1 APPLN1733OF10.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1733 OF 2010 Shankar Baban Harpale .. Applicant -versus Dhondiba Pandharinath Khutwad and ors . Respondents. Mr. S.V. Kotwal, for the Applicant. Mr. K.V. Saste, APP for the State. Mr. Hrishikesh Mundargi, for the respondent-original complainant. CORAM: A. R. JOSHI, J. DATED: 2nd AUGUST 2010 P.C. 1. Heard rival submissions of learned counsel at length on this application for cancellation of anticipatory bail, granted in favour of respondent Nos 1 to 4. Present application is preferred by victim who was abducted on the night of 1st March, 2010. On the previous night elections of Sarpanch of village were scheduled. 2. By the present application, the order dated 17th March, 2010 passed by learned Additional Sessions Judge, Pune is challenged by the said victim on the ground that perse said order is perverse and should not have been granted on the factual position that the victim himself had given the names of present respondents as abductors. 2 APPLN1733OF10.sxw 3. Apparently in the village Phursungi, Taluka: Haveli, there are two different factions affiliated to different political parties. The victim and his associates are belonging to one political party whereas respondent Nos 1 to 4 and their other associates are belonging to the other political party. There was sort of fight between two groups as to Sarpanch of which party would be get elected in the election process that was to take place on 2.3.2010. On 1st March,2010, in the night time when the victim and his other associate party workers had gathered at certain hotel for taking meals and overstay, somebody entered the Hotel and enquired with the victim by his name and asked him to come out. Suspecting no foul play, the victim came out of the Hotel. He was followed by one of the co-workers, one Dr.Saikar. Said Dr. Saikar has thereafter lodged complaint on the next day. After the said victim was taken out of the Hotel, the group of 20 to 25 persons outside the Hotel alongwith various vehicles including vehicle of Safari make and Pagero make. From that place the victim was abducted by the present respondents and their associates and the vehicles were taken away in speed. On the next day morning, complainant Dr. Saikar, lodged First Information Report, in which specifically the names of present respondent Nos 1 to 4 were not given. However, suspicion was raised against them as they and their associates have a design and plan of abduction of the victim. The other 3 APPLN1733OF10.sxw aspect of not specifying the names of present respondents in the FIR seems to have weighed much by the learned Additional Sessions Court while passing the impugned order. Apparently it is the case that on the next day ie on 2nd March,2010, Police station Incharge, of Loni Kalbhor Police Station had sent message to present respondent No.2. On receiving such directions from the police station, instead of producing the victim before the Loni Kalbhor Police Station, he was taken to Morgaon Police station and was produced before Mr.Khanapure, Inspector at 5.00 pm The factual position still remains that the victim was brought by one of the accused i.e. present Respondent No.2 to the concerned police station as mentioned above. Thereafter it appears that the statement of victim was recorded by the Jejuri Police Station where first information report was lodged. 4. Much is argued on behalf of respondent regarding variance in certain particulars as to the make and colour of the vehicle in which the victim was abducted. In the FIR the car is mentioned as “Safari make of white colour” giving registration number, whereas in the statement of victim he mentions the name of present respondent as the person alongwith others, who abducted him on the threat by means of revolver. The role is assigned to respondent No.2 as to use of revolver for giving threat. According to said victim vehicle was of make ‘Pagero’ and was 4 APPLN1733OF10.sxw of red colour, so also registration of the vehicle is also given in his statement. Though there is rather variance in the description of the vehicle and not taking the names of present respondents in the FIR, without making reference to their names, mentioning that probable at their instances abduction must have been committed, such variance is not of such a nature so as to prompt the learned Additional Sessions Judge, Pune to raise doubt of such a nature so as to grant discretionary relief of anticipatory bail when the matter was still at the investigation stage and when the factual position was well known as to alleged involvement of accused i.e. present respondent No.2 had produced the victim with Morgaon Police station. 5. It must be stated that the Additional Sessions Judge, Pune had lost sight of this factual position and thus appears to have given weight only on the discrepancy as to the make of the car, colour of the said vehicle. 6. Certain circumstances which were then prevailing on that night of incident either at about 9.30 pm or 10.30 pm, are required construed. On this aspect again it was argued on behalf of respondent that said difference in the timing also give rise to suspicion and false implication of the respondents. Considering overall situation and time of 9.30 pm and 10.30 pm of 1st March, 2010 and factum of abduction taken place in the vehicle when 5 APPLN1733OF10.sxw there are other vehicles of different makes including Safari, Pagero in which the associates of the main abductors also flee away, the apparent variance, so far as make of the vehicle, colour of the vehicle and not taking specific names of the respondent Nos 1 to 4, in the FIR, cannot be construed as such a significant aspect so as to prompt the Court to disbelieve the case of the complainant and also of the victim. In other words considering the allegations and involvement of the respondents in the matter of offence punishable u/s 363, 323 r/w 143 and other sections of the Arms Act, it was not in the fitness of the situation for grant of discretionary relief. 7. Coming to the observation and the reasoning given by the Additional Sessions Judge, Pune, it must be stated that only one ground was mentioned as to variance in the statement of the victim and what is mentioned in the FIR. Specific wording is used by the Additional Sessions Judge which is quoted herein, “It appears from the statement of the Shankar Baban Harphale that though he named the present applicants as his abductors, however, he narrated the incident in entirely different way, from what has been stated by the Dr. Pandurang Saikar in the first information report. It appears that to reconcile the incident with the statement of Shankar Baban Harphale, a supplementary 6 APPLN1733OF10.sxw statement is recorded of Dr.Tukaram Saikar wherein he stated entirely different incident than what has been stated in the first information report”. On going through the contents of FIR it cannot be said that entirely different narration is given so as to prompt the Additional Sessions Judge to grant anticipatory bail. On this count itself, the impugned order, can be termed as perverse and is required to be set aside. 8. In view of the above situation, in the opinion of this Court, the facts of the matter were not of such a nature so as to grant the discretionary relief to the Respondent Nos 1 to 4 and in that even the order impugned in the present application is required to be set aside. Hence order. ORDER. I) Criminal Application No.1733 of 2010 is allowed. II) The order dated 17th March, 2010, passed by the Additional Sessions Judge, Pune in Criminal Bail Application No.733 of 2010 granting anticipatory bail is quashed and set aside. ( A. R. JOSHI, J.)