Bombay High Court
Rajendra S/O Shankar Dawane vs State Of Maharashtra, Thr. P.S.O. ... on 1 July, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APPLN) NO.27/2016
Rajendra s/o Shankar Dawane,
aged about 34 years, Occ. Labour,
r/o Daskholi, Gondia, Dist. Gondia. .....APPLICANT
...V E R S U S...
1. State of Maharashtra, through
Police Station Officer, Police Station,
Ramnagar, Gondia, Dist. Gondia.
2. Zulfekar & Chotu Jabbar Gani,
aged about 31 years, Occ. Busienss,
r/o Ram nagar, Gondia. ...NON APPLICANT
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Mr. A. A. Gupta, Advocate for applicant.
Ms T. Udeshi, A.P.P. for non applicant no.1.
Mr. S.Singha h/f Mr. R. K. Tiwari, Advocate for non applicant no.2.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 01.07.2017
ORAL JUDGMENT
1. Rule. Rule returnable forthwith. Heard finally by
consent of the parties.
2. This application is moved by the applicant, who is brother
of the deceased Dharam Dawane. The application is moved under
Section 439 (2) of Cr. P. C. for cancellation of bail granted by this
Court on 30.09.2015.
3. The present applicant was one of the accused in Crime
No.88/2012 registered with Police Station, Ram Nagar, Gondia for
an offence punishable under Sections 302, 307, 147, 148, 149 of the
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Indian Penal Code, under Sections 3 (2) (5) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act and Sections 3,4,
25 and 27 of the Indian Arms Act.
4. This Court had on 30.09.2015 exercised its discretion in
favour of the present non applicant no.2. and released him on bail on
certain conditions. The record reveals that when the non applicant
no.2 was released on bail, the investigation was over and final report
was already presented in the Court of law. While releasing the
applicant on bail, following conditions were imposed by this Court:
(i) Criminal Application is allowed.
(ii) Applicant Zulfekhar @ Chotu s/o Jabbar Gani be released on
bail in connection with Crime No. 88/12 registered with Police
Station Ramnagar, Gondia for the offence punishable under
Sections 147, 148, 302, 307, 149, 109, 120-B and 212 of Indian
Penal Code read with Sections 3 (2) (5) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, and 3, 4, 25 and
27 of the Arms Act on his executing P.R. Bond of Rs. One Lac with
two solvennt sureties of like amount.
(iii) The applicant shall attend police station Ram Nagar, Gondia
on every Monday and Saturday between 3 p.m. to 6 p.m. till
culmination of trial.
(iv) Bail before trial Court.
(v) The applicant shall not tamper with the prosecution case.
(vi) Any breach of aforesaid conditions would give rise to the
prosecution to take recourse for cancellation of the bail.
According to the learned counsel for the applicant, the
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non applicant no.2 has flouted condition no. (iii) that was imposed
upon him by this Court while releasing him.
5. The learned A.P.P. also filed reply on behalf of the State
and also on behalf of the Investigating Officer and supported the
application filed on behalf of the present applicant for cancellation of
bail granted in favour of non applicant no.2.
On affidavit, Police Station authorities of Gondia have
pointed out that the non applicant no.2 remained present on three
occasions in October-2015 and November-2015 and he was absent
on 7 occasions in November-2015. In December-2015 he was absent
on 5 occasions. He remained absent on 5 occasions in January-2016,
8 Occasions in February and from March to May, 2016 he was
absent. In June, 2016 the non applicant no.2 was absent on 8
occasions and again in July, 2016 he was absent on 6 occasions.
6. The learned counsel for the applicant pointed out from
the attendance register that till the filing of the present application,
the non applicant no.2 was required to attend police Station on 68
occasions however he attended only on 13 occasions. This statement
is also supported by the learned A.P.P. for the State.
7. Mr. Singha, learned counsel for the non applicant no.2
invited my attention to the reply filed on behalf of non applicant no.2
by which he tried to point out that due to the ill health, he could not
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remain present before the Police Station. He invited my attention to
page 43 of the compilation which is communication addressed to
Ram Nagar Police Station by non applicant no.2. Perusal of the said
communication shows that this communication is not under the
signature of non applicant no.2. In paragraph 4 of the reply it is
stated that this particular communication was given by his lawyer.
Conveniently, the communication is not on the letterpad of any
advocate. Further, though it is stated that this communication was
sent through registered post, no acknowledgment is filed on record
showing that it was received by police station authorities. Also there
is no averment in the reply that any attempts were made by the non
applicant no.2 to see that whether the communication is received by
police station. A perusal of this communication shows that for past 2
½ months, the non applicant no.2 was keeping ill. The postal receipt
of this communication shows that it is dated 04.05.2016 however
from the said postal receipt, it is not clear as to whether through this
postal receipt the communication at page 43 alone was sent. Further
even granting that particular leverage in favour of the non applicant
no.2, from May-2016 is has remained absent from the police station.
Mr. Singha candidly admits that for further absence of
non applicant no.2 from the police station authorities, he has no
justification.
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8. It appears that when this Court granted regular bail in
favour of the non applicant no.2, it was expected from him that he
will not indulge in such other crimes. However, my attention is
invited by the learned counsel for the applicant and the learned
A.P.P. for the State that on 10.09.2016 another crime is registered
against the present non applicant no.2 for the offence punishable
under Section 307, 395, 147, 149 of IPC and under the Arms Act vide
Crime No.159/2016. Even this fact is also not disputed by non
applicant no.2. The statement of the learned counsel for the non
applicant no.2 is that he is released on bail in the said crime. The
weapons those are attributed against the present non applicant no.2
in Crime No. 159/2016 is revolver and sword. It is to be noted that a
crime in which this Court granted bail in favour of the present non
applicant no.2, the weapon used by the present non applicant no.2 is
pistol which he fired on the deceased.
9. The aforesaid discussion shows that the applicant has
breached the conditions imposed on him by this Court. Not only
that, after he was released on bail, he has misused the liberty granted
to him by indulging into the other serious crime. This shows that the
present non applicant no.2 has scant respect to the orders passed by
this Court and he is not a law abiding citizen in whose favour any
discretion should be exercised.
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10. Since the non applicant no.2 has flouted the orders and
has not complied with the conditions imposed upon him by this
Court while releasing him on bail, it is a fit case wherein this Court
should exercise its powers under Section 439 (2) of the Cr. P. C.
Hence following order is passed.
Criminal Application No. 27/2016 is allowed. The bail
granted to the non applicant no.2-Zulfekhar @ Chhotu Jaggar Gani,
by this Court on 30.09.2015 in Criminal Application (BA)
No.598/2015 is hereby cancelled. Police Station Officer of Police
Station, Ram Nagar, Gondia is directed to arrest the non applicant
no.2, immediately.
Rule is made absolute in the above terms. No order as to
costs.
JUDGE
kahale
