( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2212 OF 2010 Kalindabai w/o Dinkar Pujari, R/o Kanadi Borgaon, Taluka and District Latur. APPLICANT VERSUS 1. The State of Maharashtra, through Police Station, Gategaon, Dist. Latur. 2. Dattatraya s/o Chandrabhan Bulbule 3. Chandrabhan s/o Devrao Bulbule 4. Sow. Padminbai w/o Chandrabhan Bulbule 5. Pravin s/o Chandrabhan Bulbule 6. Sow. Jyoti w/o Pravin Bulbule All r/o Samangaon, Taluka and District Latur. RESPONDENTS .... Mr. Sudarshan J. Salunke, advocate for the applicant. Mr. N.H. Borade, APP for the respondent No.1/State. Mr. D.Y. Nandedkar, advocate for the respondents No. 2 to 6. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 24th November, 2010] ORAL JUDGEMENT : 1. By this application, the original complainant seeks cancellation of bail granted to the respondents No. 2 to 6 by the learned Adhoc Additional Sessions Judge, Latur vide order ( 2 ) dated 17th May, 2010 rendered in the proceedings of Criminal Misc. Application No. 122/2010. 2. The applicant lodged FIR alleging that deceased Sow. Swati was her daughter and was married to respondent No.2 Dattatraya prior to about six (6) years and that the latter used to demand remaining dowry amount of Rs. 51,000/- from her. It was alleged further that the respondent No. 2 used to frequently beat Sow. Swati due to failure to pay the remaining dowry amount. She used to tell her father about the cruel treatment meted out to her at his hands. The applicant further alleged that he had paid Rs. 10,000/- to the respondent No. 2 somewhere in the month of April/May, 2009. Still, however, the respondent No. 2 and his relatives used to illtreat and harass Sow. Swati on account of non-payment of remaining amount of Rs. 41,000/-. Her daughter (Sow. Swati) used to tell her about the matrimonial cruelty as and when she used to visit the maternal home and during the telephonic conversation. She had advised her to bear with the trouble for some days. She alleged further that on 28th April, 2010, Sow. Swati had contacted her on phone and had informed her that the family members had severely beaten her. She alleged that in the morning of 30th April, 2010, she received information that ( 3 ) Sow. Swati burnt by the members of the family of the respondent No. 2 - Dattatraya. She and her relatives went to her matrimonial home. They noticed that dead-body of Sow. Swati was lying in the house. The dead-body was nude and most of the parts of her body were burnt. Consequently, she lodged FIR. 3. While the investigation was yet going on, the respondents No. 2 to 6 submitted application for bail vide Criminal Misc. Application No. 122/2010 before the learned Adhoc Additional Sessions Judge, Latur. The learned Sessions Judge granted the bail application. Aggrieved by the order granting bail, the original complainant has filed the present application on various grounds. The applicant alleges that death of Sow. Swati was homicidal and the respondents No. 2 to 6 were required to explain about cause of her death in view of the fact that the death occurred within premises of the matrimonial home. It is further contended that the respondent No.2 - Dattatraya and the respondent No. 5 - Pravin had attempted to take away the minor daughter Payal from custody of the applicant and attempted to influence the witnesses. It is further alleged that the impugned order of granting bail is improper and based on perverse consideration of the material ( 4 ) on record. It is submitted, therefore, that the impugned order is liable to be set aside by cancelling the bail granted to the respondents No. 2 to 6. 4. Heard learned advocate for the applicant and learned advocate for the respondents No.2 to 6 and the learned A.P.P. It is contended by learned advocate for the applicant that the impugned order is rendered without due application of judicial mind. He would submit that the impugned order is founded on illogical reasoning and erroneous consideration of the material. He would submit that the learned Sessions Judge committed patent error while granting the bail by ascribing improper reasons. Per contra, the learned advocate for the respondents No.2 to 6 would submit that the impugned order is quite well reasoned and proper. He urged, therefore, to dismiss the application. The learned A.P.P., however, supports the argument of learned advocate for the applicant (complainant). 5. The question to be determined in this application is whether the impugned bail order reflects arbitrary exercise of the powers to grant bail without considering the relevant circumstances appearing against the respondents No. 2 to 6. ( 5 ) It will have to be examined also whether the learned Sessions Judge granted bail on irrelevant consideration and, therefore, the impugned order is unsustainable. 6. It is true that, ordinarily, the bail granted to an accused cannot be cancelled without there being sufficient reason to infer that the cancellation is necessary in order to ensure fair trial of the case. The bail order, however, may be interfered with when it is brought to the notice of the High Court that the reasons ascribed in support of such order are outside the purview of the provision of Section 437 and Section 439 of the Criminal Procedure Code. The bail is required to be granted by applying the test of "reasonable ground" as envisaged in section 437 of the Criminal Procedure Code. So, when the material on record is sufficient to infer that there are reasonable grounds for believing that an accused has been guilty for offence punishable with death or imprisonment for life, the bail shall be refused. The legal embargo placed on powers of the Sessions Court is explicit from plain reading of section 437 (1) (i) of the Criminal Procedure Code. Section 437 (1) (i) reads as follows : "437. When bail may be taken in case of non- ( 6 ) bailable offence - (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Ession, he may be released on bail, but - (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life." (Emphasis supplied) Perusal of section 437 (1) (i) leaves no manner of doubt that it is the mandate of the law that an accused cannot be released on bail if there appears reasonable ground to believe that he has been guilty of offence punishable with death or imprisonment for life. Needless to say, the Sessions Judge is required to examine whether the accused has demonstrated that there are no reasonable grounds to believe his guilt in the context of the offence punishable with death or imprisonment for life. So, unless an applicant would satisfy the test of making out sufficient grounds as contemplated under sub- ( 7 ) section (1) (i) of section 437 of the Criminal Procedure Code, or that his case falls within the ambit of Proviso appended to Section 437 (1) (ii), ordinarily, grant of bail would not be legally permissible. Needless to say, the core question to be addressed in the present context is whether the learned Sessions Judge was cognizant of such a test and did apply it while granting the bail to the respondents No. 2 to 6. 7. In the foreground of above discussion, I shall now advert to the reasons ascribed by the learned Adhoc Additional Sessions Judge while granting bail to the respondents No. 2 to 6. The reasons stated in para-3 of the impugned order may be categorized as follows : (i) There is no direct evidence that the accused or any one of them set Sow. Swati on fire; (ii) Nothing is to be seized or recovered at the instance and from the possession of the accused i.e. respondents No. 2 to 6. So, their further detention in jail was not required for any investigation purpose; and ( 8 ) (iii) The respondents No. 2 to 6 are permanent residents of village Samangaon and, therefore, their presence can be secured since they are unlikely to abscond. 8. So far as the above reasons ascribed by the learned Sessions Judge are concerned, it can be gathered that he did not apply judicial mind to the fact situation of the present case. There is no question of seeking direct evidence about the alleged act of setting deceased Sow. Swati on fire. For, the incident occurred within four walls of the matrimonial house and, therefore, it is for the inmates of the house to explain as to how her death did occur and why no efforts were made to forestall the death by extinguishing the fire. The first part of the reasoning of the learned Sessions Judge is, therefore, founded on misconception of the facts. The newly married woman was charred to death whilst she was in the bedroom of the matrimonial home. True, the prosecution sought reliance on the testimonies of the parents and relatives of the deceased - Swati in so far as the unlawful demand made by the respondents No. 2 to 6 was concerned. Their versions cannot be outrightly brushed aside even for the purpose of prima facie consideration, only because they are parents and ( 9 ) relatives of deceased Sow. Swati. The FIR purports to show that deceased Sow. Swati used to narrate about the persistent demands made by the husband and his relatives and used to tell her mother that the husband used to beat her. The FIR further prima facie shows that an amount of Rs. 10,000/- was paid to the respondent No.2 in the year 2009 and remaining was being demanded again and again. The strangers are not expected to give statements about such unlawful demand and, therefore, the second part of the reasoning ascribed by the learned Sessions Judge is also improper and irrelevant. The third part of the reasoning of the learned Sessions Judge regarding absence of need to recover any article at the instance of the respondents No. 2 to 6 is also irrelevant. Nobody alleged that they had used any weapon as such and recovery thereof was warranted. The mere fact that detention of the respondents No. 2 to 6 was not required for the purpose of investigation is also not relevant ground for grant of the discretionary relief of bail. 9. It is well settled that though the grant of bail is within the discretion of the Court of Sessions or the High Court, yet, the discretion has to be judiciously exercised. The grant of bail on basis of irrelevant considerations is ( 10 ) improper and liable to be interfered with. It is well settled that when the basic requirements necessary for grant of bail are completely ignored by the Court of Sessions, the cancellation of the bail would be justified. The Apex Court in "State of U.P. through CBI vs. Amarmani Tripathi" (2005) 8 S.C.C. 21, held that while considering the application for bail, what is required to be looked is, (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, ofcourse, of justice being thwarted by grant of bail. These are the broad parameters which need to be considered while examining the fact situation obtained in each case when the application for bail is under consideration. The learned Sessions Judge did not consider either of the parameter stated above. 10. In "Gobarbhai Naranbhai Singala v. State of Gujarat and others" (2008 AIR SCW 1014), the Apex Court held that ( 11 ) where the basic requirements necessary for grant of bail are ignored, the bail can be cancelled. The fact that the accused did not misuse his liberty or that he was not instrumental in delaying the trial are outside the realm of consideration. Perusal of the investigation papers prima facie shows that deceased Sow. Swati died in the matrimonial home within period of seven (7) years of the marriage. She was having a minor daughter by name Payal aged about three (3) years at the time of her death. Ordinarily, she had no reason to end the life. The statement of minor daughter of the deceased i.e. Payal was recorded by the Investigating Officer. The statement of Payal prima facie shows that deceased Sow. Swati was assaulted by her husband, brother-in-law and the inlaws. Though the statement of Payal was recorded on 16th May, 2010 and was available when the impugned order was rendered on 17th May, 2010, yet, the impugned order does not make any reference to the consideration of said statement. At this juncture, credibility of the minor witness cannot be examined and is not the question for consideration. It appears that the learned Sessions Judge did not duly appreciate the relevant evidence and did not consider the statement of minor Payal while passing the impugned order. ( 12 ) 11. It may not be out of place to mention here that the spot panchanama prima facie shows that the dead-body of deceased Sow. Swati was found lying in the bedroom. She had received 100% burns and was found to have been charred to death. There were burnt pieces of clothes stuck to various parts of her body. A wooden cot was found near the dead-body. The right side of the wooden cot was blackened due to the proximity of fire flames. Lying nearby was a white coloured canister smelling of kerosene. The circumstances do indicate that Sow. Swati received the burn injuries in the bedroom. It is but natural that she must have raised hue and cry due to the unbearable agony caused as a result of the burns. It is strange that not a single member of the family, consisting of the respondents No. 2 to 6, went to her rescue. Neither of them had received any burn injuries while extinguishing the fire nor they had come out with a case that they attempted to extinguish the fire. The post-mortem notes would indicate that smell of kerosene was noticed by the Medical Officer when the dead-body of Swati was examined. This fact is shown against column No. 7 of the post-mortem notes. The post-mortem notes would further show that she had received burns to the extent of 95% to 100% and died as a result of shock caused due to such extensive burns. The circumstantial evidence goes to show ( 13 ) that the respondent No. 2 - Dattatraya did not make any attempt to extinguish the fire. The statement of Bhima Bulbule prima facie shows that at about 8.30 a.m., he received information that Swati had died due to burns in the bedroom of the house. It is explicit, therefore, that the incident occurred somewhere before 8 a.m. in the relevant morning. It does not stand to reason that the respondents No. 2 to 6 had all gone out of the house in the early morning. Their absence from the house by itself is rather a suspicious circumstance. All these aspects are not examined by the learned Sessions Judge. 12. On behalf of the respondents No. 2 to 6, an affidavit is filed by respondent No.2 Dattatraya in order to oppose the application. The reply-affidavit prima facie does not show any substantial reason to support the impugned order. It is alleged that the respondent No. 2 - Dattatraya was present in the marriage ceremony of the daughter of one Shatvir Baburao Bulbule on 29th May, 2010. A certificate of Village Panchayat, Samangaon is filed on record to corroborate such plea of alibi. In fact, that was not the contention before the Sessions Court nor such contention has been dealt with by the learned Sessions Judge. ( 14 ) 13. The Apex Court, in "Dr. Narendra K. Amin v. State of Gujarat and another" (2008 AIR SCW 3268), where a senior I.P.S. Officer was charged in fake counter case, held that the bail granted by considering shady reputation and criminal antecedents of the deceased, was liable to be cancelled because such factors cannot be relevant consideration for grant of bail. The Apex Court in "Sudha Verma v. State of U.P. and another" (2007 AIR SCW 5598), held that bail granted to an accused can be cancelled if the same is found to have been granted on basis of irrelevant considerations. In the given case, the bail was granted to the accused for the reason that co-accused was released on bail. The Apex Court noticed that the accused had used fire-arm during course of the incident of assault and, therefore, his case could not have been equated with the case of co-accused i.e. his father. 14. In the present case, I have no hesitation in holding that the impugned order reflects non-application of judicial mind to the given fact situation and the bail order is rendered on basis of irrelevant considerations. The learned Sessions Judge failed to examine whether a prima facie case is made out against the respondents No. 2 to 6. Be that may as ( 15 ) it is, since the respondents No. 4 and 6 are the women accused, the cancellation of bail granted to them at such a belated stage may not be called for. For, they are covered by proviso appended below Section 437 (2) of the Criminal Procedure Code. Their presence outside the prison is not likely to hamper the fair trial. However, the respondents No. 2, 3 and 5 are not entitled to seek such liberty because the minor witness i.e. Payal is likely to be influenced by them and in any case, the bail granted to them is not within the parameters of the relevant provisions of Section 437 or Section 439 of the Criminal Procedure Code. 15. In the result, the application is partly allowed. The impugned order granting bail to the respondent No. 2 (Dattatraya), No. 3 (Chandrabhan) and No. 5 (Pravin) stands revoked and the bail granted to them is cancelled in the exercise of powers available under section 439 (2) of the Criminal Procedure Code. The application to the extent of the respondent No. 4 (Sow. Padminbai) and No. 6 (Sow. Jyoti) is, however, dismissed. The respondents No. 2, 3 and 5 shall surrender before the Sessions Court within one (1) week or else, non-bailable warrant shall be immediately issued against them. The trial of the sessions case is expedited. ( 16 ) 16. The operative order in this matter may be communicated to the Sessions Court immediately by e-mail/fax. [V.R. KINGAONKAR] JUDGE NPJ/criapln2212-10