Kaushal Maheshkumar Gupta vs State Of Mah. Thr. Ps In ...
2023 Latest Caselaw 2760 Bom

Citation : 2023 Latest Caselaw 2760 Bom
Judgement Date : 21 March, 2023

Bombay High Court

Kaushal Maheshkumar Gupta vs State Of Mah. Thr. Ps In ... on 21 March, 2023

Bench: Vinay Joshi, Bharat Pandurang Deshpande

                                           1              16apeal52.23.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR
                         CRIMINAL APPEAL NO. 52/2023

          Kaushal Maheshkumar Gupta,
          Aged 38 yrs., Occ. Labour,
          R/o. Behind Balaji Mandir,
          Sakkarsath, Amravati,
          Dist. Amravati.
                                                                APPELLANT

                                    VERSUS
 1.       State of Maharashtra,
          through its Police Station,
          In-charge/Inspector, Police Station,
          Sita Buldi, Dist. Nagpur.

 2.       XYZ (Victim)
          Crime no. 253/2020,
          through its Police Station In-charge/
          Inspector, Police Station Sitabuldi,
          Dist. Nagpur.


                                                                RESPONDENTS

 -------------------------------------------------------------------------------------

--------------

Mr. Y. J. Sheikh, Advocate for appellant.

Mr. V. A. Thakare, APP for respondent No.1.

Mr. A. R. Prasad, with Mr. R. R. Tiwari, Advocate for respondent No.2.

             CORAM                                  : VINAY JOSHI AND
                                                                    BHARAT               P.
 DESHPANDE JJ.

            DATE OF JUDGMENT                                :    21.03.2023


 ORAL JUDGMENT (PER VINAY JOSHI, J.)


          Heard.

2. The appellant orally seeks leave to add prayer for setting aside the

2 16apeal52.23.odt

order dated 23.12.2022 passed in Criminal Bail Application No.

2732/2022.

3. Leave is granted. Amendment be carried out forthwith.

4. This is an appeal in terms of Section 14-A of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1980 ('SC and ST Act') raising a challenge to the rejection of

pre-arrest bail by the Trial Court. Initially, the Crime No. 253/2020

was registered against the appellant and others for the offence

punishable under Sections 354(A), 354(B), 506 read with Section

34 of the Indian Penal Code. Apprehending arrest in said crime,

the appellant has applied to the Trial Court for pre-arrest bail in

terms of Section 438 of the Code of Criminal Procedure ('Code').

Considering the application on merits, the Trial Court has granted

pre-arrest protection vide order dated 22.07.2022. Thereafter,

informant made several complaints to the Police for addition of the

provisions under the SC and ST Act as well as Section 376 of the

Indian Penal Code. In pursuance of that the Police called an

opinion of Law Officer and on that basis added the provisions of

Section 376 read with Section 511 of the Indian Penal Code and

provisions under the SC and ST Act. In turn, the State has moved

to the Trial Court for cancellation of bail purely on the ground that

there has been addition of penal provisions and therefore, bail

needs to be cancelled. In that regard, reliance was placed on some

3 16apeal52.23.odt

decisions to contend that after addition of penal provisions, for

arrest of accused bail needs to be cancelled in terms of Section

439(2) of the Code. Having regard to the addition of penal

provision, bail was cancelled on 14.10.2021. Perusal of said order

indicates that the Trial Court has not considered the appellant's

entitlement for pre-arrest bail on merits, however as penal section

have been added, the bail was cancelled. In-turn, on addition of

penal provision under the SC and ST Act and Section 376 read with

Section 511 of the Indian Penal Code, the appellant has again

applied to the Trial Court for grant of pre-arrest protection. In the

circumstances, the Trial Court ought to have considered the bail

application on its own merits with regard to the additional penal

provisions. However, the Trial Court vide its order dated

23.12.2022 has declined to entertain the bail application on merits.

The relevant observations made in para 9 read as below:-

"9. In the above backdrop, the question is whether the present anticipatory bail application is maintainable when his anticipatory bail is cancelled by this Court. It is not the case that his anticipatory bail is rejected and he is filing this application after change in circumstances. It is to be noted that applicant is seeking anticipatory bail after filing of the charge-sheet and after cancellation of anticipatory bail. In the meanwhile, applicant was absconding and therefore, charge-sheet is filed under Section 299 of the Cr. P. C. The order of cancellation of bail was never challenged. Therefore, this Court is not supposed to review its own order of cancellation of bail. The other accused have surrendered and released on bail. Therefore, present applicant who was absconding cannot ask for bail much less anticipatory bail as of right. Filing of charge-sheet in this case cannot be treated as change in circumstances since his earlier application was not rejected but cancelled."

5. It is evident that the Trial Court was under assumption

4 16apeal52.23.odt

that the bail was already cancelled, there was no change in

circumstances rejecting the bail. As as matter of fact, on

addition of penal provisions, the Trial Court ought to have

considered the appellant's entitlement for pre-arrest bail on its

own merits. Thus, rejection dated 23.12.2022 is on technical

front which is not in accordance with law. In the result, there

is no assessment of the appellant's entitlement for bail after

addition of penal provisions which exercise needs to be

undertaken.

6. In the circumstances, we deem it appropriate to direct