-(1)- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 149 OF 2008 CRIMINAL APPLICATION NO. 149 OF 2008 CRIMINAL APPLICATION NO. 149 OF 2008 Dr. Abhay Chandrakant Mohite .... Applicant versus Central Bureau of Investigation and others ...... Respondent. Mr. A.P.Mundargi Sr. adv. i/b Subhodh Desai for the applicant. Mrs. A.S.Pai, Spl. counsel for CBI Mr. P.A.POl APP for State. WITH WITH WITH CRIMINAL APPLICATION NO. 189 OF 2008 CRIMINAL APPLICATION NO. 189 OF 2008 CRIMINAL APPLICATION NO. 189 OF 2008 Mr. Vijay Krishna Chavan .... Applicant versus Central Bureau of Investigation and others ...... Respondent. Mr. M.S.Mohite for the applicant. Mrs. A.S.Pai, Spl. counsel for CBI Mr. Y.S. Shinde APP for State. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. DATED; 20TH FEBRUARY, 2008 DATED; 20TH FEBRUARY, 2008 DATED; 20TH FEBRUARY, 2008 P.C.; P.C.; P.C.; 1. By the present applications, the applicants are taking exception to a common order passed in Criminal Misc. Application No. 1 of 2007 filed by Central Bureau of Investigation for cancelation of the bail -(2)- granted to accused persons viz. Vijay Krishna Chavan and Dr. Abhay Chandrakant Mohite, allowing the said application. By the impugned order, the anticipatory bail application no.104/07 filed by Dr. Abhay Chandrakant Mohite is rejected. Few facts that are relevant for the adjudication of the applications are narrated hereinbelow. 2. Deceased Darshana was married to accused Vijay Krishna Chavan and they were staying at Chiplun. Darshana’s dead body was found at the seashore of Valneshwar, Taluka Guhagar, at the distance of about 50 to 55 km. from Chiplun at about 2.00 p.m. on 11-5-2001 by some villagers. The dead body was found in half naked condition in the sense that the deceased was wearing only pyjamas, but the clothes from the upper body were missing. After noticing the dead body at the seashore, police was informed. Accidental death was registered as bearing No.21/01 at Guhagar police station on the same day at about 5.45 p.m. Post mortem was conducted in due course at Primary Health Centre, Guhagar in the evening of 12-5-2001 and the findings were to the effect that the cause of death was due to asphexia. The body was identified by one Milind Kadam, resident of Chiplun, who had send message to the father of the deceased. At the time of panchanama a green colour dupatta was found at the -(3)- distance of about 200 meters from the dead body. The father of the deceased expressed his suspicion regarding the death, to the police. The father of the deceased filed a complaint at Guhagar police station agianst both the accused persons for committing offences punishable under sections 498-A, 306 read with 34 of IPC, alleging that his daughter was cruelly treated, which had prompted her to commit suicide. The crime was registered and was transferred to Chiplun police station for further investigation, which was registered as C.R.No. 70/01. The local police commenced the investigation and in the course of the investigation, statements of various persons were recorded. 3. The father of the deceased was not satisfied with the investigation conducted by Chiplun police station and hence he made a grievance in that regard by approaching various authorities and thus finally the investigation was handed over to CID Ratnagiri on 29-10-2001. After making investigation, CID filed charge sheet in the court and the case came to be committed to the Court of Sessions, Ratnagiri. Before the Sessions Judge, the father of the deceased made a further application for conducting proper investigation. Ultimately, Criminal Writ Petition No.356/05 came to be filed in this court and the -(4)- Division Bench by an order dated 25-8-2005 allowing the writ petition directed CBI to carry out the investigation. While directing the investigation by CBI, this court noticed that there was no qualitative improvement in the investigation carried out by CID. After the CBI took over the investigation, it collected certain evidence with intent to further facilitate the investigation in relation to the commission of offence under section 302 IPC, and moved an application for cancellation of bail before the Sessions Judge. The application for cancellation of bail was moved against three persons viz. Vijay Chavan, Dr. Abhay Mohite and Dr. Akshay Mohite, and the prayer for cancellation of bail of Vijay Chavan and Dr. Abhay Mohite was granted. Hence the present application. 4. Perusal of the order passed by the Sessions Judge reveals consideration of material in the form of statement of a witness, which came to be recorded after the CBI took over investigation. While dealing with the statement of the concerned witness, which according to the Sessions Judge is a crucial witness, the trial court has observed in para 64 of the order that: "This witness has further stated that one day earlier from the date of disappearance of Darshana at 4.00 p.m. this witness heard the discussion among Dr. -(5)- Abhay and his wife Vaishali, Dr. Madhavi and Vijay. At that time Abhay was saying to Vijay that at night time i.e. at 10.00 p.m. he, his wife and Madhavi and his friends would go to Markandi and one of them would call Vijay and Darshana at his house and then after they will decide what to do about Darshana." I have perused the statement of the said witness, whom I do not propose to name at this juncture, as the investigation is still in progress. Perusal of the said statement clearly reveal that what has been attributed to Dr. Abhay in para 64 of the impugned order, is not what the witness has said. On the contrary, the witness has stated that: a day prior to the disappearance of Darshana at about 4 O’ clock I again heard the discussion of Dr. Akshay, his wife Vaishali, Dr. Madhavi and Vijay and at that time Dr. Akshay was saying to Vijay that at night time at 10.00 p.m. he and his wife and Dr. Madhavi and his friends would go to Markandi and one of them would call Vijay and Darshana there and thereafter we will decide as to what is to be done about Darshana. Whatever material, that is considered in para 64 as is available against Dr. Abhay, is infact not available against Dr. Abhay, whereas it is against Dr. Akshay. The learned Special counsel so also the investigating officer, have also carefully gone through the said statement and they do not dispute that what is referred to in -(6)- para 64, as having said by the crucial witness against Dr. Abhay, is infact made against Dr. Akshay. In para 69 of the impugned order, the Sessions Judge is referring to the statement of one more witness, who happened to be a friend of Darshana and her statement was recorded by CBI. She is said to have stated that "Darshana told her that she did not like Dr. Mohite’s behaviour". On the basis of this statement, the Sessions Judge has concluded that: "So the said statement primafacie shows that Dr. Abhay was intending to win over Darshana". There is nothing in the statement of the witness which is dealt with in para 69 of the order which would even remotely suggests that Dr. Abhay was trying to win over the deceased. It can be thus seen that while considering the material available with the investigation, the Sessions Judge has relied upon non existent material, to the extent, it is discussed in paragraphs 64 and 69 of the order. Bearing in mind the factual position as discussed hereinabove, I proceed further to consider the prosecution case in support of its prayer for cancellation of bail. 5. It was contended by CBI before the Sessions Judge that while working with Dr. Abhay, deceased Darshana had developed relationship with accused Vijay Chavan, who was working in the hospital of Dr. Abhay as a -(7)- technician. According to the prosecution it has come on record that Dr. Abhay Mohite took lead for the marriage between Vijay Chavan and Darshana. Accordingly the registered marriage took place on 19-3-2001. According to CBI, the said marriage between Darshana and Vijay Chavan was performed as a cover up action to conceal the relationship between Dr. Abhay Mohite and Darshana. It is then contended that the Family members of Dr. Abhay Mohite were not happy with this relationship (Dr. Abhay and deceased Darshana) and she was frequently visiting the house of Dr. Abhay. Thus according to CBI the family members of Dr. Abhay Mohite and Dr. Akshay Mohite were planning to get rid of Darshana in one way or the other to protect Dr. Abhay. What is material to note at this juncture is, no witness has stated anything about any love affair, or relationship or illicit relationship between Dr. Abhay and deceased Darshana. In the absence of any such statement being made by any of the witnesses so far, it is difficult to concur with the view taken by the Sessions Judge that Dr. Abhay was trying to win over the deceased. True it is, that as yet there is no answer to the questions posed by the Division Bench, while directing, handing over the investigation to CBI, such as finding of the dead body of Darshana at the distance of about 50 to 55 km. from Chiplun that too in a half naked -(8)- condition. According to medical opinion expressed by the doctor who performed the post mortem, the death is due to asphexia. CBI appears to have obtained second opinion of the doctor in regard to the cause of death from All India Medical Science, New Delhi and CFSL. According to the opinion uniformly given by the said institutions, the cause of death of Darshana was due to ante-mortem drawning. As stated hereinabove, as the Sessions Judge has noticed the involvement of Dr. Abhay with the crime in the light of the statements of two crucial witnesses, whose statements are considered in para 63, 64 and 69, it has proceeded to cancel the bail already granted to the present applicants. 6. The learned counsel appearing for the applicants vehemently contended that once bail is granted on merit, the same cannot be cancelled on the ground that more serious offence appears to have been committed. The law in regard to cancellation of bail is by now well settled. The superimposing circumstances, on which reliance came to be placed by CBI to press for cancellation of bail, are the statements of two crucial witnesses which are not properly read to by the Sessions Judge. In view of the admitted position, that statements as they exists, are not correctly referred by the sessions Judge while passing the impugned order, the learned special counsel appearing -(9)- for CBI contended that instead of this court considering the statements on merit, for the first time in their proper perspective the matter my be remanded to the Sessions judge for consideration of the application for cancellation of bail in the light of the statements actually recorded. 7. It is also submitted that if the Sessions Judge has not read the statements in their proper perspective and has proceeded on the material, not really available on record, then the Sessions judge be directed to consider the statement of the said witnesses as they stand on record and the application for cancellation of bail be directed to be reheard. Having highlighted the circumstances, used against the accused which are non existant, I am in agreement that the submission made by the prosecution that it would be in fitness of things to remand the matter to the Sessions judge after quashing and setting aside the impugned order. As I am in agreement with the prayer made by the special counsel for CBI for remanding the case to the Sessions Judge, I do not propose to consider the merit of the matter and leave the same for the Sessions Judge to be considered. The common order decides the application moved by CBI for cancellation of bail so also the application moved by the accused for grant of anticipatory bail in regard -(10)- to the offence under section 302. The cases of all the accused are considered in the common order and as I have noticed that the reasonings are inseparable I deem it appropriate to quash ad set aside the common order. It is made clear that after noticing the fact that the statement of the crucial witnesses are not correctly considered, I set aside the impugned order without considering the merit of the application for cancellation of bail. 8. Thus the impugned order dated 4-1-2008 is quashed and set aside. The applications disposed of by the said order shall stands restored to file. The Sessions judge shall decide the applications afresh after affording a reasonable opportunity of hearing to both the parties and in the light of the observations made in this order. I hope and trust that having regard to the lapse of time, the Sessions Judge shall decide the applications as expeditiously as possible and preferably within a period of four weeks from the date of receipt of the order. 9. At this stage, the learned counsel appearing for the applicants submit that the protection granted by this court be continued till the decision of the application by the Sessions judge and for a period of two weeks thereafter, if and in case the order goes -(11)- against them, such a protection, was also granted earlier. This being the position, the learned Special Counsel appearing for CBI, does not seriously oppose the same. In my view the protection need to be extended as prayed for. Hence I order accordingly. In the result, the applications stand disposed of. xxxxx