2014 ALL MR (Cri) 1171


Mr. Hiranand @ Dabbu Kimmatram Aswani Vs. The State Of Maharashtra & Anr.

Criminal Application No.1844 of 2011

13th February, 2014

Respondent Counsel: Ms. S.V. GAJARE, Mr. A.H.H. PONDA

Criminal P.C. (1973), S.439 - Bail - Cancellation of - Total 13 criminal matters pending against respondent under Arms Act, Prohibition Act, Explosives Substances Act and also for preventive action under chapter cases - Conditions of bail violated by respondent specifically regarding attendance in concerned police station and tampering of witnesses - Bail cancelled. (Paras 16, 17)

Cases Cited:
Ram Govind Upadhyay Vs. Sudarshan Singh & Ors., 2002 ALL MR (Cri) 2460 (S.C.)=AIR 2002 SC 1475(1) [Para 14]


JUDGMENT :- This application is preferred by the original complainant for cancellation of bail granted in favour of the present respondent No.2 in the matter of offence under sections 115 and 120B of IPC registered under CR No.39 of 2010 of Pimpri Police Station, Pune. Respondent No.2 / original accused No.1 was arrested on 20th January, 2010 for the offence of conspiracy to kill the complainant - present applicant. Without going into much details as to various events happened regarding filing of bail applications before the trial Court and before this Court, suffice it to say that criminal bail application preferred before this Court bearing No. 704 of 2010 was granted on 10th March,2010 (Coram : Shri B.R.Gavai,J). According to the applicant, respondent No.2 violated the conditions of bail and also indulged in criminal activities and a number of serious offences were registered against him. As such, according to the applicant - original complainant, respondent no.2 has rendered himself unworthy of liberty granted by the bail order and hence the application for cancellation of bail filed by the applicant bearing No.1844 of 2011.

2. Though the present application for cancellation of bail was preferred long back in the year 2011, for various reasons it remained pending and when on last date the matter was taken up for the arguments, preliminary objection was raised on behalf of the respondent No.2 as to maintainability of the application for cancellation of bail before this Court on the submission that firstly the complainant should go before the Sessions Court for cancellation of bail and after that he can come to High Court though the provisions of Section 439 of Cr.P.C. give concurrent jurisdiction to the Sessions Court and also to the High Court to entertain the application for cancellation of bail.

3. As the above mentioned preliminary issue of maintainability was seriously agitated, it was finally heard and disposed of by this Court vide order dated 8th January, 2014 by giving reasoned order and it is held that the present application for cancellation of bail is maintainable before this Court without there being any initial attempt to go before the Sessions Court. As such, the rival submissions were heard at length on the merits of the present application for cancellation of bail.

4. The main points canvassed by the learned Senior Counsel on behalf of the applicant (original complainant) are twofold - firstly, the respondent had violated the conditions of bail inasmuch as he indulged in activity of threatening the prosecution witnesses and not attending the concerned police station on every Sunday, and secondly that he had indulged in criminal activities after his release on bail.

5. On the above submissions, the learned Counsel for the respondent No.2 pointed out that the respondent No.2 had not indulged into any activity like threatening the prosecution witnesses and moreover the said prosecution witnesses have given their affidavits in support of respondent No.2 stating that whatever complaints made by them regarding threats, were made under mistake of factual position and without ascertaining the correctness of the circumstances. Secondly it is argued that the respondent No.2 was all along visiting the concerned Police Station on every Sunday as directed, but, after July, 2010 the concerned Police Station did not give any endorsement or any acknowledgment to the respondent No.2 for his continued attendance. It is also submitted that the present application for cancellation of bail is pending since the year 2011 and at this belated stage in the year 2014, it is not warranted that he may be taken in custody. On the contrary, direction may be given for expeditious trial.

6. In order to appreciate the rival submissions in the light of the facts narrated during the arguments, the case of the complainant as against the present respondent No.2, in which he was granted bail, are narrated in nutshell as under :

According to the complainant (present applicant) a conspiracy was hatched by the present respondent No.2 to kill the complainant and for that purpose the respondent No.2 had approached one Gopal Khatri, who is a witness in this matter, and tried to give him a contract for killing and offered to pay '10 lakhs. Said Gopal Khatri refused to do so and, therefore, respondent No.2 took assistance of some other persons i.e. Amar Mulchandani and Kanu Matani. Realizing the said plot of contract killing, the complainant approached the Police and lodged a complaint under C.R. No.39/2010. It was registered on 19.1.2010 and the respondent No.2 was arrested. As mentioned earlier, the application for bail bearing BA No.704/2010 was granted on 10.3.2010 by this Court (Coram: B.R. Gavai,J.). Prior to that on 24.1.2010 present respondent No.2 threatened the wife of said witness Gopal Khatri to withdraw the statement of said Gopal Khatri given to the Police in the case registered against the respondent No.2. To that effect, a non-cognizable (NC) complaint was lodged by the wife of Gopal Khatri on the same day with Chinchwad Police Station.

7. As mentioned above, the respondent No.2 was granted bail in BA No.704/2010 and final order reads thus :

"10. Criminal Application No.704 of 2010 is, therefore, allowed. The applicants are directed to be released on bail on furnishing bail bonds in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each with one or two sureties in the like amount. The applicants shall report to Pimpri police station on every Sunday between 10 a.m. and 12.00 noon.

11. The applicants shall not make any attempt to influence the witnesses or tamper with evidence."

8. Despite the order of this Court "not to influence the witnesses", the respondent No.2 threatened the witness Gopal Khatri and his wife. As such, a written complaint was made by the said Gopal Khatri dated 27.4.2010 addressed to the Commissioner of Police, Pune giving all the details and also asking for the police protection. In the said letter it is mentioned that there were eminent threats to life of the said witness at the hands of the respondent No.2.

9. After the above, there was a curious factual circumstance inasmuch as a criminal complaint was registered against the said witness Gopal Khatri at Hingewadi police station being C.R. No.3215/2011 on 18.9.2011 and the offences alleged against the said witness Gopal Khatri were punishable under Section 3(25) of the Arms Act and Sections 4 & 5 of the Explosive Substance Act and Section 37(1) & 135 of Bombay Police Act. During the course of investigation in the said matter it was revealed that said Gopal Khatri was falsely implicated and it was the act of false implication done by the present respondent No.2. As such, a report under Section 169 of Cr.P.C. was filed by the investigating agency on 27.12.2011 and said Gopal Khatri was discharged from the proceedings and in stead present respondent No.2 was arraigned as an accused in the said C.R. No.3215/2011. Said report under Section 169 of Cr.P.C. was filed by the P.I. Crime Branch, Unit No.1, Pune. In the said C.R. No.3215/2011 present respondent No.2 was arrested and was released on bail on 13.6.2012 by order of this Court (Coram: K.U. Chandiwal,J.), in Criminal Bail Application No.530/2012. The final order of bail reads thus:

"7. The accused - applicant Deepak Hiralal Mewani be released on furnishing PR bonds and sureties in the sum of Rs.25,000/- (Rupees twenty five thousand only).

8. After his release the applicant shall not stay within the limits of Pimpari Chinchwad Municipal Corporation and also within the limits of Hinjewadi police station except for attending the police station or attending the Court cases. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to disauade him / her from disclosing such facts to the police officer or to the Court. The applicant shall not leave the country without prior permission of the trial Court.

9. Application allowed in the above terms."

10. The respondent No.2 preferred an application for relaxation of condition of bail as he wanted to enter the limits of Pimpri Chinchwad Municipal Corporation. In the said application, the respondent No.2 pleaded that for a period of one year he obeyed the conditions and now wants to enter the Municipal Corporation area as his family resides there. Vide order dated 19.7.2013 (Coram: Abhay M. Thipsay,J.), this Court relaxed the said condition and the important directions are in paragraphs- 6, 7 & 8 of the said order, which read thus :

"6 The condition imposed in paragraph no.8 of the order dated 13 June 2012, shall be relaxed to the extent that the applicant may stay within the limits of Pimpri Chinchwad Municipal Corporation and prohibition imposed upon him by the said order, in that regard, is removed. However, the applicant shall not contact, meet or approach any of the prosecution witnesses, in any manner, whatsoever.

7 In particular, the applicant shall not attempt to contact Gopal Khatri, at any time, and under any circumstances.

8 The applicant shall report to the Chinchwad Police Station on every Sunday between 5.00 p.m to 7.00 p.m till the disposal of the case against him."

11. It is also brought to the notice of this Court by the learned Senior Counsel on behalf of the applicant/orig. complainant that after relaxation of the condition as above, the respondent No.2 again started his activities of threatening the witnesses i.e. Gopal Khatri and his wife and on this, these witnesses have lodged complaints at Shivaji Nagar Police Station and Chinchwad Police Station on 7.7.2013 and 8.8.2013. These complaints were registered as NCs under Section 506 of IPC. Even representations were made to DCP, Zone III, Chinchwad, Pune and also to the Chief Minister, Home Minister and Commissioner of Police, Pune.

12. On the above aspect, the learned Counsel for the respondent No.2 brought attention of this Court to the contents of the affidavit filed by the respondent No.2 and also brought to the notice of the Court the documents annexed to the said affidavit. The contents of the said affidavit dated 28.1.2014 are perused. Along with the said affidavits copies of the letters are filed. One of these letters is dated 25.7.2010 addressed to the Deputy Commissioner of Police, Pimpri Division making a grievance that though every Sunday between 10:00 a.m. to 12:00 noon, the respondent No.2 was attending the police station, the concerned Officer was not acknowledging such visits for few Sundays. By that letter, directions were sought for appropriate action against the Officer. Another letter dated 18.9.2011 is also annexed to the affidavit. Said letter also contains verbatim same allegations. There are three more letters annexed to the affidavit which are dated 12.1.2014, 19.1.2014 and 26.1.2014, again containing verbatim same allegations as to visit at the Police Station but no acknowledgment given. By this, it is tried to argue on behalf of the respondent No.2 that he had not violated the conditions of attendance and it was negligence on the part of the Police Officer not to give the acknowledgments. This aspect is required to be dealt with in the light of the report filed by the Senior P.I. Pimpri Police Station. By the said letter, the concerned Officer had intimated his superior i.e. Assistant Commissioner of Police, Pimpri Division being the officer under Right to Information Act. By this letter and annexure thereto, it is brought to the notice of the superior that the respondent No.2 had attended the concerned police station on Sundays only between 14.3.2010 to 11.7.2010 and thereafter he had never attended the police station. Similar such attendance report was given with respect to another co-accused in that matter of C.R. No.39/2010, however, that is not relevant for the purpose of the present application. If both the above circumstances are viewed in juxtaposition of each other i.e. the letters apparently written by the respondent No.2 making grievance that his attendance was not marked and the information given by the Sr.P.I. of Pimpri Police Station mentioning that there was no attendance at all since July, 2010, it must be said that there is a room to entertain the arguments advanced on behalf of the complainant that the respondent No.2 had violated the condition of attendance.

13. Needless to mention that in fact it was the duty of the concerned police officer to bring it to the notice of the appropriate authority or to the Court which has granted the bail regarding such violation of condition of attendance, but, apparently it has not been done. On the other hand, even the respondent No.2 has not made any such grievance before this Court as to his attendance not being marked after July, 2010. It is not a question of one or two days of non-attendance or the attendance without any acknowledgment, but the period is sufficiently long i.e. from July, 2010 to apparently January, 2014. Except the two letters produced along with the affidavit of respondent No.2 i.e. letters dated 25.7.2010 and 18.9.2011, there is no correspondence till 12.1.2014 and the last three letters, as mentioned above, are dated 12.1.2014, 19.1.2014 and 26.1.2014. This gap in the dates speaks volume and is required to be taken into account while analyzing the conduct of the respondent No.2 and to ascertain whether he has obeyed the directions of this Court while he was released on bail either in C.R. No.39 of 2010 and in C.R. No.3215/2011.

14. Now coming to the aspect of tampering of the prosecution witnesses and mainly Gopal Khatri and his wife, during the arguments the learned Counsel for the respondent No.2 brought attention of this Court towards the copies of the affidavits filed along with his affidavit dated 28.1.2014. Along with the said affidavit, copies of the letters respectively written by Gopal Khatri and his wife both dated 15.1.2014 are also produced. The tenor of the said letters and the affidavits sworn by Gopal Khatri and his wife is to the effect that whatever earlier complaints he and his wife made, were on some misunderstanding and that they withdraw all allegations against the respondent No.2. It is significant to note the timing of such letters to the Police Officials and higher officials and the timing of the affidavit. In this context, it is a factual position that when this matter was taken before this Bench for effective hearing on 6.1.2014, it was adjourned and then a preliminary issue was raised as to maintainability of the present application for cancellation of bail and said issue was vehemently argued on behalf of the respondent No.2. As mentioned earlier, the said preliminary objection was decided by this Bench vide order dated 8.1.2014 by discussing all the details and law on the subject. By pointing out these circumstances, the learned Senior Counsel for the applicant submitted that it is an attempt on the part of the respondent No.2 to stall the proceedings and to linger the present application for cancellation of bail. It is further submitted that the applications and the affidavits allegedly prepared by the witness Gopal Khatri and his wife is nothing but an attempt on the part of the respondent No.2 to interfere with the criminal cases pending against him including the present matter under C.R. No.39/2010. In support of this submission, following authority is cited on behalf of the applicant :

[i] AIR 2002 SUPREME COURT 1475(1) : [2002 ALL MR (Cri) 2460 (S.C.)]

[Ram Govind Upadhyay Vs. Sudarshan Singh & Ors.

By taking shelter of the ratio of the said authority it is submitted that tampering with evidence and threatening the witnesses are two basic grounds for cancellation of bail and as such both are existent as against the present respondent No.2 and as such his bail is liable to be cancelled.

15. On carefully considering the rival submissions and the material produced for the inspection of this Court, as discussed in detail above, so also on going through the criminal antecedents against the present respondent No.2 which are apparent from the police report dated 10.2.2014 produced by the learned APP, curative action is required to be taken against the respondent No.2. Following cases are pending against the present respondent No.2 :

Sr. No. Police Station C.R. No. Sections Present Status
1 Chinchwad Police Station 238/2011 324, 354, 452, 506, 34 of IPC Pending
2 Pimpri Police Station N.C. 1884/2011 507 IPC -
3 Hinjwadi Police Station 3215/2011 3(25) Arms Act, 37(1), 135 of Bombay Police Act, 9(B) of the Explosive Substances Act, 1908 and Explosive Substances Rule, 17 r/w. 21 of N.D.P.S. Act read with 120B of IPC. Pending

16. Apart from the above, there are total 13 criminal matters pending against the present respondent No.2 and they are ranging from the year 1989 till 2011 and many of them are under the Arms Act, under the Prohibition Act, under the Bombay Police Act, under the Explosive Substances Act, and also for the preventive action under Chapter Cases and also under the offences against body punishable under Sections 307, 323, 324, 354, 542, 506 IPC etc.. The cumulative effect of the material as against the respondent No.2 and the apparent conduct of the respondent No.2 is sufficient to hold that the present respondent No.2 is not worthy of the bail granted to him in the present matter, more so, when there is an attempt to tamper with the prosecution witnesses and when the case is yet to start for final hearing.

17. Under these circumstances, for violation of the conditions of bail - specifically regarding the attendance and tampering of the witnesses, the present respondent No.2 do not deserves to be on bail and hence the present application for cancellation of bail must succeed and the same is accordingly allowed with following order :

:: ORDER ::

i. Criminal Application for cancellation of bail is allowed and accordingly disposed of.

ii. The bail granted to the respondent No.2 vide order dated 10.3.2010 is set aside. The respondent No.2 shall surrender before the concerned trial Court forthwith or otherwise appropriate action shall be initiated by the trial Court for securing his presence and taking him in judicial custody.

Application allowed.