Kalindabai vs The State Of Maharashtra
2010 Latest Caselaw 190 Bom

                                    (1)




                                                                       
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                               
                         BENCH AT AURANGABAD


                CRIMINAL APPLICATION NO. 2212 OF 2010




                                              
    Kalindabai w/o Dinkar Pujari,
    R/o Kanadi Borgaon, Taluka
    and District Latur.                                           APPLICANT




                                   
              VERSUS

    1.
                       
         The State of Maharashtra,
         through Police Station,
         Gategaon, Dist. Latur.
    2.   Dattatraya s/o Chandrabhan Bulbule
                      
    3.   Chandrabhan s/o Devrao Bulbule
    4.   Sow. Padminbai w/o Chandrabhan Bulbule
    5.   Pravin s/o Chandrabhan Bulbule
    6.   Sow. Jyoti w/o Pravin Bulbule
      

         All r/o Samangaon, Taluka
         and District Latur.                                      RESPONDENTS
   



         ....

Mr. Sudarshan J. Salunke, advocate for the applicant. Mr. N.H. Borade, APP for the respondent No.1/State. Mr. D.Y. Nandedkar, advocate for the respondents No. 2 to 6.

....

[CORAM : V.R. KINGAONKAR, J.]

[DATE : 24th November, 2010]

ORAL JUDGEMENT :

1. By this application, the original complainant seeks

cancellation of bail granted to the respondents No. 2 to 6 by

the learned Adhoc Additional Sessions Judge, Latur vide order

dated 17th May, 2010 rendered in the proceedings of Criminal

Misc. Application No. 122/2010.

2. The applicant lodged FIR alleging that deceased Sow.

Swati was her daughter and was married to respondent No.2

Dattatraya prior to about six (6) years and that the latter

used to demand remaining dowry amount of Rs. 51,000/- from

her. It was alleged further that the respondent No. 2 used to

frequently beat Sow. Swati due to failure to pay the remaining

dowry amount. She used to tell her father about the cruel

treatment meted out to her at his hands. The applicant further

alleged that he had paid Rs. 10,000/- to the respondent No. 2

somewhere in the month of April/May, 2009. Still, however, the

respondent No. 2 and his relatives used to illtreat and harass

Sow. Swati on account of non-payment of remaining amount of

Rs. 41,000/-. Her daughter (Sow. Swati) used to tell her

about the matrimonial cruelty as and when she used to visit

the maternal home and during the telephonic conversation. She

had advised her to bear with the trouble for some days. She

alleged further that on 28th April, 2010, Sow. Swati had

contacted her on phone and had informed her that the family

members had severely beaten her. She alleged that in the

morning of 30th April, 2010, she received information that

Sow. Swati burnt by the members of the family of the

respondent No. 2 - Dattatraya. She and her relatives went to

her matrimonial home. They noticed that dead-body of Sow.

Swati was lying in the house. The dead-body was nude and most

of the parts of her body were burnt. Consequently, she lodged

FIR.

3. While the investigation was yet going on, the

respondents No. 2 to 6 submitted application for bail vide

Criminal Misc. Application No. 122/2010 before the learned

Adhoc Additional Sessions Judge, Latur. The learned Sessions

Judge granted the bail application. Aggrieved by the order

granting bail, the original complainant has filed the present

application on various grounds. The applicant alleges that

death of Sow. Swati was homicidal and the respondents No. 2 to

6 were required to explain about cause of her death in view of

the fact that the death occurred within premises of the

matrimonial home. It is further contended that the respondent

No.2 - Dattatraya and the respondent No. 5 - Pravin had

attempted to take away the minor daughter Payal from custody

of the applicant and attempted to influence the witnesses. It

is further alleged that the impugned order of granting bail is

improper and based on perverse consideration of the material

on record. It is submitted, therefore, that the impugned

order is liable to be set aside by cancelling the bail granted

to the respondents No. 2 to 6.

4. Heard learned advocate for the applicant and learned

advocate for the respondents No.2 to 6 and the learned A.P.P.

It is contended by learned advocate for the applicant that the

impugned order is rendered without due application of judicial

illogical

mind. He would submit that the impugned order is founded on

reasoning and erroneous consideration of the

material. He would submit that the learned Sessions Judge

committed patent error while granting the bail by ascribing

improper reasons. Per contra, the learned advocate for the

respondents No.2 to 6 would submit that the impugned order is

quite well reasoned and proper. He urged, therefore, to

dismiss the application. The learned A.P.P., however,

supports the argument of learned advocate for the applicant

(complainant).

5. The question to be determined in this application is

whether the impugned bail order reflects arbitrary exercise of

the powers to grant bail without considering the relevant

circumstances appearing against the respondents No. 2 to 6.

It will have to be examined also whether the learned Sessions

Judge granted bail on irrelevant consideration and, therefore,

the impugned order is unsustainable.

6. It is true that, ordinarily, the bail granted to an

accused cannot be cancelled without there being sufficient

reason to infer that the cancellation is necessary in order to

ensure fair trial of the case. The bail order, however, may

be interfered with when it is brought to the notice of the

High Court that the reasons ascribed in support of such order

are outside the purview of the provision of Section 437 and

Section 439 of the Criminal Procedure Code. The bail is

required to be granted by applying the test of "reasonable

ground" as envisaged in section 437 of the Criminal Procedure

Code. So, when the material on record is sufficient to infer

that there are reasonable grounds for believing that an

accused has been guilty for offence punishable with death or

imprisonment for life, the bail shall be refused. The legal

embargo placed on powers of the Sessions Court is explicit

from plain reading of section 437 (1) (i) of the Criminal

Procedure Code. Section 437 (1) (i) reads as follows :

"437. When bail may be taken in case of non-

bailable offence - (1) When any person accused of,

or suspected of, the commission of any non-bailable

offence is arrested or detained without warrant by

an officer in charge of a police station or appears

or is brought before a Court other than the High

Court or Court of Ession, he may be released on

bail, but -

(i) such person shall not be so released if

there appear reasonable grounds for believing that

he has been guilty of an offence punishable with

death or imprisonment for life."

(Emphasis supplied)

Perusal of section 437 (1) (i) leaves no manner of doubt that

it is the mandate of the law that an accused cannot be

released on bail if there appears reasonable ground to believe

that he has been guilty of offence punishable with death or

imprisonment for life. Needless to say, the Sessions Judge is

required to examine whether the accused has demonstrated that

there are no reasonable grounds to believe his guilt in the

context of the offence punishable with death or imprisonment

for life. So, unless an applicant would satisfy the test of

making out sufficient grounds as contemplated under sub-

section (1) (i) of section 437 of the Criminal Procedure Code,

or that his case falls within the ambit of Proviso appended to

Section 437 (1) (ii), ordinarily, grant of bail would not be

legally permissible. Needless to say, the core question to be

addressed in the present context is whether the learned

Sessions Judge was cognizant of such a test and did apply it

while granting the bail to the respondents No. 2 to 6.

7.

In the foreground of above discussion, I shall now

advert to the reasons ascribed by the learned Adhoc Additional

Sessions Judge while granting bail to the respondents No. 2 to

6. The reasons stated in para-3 of the impugned order may be

categorized as follows :

(i) There is no direct evidence that the accused or any

one of them set Sow. Swati on fire;

(ii) Nothing is to be seized or recovered at the instance

and from the possession of the accused i.e.

respondents No. 2 to 6. So, their further detention

in jail was not required for any investigation

purpose; and

(iii) The respondents No. 2 to 6 are permanent residents

of village Samangaon and, therefore, their presence

can be secured since they are unlikely to abscond.

8. So far as the above reasons ascribed by the learned

Sessions Judge are concerned, it can be gathered that he did

not apply judicial mind to the fact situation of the present

case. There is no question of seeking direct evidence about

the alleged act of setting deceased Sow. Swati on fire. For,

the incident occurred within four walls of the matrimonial

house and, therefore, it is for the inmates of the house to

explain as to how her death did occur and why no efforts were

made to forestall the death by extinguishing the fire. The

first part of the reasoning of the learned Sessions Judge is,

therefore, founded on misconception of the facts. The newly

married woman was charred to death whilst she was in the

bedroom of the matrimonial home. True, the prosecution sought

reliance on the testimonies of the parents and relatives of

the deceased - Swati in so far as the unlawful demand made by

the respondents No. 2 to 6 was concerned. Their versions

cannot be outrightly brushed aside even for the purpose of

prima facie consideration, only because they are parents and

relatives of deceased Sow. Swati. The FIR purports to show

that deceased Sow. Swati used to narrate about the persistent

demands made by the husband and his relatives and used to tell

her mother that the husband used to beat her. The FIR further

prima facie shows that an amount of Rs. 10,000/- was paid to

the respondent No.2 in the year 2009 and remaining was being

demanded again and again. The strangers are not expected to

give statements about such unlawful demand and, therefore, the

second part of the reasoning ascribed by the learned Sessions

Judge is also improper and irrelevant. The third part of the

reasoning of the learned Sessions Judge regarding absence of

need to recover any article at the instance of the respondents

No. 2 to 6 is also irrelevant. Nobody alleged that they had

used any weapon as such and recovery thereof was warranted.

The mere fact that detention of the respondents No. 2 to 6 was

not required for the purpose of investigation is also not

relevant ground for grant of the discretionary relief of bail.

9. It is well settled that though the grant of bail is

within the discretion of the Court of Sessions or the High

Court, yet, the discretion has to be judiciously exercised.

The grant of bail on basis of irrelevant considerations is

( 10 )

improper and liable to be interfered with. It is well settled

that when the basic requirements necessary for grant of bail

are completely ignored by the Court of Sessions, the

cancellation of the bail would be justified. The Apex Court in

"State of U.P. through CBI vs. Amarmani Tripathi" (2005) 8

S.C.C. 21, held that while considering the application for

bail, what is required to be looked is, (i) whether there is

any prima facie or reasonable ground to believe that the

accused had committed the offence; (ii) nature and gravity of

the charge; (iii) severity of the punishment in the event of

conviction; (iv) danger of the accused absconding or fleeing,

if released on bail; (v) character, behaviour, means, position

and standing of the accused; (vi) likelihood of the offence

being repeated; (vii) reasonable apprehension of the witnesses

being tampered with; and (viii) danger, ofcourse, of justice

being thwarted by grant of bail. These are the broad

parameters which need to be considered while examining the

fact situation obtained in each case when the application for

bail is under consideration. The learned Sessions Judge did

not consider either of the parameter stated above.

10. In "Gobarbhai Naranbhai Singala v. State of Gujarat

and others" (2008 AIR SCW 1014), the Apex Court held that

( 11 )

where the basic requirements necessary for grant of bail are

ignored, the bail can be cancelled. The fact that the accused

did not misuse his liberty or that he was not instrumental in

delaying the trial are outside the realm of consideration.

Perusal of the investigation papers prima facie shows that

deceased Sow. Swati died in the matrimonial home within period

of seven (7) years of the marriage. She was having a minor

daughter by name Payal aged about three (3) years at the time

of her death.

Ordinarily, she had no reason to end the life.

The statement of minor daughter of the deceased i.e. Payal was

recorded by the Investigating Officer. The statement of Payal

prima facie shows that deceased Sow. Swati was assaulted by

her husband, brother-in-law and the inlaws. Though the

statement of Payal was recorded on 16th May, 2010 and was

available when the impugned order was rendered on 17th May,

2010, yet, the impugned order does not make any reference to

the consideration of said statement. At this juncture,

credibility of the minor witness cannot be examined and is not

the question for consideration. It appears that the learned

Sessions Judge did not duly appreciate the relevant evidence

and did not consider the statement of minor Payal while

passing the impugned order.

( 12 )

11. It may not be out of place to mention here that the

spot panchanama prima facie shows that the dead-body of

deceased Sow. Swati was found lying in the bedroom. She had

received 100% burns and was found to have been charred to

death. There were burnt pieces of clothes stuck to various

parts of her body. A wooden cot was found near the dead-body.

The right side of the wooden cot was blackened due to the

proximity of fire flames. Lying nearby was a white coloured

canister smelling of kerosene. The circumstances do indicate

that Sow. Swati received the burn injuries in the bedroom. It

is but natural that she must have raised hue and cry due to

the unbearable agony caused as a result of the burns. It is

strange that not a single member of the family, consisting of

the respondents No. 2 to 6, went to her rescue. Neither of

them had received any burn injuries while extinguishing the

fire nor they had come out with a case that they attempted to

extinguish the fire. The post-mortem notes would indicate that

smell of kerosene was noticed by the Medical Officer when the

dead-body of Swati was examined. This fact is shown against

column No. 7 of the post-mortem notes. The post-mortem notes

would further show that she had received burns to the extent

of 95% to 100% and died as a result of shock caused due to

such extensive burns. The circumstantial evidence goes to show

( 13 )

that the respondent No. 2 - Dattatraya did not make any

attempt to extinguish the fire. The statement of Bhima Bulbule

prima facie shows that at about 8.30 a.m., he received

information that Swati had died due to burns in the bedroom of

the house. It is explicit, therefore, that the incident

occurred somewhere before 8 a.m. in the relevant morning. It

does not stand to reason that the respondents No. 2 to 6 had

all gone out of the house in the early morning. Their absence

from the house by itself is rather a suspicious circumstance.

All these aspects are not examined by the learned Sessions

Judge.

12. On behalf of the respondents No. 2 to 6, an

affidavit is filed by respondent No.2 Dattatraya in order to

oppose the application. The reply-affidavit prima facie does

not show any substantial reason to support the impugned order.

It is alleged that the respondent No. 2 - Dattatraya was

present in the marriage ceremony of the daughter of one

Shatvir Baburao Bulbule on 29th May, 2010. A certificate of

Village Panchayat, Samangaon is filed on record to corroborate

such plea of alibi. In fact, that was not the contention

before the Sessions Court nor such contention has been dealt

with by the learned Sessions Judge.

( 14 )

13. The Apex Court, in "Dr. Narendra K. Amin v. State of

Gujarat and another" (2008 AIR SCW 3268), where a senior

I.P.S. Officer was charged in fake counter case, held that the

bail granted by considering shady reputation and criminal

antecedents of the deceased, was liable to be cancelled

because such factors cannot be relevant consideration for

grant of bail. The Apex Court in "Sudha Verma v. State of

U.P. and another" (2007 AIR SCW 5598), held that bail granted

to an accused can be cancelled if the same is found to have

been granted on basis of irrelevant considerations. In the

given case, the bail was granted to the accused for the reason

that co-accused was released on bail. The Apex Court noticed

that the accused had used fire-arm during course of the

incident of assault and, therefore, his case could not have

been equated with the case of co-accused i.e. his father.

14. In the present case, I have no hesitation in holding

that the impugned order reflects non-application of judicial

mind to the given fact situation and the bail order is

rendered on basis of irrelevant considerations. The learned

Sessions Judge failed to examine whether a prima facie case is

made out against the respondents No. 2 to 6. Be that may as

( 15 )

it is, since the respondents No. 4 and 6 are the women

accused, the cancellation of bail granted to them at such a

belated stage may not be called for. For, they are covered by

proviso appended below Section 437 (2) of the Criminal

Procedure Code. Their presence outside the prison is not

likely to hamper the fair trial. However, the respondents No.

2, 3 and 5 are not entitled to seek such liberty because the

minor witness i.e. Payal is likely to be influenced by them

parameters of the

and in any case, the bail granted to them is not within the

relevant provisions of Section 437 or

Section 439 of the Criminal Procedure Code.

15. In the result, the application is partly allowed.

The impugned order granting bail to the respondent No. 2

(Dattatraya), No. 3 (Chandrabhan) and No. 5 (Pravin) stands

revoked and the bail granted to them is cancelled in the

exercise of powers available under section 439 (2) of the

Criminal Procedure Code. The application to the extent of the

respondent No. 4 (Sow. Padminbai) and No. 6 (Sow. Jyoti) is,

however, dismissed. The respondents No. 2, 3 and 5 shall

surrender before the Sessions Court within one (1) week or

else, non-bailable warrant shall be immediately issued against

them. The trial of the sessions case is expedited.

( 16 )

16. The operative order in this matter may be

communicated to the Sessions Court immediately by e-mail/fax.

[V.R. KINGAONKAR] JUDGE

NPJ/criapln2212-10