Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPLN) NO.59 OF 2017
Sharada w/o Ganesh Rukhmode,
Age 33 years, Occupation Housewife,
R/o Koregaon Chop,
Tahsil Desaiganj, District Gadchiroli. ..... Applicant.
:: VERSUS ::
1. State of Maharashtra,
Through P.S.O. Arjuni (Mor),
Police Station Arjuni(Mor),
Tahsil Arjuni (Mor) and District Gondia.
2. Janardhan s/o Tukaram Rukhmode,
Aged about 44 years,
Occupation Agriculturist,
R/o Gudhari, Post-Siregaon,
Tahsil Arjuni(Mor), District Gondia. ..... Non-applicants.
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Shri Harshal Bobade, Counsel for the applicant.
Shri Shashikant Borkar, Counsel for non-applicant No.2.
Shri S.M. Ghodeswar, Addl.P.P. for the State.
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CORAM : V.M. DESHPANDE, J.
DATE : DECEMBER 15, 2017.
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Judgment
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ORAL JUDGMENT
1. Rule. Rule made returnable forthwith. Heard
finally by consent of learned counsel appearing for both the parties to the application.
2. This is an application under Section 439(2) of the Code of Criminal Procedure, 1973 for cancellation bail.
3. Heard learned counsel Shri Harshal Bobade for the applicant, learned counsel Shri Shashikant Borkar for non-applicant No.2, and learned Additional Public Prosecutor Shri S.M. Ghodeswar for the State.
4. Non-applicant No.2 Janardhan Rukhmode was arrested on 4.2.2017 in connection with Crime No.5 of 2017 for the offences punishable under Sections 302 and 201 of the Indian Penal Code and as per the allegations contained in the charge-sheet, non-applicant No.2 committed murder of his younger brother Ganesh.
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5. The first information report was lodged by the present applicant, the widow of said Ganesh. The investigating officer, after completion of his entire investigation, filed a final report before the Court of law.
6. After the final report was presented in the Court, non-applicant No.2 filed an application before learned Judge of the Trial Court for grant of bail. It appears that the said application was rejected. Consequently, non-applicant No.2 approached to this Court by filing an application under Section 439 of the Code of Criminal Procedure and prayed that he be released on bail in connection with Crime No.5 of 2017. The said application was registered as Criminal Application (BA) No.696 of 2017. The said application was considered by this Court (Coram : Z.A. Haq, J.) on 31.7.2017 and granted bail in favour of non-applicant No.2 and ordered that he should be released on bail on executing P.R. Bond for .....4/-
::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:47 ::: Judgment appln59.17 3 4 Rs.25,000/- and furnishing two solvent sureties in the like amount. The condition was also imposed on non-applicant No.2 that he shall attend the Trail before the Sessions Court regularly on every date unless granted exemption by the Sessions Court.
7. The present application is filed on 10.10.2017 by the widow of Ganesh, the first informant for cancellation of the said bail granted by this Court.
8. Learned counsel Shri Harshal Bobade for the applicant invited my attention to paragraph No.11 of the application and submits that this is the reason for moving the application for cancellation of the bail. He also submits that the first informant and non-applicant No.2 are residing in the same village and, therefore, there is likely possibility of tampering with the prosecution witnesses and possibility of influencing the witnesses and, therefore, prays that the bail .....5/-
::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:47 ::: Judgment appln59.17 3 5 granted by this Court be cancelled.
9. It would be useful to reproduce the averments made in paragraph No.11 of the application for considering the present application for reaching to the conclusion, as to whether it could be a ground for cancellation of the bail, and those are reproduced hereinunder:
"That after the release of the non- applicant No.2 on regular bail there is most likely possibility of threat to the life of the applicant as well as the mother-in- law of the applicant from the non- applicant No.2 and accordingly the applicant tries to lodge the complaint at non-applicant No.1 but it was stated by the non-applicant No.1 that since it is order of this Hon'ble Court and hence better way is resort to legal mean for the cancellation of bail and at this movement we are unable to entertain your complaint."
In that behalf, learned Additional Public Prosecutor Shri S.M. Ghodeswar for the State invited my .....6/-
::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:47 ::: Judgment appln59.17 3 6 attention to the reply filed on behalf of the State. The said reply is sworn by Shri Prashant Bandu Bhasme, Police Inspector of Police Station Arjuni/Mor District Gondia. In paragraph No.3 of the reply, Prashant Bhasme, who is Incharge of the said Police Station, has specifically stated on oath that after the bail was granted to non-applicant No.2, the applicant herein viz. widow of Ganesh never approached to the police station and has lodged any report regarding complaints or giving threats by non-applicant No.2. Not only that, he has specifically denied the fact that since the applicant never approached to the police station, there was no occasion for him to give advice to the applicant to go before this Court as claimed in paragraph No.11 of the application.
10. The recitals of paragraph No.11 of the application clearly show that the applicant is stating that, "there is most likely possibility of threat" meaning thereby to the Court that .....7/-
::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:47 ::: Judgment appln59.17 3 7 at no point of time any threat was extended by non-applicant No.2 to the applicant.
11. Further, to a pointed query made by this Court as to whether the applicant has approached to the superior Authorities complaining an act of the Police Station Officer of Arjuni/Mor, candid reply by learned counsel Shri Harshal Bobade for the applicant is "Emphatically No."
12. Thus, assertion made in paragraph No.11, in my opinion, is nothing but a figment of imagination on the part of the applicant to get rid of the order granting the bail by this Court.
13. It is to be noted that this Court, after considering every material that was presented in the charge-sheet, found that present non-applicant No.2 had made out a prima facie case in his favour and, therefore, he was released on bail. It was always open for the applicant to assail the said before the .....8/-
::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:47 ::: Judgment appln59.17 3 8 Honourable Apex Court. If the applicant was of the view that the case of the prosecution was not property considered while granting the bail, nothing that sort is being done by the applicant.
14. It is to be noted that it is not the case of the present applicant or even on behalf of the State Government that non-applicant No.2 has flouted the conditions imposed upon him by this Court while releasing non-applicant No.2 on bail.
15. Insofar as other submission of learned counsel Shri Harshal Bobade for the applicant is concerned that since non-applicant No.2 and the applicant and the witnesses are residing in the same village, there is possibility of tampering the witnesses, the Court cannot attach much importance to such a bald statement for making any assertion for curtailing liberty of the person. There should be some foundation and .....9/-
::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:42:47 ::: Judgment appln59.17 3 9 without there being any foundation such a bald statement cannot be accepted or cannot be given any weightage.
16. In view of the aforesaid discussions, I am of the view that the applicant has not made out any case for invoking jurisdiction of this Court under Sub-section (2) of Section 439 for cancelling the bail granted by this Court on merit on 31.7.2017.
17. Consequently, the criminal application for cancelling the bail must fail and the said is rejected. Rule is discharged.
JUDGE !! BRW !! ...../-
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