(1) CR.APP. 2417.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2417 OF 2009 1] Nandu S/o Keshav Mane Age : 47 years, Occu.: Service 2] Sushila Raosaheb Pawar @ Patil, Age : 48 years, Occu.: Household 3] Vaibhav @ Pappu Raosaheb Pawar @ Patil, Age : 20 years, Occu.: Service All R/o Ramwadi, Sarjepura, Ahmednagar, Dist. Ahmednagar .. Applicants Versus State of Maharashtra, Through the Police Inspector Topkhana Police Station, Ahmednagar (Copy served on the Public Prosecutor, High Court, Bench at Aurangabad) .. Respondent Mr. V.D. Hon, Advocate for the Applicants Mr. J.S. Gavane, APP for the Respondent-State CORAM : A.V. NIRGUDE, J. DATED : 17TH JULY, 2009 ORAL ORDER:- 1] The applicants are seeking bail in crime no.480 of 2008 of Topkhana Police Station, (2) CR.APP. 2417.2009 Ahmednagar for the offences punishable under section 302, 143, 147, 149 and 323 of the Indian Penal Code. 2] The incident of attempt to commit murder allegedly took place on 30.10.2008 at about 9:00 am in front of the house of the applicant no.1. The deceased had married the applicant no.1’s daughter Rani sometime prior to the incident but the applicants and family members were opposed to this marriage. A few days prior to the incident, the family members of the applicant no.1 took away the wife of the deceased. The deceased therefore, on 30.10.2008 at about 9:00 am, went to the applicant no.1’s house to find out whether his wife Rani was forcibly kept in the house. Sensing danger, the complainant, the mother of the deceased, went after him. She saw that the applicants and other accused were assaulting her son, the deceased. She said she tried to intervene but in vein. Soon, the other accused Balu forcibly administered poisonous substance to the deceased. Immediately thereafter, the deceased fell down. The complainant and her family members then took the deceased to a hospital. But despite medical treatment, the deceased succumbed on 2.11.2008. Thereafter, a complaint was lodged at about 2:30 pm. on that day. 3] The applicants moved their application for anticipatory bail before the learned Additional (3) CR.APP. 2417.2009 Sessions Judge, Ahmednagar and they succeeded in getting a favourable order on 17.11.2008. Order was limited till the chargesheet was filed. The other accused including the above mentioned accused Balu were arrested in this case and in due course they were released on bail. Thereafter on 3.7.2009, the Police filed chargesheet against the applicants and others. On 5.7.2009 the applicants surrendered before the learned Additional Sessions Judge, Ahmendnagar Shri N.V. Nhavkar. The learned Judge took them in custody. He however, rejected their bail application on 13.7.2009. 4] I think the appreciation of the circumstances etc against the applicants by the learned Judge and his order, refusing them bail are grossly erroneous and is required to be interferred immediately even before issuing notice to the prosecution. It is obvious that the applicants secured anticipatory bail order in November, 2008 because the narration of the complainant was not only delayed but was apparently untenable and unbelievable. There is no other eye witness to the incident. The allegations that the applicants and others forcibly administered poisonous substance to the deceased in itself is rather difficult to comprehend. Besides I am told the post mortem examination did not notice any external injury on the person of the deceased. In view of this rather (4) CR.APP. 2417.2009 weak prosecution case, the applicants could secure anticipatory bail and after filing of the chargesheet, there was hardly any possibility of refusal of bail to them because there was no change in the circumstances between the order of anticipatory bail dated 17.11.2008 and the date of filing of the chargesheet (3.7.2009). Ignoring all these circumstances, the learned Judge Shri N.V. Nhavkar, simply observed “The death of Gopal certainly appears to be caused due to poison and the argument of no injury on the body of the deceased is of little relevance at present stage. As a triable case is made out from the charge sheet filed by the prosecution against the present applicants, releasing them on bail would certainly affect the process of trial.” . The learned Judge was probably unaware of the fact that the other accused including accused Balu were released on bail and atleast there was a strong ground of parity for bail, in the applicant’s favour. The applicants deserved bail even on 5.7.2009 when they surrendered before the learned Additional Sessions Judge, Ahmednagar. 5] The applicants shall be released on bail of Rs.10,000/- (Rs.Ten Thousand) each with one surety each in the like amount. (5) CR.APP. 2417.2009 6] A copy of this order shall be sent to the learned Additional Sessions Judge, Ahmednagar as well as the learned Sessions Judge, Ahmednagar. 7] Criminal Application stands disposed of accordingly. Sd/- (A.V. NIRGUDE, J.) arp/17july9/cr2417.09