Meena W/O. Sopan Kardile vs Popat Mhatardeo Funde And Another
2022 Latest Caselaw 5200 Bom

                                       1                              CrAn-15-22.odt




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD


     APPLICATION FOR CANCELLATION OF BAIL NO. 15 OF 2022

X.Y.Z.                                                  ..      Applicant

         Versus

1.       Popat s/o. Mhatardeo Funde
         Age 50 years, Occu. Agri.,
         R/o. Alhanwadi, Taluka Pathardi,
         District Ahmednagar

2.       The State of Maharashtra
         Through Department of Home Affairs             ..      Respondents

                                   ...
Mr. Vilas P. Sawant, Advocate holding for Mr. H. T. Gaikwad,
Advocate for Applicant
Mr. R. G. Hange & Mr. A. R. Hange, Advocates for Respondent no.1
Ms. Vaishali Patil Jadhav, A.P.P. for Respondent no. 2 - State
                                   ...

                               CORAM :     SMT. VIBHA KANKANWADI, J.

Date of Reserving the Order :

04-04-2022

Date of Pronouncement the Order :

09-06-2022

ORDER :-

Present application has been filed by the original informant,

who is the mother of the victim, under Section 439(2) of the Code

of Criminal Procedure, 1973 (in short, "Cr.P.C.") to challenge the

order of grant of bail to respondent no. 1 in Criminal Miscellaneous

Application No. 1884 of 2021 passed by learned Additional

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Sessions Judge, Ahmednagar, on 14.12.2021, thereby granting the

anticipatory bail under Section 438 of the Cr.P.C.

2. Heard Mr. Sawant holding for Mr. H. T. Gaikwad, learned

Advocate for the applicant, Mr. Hange, learned Advocate for

respondent no.1 and Mrs. Vaishali Patil Jadhav, learned A.P.P. for

respondent no. 2 - State.

3. As aforesaid the First Information Report (FIR) was lodged

by mother of the victim, the victim was then aged 10 years on the

date of the FIR. The FIR vide C.R.No. 892 of 2021 has been

lodged in the Pathardi Police Station on 19.11.2021 for the

offences punishable under Section 354 of the Indian Penal Code

and Sections 12, 7, 8 of the Protection of Children from Sexual

Offences Act, 2021. It is in respect of the incident alleged to have

taken place on 16.11.2021 at about 2.00 p.m. It has been alleged

that the informant alongwith the victim were in their field. The

informant was giving water to the onion crop in the field. She

asked the victim to see where the she-goat belonging to them has

gone. While searching, the victim went towards the field of

respondent no.1. The victim returned after about 15 to 20

minutes and behind her, one Ganesh Dilip Gavane and Ashok

Ajinath Kardie, cousine brother-in-law of the informant came.

Ganesh Gavhane told the informant that when he was standing

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nearby the field of Shivnath Funde, by getting down from his

tractor, he found respondent no. 1 was trying to do obscene act

with the victim. The victim had also told as to what happened

with her to the informant and then the offence has been lodged

about the said act by the informant. It is tried to be stated that

the husband of the informant had gone out of village and had

returned only on 19.11.2021, therefore, there is delay in lodging

the FIR. Whether the said delay is fatal to the prosecution case or

not would be decided by the trial Court. However, when

respondent no.1 had filed application under Section 438 of the

Cr.P.C., after taking note of the contents of the FIR, it was

observed by the learned Special Judge that there is enmity

between the two families i.e. informant's family and family of the

accused and then taking into consideration the nature of the

allegations, delay in lodging the FIR, contradictory statements and

the say of Investigating Officer, custodial interrogation is not

necessary, therefore, application came to be granted.

4. No doubt, the order passed by the learned Special Judge /

Additional Sessions Judge appears to be cryptic, it could have

been elaborate. There are parameters set out by the Honourable

Apex Court as well as this Court in the catena of Judgments as to

how an application under Section 438 of the Cr.P.C. should be

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considered, what are the factors those are required to be noted

and reflected in the order. It is expected that every order that will

be passed by the Court of law, should be a reasoned order.

Cryptic orders cannot come in the category of reasoned orders.

The Court cannot, when the investigation is still going on, consider

the enmity between the two families. The learned Special Judge

ought to have avoided the use of word "Admittedly". This word is

oftenly misused even by the Judges under the Indian Evidence

Act. What amounts to an admission has been elaborated under

Sections 17 to 31 of the Indian Evidence Act and in those

circumstances only the use of the word "Admittedly" would be

justifiable. When the case is at very primary stage, there should

not be use of word "Admittedly" and unless another person admits

a fact then only such word will have to be used. But, when the

order is cryptic, whether this Court should use the powers under

Section 439(2) of the Cr.P.C. is a question ? It can be seen that

the investigation is now complete and chargesheet has been filed

on 01.02.2022. That means, investigation could be completed

even without taking the accused-respondent no.1 in custody.

Further, the facts of the case disclose that it was an attempt by

respondent no.1 to commit rape on the victim. Under such

circumstances, when the custodial interrogation was not required,

learned Additional Sessions Judge / Special Judge was justified in

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using discretion in favour of the accused. He has imposed

necessary conditions. Therefore, this is not a fit case where the

bail granted to respondent no.1 should be cancelled. Application

stands rejected.

( SMT. VIBHA KANKANWADI ) JUDGE

rrd