(1) Cri. Application No. 2767 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 2767 of 2011 Kalekhan Sujatkhan Pathan, Age : 45 years, Occupation : Agriculture, R/o. Kathora Bazar, Taluka : Bhokardan, .. Applicant District : Jalna. (Original complainant) versus 1. The State of Maharashtra. 2. Ansar Khan Shabbir Khan, Age : 26 years, Occupation : Agriculture, R/o. Kathora Bazar, .. Respondents Taluka : Bhokardan, (No.2 - Original District : Jalna. accused) ....................... Mr. Jiwan J. Patil, Advocate, for the applicant. Mr. B.V. Wagh, Additional Public Prosecutor, for respondent no.1. Mr. R.J. Nirmal, Advocate, for respondent no.2. ........................ (2) Cri. Application No. 2767 of 2011 CORAM : SHRIHARI P. DAVARE, J. DATE : 7TH OCTOBER 2011 COURT'S ORDER : 1. Heard learned respective Counsel for the parties. 2. This is an application preferred by the applicant (original complainant) seeking cancellation of bail granted to respondent no.2, by the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, on 8-6-2011, passing the order below Exhibit 7 in Sessions Case No. 56/2011. 3. It appears that on the basis of the complaint lodged by the applicant herein, who is original complainant, in respect of the incident occurred on 21-10-2010, C.R. No.117/2010 was registered at Bhokardan Police Station (District : Jalna), on the same day, for the offences punishable under Sections 302, 323, 504, 506, read with Section 34 of Indian Penal Code, against respondent no.2, and three other co-accused persons. Accordingly, respondent no.2 herein was arrested by the investigating agency on 22nd October 2010. During the course of investigation, respondent no.2 herein preferred an application seeking bail before the learned Additional Sessions Judge, Jalna. (3) Cri. Application No. 2767 of 2011 However, the said application came to be rejected on the ground that the investigation in the matter was in progress. Thereafter, respondent no.2 preferred an application for bail i.e. Criminal Application No. 753/2011 before this Court on 18-2-2011 i.e. after completion of investigation and after filing of the charge sheet. However, the said application was rejected by this Court on 9th March 2011. Thereafter, respondent no.2 herein had filed another application for bail before this Court, bearing Criminal Application No. 1880/2011. However, the same was withdrawn by the learned Counsel for respondent no.2 on 6th May 2011. 4. On the aforesaid background, respondent no.2 herein again preferred an application i.e. Exhibit 7 in Sessions Case No. 56/2011, before the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, on 30th May 2011, allegedly on the ground of changed circumstances i.e. transfer of the said case before the said court. Pertinently, the said application was allowed by the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, on 8-6-2011, and thereby granted bail to respondent no.2 herein, on execution of P.R. Bond in the sum of Rs. 25,000/- with one surety in the like amount, and on the conditions stated therein. Being aggrieved and dissatisfied by the said order of grant of bail to respondent no.2 on 8-6-2011, by the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, by passing order (4) Cri. Application No. 2767 of 2011 below Exhibit 7 in Sessions Case No. 56/2011, the applicant i.e. original complainant has approached this Court by way of present Application, with the prayer of cancellation of the said bail granted to the respondent no.2. 5. At the outset, admittedly, the respondent no.2 had preferred Criminal Application No. 753/2011 before this Court, for bail after filing of the charge sheet i.e. on 18-2-2011. However, the said application was rejected by this Court by order dated 9th March 2011, categorically discussing merits of the matter therein, holding that the events were witnessed by five persons, who also named the respondent no.2 herein, and reading the details in the FIR with the statements of five eye witnesses, the accused / applicants, with two others, shared common intention to eliminate Sardarkhan. It has also been categorically observed in the said order, that it was a dispute over sharing of water in the well, minimal role by itself will not entitle the accused / applicants (respondent no.2 herein) to be released on bail even if charge sheet is filed. It is further observed that the application lacks merits, and same is rejected. Hence, it is apparently clear from the contents of the said order, considering the role of respondent no.2 herein, and the other circumstances and eye witnesses, the application of respondent no.2 herein was rejected by this Court even after filing of the charge sheet. (5) Cri. Application No. 2767 of 2011 6. Thereafter, it is material to note that the respondent no.2 herein preferred another application i.e. Criminal Application No. 1880/2011 before this Court, but the same was withdrawn by the learned Counsel for respondent no.2 on 6th May 2011, and the contents of the said order reflect that no leave was granted to respondent no.2 to file any application before the learned Sessions Court. 7. On the aforesaid background, the applicant prayed for cancellation of bail granted to respondent no.2, mainly on two grounds :- (i) Concealment and suppression of material facts, and (ii) Judicial discipline and propriety. Coming to the first ground, it is curious to note that after withdrawal of Criminal Application No. 1880/2011 before this Court, by the respondent no.2, on 6th May 2011, he approached the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, in the pending Sessions Case No. 56/2011, by preferring application Exhibit 7 therein, and sought bail from the said court, allegedly on the ground of changed circumstances, on 30th May (6) Cri. Application No. 2767 of 2011 2011 i.e. within a span of hardly 25 days from the date of withdrawal of the Criminal Application No. 1880/2011 by respondent no.2 before this Court. It is significant to note that the contents of the said application for bail i.e. Exhibit 7 in Sessions Case No. 56/2011 were totally silent in respect of filing of Criminal Application No. 753/2011 by the respondent no.2 before this Court for bail, and rejection thereof by this Court on 9th March 2011, as well as, there is no whisper in the contents of the said application, that thereafter respondent no.2 preferred Criminal Application No. 1880/2011 before this Court, and same was withdrawn by him on 6th May 2011. Hence, it is apparently clear that the very vital aspects i.e. rejection of Criminal Application No. 753/2011 by this Court, on 9th March 2011, that too after filing of charge sheet, and withdrawal of Criminal Application No. 1880/2011 by respondent no.2 on 6th May 2011, before this Court, were suppressed from the Extra Joint Ad hoc Additional Sessions Judge, Jalna, since the said material aspects were not mentioned / referred in the said application Exhibit 7. 8. Pursuant to the said application Exhibit 7 in Sessions Case No. 56/2011, preferred by the respondent no.2 on 30th May 2011, the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, passed the order on 8-6-2011, and thereby granted bail to the respondent no.2 herein, as aforesaid, apparently, since (7) Cri. Application No. 2767 of 2011 aforesaid material and vital facts were concealed from the said court. However, on reading the contents of the said order dated 8-6-2011, it appears that there are observations that during the course of investigation, respondent no.2 herein had applied for bail, but same was rejected by the said court i.e. Sessions Court, on the ground that the investigation was under progress. It is also observed in the said order, more particularly, paragraph no.3 thereof, that the said applicant i.e. respondent no.2 herein, moved this Court by making bail application but same was not pressed, as the investigation in the matter was in progress, and accordingly, he withdrew the said bail application in this Court with liberty to file fresh application after submission of the charge sheet, and accordingly, the said application Exhibit 7 for bail was preferred by the respondent no.2 herein after submission of charge sheet against the accused. However, the said observations are not in tune with the facts of the matter since no bail application was withdrawn by the respondent no.2 before this Court before filing of the charge sheet, and since no liberty was granted to the respondent no.2 herein by this Court while withdrawing Criminal Application No. 1880/2011 on 6th May 2011, and the said observations appear to be out of place. 9. In the said context, learned Counsel for respondent no.2 has placed reliance on the observations made by the Hon. (8) Cri. Application No. 2767 of 2011 Supreme Court, in the case of Kashmira Singh Vs. Duman Singh, reported at AIR 1996 Supreme Court 2176, wherein the Hon. Supreme Court in paragraph 11 has observed thus : " The ground regarding suppression of facts is still weaker. In the first place, knowledge of two bail application of the co-accused having been rejected has been imputed to the accused without valid basis. Secondly, the fact that the co-accused had applied for bail and had later not pressed the application, had been disclosed since it was known to the accused. That was sufficient indication that the co-accused had to been enlarged on bail. His decision not to press for bail would be indicative of the fact that the Court was disinclined to grant bail or, he did not see sufficient grounds to press the bail application. Be that as it may, the fact remains that the Court was aware that the co-accused was not granted bail. That was sufficient for the Court when it considered the accused's application for bail. Besides, it was the prosecution / complainant's duty to bring to the Court's notice that two applications of the co-accused for bail were rejected. If the accused did not mention it, nothing prevented the opposite side from placing it on record. It seems to be an omission on the part of the prosecution / complainant's side but, for that it would be wrong to charge them with having suppressed facts. So also for the accused, more particularly because, there is no positive evidence to attribute knowledge to the accused. Hence we think this ground is unsustainable. " (9) Cri. Application No. 2767 of 2011 On careful reading of the said observations, it is apparent that the reference in the said judgment is in respect of the fact that the co-accused has applied for bail and had later on not pressed the application, was allegedly suppressed from the court, but so is not the position in the instant case, and apparently, the fact that the rejection of the bail application of respondent no.2 by this Court, on 9th March 2011, that too after filing of charge sheet, as well as, withdrawal of the bail application preferred by respondent no.2 thereafter, before this Court, was suppressed and concealed by respondent no.2 from the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, in application Exhibit 7 in Sessions Case No. 56/2011, and the said suppression pertains to the accused i.e. respondent no.2 herein, and not to the co- accused, and hence, the facts and circumstances in the present case, and the facts and circumstances before the Hon. Supreme Court, in the above referred case, differ from each other, and hence, observations made therein cannot be of any aid and assistance to the respondent no.2 herein. 10. Accordingly, the bail granted to respondent no.2 by order dated 8-6-2011, by the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, deserves to be cancelled on the very ground of suppression of facts in the said application (10) Cri. Application No. 2767 of 2011 Exhibit 7, in Sessions Case No. 56/2011 before the said court. 11. As regards the another ground agitated by the application, for cancellation of bail of respondent no.2, that the order dated 8-6-2011 passed by the learned Extra Joint Ad hoc Additional Sessions Judge is against the judicial discipline and propriety, contending that since this Court had rejected the bail application of respondent no.2 by passing the reasoned order thereon, on 9th March 2011, that too after filing of the charge sheet, and since another application for bail preferred by the respondent no.2 thereafter was withdrawn by him on 6th May 2011, without obtaining any liberty from this Court, respondent no.2 preferred application at Exhibit 7 in Sessions Case No. 56/2011, before the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, on 30th May 2011, and same came to be allowed by the said court on 8-6-2011, discussing the merits therein, although earlier application of respondent no.2 was rejected by this Court on 9th March 2011 on its own merits, and therefore, the judicial propriety and discipline demand that such order should not have been passed by the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, on 8-6-2011, on the aforesaid ground. Apparently, there is substance in the proposition canvassed by the learned Counsel for the applicant, since on perusal of the order passed by this Court on 9th March (11) Cri. Application No. 2767 of 2011 2011, in Criminal Application No. 753/2011, it appears that merits were discussed in the said order by this Court and the said application was rejected by this Court even after filing of the charge sheet, and further, the subsequent application preferred by the respondent no.2 i.e. Criminal Application No. 1880/2011 was withdrawn by him on 6th May 2011, without obtaining any leave / liberty from this Court to approach the Sessions Court, after filing of the charge sheet, but still respondent no.2 preferred application at Exhibit 7 in Sessions Case No. 56/2011 before the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, and obtained bail therein from the said court. It appears that since the aforesaid vital material facts and rejection of Criminal Application No. 753 of 2011 by respondent no.2, and subsequent withdrawal of Criminal Application No. 1880/2011 by respondent no.2, was not brought to the notice of the learned Extra Joint Ad hoc Additional Sessions Judge while passing the order on 8-6-2011, and therefore, the said learned Judge apparently discussed the merits and granted bail to the respondent no.2, although this Court had rejected bail to the respondent no.2 earlier, and therefore also, the bail granted to the respondent no.2 by order dated 8-6-2011 is against the judicial propriety and discipline, and hence, bail granted to the respondent no.2 herein, by the said court, deserves to be cancelled. (12) Cri. Application No. 2767 of 2011 12. Apart from that, it cannot be ignored that while withdrawing subsequent Criminal Application No. 1880/2011 by the respodent no.2, before this Court, on 6th May 2011, this Court has categorically observed that considering the nature of accusations, the FIR being of 21-10-2010, learned Sessions Judge may endeavour to dispose of the Sessions Case by the end of February 2012, and hence, it is apparently clear that this Court has taken care of the accused persons in jail, and expedited the trial, and that too, specific time frame was fixed for the disposal of the said case, but inspite of the said position, the respondent no.2 herein approached the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, by preferring application for bail at Exhibit 7 in pending Sessions Case No. 56/2011, and suppressed the material facts from the said court, as discussed herein above, and obtained the order of bail from the said court on 8-6-2011, which is explicitly against the judicial discipline and propriety, and therefore also, the said order deserves to be quashed and set aside, and bail granted to the respondent no.2 herein deserves to be cancelled. In the said context, reliance can be placed on the judicial pronouncement cited by the learned Counsel for the applicant, in the case of Smt. Bimla Devi Vs. State of Bihar and others, reported at 1994 Cri. L.J. 638, wherein the Hon. Supreme Court in paragraph 2 of the judgment, has observed thus : (13) Cri. Application No. 2767 of 2011 " In view of the fact that the Judicial Magistrate at a later stage has himself cancelled the bail, it is not necessary for us to pass any order with regard to the petitioner's prayer for cancellation of bail but the disturbing feature of the case is that though two successive applications of the accused for grant of bail were rejected by the High Court yet the learned Magistrate granted provisional bail. The course adopted by the learned Magistrate is not only contrary to settled principles of judicial discipline and propriety but also contrary to the statutory provisions. See in this connection AIR 1987 SC 1613 : (1987 Cri.L.J. 1872). The manner in which the learned Magistrate dealt with the case can give rise to the apprehensions which were expressed by the complainant in her complaint, which was treated by this Court as a writ petition and is being dealt with as such. In the course that we are adopting, we would not like to comment upon the manner in which the learned Magistrate dealt with the case any more at this stage. We in the facts and circumstances stated above, direct that a copy of this order be sent to the Chief Justice of the Patna High Court for taking such action on the administrative side as may be deemed fit by him. " 13. In the circumstances, having comprehensive view of the matter, present Application deserves to be allowed. 14. In the result, present Criminal Application is allowed (14) Cri. Application No. 2767 of 2011 in terms of prayer clause "B" thereof, and the order passed by the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, below Exhibit 7 in Sessions Case No. 56/2011, on 8-6-2011, granting bail to the respondent no.2 herein, stands quashed and set aside, and the bail granted to the respondent no.2 by the said order stands cancelled, and the respondent no.2 is directed to surrender before the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, on or before 10th October 2011. If the respondent no.2 fails to surrender before the said court within the stipulated period, as aforesaid, the learned Extra Joint Ad hoc Additional Sessions Judge, Jalna, shall take suitable steps to arrest respondent no.2, in accordance with law. 15. Present Criminal Application is disposed of finally. 16. Office to send copy of this order to the concerned court forthwith. 17. Parties to act upon authenticated copy of this order duly certified by Court Shirastedar. ( SHRIHARI P. DAVARE ) JUDGE bgp/cria2767