Rukmangad S/O Subhash Birajdar vs The State Of Maharashtra And ...
2023 Latest Caselaw 2263 Bom

                                   1                              949-ACB-66-22.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


       APPLICATION FOR CANCELLATION OF BAIL NO.66 OF 2022
                        IN BA/1735/2021


Rukmangad s/o. Subhash Birajdar,
Age 33 years, Occu. Agri.,
R/o. Dongargaon, Taluka Nilanga,
District Latur                                  ..      Applicant

                 Versus

1.      The State of Maharashtra
        its Investigation Officer,
        S/or Police Sub-Inspector,
        Police Station Kasar-Shirshi,
        Taluka Nilanga, District Latur

2.      Waman s/o. Dhondiba Birajdar,
        Age 60 years, Occu. Agri.,
        R/o. Dongargaon, Taluka Nilanga,
        District Latur                          ..      Respondents


Mr. Ganesh V. Mohekar, Advocate for Applicant;
Mr. S. B. Narwade, APP for Respondent No.1/State;
Mr. Shrikant G. Kawade, Advocate for Respondent No.2



                                         CORAM :        S. G. MEHARE, J.

                                         DATE        : 09-03-2023

PER COURT :-

1. Heard the learned counsel for the applicant, the learned

A.P.P. for respondent No.1/State and the learned counsel for

respondent No.2/accused.

2 949-ACB-66-22.odt

2. The applicant is seeking cancellation of bail granted to

respondent No.2 by order passed in B.A.No.1735 of 2021 dated

21.01.2022, on two grounds, namely, (i) suppression of the

registration of the crime and (ii) breach of condition that

respondent No.2 shall not tamper with the prosecution evidence.

3. The learned counsel for the applicant would submit that a

day before the incident, the crime was registered against present

respondent No.2 and on the next day, another crime happened in

which he was arrested and released. At the time of securing bail,

respondent No.2 had suppressed the fact of crime registered

against him.

4. To buttress the arguments, the learned counsel for the

applicant relied on a case of Kishore Samrite Versus State of

U.P. & Ors. Criminal Appeal No.1406 of 2012 decided on

18.10.2012. In the said case, ratio has been laid down that

securing the orders from the Court, suppressing the material facts,

is void ab-initio and such order may be recalled.

5. Secondly, the learned counsel for the applicant has an

argument that after release, respondent No.2 threatened one of

the witnesses, namely, Manohar Birajdar. He lodged report of the

said incident. One NC was also lodged against present respondent

No.2.

3 949-ACB-66-22.odt

6. He relied on the case of Ms. P Versus State of Madhya

Pradesh, AIR 2022 Supreme Court 2183 and vehemently

argued that there are various grounds enunciated in paragraph

No.24 of the said judgment sufficient for cancellation of bail.

Reading the said paragraph as a whole, it appears that the

applicant has misused the liberty. He attempted to tamper with

the evidence. He threatened the witnesses. Therefore, his bail is

liable to be cancelled.

7. The prosecution has also supported the arguments and the

case of the applicant. The copies of the alleged NCs have been

placed on record. The application for cancellation of bail deserves

to be allowed.

8. Per contra, the learned counsel for respondent No.2/accused

would argue the he never suppressed the fact of any crime

registered against him. The first information report registered on

06.07.2021, was registered after his report, to counter the same.

They were never called upon for the said offence registered on

06.07.2021. The present incident is dated 07.07.2021 and on the

very same day, the applicant was arrested. They had no

knowledge about the registration of the crime dated 06.07.2021.

That apart, the prosecution had brought this fact to the notice of

the Court while considering the bail application. As far as NC is

concerned, the witness is a relative of the first informant. The

4 949-ACB-66-22.odt

another NC allegedly lodged on 17.03.2022 is also false. The

allegations in the said NC have no direct or indirect connection

with the alleged tampering with the witnesses in the present case.

The applicant and the respondent are the relatives. They are

fighting over a long period. The applicant and his family were not

living a single stone unturned. The application is not bona fide. It

was filed with an ulterior motive to see the applicant behind bar.

Respondent No.2 has neither suppressed the fact nor tampered

with the prosecution witnesses. Hence, the application is liable to

be dismissed.

9. The law as regards the cancellation of bail is well settled by

the catena of judgments of the Honourable Supreme Court. The

bail is ordinarily not cancelled unless there are overwhelming

circumstances, the order granting bail is arbitrary and perverse.

The list given by the Honourable Supreme Court in the case of

Ms. P. (supra) is illustrative and not exhaustive.

10. As far as the allegations of suppression of facts are

concerned, this Court while granting bail has specifically observed

that the learned A.P.P. had brought to its notice about the

pendency of the counter case. The report dated 06.07.2021 was

lodged to counter a report lodged by the applicant. Neither the

prosecution nor the applicant has material to show that the

applicants were either called or arrested in the said FIR No.184 of

2021. It appears that respondent No.2 was not knowing about the

5 949-ACB-66-22.odt

registration of the crime on 06.07.2021, but the learned A.P.P. has

discharged his duty honestly and brought this fact to the notice of

the Court while hearing the bail application. Considering the

circumstances cumulatively, it cannot be believed that respondent

No.2 had suppressed the fact of registering a crime from the Court

while seeking bail.

11. As far as threats to the witnesses and tampering with the

evidence is concerned, the NC which has been placed on record

bearing No.122 of 2022 dated 17.03.2022 shows that on

16.03.2022, the first informant in this case quarreled with

respondent No.2 and others over running the tractor through the

field. It was apparently a separate cause of action. Registering of

N.C. lodged on the report of one of the witnesses Manohar Birajdar

is concerned, it has been alleged therein that the said witness has

been threatened on mobile handset by WhatsApp message. The

said witness appears to be in relation i.e. relative of present

applicant. He did not produce the evidence to corroborate the

statement of threats on WhatsApp messages and call. In the

circumstances, the possibility of lodging incorrect report for

securing cancellation of bail cannot be denied. Whatsoever the

material produced on record by the applicant to prove the

allegations of tampering with the prosecution witnesses, this Court

is of the view that it is insufficient to believe the case of the

applicant.

6 949-ACB-66-22.odt

12. It cannot be said that bail order was obtained by suppressing

fact and respondent No.2 threatened the witnesses as alleged. The

applicant could not point out the perversity and arbitrariness in

the bail order. There are no overwhelming circumstances to cancel

the bail. Hence, for the above reasons, the application for

cancellation of bail stands dismissed.

( S. G. MEHARE ) JUDGE

rrd