1 Criminal Application No.914 of 2011 with 3 others IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLCIATION NO.914 OF 2011 Govind S/o.Ambadas Pakhre, Age-60 years, Occu-Police Patil, R/o.Godegon, Tq. And Dist. Jalna APPLICANT VERSUS 1. Atmaram S/o.Punjaram Wagh, Age-23 years, Occu-Agriculturist, R/o.Godegon, Tq. And Dist. Jalna 2. Keshav S/o.Karbhari Wagh, Age-43 years, Occu-Agriculturist, R/o.Godegon, Tq. And Dist. Jalna 3. The State of Maharashtra, Through A.P.P. For Police Station, Jalna RESPONDENTS Mr.A.S.Gandhi, learned counsel for the applicant. Ms.V.A.Shinde, learned A.P.P. for respondent State Mr.R.S.Shinde h/f. Mr.Joydeep Chatterji, learned counsel for respondents no.1 and 2. CRIMINAL APPLCIATION NO.1109 OF 2011 Govind S/o.Ambadas Pakhre, Age-60 years, Occu-Police Patil, R/o.Godegon, Tq. And Dist. Jalna APPLICANT VERSUS 2 Criminal Application No.914 of 2011 with 3 others 1. Vishwanath S/o.Narayan Wagh, Age-35 years, Occu-Agriculturist, R/o.Godegon, Tq. And Dist. Jalna, 2. Pandharinath S/o.Narayan Wagh, Age-55 years, Occu-Agriculturist, R/o.Godegon, Tq. And Dist. Jalna 3. The State of Maharashtra, Through A.P.P. For Police Station, Jalna RESPONDENTS Mr.A.S.Gandhi, learned counsel for the applicant. Ms.V.A.Shinde, learned A.P.P. for respondent State Mr.R.J.Nirmal, learned counsel for respondents no.1 and 2. CRIMINAL APPLCIATION NO.1107 OF 2011 Govind S/o.Ambadas Pakhre, Age-60 years, Occu-Police Patil, R/o.Godegaon, Tq. And Dist. Jalna APPLICANT VERSUS 1. Uttam S/o.Karbhari Wagh, Age-60 years, Occu-Agriculturist, R/o.Godegon, Tq. And Dist. Jalna 2. The State of Maharashtra, Through A.P.P. For Police Station, Jalna RESPONDENTS Mr.A.S.Gandhi, learned counsel for the applicant. Ms.V.A.Shinde, learned A.P.P. for respondent State Mr.S.J.Kawade h/f. Mr.S.J.Salunkhe, learned counsel for respondents no.1. 3 Criminal Application No.914 of 2011 with 3 others CRIMINAL APPLCIATION NO.1108 OF 2011 Govind S/o.Ambadas Pakhre, Age-60 years, Occu-Police Patil, R/o.Godegaon, Tq. And Dist. Jalna APPLICANT VERSUS 1. Shivaji S/o.Malhari Wagh, Age-30 years, Occu-Agriculturist, R/o.Godegon, Tq. And Dist. Jalna 2. The State of Maharashtra, Through A.P.P. For Police Station, Jalna RESPONDENTS Mr.A.S.Gandhi, learned counsel for the applicant. Ms.V.A.Shinde, learned A.P.P. for respondent State Mr.R.J.Nirmal, learned counsel for respondents no.1. (CORAM : A.V.POTDAR, J.) DATE : 13/10/2011 ORAL ORDER : 1. These applications are moved by the original complainant for cancellation of bail u/s. 439(2) of The Cr.P.C., hence taken up for disosal at once. 2. Heard learned counsel for applicant followed by the submissions of learned A.P.P. and learned counsels for their respective parties in all the applications. Perused the contents of 4 Criminal Application No.914 of 2011 with 3 others the applications and the reply filed, so also affidavit in rejoinder filed by the complainant to the affidavit in reply filed on behalf of State. 3. It is not under dispute that the respondents in Criminal Application No.914/2011 are original accused no.1 and 2 in CR No. 290/2008 and were released on bail by way of order of this Court dated 13/08/2010 in Cri.Appl.No.3149/2010. The respondent in Criminal Application No.1107/2011 is original accused no.4 and was released on bail on 11/02/2011 by the learned Sessions Judge, Jalna in Cri.Appl.89/2011. Respondent in Criminal Application No. 1108/2011 is original accused no.3 and was released by order dated 11/02/2011 in Misc.Cri.Appl.No.91/2011, by the learned Sessions Judge, Jalgaon and the respondents in Criminal Application No. 1109/2011 were released on bail on 25/12/2010 by this Court in Cri.Appl.No.5207/2010. 4. It is urged on behalf of the applicant/original complainant that while releasing the respondents in Cri.Application No.914/2011 and 1109/2011 on bail by this Court, condition was imposed on them not to enter the village Gondegon till disposal of the trial, and not to tamper the evidence of prosecution witnesses. Condition was also imposed on them that they have to report on 15 th day of each month in the nearest police station. According to the learned counsel for applicant/original complainant, these conditions were violated by these respondents and to that effect, complaints were lodged by him 5 Criminal Application No.914 of 2011 with 3 others in the Station on 18/09/2010, 20/09/2010 and 12/10/2010. Inspite of complaints, no action was taken by the police against these respondents. It is also urged that the respondents in Criminal Application No.1107/2011 and 1108/2011, who were released by the learned Sessions Judge, Jalna are also freely moving in the village Gondegon and because of their free movements in the village, there would be danger to the life of the complainant and witnesses. It is further urged that these respondents are very influential persons and if their bail is not cancelled, then there is every likelihood that they may tamper the prosecution witnesses and the trial may affect because of this. In support of his submissions, he has placed his reliance on the observations of the Supreme Court in the matter of Dr.Narendra K.Amin versus State of Gujarat and another, 2008 DGLS (soft) 535, so also on the observations of the Single Judge of this Court in the matter of State of Maharashtra versus Ramnarayan Lataprasad Namdeo, 2005(Suppl.) Bom.C.R (Cri.) 318. According to him, considering the gravity and seriousness of the offence alleged against these respondents, bail granted by this Court so also by the learned Sessions Judge Jalna be cancelled u/s. 439(2) of The Cr.P.C. 5. While replying these submissions of learned counsel for applicant/original complainant, it is urged by the learned A.P.P. appearing for the State in all these applications that after notice of 6 Criminal Application No.914 of 2011 with 3 others these applications were served on the respondent/state, detailed inquiry was conducted by the Investigation Officer, which reflects that considering the threat to the life of the applicant/complainant, a bodyguard is provided to the complainant, and the said bodyguard used to remain with complainant 24 hours. It is further brought to the notice as stated in the affidavit in reply that the Special Squad is deputed in the village to take care of the Law and order. On inquiry with the bodyguard, it reveals that the complaints filed in the police station against these respondents were without any substance. It is the statement of the bodyguard that some of the respondents were seen in their field in village Gondegon, but they were never seen in the village and no threats were given to the complainant as alleged in his complaints to the police station. It is urged across the bar that there is no substance in the allegations against these respondents about the violation of the conditions imposed on these respondents when they were released on bail by this Court so also by the learned Sessions Judge, Jalna. It is also urged that the condition was imposed on the respondents in Cri.Application No.914/2011 and in Cri.App.No. 1109/2011 to give attendance in the police station, and these respondents are regularly giving attendance in the police station and have not violated the orders passed by this Court. 6. It is urged on behalf of the respondents that they have not misused the liberty granted to them while releasing them on bail either by this Court or by the learned Sessions Judge, Jalna and if 7 Criminal Application No.914 of 2011 with 3 others respondents have not misused the liberty, merely because the applicant/original complainant intends to see them behind bars, their bail can not be cancelled u/s. 439(2) of The cr.P.C. 7. Considering these submissions across the bar, perused the judgments on which reliance is placed. It is observed in those two judgments that “it is not disputed as a matter of legal preposition that if the order granting bail by the subordinate Court is perverse or suffers from illegalities, this Court has powers under section 439(2) of the Code to interfere with such an order.” 8. Admittedly, there is no challenge to the order of releasing the respondents on bail before the Superior Courts at the hands of present applicant. So far as the applications which were allowed by the learned Sessions Judge, Jalna are concerned, there is no challenge to the order of bail, but there is only challenge about misuse of liberty while granting the bail. 9. In the judgments cited supra, I find observations of the Apex Court in the matter of Aslam Babalal Desai versus State of Maharashtra, 5, 1993(3) Bom.C.R. 166 = A.I.R. 1993 S.C. 1, wherein certain parameters are given by the Supreme Court, which read as follows, “ In the case of Aslam Babalal Desai, the Apex Court set out some illustrations where bail granted could be cancelled, i9.e., (a) when the accused misuses his liberty by indulging in similar 8 Criminal Application No.914 of 2011 with 3 others criminal activity, (b) interferes with the course of investigation, (c) attempt to tamper with evidence or witnesses, (d) threatens witnesses or indulges in similar activities, which would hamper smooth investigation, (e) where there is likelihood of his fleeting to another country, (f) attempt to make himself scarce by going underground or becoming unavailable to the investigating agencies and (g) attempts to put himself beyond the reach of his surety, etc.” 10. If the facts projected by the applicant/complainant, praying for cancellation of bail of respondents, are examined in view of the parameters led down by the Supreme Court in the case of Aslam Desai (cited supra), and on going through the affidavit in reply filed by the State, then I have to draw the inference that out of these criterias led down to cancel the bail by the Supreme Court, none is satisfied before this Court by the original complainant to cancel the bail of the respondents. 11. In this light, it is necessary to consider the facts demonstrated in the affidavit in reply filed by the State, the Investigation Officer, so also the affidavit of the bodyguard of the complainant/applicant himself. On plain reading of the affidavit in reply, it clearly demonstrates that none of the allegation lavelled against these respondents is supported by the statement of the bodyguard or the statements of the witnesses recorded during the inquiry, on the complaint filed by the applicant/complainant. Thus from the record, 9 Criminal Application No.914 of 2011 with 3 others it can not be inferred that the respondents have misused the liberty granted to them, while releasing them on bail. In substance, all the applications, sans any merit, stands rejected. (A.V.POTDAR, J.) khs/OCT.2011/cri.appl.914-11