Criminal Application No.3017 of 2005

29th June, 2006

Petitioner Counsel: Shri. SUDARSHAN SALUNKE, Adv. h/for Shri. V. D. SALUNKE
Respondent Counsel: Shri. N. H. BORADE,Shri. SHRIKISHAN SHINDE

Cases Cited:
Aslam Babalal Desai Vs. State of Maharashtra, AIR 1993 SC 1 [Para 7]
Mehbood Dawood Shaikh Vs. State of Maharashtra, (2004)2 SCC 362 [Para 9]

JUDGMENT

JUDGMENT :- This is an application for cancellation of bail.

2. Relevant facts stated in nutshell are that sister of applicant married Respondent No.2 on 20-1-2002. She was nicely treated for two-and-half year. Subsequently there was demand for dowry. Rupees 4 lakhs were demanded for setting up a Petrol Pump. Since complainant could not make payment of this amount, ill-treatment of deceased Sheetal continued till she expired on 2-11-2005. On 4-11-2005, applicant Dr. Chandrashekar lodged report, on the basis of which offence punishable under Sections 498-A, 304-B and 306 read with Section 34 of the Indian Penal Code and u/Ss.3 and 4 of the Dowry Prohibition Act, was registered at Bhokardan Police Station. During the course of investigation Respondents 2 to 4 filed an application for bail. The application was allowed by learned 4th Ad-hoc Additional Sessions Judge, Jalna by his order dated 10-11-2005. The applicant impugns this order on the ground that, (i) filing of the affidavits of neighbours would show that witnesses were tampered with; and, (ii) though the deceased was cremated without giving any intimation to the applicant and her relatives, their statements were not considered by learned trial Judge. According to applicant release of Respondents 2 to 4 on bail, would have an adverse effect on the investigation, therefore, order releasing Respondent Nos.2 to 4 on bail deserves to be cancelled.

3. During pendency of this application applicant filed an affidavit dated 1-2-2006 alleging that he was threatened by Respondent No.3 and three unknown persons on 25-1-2006. He has, therefore, lodged report against Respondent No.3 and other miscreants with Police.

4. Shri. Salunke, learned counsel for the applicant has referred to grounds mentioned in the application. According to him, the fact that body was cremated with an object of causing disappearance of the evidence, without giving any intimation to applicants and other relatives, is sufficient to show that the Respondents 2 to 4 were, from the beginning, resorting to tampering of evidence. Not only that they succeeded in procuring affidavits from the neighbours. These affidavits should not have been considered by the learned Sessions Judge for releasing respondents 2 to 4 on bail.

5. Per contra, Shri. Shinde, learned counsel for Respondents 2 to 4 has referred to the affidavits of neighbours. According to him, not only intimation was given to the complainant and other relatives, but all of them had attended the funeral and had insisted that the body should not be disfigured by subjecting it to the post-mortem. In view of the request of applicant and others, body of the deceased was not sent for post-mortem. Applicant and his relatives stayed at the house of Mandodari Jadhav. Learned counsel further submits that the applicant has filed false affidavit regarding threats given by Respondent No.3 with ulterior motive. Respondent No.3 or any person connected with the Respondents have not threatened the applicant. Applicant has purposefully made false allegation against Respondent No.3. According to learned counsel, learned Sessions Judge has considered all the aspects properly before passing impugned order releasing the applicant on bail. No ground for cancellation of bail has been made out, therefore, application deserves to be rejected.

6. Shri. N. H. Borade, learned APP has supported the order passed by learned Addl. Sessions Judge. According to learned APP statements of neighbours are recorded to ascertain the fact that applicant and his relatives were present at the funeral. Affidavits of neighbours are duly verified during the course of investigation. It is further pointed out that charge-sheet has now been filed, therefore, in the absence of compelling reasons, application deserved to be rejected.

7. The principles governing cancellation of bail are by now well-settled. Learned counsel for Respondents 2 to 4 has rightly placed reliance on the decision of the Apex Court reported in AIR 1993 SC page 1 in the matter of Aslam Babalal Desai Vs. State of Maharashtra. In para No.11 of the report, Their Lordships have referred to the grounds on which bail can be cancelled. It is observed that the grounds for cancellation of bail granted u/s.437(5) and 439(2) are identical. Bail granted under Section 437(1)(2) or (2) or 439(1) can be cancelled if (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, etc. It is further observed that these grounds are illustrative and not exhaustive. It can be seen that considerations for granting bail and cancellation of bail are totally different. The applicant in a Petition for cancellation of bail has to show that one of the several grounds referred to earlier did exist. In the present case, cancellation of bail is claimed mainly on two grounds, namely, (1) Respondents are likely to hamper investigation and (2) they had resorted to tampering of witnesses by obtaining their affidavits. It can be seen that affidavits of the witnesses are verified by the Investigating Officer. During the course of investigation, he found that applicant and his relatives were present at the time of cremation. In this background, prima facie, it is difficult to accept the contention that applicant and his relatives were not intimated and were not present at the time of cremation, thus, it cannot be said that this conclusion is arrived by learned Judge without considering the material on record including the statements of the relatives of the deceased.

8. Second ground as regards hampering of investigation does not now exist, because, investigation is now complete and charge-sheet has been filed.

9. Another circumstances referred to by learned counsel for applicant is the assertion of the applicant based on the affidavit filed during pendency of this application that Respondent No.3 along with three unknown persons, threatened him on 25-1-2006 at about 2.00 p.m. and that he had given intimation about this threat to the local police. What action is taken on this complaint, is not clear. The affidavit is filed on 1-2-2006. There is no allegation of the threats being repeated after 1-2-2006. To counter the allegation that Respondent No.3 had given threats to applicant at 2.00 p.m. on 25-1-2006, affidavit of Shri. Dattatraya Mirkar (Exh.R-1 to reply affidavit of Respondents 2 to 4) has been filed on record to show that at the relevant time Respondent No.3 was at the office of Sant Gadge Maharaj Credit Society from 11.00 a.m. to 5.00 p.m. It is also pertinent to point out that the order for releasing the Respondents 2 to 4 on bail is passed on 10th November, 2005 and application for cancellation is filed within a short time, i.e. on 19-11-2005. There is no reference to threats being given to the applicant during this period. The applicant has filed an affidavit for the purpose of showing that after filing application for cancellation of bail, he has been threatened. Bail granted earlier cannot be cancelled on the basis of mere allegation unless truthfulness of the allegation is established. The Apex Court had an occasion to deal with this aspect in the matter of Mehbood Dawood Shaikh Vs. State of Maharashtra, (2004)2 SCC 362. In that case also there was an allegation in respect of threats. Referring to this aspect, Their Lordships observed in para 11 of the report that mere assertion of alleged threat to witnesses should not be utilized as a ground for cancellation of bail, routinely. Otherwise, there is ample scope for making such allegation to nullify the bail granted. The Court before which such allegations are made should in each case carefully weigh the acceptability of the allegations and pass orders as circumstances warranting law. Such matters should be dealt with expeditiously so that actual interference with the ordinary and normal course of justice is nipped in the bud and an irretrievable stage is not reached.

10. In the facts of the present case, in the absence of other circumstances to substantiate the allegations regarding threats, mere allegations of the applicant regarding solitary instance cannot be treated as sufficient to warrant cancellation of bail granted earlier. Before considering cancellation of bail it has to be borne in mind that a citizen cannot be deprived of his liberty without sufficient justification. Such a justification is not available in the present case. The applicant has miserably failed to make out a strong case for cancellation of bail. In this view of the mater, application being devoid of substance, deserves to be rejected. As such, the Application is rejected.

Application dismissed.