The State Of Maharashtra vs Lakhan @ Vinod S/O. Kumar Kakade ...
2023 Latest Caselaw 8404 Bom

2023:BHC-AUG:17692-DB
                                                                                           acb-27-2022 .odt
                                                        (1)


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                       APPLICATION FOR CANCELLATION OF BAIL NO.27 OF 2022
                                       IN APEAL/156/2021

                 The State of Maharashtra
                 Through Police Station Officer,
                 Shrigonda Police Station,
                 District Ahmednagar.                                        ...Applicant

                          VERSUS

                 1.       Lakhan @ Vinod s/o Kumar Kakade
                          Age : 30 years, Occu - Agri.,
                          R/o Sangvi Dumala, Tq. Shrigonda,
                          Dist. Ahmednagar.

                 2.       X.Y.Z.                                             ...Respondents
                                                ...

Mr. P.K. Lakhotiya, APP for Applicant/State. Mr. D.S. Ingole h/f Mr. Nilesh S. Ghanekar, Advocate for Respondent No.1.

Ms. Sunita G. Sonawane, Advocate for Respondent No.2.

...

CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, J.J.

RESERVED ON : JULY 27, 2023 PRONOUNCED ON : AUGUST 19, 2023

ORDER (PER S.G. MEHARE, J.) :-

01. Heard the respective counsels.

02. The State has applied for cancellation of bail under

Section 439 (2) of the Criminal Procedure Code granted to the

accused by this Court by order dated 20.09.2021 passed in Criminal

Appeal No.156 of 2021 for violating the following bail conditions;

acb-27-2022 .odt

(b) The appellant shall reside away from village Sangvi Dumala, Tq. Shrigonda beyond a radius of 100 kms till the completion of the recording of the testimony of material witnesses and when he would be permitted to attend the Court proceeding;

(e) The appellant shall not contact the prosecutrix or her parents or relatives or any witness or any such person through whom he would attempt to influence the prosecutrix or the witnesses, directly or indirectly, by any mode.

03. The applicant would be referred to as 'the prosecution',

respondent no.1 would be referred to as 'accused', and respondent

no.2 would be referred to as ' the victim' for convenience.

04. After hearing the respective parties, the orders were

reserved. However, before pronouncing the orders, the learned APP

filed an additional affidavit contending that the accused violated the

bail condition again.

05. The brief facts giving rise to the present application were

that after granting bail to the accused, on 27.01.2021, the accused

entered a 100 km radius of the village Sangvi Dumala, and outraged

the modesty of and assaulted the victim. Its FIR was registered. A

copy of the said FIR no.0739/2021 has been placed on record. On

28.06.2023 again violating the bail, he entered into the area of a 100

km radius at Jagdamba Hotel. The police arrested him there. The said

hotel was 78 km away from the house of the victim. The statements of

the witnesses and CDRs of the cell phone of the accused have been

placed on record to prove the allegations levelled against the accused.

acb-27-2022 .odt

06. The prosecution has submitted a bunch of documents to

prove that on 28.06.2023, the accused was at Shree Jagdamba Family

Restaurant, Kesnand, Taluka Haveli, District Pune. The CDRs were

also collected to prove that the accused often used to be in the

periphery of 100 km from the village Sangvi Dumala, where the

victim was residing.

07. In reply, the accused submits that he was in jail for more

than two years. Hence after his release, it is highly improbable that he

would contact the victim and commit any act of outraging her

modesty. The report dated 27.10.2021 is false. She took the

disadvantage of the presence of the accused in the Court. That day,

the Sessions case was posted for evidence of witnesses. The evidence

of the victim was partly recorded. On that day, the trial was not

posted for recording her evidence. She had no reason to attend the

Court. She had engaged an Advocate to assist the prosecution. Only

to harass him and to make a ground for cancellation of bail, she

lodged the false report. The accused was arrested in that Crime. All

the witnesses were hearsay. There were no visible injuries on her

person.

08. He further submitted that a Criminal Appeal No.135 of

2022 for regular bail was before the High Court for hearing; that

time, she made a scene in the open Court. The Court observed her

demeanor in the order granting bail to him. He was sincerely

acb-27-2022 .odt

observing the bail conditions. When his bail appeal bearing no.135 of

2022 was fixed on 04.5.2022, she had filed a report against his father

for which the offence under Section 323, 504 and 506 of the Indian

Penal Code, and Sections 3(2) (Va) of SC ST Act under Crime No.374

of 2022 was registered. The learned Additional Sessions Judge

granted bail to his father on 27.05.2022. The victim was given 24

hours of police protection. A lady police constable was with her when

the said incident happened. Her statement falsified her report. Her

conduct indicates that she has a habit of making false allegations

09. It is further submitted that on 15.01.2019, the victim

lodged a report against the six accused for the offence punishable

under Section 354-A, 343, 147, 149, 354, 323, 504 and 506 of the

Indian Penal Code with Police Station Shrigonda under Crime NO.57

of 2019. The accused had faced prosecution under Section 376 of the

Indian Penal Code; however, he has been acquitted. During the trial

of that case, the victim appeared in that proceeding and alleged that

the accused had pressurized the witnesses to give the statements. The

learned trial Court enquired with the witnesses and found no

substance in her allegation. He has placed a copy of the said

judgment. With these submissions, he prayed to dismiss the

application.

10. After an additional affidavit filed by the prosecution, he

filed his reply to the additional affidavit denying the allegations in the

acb-27-2022 .odt

application. He has submitted that on 28.06.2023, he was told to

come to Shree Jagdamba Family Restaurant, near Kasti Nharva Phata,

for the purpose of an interview for a job in Pune. However, he did not

deny that the said hotel was 78 km away from village Sangvi Dumala.

When he reached there, police authorities apprehended him, and he

found that a trap was led by the informant along with police

authorities. He was not having knowledge of police authorities being

present there and already waiting for him. He was shocked and came

to know that it was a trap intentionally led for him by the informant

to create a ground for the cancellation of his bail. In order to create a

ground for cancellation of bail, a photograph was snapped by the

police authorities and the informant of which he had no knowledge of

the presence of the informant on the said spot. That goes to show that

it is the informant who is deliberately creating the ground by applying

tactics to cancel his bail.

11. The victim has filed her say. In brief, she submits that she

belongs to a poor family. The accused made her and her family leave

the village and threw them out of the said village. Hence, she had

consumed the poison. She was admitted to the hospital for several

days. The accused had criminal antecedents. He threatened and

assaulted her within a radius of 100 km and thereby violated the bail

condition (b) and (e). She supported the allegations levelled against

acb-27-2022 .odt

the accused by the prosecution and prayed to cancel the bail granted

to him.

12. Perused the papers placed on record.

13. The bail may be cancelled where the accused (a) misuses

the liberty granted to him and indulges in similar crimes, (b)

interferes with the course of the investigation, (c) attempts to tamper

with the prosecution witnesses, (d) threatens the witnesses or

indulges in similar activities which would hamper the smooth

investigation, (e) attempts to flee away from justice, (f) attempts to

keep himself beyond the reach of his surety and (g) attempts to make

himself scarce by going underground or becoming unavailable to the

investigating agency, etc.

14. In the case at hand, the specific allegations have been

levelled against the accused that on 27.10.2021, he assaulted the

victim and outraged her modesty. The Crime for the said assault was

registered against the accused. The FIR supports the case of the

prosecution. The reply of the accused indicates that on that day, the

victim went to the Court for attending the trial. However, the

explanation of the accused that she was not required to attend the

trial on that date and the trial was not posted for her evidence, is not

convincing for the reasons that the victim has a right to attend the

trial on each date. The Courts are ever open for the public. A person

having no concern may also watch the Court proceeding. Every

acb-27-2022 .odt

citizen has a free access to the Court. His reply is an admission that

on 27.10.2021, she was there in the Court. The incident of assaulting

and outraging her happened 20 kms away from Shrigonda Police

Station at about 02.00 pm in Bhoite Vasti area. The police took the

cognizance and registered a Crime bearing No.739 of 2021. It is a

prima facie evidence against the accused that he violated the bail

conditions (b) and (e) imposed in the order of this Court dated

20.09.2021.

15. The learned counsel for the accused has further

vehemently argued that, the victim was habituated to lodging false

complaints against the accused and to support his arguments he

referred to the observations recorded by this Court in the bail

application, granting him a bail on 04.05.2022. In the said order it

has been observed in paragraph no.10 that 'the victim/informant

contested appellant's prayer for bail. Inspite of having been

represented by an Advocate appointed, this Court gave her audience.

She made a scene in the open Court'. The Court was dealing with the

bail application to the accused. However, the Court did not observe

about the violation of the bail condition. The offence registered

against the accused was cognizable. Hence the Crime was registered

against him. Barely saying that she had the habit of lodging false

reports against the accused is not sufficient to discard the case for

cancellation of bail.

acb-27-2022 .odt

16. The accused was restrained from entering radius of 100

kms till the completion of the recording of the testimony of material

witnesses. The accused's say itself indicates that the evidence of the

victim who was the material witness was partly recorded. Hence, it

cannot be believed that the evidence of material witnesses has been

recorded and there was no violation of bail condition.

17. The accused did not stop after registering a crime against

him. On 28.06.2023, he again entered a radius of 100 km of village

Sangvi Dumala. Admitting his presence at Jagdamba Family

Restaurant, his explanation about it as mentioned above is a cogent

material against him that he violated the bail condition. His

explanation that he had been there to attend the interview, cannot be

believed for want of supporting documents.

18. The police had collected a leave and licence agreement

between the land owner and the accused for running Shree Jagdamba

Family Restaurant. It indicates that he was the owner of the

Jagdamba Restaurant. The CDR placed on record indicates that the

accused was within a radius of 100 kms of village Sangvi Dumala on

many occasions. The offence registered against the accused is serious.

19. It is evident from the facts and documents that he had

threatened and outraged the modesty of the victim after he was

granted bail. He has misused the liberty granted to him. He tried to

tamper with the prosecution witnesses. He appears to have no respect

acb-27-2022 .odt

for the Court orders. The material placed on record is sufficient to

believe that the accused has violated the bail conditions (b) and (e)

imposed upon him in the bail order of this Court dated 20.09.2021.

20. For the above reasons, we are of the considered view

that this is a fit case to exercise the powers to cancel the bail. Hence,

the following order:

ORDER

I) Application for Cancellation of Bail is allowed.

II) Bail granted to accused in Crime no 0708/2019 registered with

Police Station Shrigonda in Criminal Appeal No.156 of 2021 dated

20.09.2021 stands cancelled for violating the bail conditions (b) and

(e) of the said order.

III) Bail bonds and surety bonds of the accused stand cancelled.

IV) The accused shall surrender before the trial Court on or before

02.09.2023.

 (S.G. MEHARE. J.)                                (RAVINDRA V. GHUGE, J.)




 Mujaheed//