Bombay High Court
Nilesh @ Shashikant S/O Yashwant ... vs State Of Mah., Thr. P.S.O. Washim ... on 6 January, 2021
Bench: Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPLN) NO. 10 OF 2020
Nilesh @ Shashikant S/o Yashwant
Pendharkar
Aged 51 years, Occ. Service,
R/o. Bhavani Nagar, Tq. Washim
Police Station Washim,
Dist. Washim. .. APPLICANT
...Versus...
1. State of Maharashtra,
Through P.S.O. Washim,
Distt. Washim.
2. Bhagwat Chagan Pede,
Aged about 47 years, Occ. Service,
R/o. Charkha Layout, Civil Lines,
Dist. Washim. ..NON-APPLICANTS
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Shri P.V. Navlani, Advocate for the Applicant.
Shri A.M. Kadukar, A.P.P. for the Non-applicant No.1/State.
Shri S.V. Sirpurkar, Advocate for the Non-applicant No.2.
-----------------------------------------------
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 06th January, 2021.
ORAL JUDGMENT :-
Heard. Admit. By consent of learned counsel for
both the parties, present matter is taken up for final hearing at
the stage of admission itself.
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2. Heard, Shri P.V. Navlani, the learned counsel for the
applicant, Shri A.M. Kadukar, the learned APP for the non-
applicant No.1/State and Shri S.V. Sirpurkar, the learned
counsel for the non-applicant No.2.
3. The applicant has filed this application for
cancellation of Anticipatory Bail granted by the learned
Additional Sessions Judge, Washim on 17.01.2020 to the non-
applicant No.2 in Crime No. 575/2019, whereby the learned
Additional Sessions Judge has allowed the second Anticipatory
Bail Application filed by the non-applicant No.2 herein.
4. Shri Sirpurkar, the learned counsel for the
non-applicant No.2 vehemently argued that the learned
Additional Sessions Judge, Washim has rejected the application
filed by the non-applicant No.2 for grant of Anticipatory bail on
16.12.2019, on the ground that the amount of Rs.5,33,000/- is
to be recovered from the non-applicant No.2-accused.
Thereafter, the accused/non-applicant No.2 has challenged the
said order in this Court, whereby this Court has allowed to
withdraw the said Anticipatory Bail Application on 07.01.2020.
This Court has observed that while the Court about to dictate
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the order of dismissal of the application, the learned counsel for
the accused/non-applicant No.2 sought withdrawal of the said
application, which was allowed.
5. It is submitted that thereafter, the second
Anticipatory Bail Application was moved before the same
Additional Sessions Judge on 13.01.2020, which was allowed
on 17.01.2020, on the condition that the accused/non-applicant
No.2 should deposit the amount of Rs.5,33,000/- with the
Investigating Officer, on preparing the Seizure Panchnama of
the said amount.
6. Shri Navlani, the learned counsel for the applicant
vehemently argued that the application filed by the non-
applicant No.2 was not tenable as there was no change in
circumstances. He also placed reliance on the judgment in the
case of M/S. Gati Limited v. T. Nagarajan Piramiajee in Criminal
Appeal No. 870/2019 reported in AIR ONLINE 2019 SC 1800
Supreme Court of India, whereby it is held by the Hon'ble Apex
Court that the second application of anticipatory bail heard by
different Judge of the High Court inspite of availability of
Judge who had decided the first application, was set aside,
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particularly, on the ground that there was no change in
circumstances from disposal of first application.
7. Per contra, Shri Sirpurkar, the learned counsel for
the non-applicant No.2 contended that there are no grounds for
cancellation of bail in the present case, as the non-applicant
No.2 has cooperated with the Investigating Agency. So also he
has not misused the liberty by threatening the witnesses or by
interfering with the judicial process. It is submitted that the
allegations against the non-applicant No.2 were that, he has
misappropriated the amount of Rs.5,33,000/- while he was in
the capacity of the Director of the Jan Shikshan Society,
Washim. It is further submitted that the offences under Sections
418 and 420 of the Indian Penal Code are punishable upto 7
years. The non-applicant No.2 has shown his bonafides by
depositing the amount of Rs.5,33,000/-, about which the
allegations of misappropriation were there, and therefore, the
trial court has released him on Anticipatory Bail. It is further
submitted that the non-applicant No.2 has cooperated with the
investigation and the investigation is not hampered in any
manner.
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8. Shri Sirpurkar, the learned counsel for the non-
applicant No.2 has placed reliance on the judgment of the
Hon'ble Apex Court in the case of Sharad Vs. The State of
Maharashtra & Anr., in Criminal Appeal No.1221/2019, wherein
the Hon'ble Apex Court has held that there is no provision in the
Code of Criminal Procedure, 1973 or law laid down by this
Court that once an accused has withdrawn his bail application
before the High Court, he cannot file a subsequent bail
application before the Sessions Court and that his subsequent
bail application would lie before the High Court only.
9. The learned APP fairly admitted that the non-
applicant No.2 has cooperated with the Investigating Agency
and has not tampered with the evidence in any manner. He
submitted that the custody of the accused/non-applicant No.2
was required for the recovery of amount of Rs.5,33,000/-,
which he has deposited with the Investigating Agency.
10. After hearing both the sides and on a perusal of the
case papers, it is noticed that the first bail application of the
non-applicant No.2 was rejected by the learned Additional
Sessions Judge, Washim, mainly on the ground that the amount
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6 2.APPLN. NO. 10-2020 JUDGMENT.odt
of Rs.5,33,000/- was to be recovered from him. Whereas, the
second bail application filed by the non-applicant No.2 was
allowed by the learned Additional Sessions Judge, Washim, on
depositing the said amount which was to be recovered from the
non-applicant No.2. It is not the case that the non-applicant
No.2 has not cooperated with the investigation. Even the non-
applicant No.1-State has no grievance on that aspect.
11. Considering the nature of offence allegedly
committed by the non-applicant No.2, similarly considering that
he has shown his bonafides by depositing the amount of
Rs.5,33,000/- with the Investigating Agency and also keeping in
mind the law laid down by the Hon'ble Apex Court (supra), in
my considered opinion, the application filed by the applicant for
cancellation of Anticipatory Bail granted to the non-applicant
No.2, is to be rejected. Hence, the following order is passed.
ORDER
The Criminal Application stands rejected.
( MRS. SWAPNA JOSHI, J.)
S.D.Bhimte
