Bombay High Court
Leelabai Jijeba Gudade vs The State Of Mah. Thr. Pso Jaulka ... on 5 August, 2024
2024:BHC-NAG:8848
33.cri.appeal.496.22.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.496 OF 2022
(Leelabai Jijeba Gudade Vs. The State of Maharashtra and ors.)
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. M.V. Rai, Advocate for the appellant.
Mrs. M.A. Barabde, APP for the State.
Mr. R.S. Kurekar, Advocate (appointed) for respondent Nos.2 and 3.
CORAM:- URMILA JOSHI-PHALKE, J.
DATED :- AUGUST 5, 2024.
By this application, the appellant is seeking
cancellation of bail of of respondent Nos.2 and 3 which is
granted by the trial Court by order dated 28/01/2022.
2. Learned Counsel for the appellant submitted
the respondent Nos.2 and 3 were arraigned as an accused
in connection with Crime No.390/2021 registered at
police station Julka, District Washim for the offence
punishable under Section 379 read with Section 34 of the
Indian Penal Code and Sections 3(i)(g) and 3(i)(s) of the
Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989 (hereinafter referred as 'the
Atrocities Act' for short).
3. In the said report, the informant has alleged
that she was present in her agricultural field on
13/10/2021 i.e. in Gat No.63. At the relevant time,
present respondent Nos.2 and 3 entered into field and
committed the theft of crop which in 18 gunny bags worth
of Rs.99,000/- and she was also abused on her caste. On
the basis of said report police have registered the crime
against the present respondent Nos.2 and 3.
4. Learned Counsel for the appellant submitted
that while considering the anticipatory bail application of
the present respondent Nos.2 and 3, the learned trial
Court has not considered the relevant circumstances and
also not considered that there is a bar under Section 18A
to grant the anticipatory bail. Thus, the bail granted to the
present respondent No.2 and 3 is without considering the
provisions of the law. There is a complete bar under
Section 18 and 18A to consider the anticipatory bail
application. The provisions of the Atrocities Act prima
facie appears. Thus, the order passed by the learned trial
Court is without application of mind and in the casual
manner. In view of that, the bail granted to the present
respondent Nos.2 and 3 deserve to be cancelled.
5. Learned Additional Public Prosecutor
supported the said contention and submitted that learned
Special Court ought to have considered the bar under
Section 18 or 18A of the Atrocities Act. In view of that, the
application deserves to be allowed.
placed on record but the order passed by the Division
Bench of this Court in Criminal Application (APL) No.538
of 2023 (Munsif Aziz Khan and anr. Vs. State of
Maharashtra and anr.) decided on 14/09/2023 and
submitted that out of the civil dispute this false report is
filed. The Division Bench has also considered that the non-
applicants are the registered owner of the agricultural
land and stayed the proceedings. He further submitted
that the Special Court has also considered the catena of
decisions relied upon by both the parties and also
considered the considerations for grant of anticipatory
bail. The learned trial Court has also observed that the
civil dispute was going on between the present applicant
and the respondent Nos.2 and 3 and out of that the FIR
came to be lodged. It is further observed that the custodial
interrogation of the appellant is not required and the
dispute appears to be of a civil nature. Thus, he submitted
that the supervening and overwhelming circumstances are
not sufficient to cancel the bail. As far as the allegation
that the learned trial Court has not considered the
relevant aspect while considering the bail application is
also appears to be misconception of the applicant. In view
of that, the appeal deserves to be dismmissd.
7. I have heard learned Counsel for both the
parties. Perused the impugned judgement as well as all the
investigation papers. As far as the considerations for grant
of anticipatory bail are concerned which shows that while
considering the anticipatory bail, the Court has to see (i)
whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence; (ii)
nature and gravity of the accusation; (iii) severity of the
punishment in the event of conviction; (iv) danger of the
accused absconding or fleeing, if released on bail; (v)
character, behaviour, means, position and standing of the
accused; (vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and (viii) danger, of course, of justice being
thwarted by grant of bail. Whereas the considerations for
cancellation of bail are as follows:
8. It is well settled that once bail granted should
not be cancelled in a mechanical manner without
considering whether any supervening circumstances have
rendered it no longer conducive to a fair trial to allow the
accused to retain his freedom by enjoying the concession
of bail during the trial. A very cogent and overwhelming
circumstances are necessary for an order directing
cancellation of bail. In the case of Dolat Ram and ors vs.
The State of Haryana, [1995(1) SCC 349] , the
Honourable Apex Court laid down grounds for
cancellation of bail, which are as under:
(i) interference or attempt to interfere with
the due course of administration of Justice;
(ii) evasion or attempt to evade the due
course of justice;
(iii) abuse of the concession granted to the
accused in any manner;
(iv) possibility of accused absconding;
(v) likelihood of/actual misuse of bail, and
(vi) likelihood of the accused tampering with
the evidence or threatening witnesses.
9. It is no doubt true that cancellation of bail
cannot be limited to occurrence of supervening
circumstances. The court has discretion to cancel the bail
of an accused even in the absence of supervening
circumstances, in following circumstances:
a) where the court granting bail takes into
account irrelevant material of substantial
nature and not trivial nature while ignoring
relevant material on record;
b) where the court granting bail overlooks the
influential position of the accused in
comparison to the victim of abuse or the
witnesses especially when there is prima facie
misuse of position and power over the victim;
c) where the past criminal record and conduct
of the accused is completely ignored while
granting bail;
d) where bail has been granted on untenable
grounds;
e) where serious discrepancies are found in
the order granting bail thereby causing
prejudice to justice.
10. From the impugned order it reveals that the
trial Court has considered the decision of the Honourable
Apex Court in the case of Vilas Pawar Vs. State of
Maharashtra [2012 Cr.L.J. 4520 (SC)] as well as Mahesh
Patole Vs. State of Maharashtra [2009 ALL M.R. (Cri)
1601] and various judgments as far as the bar under
Section 18 or 18A is concerned. The Special Court has
observed from the perusal of the case-diary that the non-
applicant Munsif owns the land in same Gat number.
Munsif Khan and his wife Muskan Parvin has filed RCS
No.84/2019 against Baban Guldhe, Indubai Guldhe and
Lilabai Guldhe i.e. the present appellant and has granted
Ex-parte interim temporary injunction is already granted
in favour of the respondents. The possession is in favour
of the non-applicants. The Nayab Tahsildar, Malegaon has
passed the order of joint measurement of suit filed on
15/07/2019. On perusal of the same, it found that the
complainant Lilabai and Indubai have not sown any crop
in 77 R land in Gat No.63. The Talathi, Pimpla has also
filed the report that the Munsif Khan and his wife Muskan
owns the land in Gat No.63 and said land is in their
possession. Thus, it is observed that no prima facie case is
made out against the present respondent Nos.2 and 3, and
therefore, the bail was granted. The Division Bench of this
Court while considering the application for quashing of
the FIR also observed that from the document it can be
inferred that the petitioner therein is the registered owner
of the agricultural land and stayed the proceedings.
11. In view of the various orders passed by the
Special Court as well as by this Court it reveals that the
non-applicants are the owner of the disputed field. As far
as the observation of the learned trial Court which also
clarifies that the present appellant and family members
have not sown any crop in 77R land in Gat No.63. Thus,
to attract the provisions of Atrocities Act, the foundational
facts that there was some crops in the agricultural field
which was stolen by the present applicant itself is not
established. Moreover, from the perusal of the
charge-sheet it nowhere reveals that any other person was
present at the time of incident. Thus, the incident has not
occurred within the public view. The various statements of
the witnesses are recorded but from which it reveals that
from the statement nowhere it appears that any other
person was present at the time of the alleged abuses by
the present respondent Nos.2 and 3 and there is general
allegations against the present respondent Nos.2 and 3
that they have abused by referring the caste. It is also
settled that mere reference of the caste is not sufficient to
attract the provisions of the Atrocities Act. Thus, the
learned trial Court has considered that no prima facie case
is made out and granted the anticipatory bail.
12. It is well settled by the judgement of the
Honourable Apex Court also in the case of Prathvi Raj
Chauhan vs Union Of India [AIR 2020 SC 1036] that
when prima facie case is not made out the anticipatory
bail application can be entertained. Thus, there are no
supervening and overwhelming circumstances as well as
no grounds are made out by the applicant to cancel the
bail of the respondents. Now, the investigation is already
completed. As far as the keeping of the applicant behind
bar is concerned, no grounds are made out to cancel the
bail of the present respondent Nos.2 and 3.
13. In view of that, the appeal is devoid of merits
and liable to be dismissed.
14. Hence, the appeal is dismissed accordingly.
(URMILA JOSHI-PHALKE, J.)
*Divya
