(1) Criminal Application No. 2540 of 2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Application No. 2540 of 2011
Arun s/o. Sudhakar Jain,
Aged about 48 years,
Occupation : Business,
R/o. N-9-F, In front of Rural Police
Commissioner Office, Aurangabad. .. Applicant.
versus
1. Vivek s/o. Padamrajendra Mahajan,
Aged about 26 years,
Occupation : Mechanic,
R/o. Paranda, Taluka : Paranda,
District : Osmanabad.
2. The State of Maharashtra, .. Respondents
Through Paranda Police Station, (No.1 - Original
District : Osmanabad. accused)
.......................
Mr. N.S. Tekale, Advocate, holding for
Mr. V.I. Thole, Advocate, for the applicant.
Mr. A.S. More, Advocate, for respondent no.1.
Smt. R.K. Ladda, Additional Public Prosecutor,
for respondent no.2.
........................
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(2) Criminal Application No. 2540 of 2011
CORAM : SHRIHARI P. DAVARE, J.
DATE : 30TH AUGUST 2011
ORAL JUDGMENT :
1. Perused the investigation papers which were made
available for inspection purpose, as well as, heard learned
respective Counsel for the parties, finally.
2.
This is an application preferred by the applicant i.e.
original complainant, for setting aside the order dated 10th May
2011, passed by the learned Additional Sessions Judge,
Osmanabad, in Criminal Bail Application No. 294/2011, granting
bail to respondent no.1 herein, and also requesting to issue
directions to arrest the respondent no.1.
FACTUAL MATRIX
3. The applicant, namely, Arun s/o. Sudhakar Jain, is the
original complainant who filed the FIR on 30th March 2011,
under Crime No. 45/2011, with Police Station, Paranda (District :
Osmanabad), against respondent no.1 herein, namely, Vivek s/o.
Padamrajendra Mahajan, and the other co-accused persons for
the offences punishable under Sections 498-A, 323, 504, 306,
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(3) Criminal Application No. 2540 of 2011
read with Section 34 of Indian Penal Code. The applicant had a
daughter, namely, Vijaya who married with the respondent no.1,
namely, Vivek, on 17-5-2009, and the said couple was blessed
with one son who is of 11 months old. It is alleged that deceased
Vijaya was treated well for about six months after the marriage,
but thereafter she was subjected to mental and physical
illtreatment by the respondent no.1 i.e. her husband and her
parents in law. It is also alleged that unlawful demand of Rs.
20,000/- was made to the victim Vijaya by the respondent no.1
and co-accused for the purpose of installation of garage, and also,
they were asking Vijay to bring one golden ring of 1 Tola from
her parents in law, and she was subjected to mental and physical
illtreatment due to non-fulfillment of the said demands.
4. It is also alleged in the FIR, that there was ring
ceremony of younger son of the applicant, namely, Swapnil on
2nd February 2011, and the applicant invited respondent no.1 and
his parents for the said ceremony. However, there are allegations
that the respondent no.1 and parents in law of the victim Vijaya
quarreled with the applicant during the said function, on the
count that they were not given respect, and they were not
presented with the ring, and therefore, they left the said function
along with deceased Vijaya. Thereafter, respondent no.1 and
other co-accused continued the mental and physical torture upon
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(4) Criminal Application No. 2540 of 2011
victim Vijaya. Ultimately, deceased Vijaya, was fade up with
mental and physical cruelty, and therefore, she committed suicide
at about 18.30 hours on 29-3-2011 by hanging herself in the
matrimonial home i.e. house of respondent no.1.
5. After the death of victim Vijaya, father of the victim,
namely, Arun s/o. Sudhakar Jain, lodged FIR at Paranda Police
Station, on 30-3-2011, against respondent no.1 and other co-
accused persons and offence was registered against respondent
no.1 and co-accused under Crime No. 45/2011, for the offences
punishable under Sections 498-A, 323, 504, 306, read with
Section 34 of Indian Penal Code. Respondent no.1 came to be
arrested on 31st March 2011, and he was remanded to the Police
custody and subsequently to the magisterial custody.
6. On 7-4-2011, respondent no.1 moved an application
for bail i.e. Criminal Bail Application No. 222/2011 before
learned Additional Sessions Judge, Osmanabad. However, the
said application was rejected by the learned Judge on 27th April
2011, observing that the investigation was in progress and no bail
can be granted to the respondent no.1 at that stage, and copy of
the said bail application and order passed thereon are produced at
Exhibit “C”.
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(5) Criminal Application No. 2540 of 2011
7. Subsequently, respondent no.1 moved another bail
application i.e. Criminal Bail Application No. 294/2011 on
6-5-2011 before the same learned Additional Sessions Judge,
Osmanabad, and copy thereof is annexed at Exhibit “E”.
However, learned Additional Sessions Judge, Osmanabad, passed
an order thereon, on 10th May 2011, and released the respondent
no.1 on bail, although investigation was not completed. Hence,
the applicant has preferred the present application requesting to
set aside the order dated 10th May 2011, passed by the learned
Additional Sessions Judge, Osmanabad, granting bail to
respondent no.1, and also requesting to issue directions to arrest
respondent no.1.
SUBMISSIONS
8. It is canvassed by the learned Counsel for the
applicant, that although the first bail application preferred by the
applicant on 7th April 2011 was rejected by the learned
Additional Sessions Judge, Osmanabad, on 27th April 2011,
since the investigation was in progress, respondent no.1 preferred
subsequent bail application within a short spon i.e. on 6th May
2011, and the same came to be allowed by the same learned
Additional Sessions Judge, Osmanabad, on 10th May 2011,
inspite of the position that the investigation was not completed,
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(6) Criminal Application No. 2540 of 2011
and therefore, it is submitted that the order granting bail to the
respondent no.1, dated 10th May 2011, is arbitrary and mala fide,
and hence, deserves to be quashed and set aside. Learned
Counsel for the applicant also canvassed that pertinently,
considering the contents in the subsequent bail application dated
6th May 2011, preferred by the respondent no.1, it is apparent
that there is no averment therein in respect of any change in
circumstances, but curiously enough, learned Additional Sessions
Judge observed in the order dated 10th May 2011, granting bail
to respondent no.1, that there is change in circumstances of the
case, and the said observation and finding given by the learned
Additional Sessions Judge, while granting bail to respondent no.
1, is unwarranted. It is further canvassed by the learned Counsel
for the applicant, that there are threats to the applicant after
release on bail, on the part of the respondednt no.1, although
applicant has not filed any complaint in that respect. The
apprehension is posed that the respondent no.1 may abscond. It
is also submitted that the charge sheet has not been filed so far,
and hence, order dated 10th May 2011, granting bail to the
respondent no.1 deserves to be quashed and set aside.
9. Learned Counsel for respondent no.1 has opposed the
present application vehemently, and submitted that after grant of
bail, the respondent no.1 has adhered with the conditions
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(7) Criminal Application No. 2540 of 2011
imposed upon him, and reported to the Police Station, and there
is no grievance of the respondent no.2, that the respondent no.1
misused the liberty granted to respondent no.1. It is also
submitted by the learned Counsel for respondent no.1, that now
the investigation has been completed and substantial period has
been elapsed after grant of bail to respondent no.1 i.e. on 10th
May 2011, and hence, at the most, trial can be expedited and
there is no necessity to cancel bail granted to respondent no.1. It
is further submitted that the parameters envisaged for
cancellation of bail are stringent and the said parameters are not
in existence in the present case, and hence, bail granted to
respondent no.1 is not required to be cancelled, as prayed by the
applicant herein. Moreover, learned Counsel for respondent no.1
has placed reliance on the judicial pronouncements, as mentioned
herein below :
(a) In the case of Mr. Khalid Yunus Patel vs Mr. Aslam Abdul
Rahim Patel and others, reported at 2010 ALL MR (Cri) 3525,
following observations are made :
“13 Considering the rival arguments in totality
and considering the above mentioned factual
position as to litigation taking place from the
Sessions Court, Alibag till the Hon’ble Apex
Court and again reaching back to the Sessions::: Downloaded on – 09/06/2013 17:41:16 :::
(8) Criminal Application No. 2540 of 2011Court and coming to this Court for cancellation of
regular bail, and still considering certain
observations made by the Additional SessionsJudge, Raigad while passing the impugned order
dated 8.6.2009, it cannot be said that the saidorder of granting bail is of such perverse nature
so as to be undone. Still it can be said that the
reasoning given in para-13 of the impugned ordermight be not properly worded still only on such
observation, it cannot be said that the order of
Additional Sessions Judge is per se pervert.
Much emphasis was placed by the learnedAdvocate for the applicant on such observations
made by the Sessions Court to the following effectthat-the injuries sustained by the injured persons
have already been healed. Apart from suchobservation, there are also observations by the
said Additional Sessions Judge that by rejecting
the application of bail nothing fruitful would be
served and that is because of the lapse of time.
Considering these averments and considering
observations of the learned Additional Sessions
Judge and still considering that admittedly there is
a rivalry between the two groups, now it would
not be in the fitness of the situation to quash thesaid order of bail & to take them in custody. On
the contrary, certain directions can be given to the
concerned Court for expeditious hearing of the
matter so as to put an end to the allegations. Inthe result, both the present applications are
disposed of with following order. ”
(b) In the case of Devender Kumar & Anr. Vs State of Haryana
& Ors., reported at 2010 ALL MR (Cri) 1965 (S.C.), following
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(9) Criminal Application No. 2540 of 2011
observations are made :
“9 Bail had been granted to the Appellants by
the learned Magistrate, Palwal, on 10th October,2008, and as indicated hereinbefore, there is no
allegation that the same had been misused or that
any attempt had been made after the Appellantswere granted bail to recover the articles alleged to
have been given to the Appellant No.1 at the time
of marriage with the complainant. The reason
given by the High Court for cancellation of theorders granting bail and directing the arrest of
the Appellants on the ground that disclosures havebeen made by the Appellants and that their
police custody was necessary for recovery of thesame, is, in our view, not sufficient for the
purpose of cancellation of bail granted earlier.”
(c) In the case of Ashok Kumar vs State of U.P. & Anr., reported
at 2009 ALL MR (Cri) 900 (S.C.), following observations are
made :
“7 As rightly contended by learned counsel for
the appellant, the High Court appears to have
arrived at a definite conclusion about non
possibility of the injuries having been sustained inthe manner indicated by the prosecution. While
considering the bail application such a finding
should not have been recorded. Apart from that,
the specific stand of the prosecuting agency as
quoted above does not appear to have been
noticed by the High Court. It has also been::: Downloaded on – 09/06/2013 17:41:16 :::
(10) Criminal Application No. 2540 of 2011submitted by learned counsel for the appellant that
the complainant and independent eye-witnesses
are being subjected to threats by respondent No.2and his supporters and there is hardly any progress
in the case which is being tried by the AdditionalSessions Judge, Fast Track Court-4, Gautam Budh
Nagar. From the order sheet is is revealed that
adjournments have been liberally granted on theapplication filed by the accused. Trial is to be
conducted on continuous basis in view of what
has been provided in Section 209 of the Code of
Criminal Procedure, 1973 (in short the ‘Code’).
8 Since the accused is on bail for considerable
length of time, we do not think it appropriate to
cancel the bail, though there appears to be somesubstance in the plea that the impugned order
granting bail suffers from various infirmities. Let
the trial be completed within three months. If the
complainant or any witness seeks protection forappearance before the Court during trial, the same
shall be provided by the concerned police
officials. The trial Court would take up the matter
on continuous basis to complete the trial within
the period indicated above. ”
(d) In the case of Raj Kumar Jain & Anr. Vs Kundan Jain &
Anr., reported at 2004 ALL MR (Cri) 2498 (S.C.), following
observations are made :
“10 Having heard learned counsel for the parties
and perused the records, we are convinced
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(11) Criminal Application No. 2540 of 2011cancelling the anticipatory bail granted to the
appellants cannot be sustained in law. It is an
admitted fact that within 14 days of the marriageof the first appellant to Dimple Jain daughter of
the first respondent herein, disputes had arisenbetween them and they had started living
separately. There were complaints and counter-
complaints between the parties which had
compelled the appellants herein and 2 others to
obtain anticipatory bail from the High Court. It is
also an admitted fact that pursuant to the
directions issued by the High Court in the said
bail order, the persons who sought bail from the
High Court including these 2 appellants, had
surrendered before the court and offered bail
bonds which was accepted by the court concerned
and in furtherance of the directions issued by the
High Court though appellant No.2 was not
required to attend the Police Station without being
summoned, he along with appellant No.1, was
attending the Police Station everyday. In this
background, if really a threat as alleged by Harish
Bhuva was administered to him on 15.2.2003 a
complaint in this regard would have certainly
been lodged either on that day itself or on the next
day. On the contrary, as could be seen from the
records, a complaint was posted only on
17.2.2003 at about 1956 hours through speed post.
Of course, there is an allegation that on 16th
evening, an oral complaint was lodged but there is
no record substantiating the same, except the ipse
dixit of Harish Bhuva. Then again, if we read the
affidavit filed by the Inspector of Police, which
was 8 months after the alleged threat, it is seen
that this Officer makes a complaint for the first
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(12) Criminal Application No. 2540 of 2011
time that the second appellant has not complied
with the conditions imposed by the High Court
while granting bail of appearing before the Police.
This is a fact, in our opinion, far from truth. As a
matter of fact, as per the order granting
anticipatory bail to the appellants and two others,
there was a direction only with regard to the first
appellant herein to stay in Chennai for a week,
others were not even required to be in Chennai but
they had to report to the Police as and when
required by the Police. If really the second
appellant had disobeyed this direction, we would
not have expected the Police Officer to condone
this default and wait for nearly 10 months before
making an issue of it in an application filed for
cancellation of bail by the first respondent. It is
further seen from the said affidavit of the Police
Inspector that Harish Bhuva lodged the complaint
as to the threat administered to him only on
17.2.2003. She has not stated anything about the
oral complaint that is allegedly lodged by said
Harish Bhuva on 16.2.2003. If we notice the
allegation made in the affidavit filed by Harish
Bhuva in this regard, it could be seen that he
informed the first respondent about the visit of the
appellant to his house and the first respondent
promised him that his interest would be protected
in a manner known to law but he does not state in
that affidavit that he tried to lodge an oral
complaint on 16.2.2003. As notice above, in the
background of the facts of this case, we find it
difficult to believe that this witness would have
failed to inform the first respondent of the visit of
the appellants on 15.2.2003 itself and first
respondent or said Harish Bhuva would have
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(13) Criminal Application No. 2540 of 2011
failed to lodge a complaint with the concerned
Police immediately thereafter either on 15.2.2003
or 16.2.2003. The actual complaint lodged as
stated above, was only on 17.2.2003 and that too
was only posted at 1956 hours. This delay in
lodging a complaint itself creates a doubt in our
mind as to the authenticity of this complaint. In
this factual background, we are of the opinion that
the High Court was not justified in cancelling the
bail granted.”
Accordingly, learned Counsel for respondent no.1
submitted that the present application bears no substance, and the
same is devoid of any merits, and therefore, urged that it be
rejected.
10. Learned APP for respondent no.2 submitted that
marriage of the victim Vijaya took place with respondent no.1 on
17th May 2009 and the victim Vijaya committed suicide by
hanging hereself on 29th March 2011 i.e. within span of two
years which is a custodial death, and hence, presumption under
Section 113A of the Indian Evidence Act deserves to be invoked.
Moreover, it is also submitted that the investigation has been
completed, but the charge sheet has not been filed so far.
Learned APP has further asserted that there was no change in
circumstances after rejection of the first bail application by the
learned Additional Sessions Judge, Osmanabad, on 27th April
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(14) Criminal Application No. 2540 of 2011
2011, but still subsequent bail application came to be allowed by
the same learned Additional Sessions Judge, Osmanabad, on 10th
May 2011 i.e. within short span which speaks volumes for itself.
It is also submitted that while passing the order by the learned
Additional Sessions Judge on subsequent bail application, the
learned Judge did not consider the say filed by the respondent no.
2 and grounds raised therein. Accordingly, learned APP
supported the present application.
ig CONSIDERATION
11. I have perused the contents of the present Application,
contents of the FIR dated 30th March 2011, contents of the bail
application i.e. Criminal Bail Application No. 222/2011 preferred
by the respondent no.1 on 7th April 2011, and order passed by
the learned Additional Sessions Judge, Osmanabad, thereon, on
27th April 2011, rejecting the said application, and also perused
the contents of the subsequent bail application i.e. Criminal Bail
Application No. 294/2011, dated 6th May 2011, and say filed by
the respondent no.2 on 10th May 2011 to the said application,
and order passed thereon by the learned Additional Sessions
Judge on 10th May 2011, granting said application of the
respondent no.1, as well as, perused the affidavit in reply filed by
respondent no.1 herein to the present application, and heard
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(15) Criminal Application No. 2540 of 2011
arguments advanced by the learned respective Counsel for the
parties, anxiously, as well as, considered the observations made
in the judicial pronouncements cited by the learned Counsel for
respondent no.1, carefully, and at the outset, it is material to note
that the victim Vijaya was married with respondent no.1 Vivek on
17th May 2009, and she committed suicide by hanging herself in
her matrimonial home i.e. husband of respondent no.1 on 29th
March 2011 i.e. within span of two years, and it is a custodial
death, and there is apparently substance in the submission
advanced by the learned APP for respondent no.2, that
presumption under Section 113A of the Evidence Act could be
invoked. Moreover, considering the contents of the FIR lodged
by the applicant and father of the victim, there are serious
allegations against the respondent no.1 herein, and he was
arrested on 31st March 2011, under Crime No. 45/2011.
12. On the said background, respondent no.1 preferred the
first bail application i.e. Criminal Bail Application No. 222/2011
on 7th April 2011, before learned Additional Sessions Judge,
Osmanabad. However, the said bail application was rejected by
the learned Additional Sessions Judge, Osmanabad, on 27th April
2011, specifically observing that the investigation was in
progress and at that stage, it was not desirable to grant bail to the
respondent no.1. Thereafter, within span of 10 days, the
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(16) Criminal Application No. 2540 of 2011
respondent no.1 preferred another bail application i.e. Criminal
Bail Application No. 294/2011 before same learned Additional
Sessions Judge, Osmanabad, on 6th May 2011. On perusal of
contents of Criminal Bail Application No. 294/2011, it is
significant to note that there is no averment and/or ground raised
therein, that there was any change in the circumstances.
However, inspite of the said position, the same learned
Additional Sessions Judge, Osmanabad, who earlier rejected bail
application of respondent no.1 on 27th April 2011, granted the
subsequent bail application of the respondent no.1 by order dated
10th May 2011, observing that “now there is change in the
circumstances of the case”, which speaks volumes for itself.
13. Thus, it is crystal clear that the first bail application of
respondent no.1 was rejected on 27th April 2011, observing that
the investigation was in progress, and it was not desirable to
grant the bail application of respondent no.1 at that stage, but
within span of 15 days i.e. on 10th May 2011, the same learned
Additional Sessions Judge, Osmanabad, granted the subsequent
bail application of the respondent no.1, observing that ‘there is
change in the circumstances of the case’, although there was no
averment or ground raised in the said bail application preferred
by the respondent no.1 in respect of any change in the
circumstances, which certainly speaks volumes for itself and
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(17) Criminal Application No. 2540 of 2011
smells otherwise. At this juncture, it is necessary to note that the
learned APP opposed the subsequent bail application by filing
say on 10th May 2011, and pointed out that the applicant therein
(respondent no.1 herein) was involved in a serious crime, and the
investigation was in progress, as well as, the Medical Officer
opined the cause of death as Asphyxia due to hanging, and the
investigation papers show, soon before the death of Vijaya she
was caused mental and physical torture constantly, and therefore,
there was no alternative except to commit suicide, as well as,
statements of adjoining witnesses were to be recorded.
Moreover, it was also pointed out by the learned APP, that
considering strong prima facie case and direct involvement of
respondent no.1, it was urged that the subsequent bail application
preferred by respondent no.1 be rejected. The apprehension was
also posed in the said say, that if the respondent no.1 is released
on bail, he could tamper with the prosecution evidence and may
abscond from jurisdiction of the court. However, contents of the
said say dated 10th May 2011, filed by the learned APP were not
taken into consideration by the learned Additional Sessions
Judge, Osmanabad, and even the said grounds have not been
dealt with in the order passed by the learned Additional Sessions
Judge, Osmanabad, on 10th May 2011, granting bail to the
respondent no.1, which is a serious matter.
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(18) Criminal Application No. 2540 of 2011
14. It is important to note that the investigation was in
progress on 10th May 2011, when the subsequent bail application
of respondent no.1 was allowed and he was granted bail therein,
and therefore, it is amply clear that there was no change in
circumstances at all, as observed by the learned Additional
Sessions Judge, Osmanabad, in the order dated 10th May 2011,
and grant of bail to the respondent no.1 by the said order, was
apparently unwarranted considering the grounds raised by the
learned APP in the say opposing the bail application, as
mentioned herein above.
15. Apart from that, coming to the arguments canvassed
by the learned Counsel for respondent no.1, that substantial
period has been elapsed from 10th May 2011 i.e. the date on
which respondent no.1 was granted bail, and trial be expedited, it
is apparent that bail was granted to respondent no.1 by order
dated 10th May 2011, when investigation was incomplete.
Moreover, it is the matter of record, that even today also, charge
sheet has not been filed, and therefore, there cannot be any
dispute that the investigation was crippled due to grant of bail to
respondent no.1, and hence, there is no substance in the argument
canvassed by the learned Counsel for respondent no.1. As
regards the other argument canvassed by the learned Counsel for
respondent no.1, that the respondent no.1 has reported to Police
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(19) Criminal Application No. 2540 of 2011
personnel, as directed by the learned Additional Sessions Judge,
Osmanabad, and he has not misused the liberty granted to him, I
am not impressed by the said argument since the very grant of
bail itself, to respondent no.1, was unwarranted at the inception
itself, and hence, the subsequent conduct of the respondent no.1
i.e. reporting to the Police and not misusing the liberty is,
apparently, immaterial.
16. As regards the judicial pronouncements cited by the
learned Counsel for respondent no.1, the facts and circumstances
in the present case, and the facts and circumstances in the
aforesaid judicial pronouncements differ from each other since
the facts and circumstances in the present case are peculiar, as in
the instant case, first bail application preferred by respondent no.
1 herein, on 7th April 2011, was rejected on 27th April 2011,
specifically observing that the investigation was in progress and
it was not desirable to enlarge the applicant (respondent no.1
herein) on bail at that stage, but subsequently, respondent no.1
preferred another bail application within span of 10 days i.e. on
6th May 2011, which came to be allowed on 10th May 2011,
observing by the learned Additional Sessions Judge, Osmanabad,
that “now, there is change in circumstances”, without considering
the say and objection raised by the learned APP and without
dealing with the said say, and although the investigation was in
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(20) Criminal Application No. 2540 of 2011
progress at that time, but so is not the position in the aforesaid
judicial pronouncements cited by the learned Counsel for
respondent no.1, and hence, observations made in the aforesaid
judicial pronouncements will be of no aid or assistance to the
respondent no.1 herein.
17. In the circumstances, having comprehensive view of
the matter, and considering the accusations made against
respondent no.1, and nature, gravity and seriousness of the
offence, and the apprehension posed by the learned APP, for
respondent no.2, I am not inclined to accept the submissions
advanced by the learned Counsel for respondent no.1, but the
argument canvassed by learned Advocate for applicant bears
substance and same deserves to be accepted, and accordingly,
present application deserves to be allowed.
18. In the result, present Criminal Application is allowed
in terms of prayer clause “B” thereof, and the order passedby the
learned Additional Sessions Judge, Osmanabad, in Criminal Bail
Application No. 294/2011 on 10th May 2011, stands set aside,
and respondent no.1 is directed to surrender before the learned
Additional Sessions Judge, Osmanabad, within a period of one
week from today, failing which learned Additional Sessions
Judge, Osmanabad, to take suitable and appropriate steps in that
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(21) Criminal Application No. 2540 of 2011
respect, and the present Criminal Application stands disposed of
finally.
19. However, it is made clear that the above observations
are prima facie in nature, and same shall be restricted to this
order only and shall not be used in any other matter while
deciding it on merits.
20. Authenticated copy of this judgment, duly certified by
Court Shirastedar, be supplied to the parties requesting therefor.
21. Office to send copy of this order to the concerned
Additional Sessions Judge, Osmanabad, forthwith.
( SHRIHARI P. DAVARE )
JUDGE
…………………….
bgp/ka2540
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