Criminal Application No.585 of 2009

9th April, 2009

Petitioner Counsel: Shri. V. D. SAPKAL
Respondent Counsel: Shri. N. H. BORADE,Shri. N. S. GHANEKAR

Cases Cited:
Smt. Ranjanabai w/o. Kisansing Dumale Vs. State of Maharashtra, 2008 ALL MR (Cri) 2337 [Para 5,12]
Dinesh M.N. (S.P.) Vs. State of Gujarat, 2008 ALL MR (Cri) 1988 (S.C.)=(2008)5 SCC 66 [Para 5,11]
Bhagirathsinh Judeja Vs. State of Gujarat, AIR 1984 SC 372 [Para 6]
Puran Vs. Rambilas, 2001 ALL MR (Cri) 1210 (S.C.)=(2001)6 SCC 338 [Para 9,18]
Salim Khan Vs. Sanjai Singh, (2002)9 SCC 670 [Para 10,18]
Sudha Verma Vs. State of U.P., AIR 2007 SCW 5598 [Para 11]
Brij Nandan Jaiswal Vs. Munna alias Munna Jaiswal, 2009 ALL MR (Cri) 1237 (S.C.)=(2009)1 SCC 678 [Para 12,19]
Narendra K. Amin (Dr.) Vs. State of Gujarat, (2008)13 SCC 584 [Para 18]

JUDGMENT

JUDGMENT :- This application is filed for quashing and setting aside the order dated 20th January, 2009 passed by the Additional Sessions Judge-1, Aurangabad in Bail Petition No.96/2009 granting bail to the Respondent Nos.2 to 5 in connection with Crime No.7/2009 registered with Waluj Police Station under Section 302 read with 34 of I.P.C..

2. This Court issued notices to the respondents and in pursuant to said notices, the respondents have appeared in the matter. The matter is taken up for final disposal.

3. The facts disclosed in the application are as under :

On 10.1.2009 in the morning at about 9.00 a.m. when the mother of the applicant was alone in the house four accused named in the FIR came to her. They started quarrelling with the deceased. As she was alone she did not talk a single word and she took her cow and went to Shivrai Fata. At about 6 p.m. while she was returning to her home at that time the road to her house was blocked by the accused. At that time Shabana i.e. accused no.5 brought kerosene and poured on the person of mother of the applicant and set her on fire. Her statement was recorded and offence was registered under Section 307 of I.P.C. with Waluj police station vide crime no.7/2009. On 10.1.2009 the accused were arrested and granted PCR till 13.1.2009. On 15.1.2009 the accused filed criminal application no.96/2009 for regular bail. On 20.1.2009 the learned Additional Sessions Judge-1 released all the four accused on bail. On 17.1.2009 Chandrakalabai i.e. mother of the applicant, succumbed to the injuries. The offence was converted into offence under section 302 of I.P.C. It is the case of the applicant that the accused are residing in the same area and there was dispute on account of plot. Because of that dispute all the accused set his mother on fire. The learned Sessions Judge without considering the factors for releasing the accused on bail, granted bail to the accused.

4. The learned counsel appearing for the applicant submitted that the learned Judge while granting bail has not considered three essential factors for grant of bail under Section 439 of Cr.P.C. It was duty of the learned Judge to consider whether the offence is serious. Admittedly, the offence is serious as same was registered under Section 307 of I.P.C. and same is now converted into Section 302 of I.P.C. and punishment for said offence is life or death. The learned Judge ought to have considered the nature of offence and the seriousness of the offence while granting bail to the respondents-accused. The learned counsel further submitted that the learned Judge has not considered the dying declaration made by the deceased on which basis the offence came to be registered. It is further submitted that if the contents of the dying declaration are read, it is clear that the respondents-accused have committed serious offence and, therefore, without taking into consideration serious nature of the offence, the learned Judge has casually granted bail. He further submitted that the learned Judge has observed that it is improbable that a woman who has recently delivered a child would go in a open place with can of kerosene and pour it on the person of Chandrakalabai. According to learned Judge, the story is improbable. According to learned counsel, the learned Judge ought not to have recorded this finding taking into consideration the dying declaration and the statement in support of the prosecution case. It is further submitted that in dying declaration all accused persons are named and, therefore, in such a serious offence casually bail should not have been granted by the Sessions Judge in favour of the respondents.

It is further submitted that granting bail to the respondent nos.2 to 5 on 20th January, 2009 is illegal, arbitrary and without considering the scope of Section 439 of Cr.P.C. The learned Judge while granting bail ought to have kept in mind the relevant considerations for grant of bail. However, instead of keeping those considerations in mind, the learned Judge has taken into consideration other grounds and the irrelevant considerations while releasing the respondents-accused on bail. According to learned counsel, there are three conditions which are relevant as said by the Supreme Court i.e., (i) seriousness of case, (ii) prima facie evidence collected in support of the case and (iii) possibility of the accused of pressurising the witnesses and availability of the accused at the time of trial. But in the present case, the learned Judge has not at all given thoughtful consideration to either of the considerations which are relevant. It is further submitted that, nothing is improbable in the case under section 302 of I.P.C. when the specific case is made by the deceased in her dying declaration. There is no basis to observe by the learned Judge that the case is not probable as stated by the deceased in her dying declaration. It is further submitted that the reasons assigned by the Judge granting bail are not based on material collected by the prosecution. The learned Judge was not right in observing that the applicant no.1 has recently delivered child on 2nd December, 2008 having baby of one month and eight days will not go in open space with can of kerosene. The said finding recorded by the Court is perverse and there is no logic to make such observations while granting bail in serious offence like present one.

5. The learned counsel further submitted that the learned Judge has not taken into consideration the statements of the witnesses, the contents of the dying declaration and allowed the application of the applicants therein for bail. According to learned counsel, the offence is very serious in nature. The Judge should have taken into consideration supporting material and should not have proceeded to decide the application on irrelevant considerations. Therefore, the learned counsel submitted that the order passed by the trial Court granting bail to the applicants therein deserves to be cancelled. The learned counsel invited my attention to the reported judgment of this Court in case of Smt. Ranjanabai w/o. Kisansing Dumale Vs. State of Maharashtra and others, reported in 2008 ALL MR (Cri) 2337 and submitted that the Sessions Court while granting bail in favour of the respondents has not taken into consideration relevant material. The learned counsel invited my attention to para 16 of the said judgment and submitted that in the facts of this case also the observations in para 16 are applicable. The learned counsel invited my attention to the judgment of the Hon'ble Supreme Court in case of Dinesh M.N. (S.P.) Vs. State of Gujarat, reported in (2008)5 SCC 66 : [2008 ALL MR (Cri) 1988 (S.C)] and submitted that the Court, dealing with an application for cancellation of bail under Section 439(2) of Cr.P.C., can consider whether the relevant materials were taken into consideration. The learned counsel took me through the contents of the application and annexures thereto and para 5 of the order of the Sessions Court and submitted that, the order passed by the Sessions Court is not sustainable. He submitted that the order is passed taking into consideration irrelevant material and excluding relevant material and not taking into consideration seriousness of the offence and, therefore, same order deserves to be quashed and set aside.

6. The learned counsel appearing for the respondents original accused submitted that consideration for grant of bail and cancellation of bail stands on different footing. The learned counsel submitted that the Additional Sessions Judge has taken into consideration the dying declaration. He further submitted that the bail is granted to the respondents on 20th January, 2009 and since then they are on bail. They are attending the concerned police station. They have not misused the liberty. They have followed all conditions imposed by the Court while granting bail. He submitted that the Sessions Court has rightly observed in para 5 that there is no evidence as to which of the applicant had set fire to Chandrakalabai. The learned counsel further submitted that if the informant could state the name of the person who poured kerosene on her person then certainly she should have named the person who set her on fire. He further submitted that the spot of incident is at a crowded place. The I.O. had recorded the statements of various witnesses and they had disclosed that Chandrakalabai had herself poured kerosene on her person and set her on fire and attempted to commit suicide. He further submitted that the findings given by the Additional Sessions Judge are absolutely correct. No irrelevant material has been taken into consideration while granting bail. Additional Sessions Judge has taken into consideration relevant material and granted the bail. The learned counsel submitted that it is not necessary at the time of granting bail to record the detail reasons or take into consideration entire evidence, however, it is to be seen that whether prima facie the applicants are entitled for bail. The counsel further submitted that the applicants were arrested and subsequently they were remanded to Magisterial custody. It is submitted that there is no allegation against the petitioner no.2 Shamina. There is no evidence as to which of the applicant set fire to Chandrakalabai. It is further submitted that as per dying declaration Shabana poured kerosene but there is no any role attributed to the remaining co-accused and it is not mentioned who has set on fire the deceased. According to learned counsel, the deceased was not conscious and not in a fit mental condition to give statement. The learned counsel submitted that, the alleged eye-witnesses are husband and son of the deceased. In case, husband and son of the deceased were present to witness the incident in question, then they should have made attempt to rescue the deceased. He further submitted that the statement of the eye witnesses is in conflict with dying declaration. He submitted that the applicant has stated in application that accused Shamina set the deceased on fire. The learned counsel further submitted that none of the relatives of the respondents are residing in same area. He further submitted that the story of the prosecution that the kerosene was purchased on that date is devoid of any substance. The applicants are not residents of and they are not holding any ration card and, therefore, there was no question of purchasing any kerosene on the same date. He further submitted that the incident in question took place at about 6.00 p.m., the spot of incident was open space in a crowded area and, therefore, it is not possible that independent witnesses have not seen the incident. He submitted that, in fact, the witnesses in that area have not supported the prosecution story and, therefore, the prosecution is not coming forward to rely on said statements. He further submitted that the investigation is almost over and the prosecution may file charge-sheet at any time and, therefore, at this stage bail granted in favour of the respondents should not be cancelled. It is further submitted that there is no role attributed to accused no.2 in dying declaration. He further submitted that some of the respondents being women the proviso to section 437 would come into play. The learned counsel submitted that there are no eye witnesses to the incident. Applicant has not stated that he is eye-witness. The learned counsel invited my attention to para 6 of the decision of the Hon'ble Supreme Court in case of Bhagirathsinh Judeja Vs. State of Gujarat, reported in AIR 1984 Supreme Court 372(1) and submitted that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The learned counsel invited my attention to the contents of the application filed before the Sessions Court as well as reasons given by the Sessions Court while granting bail and submitted that this Court may not entertain the application for cancellation of bail.

7. The learned A.P.P. appearing for the State submitted that the prosecution has recorded statements of six witnesses, some of them are eye witnesses. From 10th January, 2009 till application for bail was finally disposed of there are two dying declarations recorded which are consistent with each other. The learned Judge while granting bail has not taken into consideration nature, gravity and seriousness of the offence and casually granted the bail in favour of the respondents. The offence in this case is punishable for life or death and, therefore, the Court while granting bail should have taken into consideration relevant material and should not have relied on irrelevant material and improbabilities. The learned A.P.P. submitted that on reading the reasons given by the Sessions Judge it is clear that very casual order is passed by the Sessions Court. The Sessions Court has not adverted to statements of the witnesses and other evidence collected by the prosecution. It is further submitted that the common intention of the respondents is not considered by the Sessions Court while granting bail. Learned A.P.P. further submitted that it is not only that while cancelling the bail it should be seen that whether the bail is granted on irrelevant material but Court has to take into consideration the relevant material while granting bail. The learned A.P.P. submitted that where the order of bail does not indicate that the Court has taken the relevant material into consideration while releasing the accused on bail it cannot be upheld in view of the parameters set out under section 439 of Cr.P.C. The learned A.P.P. invited my attention to the investigation papers, dying declaration and other material collected by the prosecution and submitted that on reading the reasons given by the Sessions Court while granting bail, the order is not sustainable and same is contrary to the established principles of law and same deserves to be quashed and set aside.

8. At this juncture it would be relevant to refer to some of the reported judgments of the Apex Court as well as this Court laying down some factors to be considered at the time of granting/cancellation of bail.

9. In case of Puran Vs. Rambilas and another, reported in (2001)6 Supreme Court Cases 338 : [2001 ALL MR (Cri) 1210 (S.C.)], the Supreme Court held that, an order granting bail passed by ignoring material and evidence on record and without giving reasons, would be perverse and contrary to principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail, such ground for cancellation is different from the ground that the accused misconducted himself or some new facts call for cancellation.

10. In case of Salim Khan Vs. Sanjai Singh and another, reported in (2002)9 SCC 670, the Apex Court held that, while granting bail the Court must consider all the statements recorded under Section 161, Cr.P.C., examine the gravity of the offence and also examine the question of possibility of the accused tampering with the evidence and possibility of getting the attendance of the accused during trial and only then bail can be granted.

11. Yet in another case, Sudha Verma Vs. State of U.P. and another, reported in 2007 AIR SCW 5598, the Hon'ble Supreme Court in para 12 held :

"12. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are :

1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence,

2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

3. Prima facie satisfaction of the Court in support of the charge."

In case of Dinesh M.N. (S.P.) VS. State of Gujarat, reported in (2008)5 Supreme Court Cases 66 : [2008 ALL MR (Cri) 1988 (S.C)], the Supreme Court in para 21 observed :

"21. Though the High Court appears to have used the expression "ban" on the grant of bail in serious offences, actually it is referable to the decision of this Court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan. In para 11 it was noted as follows : (SCC pp.535-36)

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 offence. 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 apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay Vs. Sudarshan Singh and Puran Vs. Rambilas)."

12. In case of Brij Nandan Jaiswal Vs. Munna alias Munna Jaiswal and another, reported in (2009)1 SCC 678 : [2009 ALL MR (Cri) 1237 (S.C.)], the Hon'ble Supreme Court in para 12 held :

"12. It is now a settled law that the complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary."

The observations/principles/factors laid down in the above judgments by the Apex Court are necessary to be taken into consideration while entertaining bail application. It is also obligatory on the part of Judge granting bail to briefly record to the material which is gathered during course of investigation as observed by this Honourable Court in para 11 in case of Smt. Ranjanabai w/o. Kisansing Dumale Vs. State of Maharashtra and Ors., reported in 2008 ALL MR (Cri) 2337. The case in hand requires to be considered in the light of aforesaid pronouncement by the Apex Court and this Court.

13. Before I proceed to give reasons for setting aside the impugned order, I feel it appropriate to broadly indicate the evidence collected by the prosecution from the date of incident i.e., 10th January, 2009 till the bail was granted to the respondent-accused on 20th January, 2009.

14. There is a statement of the deceased recorded on 10.1.2009 at about 8.15 p.m. There is endorsement on the said statement/dying declaration by the doctor that the patient was conscious and in a sound state of mind during the period from 7.45 p.m. to 8.15 p.m. and she has given statement in presence of the doctor. There is a letter written by the concerned I.O. to the Medical Officer requesting the doctor to give his opinion about fitness of the victim to give statement. There is also a letter written by one Mr. R.T. Renge, Police Sub-Inspector, Waluj to the Executive Magistrate, Gangapur requesting him for recording dying declaration. The said letter is written on same day on the date of incident.

There is a further statement of Ganesh Balu Borse-complainant recorded on 10th January, 2009. Ganesh is son of the deceased. There is a statement of the husband of the deceased recorded on 10th January, 2009. In his statement husband has stated that he saw the accused persons running from the spot of incident.

There is a spot panchanama prepared by the concerned police officer on 11th January, 2009 itself. There is a recovery of blue coloured plastic can of the kerosene, matchbox, one burnt matchstick, kerosene mix mud, simple mud, burnt pieces of the saree, etc.. It appears that the said panchanama was carried out between 9 a.m. to 11.30 a.m. on 11.1.2009.

The prosecution has also recorded statement of one Laxman Keruji Gadekar who supports the prosecution story that, on hearing cries said Laxman saw towards the spot of incident, he found that victim is burning and some of the persons running from the spot. There is also supplementary statement of Ganesh Balu Borse recorded on 11.1.2009.

There is a panchanama of search of the house of the accused and deceased, the report submitted by the police officer to the J.M.F.C. The concerned police officer has maintained the case diary about the incident. There is also statement of one Anjabapu Asaram Shinde dated 14.1.2009 to the effect that, some of the accused persons purchased five litre kerosene each from this witness. There is further statement of one Santosh Digambarrao Gavli recorded on 14.1.2009 again stating therein that some of the accused have purchased five litre kerosene each from his shop. The concerned I.O. has also maintained the case diary and death extract is also available.

The second dying declaration of the victim was recorded on 10.1.2009 at about 8.45 p.m. by the Naib Tahsildar/Executive Magistrate, Gangapur. There are other panchanamas like house search, property search, etc. There is also letter written by the I.O. on 16.1.2009 to the Deputy Director, Forensic Laboratory, Aurangabad. There is also letter written by the I.O. to the Medical Officer. There is also inquest panchanama on record. There is a provisional post-mortem report/death certificate which shows that the victim died due to septicemic shock due to burns.

15. There is statement of Ramrao Keshavrao Bharad recorded on 18.1.2009 who is the Photographer who took the photographs of spot. There is arrest panchanama, MCR list, etc. There is further statement of Balu Sadashiv Katbane recorded on 15.2.2009. There are other statements which are recorded. There is a memorandum of post-mortem examination.

It is clear from aforesaid paras that, the prosecution had collected material evidence and recorded the statements of the witnesses from the date of incident on 10th January, 2009 till 19th January, 2009. The bail in favour of the respondents-accused came to be granted on 20th January, 2009.

16. In above mentioned background and in the light of judgments cited supra and evidence collected by the prosecution, it would be relevant to reproduce para 5 of the order dated 20th January, 2009 passed by the Sessions Judge, Aurangabad in Criminal Bail Petition No.96/2009 granting bail to the respondents-accused. The para 5 reads thus :

"5. There is no evidence as to which of the applicant had set fire to Chandrakala. When the informant could state the name of the person who poured kerosene on her person then certainly she could have named the person who set her on fire. It was submitted by Adv. Shri. Ghanekar that the spot of incident is at a crowdy place the I.O. had recorded statement of various witnesses and they had disclosed that Chandrakala had herself poured kerosene on her person and set her on fire and attempted to commit suicide. It is now reported by APP Shri. J. B. Nawale that Chandrakala has died and the offence under sec.302 of IPC is registered in place of offence under sec.307 of IPC. I went though spot panchanama and found that it is situated at a crowdy place. The incident had not taken within four walls but in open space and it was possible for many other persons to see the incident. Applicant no.1 has produced documents that she had recently delivered a child on 2.12.2008. She was having a young baby of one month and 8 days, at the time of alleged incident. Under such circumstances, it appears improbable that a woman who had recently delivered a child would go in open space with can of kerosene and pour on the person of Chandrakalabai. Thus, I find that the story put forward by the applicant improbable. Hence taking into consideration the quality of evidence I propose to release the applicants on bail."

17. If the observations/reasonings given by the Additional Sessions Judge-1, Aurangabad while granting bail in favour of the respondent nos.2 to 5 if carefully perused, it can be split into three parts.

The learned Judge observed that there is no evidence as to which of the applicant had set fire to Chandrakalabai. When the informant would state the name of the person who poured kerosene on her person, then certainly she could have named the person who set her on fire.

There are two dying declarations of the victim, one is recorded in between 7.45 p.m. to 8.15 p.m.. The said dying declaration is recorded by the police officer on which there is endorsement of the Medical Officer that the patient was conscious and in sound state of mind while giving dying declaration. The dying declaration refers to same incident, which took place in the morning hours and further discloses about how and in which manner incident took place in the evening.

The another dying declaration is recorded at about 8.45 p.m. before Special Executive Magistrate and Naib Tahsildar, Gangapur.

The learned Judge even has not taken into account 1st dying declaration as a whole and picked up only part of the dying declaration in isolation and came to the conclusion that since the victim has not stated who set her on fire application for bail requires favourable consideration.

The learned Judge should have considered attending circumstances and both the dying declarations in whole and not in part. There was other evidence available as stated in earlier paragraphs collected by the prosecution from 10th January, 2009 till 20th January, 2009 which is left out by the learned Judge. Merely because the victim was not able to name the accused who set her on fire could not necessarily lead to draw the inference that the accused are entitled for bail. The stray sentence from the dying declaration could not have been read in isolation by the concerned Judge and both the dying declarations should have been considered while entertaining application for bail. At the cost of repetition as observed by the Hon'ble Supreme Court in number of judgments cited supra, the learned Judge has not taken into consideration gravity and nature of offence and entire evidence/material collected by the prosecution from 10th January, 2009 to 20th January, 2009. It is not necessary to repeat what evidence was available, since already I have narrated what was the evidence collected by the prosecution from 10th January, 2009 till bail application was decided by the learned Judge.

The learned Judge has referred to the spot panchanama and found that the place of incident is situated at crowdy place and said place is open space and it is possible for many other persons to see the incident.

There is no doubt that learned Judge has referred to the spot panchanama. However, it is relevant to mention that the learned Judge proceeded on the footing that it was possible for many other persons to see the incident. These are the general observations made by the Judge. However, the Judge has not referred to the statements of the witnesses recorded by the I.O. The material evidence and recovery from the spot of incident and other material collected by the prosecution is also not referred. The learned Judge should have referred to the other material available including statements of the witnesses recorded by the prosecution even other aspects of the spot panchanama including recovered articles from the spot of incident. It appears from the careful reading of the order that the learned Judge proceeded on the footing that since the prosecution has not recorded evidence of various persons though it was possible for many other persons to see the incident since the spot of the incident is open space, therefore, the bail application deserves favourable consideration. In fact, material collected by the prosecution is left out and Judge proceeded on his own imagination and made some observations ignoring the prosecution evidence on record.

18. Thirdly, the Judge has observed that applicant no.1 has produced documents that she had recently delivered a child on 2.12.2008. She was having a young baby of one month and eight days, at the time of alleged incident. In such circumstances, it appears improbable that a woman who had recently delivered a child would go in open space with can of kerosene and pour it on the person of Chandrakala. Thus, I find that the story put forward by the applicant appears improbable.

This part of reasoning concludes the reasoning part and learned Judge came to the conclusion that what is stated in both the dying declarations becomes improbable in view of the fact that at the time of alleged incident the applicant no.1-accused was having a young baby of one month and eight days and it was improbable that a woman who had recently delivered a child would go in an open space with can of kerosene and pour the kerosene on the person of victim. This finding of the Judge is only unwarranted, not based upon any law provision, not based upon any concrete scientific data or any experts opinion and such finding seems to be recorded by the Judge by his own imagination which is fully impermissible in law as well as in view of various pronouncements by the Hon'ble Apex Court as referred above. Though the Judge has earlier assigned cryptic reasons, the Judge has totally disbelieved the victim's version in both the dying declarations on 3rd factor i.e. it is not possible that the woman who is having a young baby of one month and eight days can go to the open space with kerosene can and pour the kerosene on victim and, therefore, the story of the prosecution becomes improbable. This type of reasoning of the Judge is based upon irrelevant material and this finally weighed the Judge to grant the bail. Therefore, on the whole if the reasoning given by the Judge while granting bail is perused, it appears from the order passed by the Additional Sessions Judge that irrelevant material weighed with the Judge and by general observations by his own imagination Judge came to the conclusion to grant bail. The Additional Sessions Judge has totally ignored the nature and gravity of the offence contrary to one of the important factor to be considered while granting bail as held by the Honourable Supreme Court in number of judgments and recently in case of Narendra K. Amin (Dr.) Vs. State of Gujarat and another, reported in (2008)13 Supreme Court Cases 584. The Hon'ble Supreme Court referring to earlier judgment of the Apex Court has observed that the nature of accusation and the severity of punishment in a case of conviction and the nature of supporting evidence should be taken into consideration while granting bail. The learned Judge in utter disregard to the law laid down by the Apex Court in case of Puran Vs. Rambilas and another [2001 ALL MR (Cri) 1210 (S.C.)], cited supra, has granted bail by ignoring material and evidence on record and without giving sufficient reasons. The Judge has not applied his mind to the law laid down by the Supreme Court in case of Salim Khan Vs. Sanjai Singh and another, cited supra, in which the Apex Court held that the Court granting bail should take relevant material into consideration while releasing the accused. The Court considering the bail application also has to consider all the statements recorded under section 161, Cr.P.C., examine the gravity of the offence. The Sessions Judge should have indicated at least sufficient reasons, not elaborate but touching to the evidence collected by the prosecution from 10th January, 2009 till bail is granted to the respondent nos.2 to 5. The Apex Court in case of Sudha Verma Vs. State of U.P. and another, cited supra, has observed in para 10 that "the reasons need not be very detailed or elaborate, lest it may cause prejudice to the case of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order".

19. It is not necessary to go into the reappreciation of the evidence. It is sufficient to say that the impugned order granting bail is passed taking into consideration the irrelevant material and imaginations of the Judge and by general observations without referring to the evidence collected by the prosecution and attending circumstances. The Hon'ble Supreme Court in case of Brij Nandan Jaiswal Vs. Munna Alias Munna Jaiswal and another, reported in (2009)1 Supreme Court Cases 678 : [2009 ALL MR (Cri) 1237 (S.C.)] has reiterated that the Judge granting bail more particularly in serious cases must give reasons justifying the grant of bail. It is held that the complainant can always question the order granting bail if the said order is not validly passed. The Court further observed that it is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse and bail order can be tested on merits also. The Apex Court on facts held, complainant could question the merits of the order granting bail. The Apex Court without expressing anything on the merits of the bail application directed the High Court in that case to decide the application again.

20. In the instant case though, I have refrained myself from expressing anything on merits, however, taking into consideration law provisions and various pronouncements of the Hon'ble Apex Court endeavour is made to take into account the total evidence collected by the prosecution, seriousness of the offence, the pronouncements of the Apex Court while granting/cancellation of bail. I have already referred to what is the total evidence collected by the prosecution in the nature of eye-witnesses, the other panchanamas, statements of the panchas, dying declarations, medical evidence, etc. I have not touched to the merits of the evidence collected by the State, however, taking into consideration the law laid down by the Hon'ble Apex Court and the provisions of section 439 of the Cr.P.C., I am of the considered view that, the impugned order passed by the Additional Sessions Judge, Aurangabad granting bail is not sustainable, same is set aside. The respondent nos.2 to 5-accused shall immediately surrender within one week from today. If they do not surrender, non-bailable warrant shall be issued against them. After their surrender, the bail application shall be considered by the Sessions Court within two weeks from filing the same. The concerned Court to take final decision on the said bail application within two weeks from its filing on the merits taking into consideration evidence collected by the prosecution and after hearing both the sides in accordance with law.

21. With these observations, application for cancellation of bail is allowed and disposed of.

Application allowed.