others) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. K.M.Suryawanshi, APP for the applicant. Mr. S.M.Godsay, for respondent Nos. 1 to 7. ... CORAM: K.U.CHANDIWAL, J. DATE:2/9/2009 ... P.C.: 1. Heard learned A.P.P. for applicant/State and Mr S.M.Godsay, Counsel, for respondent nos. 1 to 7. 2. The grant of bail under Section 438 Cr.P.C. in Bail application No.11/2009, dt.17th Feb.,2009, is subject of criticism by the State. 3. The operative part of the order impugned runs as under: "1. Bail Application (Exhibit 2 1) stands allowed. 2) In the event of arrest, P.S.O. Shahada Police Station is directed to release each of the petitioner/accused on anticipatory bail on furnishing P.R. bond of Rs. 15,000/- (Rs.fifteen thousand only) with one surety in like amount in Shahada Police Station C.R.No.20/2009, offense under section 302, 143, 147, 148, 149, 323, 504, 506 of Indian Penal Code registered against petitioners/accused. 3) All the petitioners/accused are directed not to tamper the prosecution evidence nor to pressurize the prosecution witnesses. 4) Petitioners Nos. 1 to 5 are directed to attend Shahada Police Station on every Tuesday & Friday between 3.00 p.m. to 6.00 p.m. till filing of the charge sheet and to cooperate the investigating agency in all respects in the investigation of the crime. 5) This anticipatory bail order will be remained in force till 16/03/2009. " 4. During the course of submissions, Mr. Godsay has placed before me certified copy of order in Criminal Bail Application No. 3 18/2009, moved by the same accused (respondent nos. 1 to 7) in terms of Section 439 of Cr.P.C. and the learned Judge has, by order dt. 12th March, 2009, directed each of the accused ( respondent nos. 1 to 7 herein) to be released on their furnishing P.R. bond and surety in the sum of Rs.15,000/- each. 5. It is patently an illegality that has surfaced on the part of learned Judge. The learned Judge, Shahada, directed limited bail in Application no.11/2009, as pre- arrest bail, to remain in force upto 16.3.2009 and then he entertained subsequent application No.18/2009, treating the same to be under Section 439 of Cr.P.C. without the accused/respondents surrendering to the custody and, still releasing the accused on bail. This approach of the learned Additional Sessions Judge needs to be condemned and deprecated. The terminology of Section 438 Cr.P.C. is bail in the event of arrest. While, for Section 439 Cr.P.C., custody of 4 accused is pre-requisite. 6. The matter does not stop here. While considering anticipatory bail, the learned Judge unfortunately did not consider statement of Devendra and Kailas, the eye witnesses who have, in unmistakable terms impleaded the present respondents ( original accused) with their specific roles. The post mortem notes to which learned Judge has given a casual, perfunctory reference is indeed with distorted facts. The post mortem notes more lean to indicate that there were injuries, abrasions to the deceased. The material which was available before the learned Judge was sufficient for him to have refused to exercise the discretion in terms of Section 438 Cr.P.C. 7. His subsequent approach of exercising the powers under Section 439 Cr.P.C. is uncalled for as the very order itself 5 demonstrates that no notice was served to A.P.P. nor A.P.P. seems to have addressed the learned Judge, opposing the application. Since the order is stunningly placed by Mr. Godse, this Court is expected to traverse with the same. No prejudice is surfaced to the accused, as the Counsel could not countenance the order. The learned Judge even in the order did not bother to discuss what prompts him to grant bail under Section 439 Cr.P.C. when allegations are of committing offense under Section 302 of IPC. 8. In this scenario of the matter, though the Court is expected to be slow while recalling the order of grant of bail as it tends to curtail the liberty bestowed to an individual, however, the gravity in the matter needs consideration. The unjustified illegal order cannot sustain. The impugned orders dt.17th Feb.,2009 and 12.3.2009 are 6 cancelled, set aside. Respective respondents/accused shall surrender before the Police on 8th Sept.,2009. The observations made hereinabove are prima facie in nature. Application allowed in above terms. (K.U.CHANDIWAL) JUDGE ... agp/1548-09crapl ...