Sharada W/O. Ganesh Rukhmode vs State Of Maharashtra Thr. P.S.O. ...
2017 Latest Caselaw 9651 Bom

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.

================================================================
           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.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : DECEMBER 15, 2017.



                                                                          .....2/-



 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/-

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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

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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

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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

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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

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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

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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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