1 CR.APL NO.65/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.65 OF 2011 Vaijanath s/o Devappa Longaonkar, Age 58 years, occu: Agril., R/o. Sambhajinagar, Jalna, Dist. Jalna. ..APPLICANT. VERSUS 1. The State of Maharashtra Through Police Station, Sadar Bazar, Jalna, Dist. Jalna. 2. Ghansham s/o Laxmanrao Pawar, Age 42 years, Occu: Agril., r/o Sadar Bazar, Jalna, Hamalpura, Tq. & Dist. Jalna. 3. Raju @ Sunil s/o Raghunath Jadhav, Age 21 years, Occu: Labour, r/o Jalna, Hamalpura, Tq. & Dist. Jalna, ...RESPONDENTS ... Mr.S.J.Salunke, Adv., for the applicant. Mr.N.B.Patil, APP for State. Mrs.S.S.Jadhav, Adv., for R. nos. 2 and 3. ... CORAM: K.U.CHANDIWAL, J. DATE: 25/3/2011 *** 2 CR.APL NO.65/2011 PER COURT : 1. Heard. The brother of the victim injured Vaijanath (complainant) has urged to cancel the bail granted by the learned Sessions Judge-I, Jalna, in C.M.P. Bail No.932/2010, dt. 22.12.2010, granted in favour of respondent nos. 2 and 3 for the offense punishable under Sections 307 of IPC and under Sections 4 and 25 of the Arms Act. 2. Elaborate submissions are advanced by Mr. S.J.Salunke, learned Counsel for the complainant, pointing to the role, mental set up of respondent no.2 Ghansham in dealing with either the brother of the complainant or with the Government officials. It is alleged, in the year 2008, Inspector of Land Records, Taluka Jalna, was threatened by respondent no.2 to face dire consequence and even to seek redressal before the authorities dealing with Anti Corruption cases. Said Inspector, ultimately, approached the Superintendent of Police, Jalna, by putting his grievance against respondent no.2 on 21.11.2008. 3. It is informed that a FIR vide Crime No.I-225/2006 dt.19.9.2006 was filed by the victim Sadanand against respondent no.2 for the offense under Section 420 read with Section 34 of IPC. Inspite of such prosecution, in vogue, in 3 CR.APL NO.65/2011 the application moved before learned Sessions Judge at Jalna, a sweeping statement is made in paragraph no.8, which reads as under: " That the applicants are having clear antecedents and are prepared to offer bail to the satisfaction of the Hon'ble Court." 4. The learned Sessions Judge, while granting bail in terms of Section 437 of Cr.P.C., was also informed that the injured is discharged from the hospital. It appears, he was not made aware, as is evident from the order, the gravity, and the volume of injuries suffered by the victim Sadanand. The medical certificate of Deepak Hospital issued on 13.12.2010 illustrate following injuries: "(1) Incised wound of about 20 x 0.5 cms, bone deep on nape of neck, extending horizontally, with active bleeding. (2) Incised wound of about 7 x 0.5 cms, bone deep with underlying, outer table skull fracture over left parietal region. (3) Incised wound of about 4 x 0.5 cms, bone deep with underlying fracture of supraorbital ridge over left eyebrow. (4) Incised wound of 10 x 0.5 cms, subcutaneous deep over right shoulder. 4 CR.APL NO.65/2011 (5) Incised wound of about 7 x 0.5 cms, muscle deep over right hand over first web space dorsally. (6) Incised wound of about 3 x 0.5 cms muscle deep over base of right index finger palmer aspect. (7) Incised wound over left middle and ring finger palmer aspect, approx.5 x 0.5 cms bone deep, flexor tendens cut. 5. Incidentally, reference to the assault and the manner of protest by victim, resulting in suffering injury to his hand corresponds from the FIR. 6. The gravity of the injuries, prima facie, is illustrative of the fact that the assailant, for the present, the accused/respondents, had intention to eliminate the victim Sadanand, however, because of timely alertness and his yelling, calling assistance, he has been saved. The first injury is incised wound; 20 cm x 0.5 cm bone deep on nape of neck, extending horizontally with active bleeding. Had it touched trachea, the death on the spot was certain. 7. The learned Sessions Judge, as could be seen, was more influenced about the apprehension nursed by the prosecution of the respondents tampering the witnesses and or creating obstacle in the investigation and, for that purpose, he 5 CR.APL NO.65/2011 thought it better to impose certain conditions, and to ensure release of the accused/respondents on bail. His reference that there are no extraordinary circumstances to keep the applicants behind the bars is, indeed, obliterating the record as, to the knowledge of the respondent, he had already faced a prosecution at the behest of the injured Sadanand. 8. Learned Counsel for the complainant submits, that the terror of the respondent is writ large as he has subsequently entered in the precincts of the Jalna for which an application was moved on 2nd Feb.,2011 and Police have initiated action against respondent no.2. Learned Counsel has also referred to the incident dt.15/16th March, 2011. These two events certainly are beyond period of making application moved on 7th Jan.,2011, they are only referred, however, no comments are passed concerning these activities of the respondents. 9. The law on the point of grant of bail is illustrated by the Apex Court in the matter of Dinesh M.N.(S.P.) Vs. State of Gujarat ( 2008 STPL(LE) 40059 SC : AIR 2008 SC 1731). The Hon'ble Lordships have observed, giving reference to the judgment in the matter of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. 6 CR.APL NO.65/2011 ( 2004 (7) SCC 528), as referred in paragraph no. 11 of said judgment of Kalyan Chandra Sarkar, as under: "10. Though the High Court appears to have used the expression `ban' on the grant of bail in serious offenses, actually it is referable to the decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. ( 2004 (7) SCC 528). In para 11 it was noted as follows: "11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offense. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehnsion of threat to the 7 CR.APL NO.65/2011 complainant. (c) Prima facie satisfaction of the court in support of the charge ( See Ram Govind Upadhyay v. Sudarshan Singh ( 2002(3) SC 598 and Puran v. Rambilas ( 2001(6)SCC 338)." The Apex Court also indicated that the conditions laid down under Section 437(1)(i) are sine qua non for granting bail even under Section 439 of the Code. The Apex Court has observed, "Even though re-appreciation of the evidence as done by the Court granting bail is to be avoided, the Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail." 10. Before the learned Sessions Judge, the irrelevant consideration was discharge of the victim, which had, indeed, nothing to do with the custody of the accused/respondent nos. 2 and 3. The care that the learned Judge appears to have taken of avoiding apprehension, by desisting the respondents to remain in the city of Jalna, has been diluted, fractured and obliterated by entering in the city and again causing threat perception to the complainant and or the victim. 8 CR.APL NO.65/2011 11. The other limb of the submission that the bail was granted on 22nd Dec.,2010, and sufficient time has elapsed also deserve consideration, however, the application is promptly moved on 7th Jan.,2011. The duration of enjoyment of liberty is immaterial. It is said, confidence of the common man in the judiciary cannot be sacrificed so lightly. 12. In the matter of Dhuk Singh V. State of Rajasthan and another ((2009) 3 SCC (Cri) 1382), the Hon'ble Lordships of the Apex Court have held the parameters to be kept in view while dealing with an application for bail, namely, "(i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge." 13. In this case, there are three eye witnesses, apart from the victim Sadanand, who have seen respondent no.2 and his accomplice, respondent no.3. The theory advanced, who has caused the attack is uncertain; a miserable aspect and again a least chance, since the authorship, primarily, would be landing to the 9 CR.APL NO.65/2011 shoulders of the respondents, need not be gone into at this stage. 14. Taking survey of above facts, the release by the learned Sessions Judge, Jalna, on 22nd Dec.,2010, calls for interference. The bail granted to the respondents (accused) is cancelled and terminated. Both the accused to surrender to the investigator on 5th April, 2011. Needless to add, since chargesheet is filed, if an application for release on bail is made, the learned Sessions Judge shall deal with the same on its own merits. (K.U.CHANDIWAL) JUDGE agp/65-01crapl