High Court
Facts
ACB-199-2022+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPLICATION FOR CANCELLATION OF BAIL NO. 199 OF 2022The State of Maharashtra Through Police Station Sonkhed,Taluka Loha, District Nanded.… ApplicantVersusSatyam s/o Nagnath Dhonde,Age : 24 years, Occupation Education,R/o. Shevdi (Bajirao), Taluka Loha,District Nanded.… Respondent…..Mr. S. B. Narwade, APP for the Applicant-State.Mr. Rajendra K. Temkar, Advocate for the sole Respondent...…WITHAPPLICATION FOR CANCELLATION OF BAIL NO. 196 OF 2022Basweshwar s/o Vaijnath Dhonde,Age : 31 years, Occupation Agriculture& service, R/o. Village Shevdi (Bajirao),Taluka Loha, District Nanded.… Applicant[Orig. Informant]Versus1.Satyam s/o Nagnath Dhonde,Age : 24 years, Occupation Education,(incorrectly stated as taking educationbefore the learned Sessions Court. In fact,is an agriculturist), R/o Village Shevdi,(Bajirao), Taluka Loha, District Nanded.2.The State of Maharashtra,through the Incharge Police Station OfficerSonkhed Police Station, Sonkhed,Taluka Loha, District Nanded.… Respondents[No.1 is Accused No.6 in F.I.R. and No.8 in Charge Sheet/applicant no.2 in criminal bail application]
Legal Reasoning
ACB-199-2022+-12- It is further observed that, “whether a court considering an application for bail failsto consider relevant factors, an appellate court mayjustifiably set aside the order granting bail. An appellatecourt is thus required to consider whether the ordergranting bail suffers from a non-application of mind or isnot borne out from a prima facie view of the evidence onrecord” and that, “correctness of an order granting bail issubject to assessment by an appellate or superior courtand it may be set aside on the ground that the courtgranting bail did not consider material facts or crucialcircumstances.”Similar view is taken in the most recent judgment in BhagwanSingh v. Dilip Kumar @ Deepu @ Depak 2023 INSC 761/2023 SCCOnLine SC 1059, wherein it is held that :“It is also required to be borne in mind that when aprayer is made for the cancellation of grant of bail cogentand overwhelming circumstances must be present andbail once granted cannot be cancelled in a mechanicalmanner without considering whether any superveningcircumstances have rendered it in conducing to allow fairtrial.” ACB-199-2022+-13- 12.The principles that can be culled out from above series ofjudgments and the factors that are to be taken into considerationwhile dealing with cancellation of anticipatory bail are that firstly,power of appellate court in assessing the correctness of an ordergranting bail stand on a different footing from an assessment of anapplication for cancellation of bail ; secondly, whether the ordergranting bail is perverse, illegal, unjustified; thirdly, very cogent,overwhelming grounds or circumstances are required to cancel bailalready granted; fourthly, cancellation of bail is generally examinedon the anvil of existence of supervening circumstances or violation ofconditions of bail by the person to whom bail has been granted;fifthly, bail can be revoked where the court has considered irrelevantmaterial available on record which renders the order granting baillegally untenable; sixthly, the gravity of the offence, conduct of theaccused, societal impact of undue indulgence by court wheninvestigation is at threshold; seventhly, possibility of accusedinfluencing prosecution witnesses, threatening the family members ofthe victim coupled with possibility of fleeing from justice or creatingimpediments in the fair investigation. ACB-199-2022+-14- The above are some of the considerations which are to be bornein mind by the higher court while dealing with prayers forcancellation of bail. 13.Here, it is reiterated that occurrence is of 19.10.2021. FIR isalso on the same day by informant who is said to be injured.Apparently, incident has taken place around 10.00 a.m. in the broadday light. Informant has named in all 11 persons including presentrespondent at serial no.6. In the FIR, he has also described the overtact of each of the accused. Apparently, at least in the FIR, no overt actis attributed to present respondent Satyam. No doubt, prosecution hasopposed by putting forth the say of Investigating Officer, but theaspect of no role being attributed to respondent seems to haveprevailed over the learned Additional Sessions Judge for granting himconcession and relief of anticipatory bail. Anticipatory bail isadmittedly subject to conditions. 14.Learned senior counsel as well as learned APP both had invitedthe attention of this Court to paras 8 and 9 of the impugned order insupport of their contention that there is non application of mind tothe facts and circumstance of the case. In the light of such ACB-199-2022+-15- submissions, it is desirable to reproduce the relevant observations oflearned Additional Sessions Judge in said paras. “8.As per the FIR, the present accused Umakant hadassaulted on the head of Mahadu by means of iron rodand on the hand of informant. So also accusedVishwanath assaulted on the head of Mahadu by Katti.Accused Sainath assaulted on the left portion of head ofthe informant by the katti. Accused Nagnath assaulted onthe shoulder of informant by iron rod. However, in theFIR though, the name of accused Satyam mentioned buthis specific overt-act and role in the assault does notreveal. Other co-accused persons preventing thosepersons, who came for intervention of the dispute. Itmeans ultimately, co-accused helping these accusedpersons to assault injured. It shows their directinvolvement to the commission of crime.9.Considering the overt-act and direct role of accusedUmakant, Nagnath, Vishwanath and Sainath in assaultingto the informant and other injured by means of deadlyweapon iron rod, I find their custodial interrogation formoving further investigation on their part. So also, theweapons which they used required to seize from them.They did not available for interrogation till date to thepolice machinery. I find custodial interrogation of theseaccused persons is necessary to prepare charge-sheetagainst them. However, I do not find any justifiable ACB-199-2022+-16- reason to take accused Satyam into the custody as hisdirect role does not appear prima facie. ...” 15.In the considered opinion of this Court, learned AdditionalSessions Judge extended relief only to present respondent Satyam,finding no role or overt act attributed to him in the FIR which isgenerally the first document which is put to scrutiny to ascertainentitlement for grant or refusal of relief. 16.It is pertinent to note that, as stated above incident in questionhas taken place in October 2021 and Criminal Bail Application No. 97of 2022 seeking anticipatory bail is pressed into service on18.05.2021 i.e. almost seven months after the occurrence.Applications before this Court for cancellation of bail by both, State aswell as informant, are apparently of 07.10.2022 and they are heardfinally by this court on 16.04.2024 i.e almost one and half year aftergrant of anticipatory bail to respondent Satyam. There is no adverseremark from investigating machinery about non co-operation ordisobedience of conditions so imposed by learned Additional SessionsJudge by its order dated 21.09.2022. There is no allegation of misuseof liberty or threats being issued to prosecution witnesses. It is alsopertinent to note that none of the eventualities or contingencies ACB-199-2022+-17- which are enumerated in the above judicial precedents are shown tobe in existence so as to withdraw the relief already granted. On query raised by this Court as to what is the current stage ofthe matter, learned senior counsel placed on record copy of casehistory. Stage of the matter shown is for “appearance”. Therefore,such document shows that matter has already reached Sessions Courtfor commencement of trial. Resultantly, taking the above aspects and circumstances intoconsideration and no overwhelming or cogent reason or anysupervening circumstances post the grant of bail shown to havecropped up, and are brought before this Court for withdrawing theanticipatory bail granted almost two years back, relief so prayed nowcannot be granted. For all above reasons, no good ground being madeout to cancel the bail, following order is passed :ORDERBoth the applications are hereby dismissed. [ABHAY S. WAGHWASE, J.]vre
Arguments
ACB-199-2022+-2- …..Mr. Rajendra Deshmukh, Senior Advocate i/by Mr. Devang R.Deshmukh, Advocate for the Applicant.Mr. N. S. Ghanekar, Advocate for Respondent No.1.Mr. S. B. Narwade, APP for Respondent No.2-State.….. CORAM :ABHAY S. WAGHWASE, J. Reserved on : 16.04.2024Pronounced on : 25.04.2024ORDER : 1.Application for Cancellation of Bail [ACB] No. 199 of 2022 is atthe instance of State, thereby questioning grant of anticipatory bail torespondent-original accused Satyam by virtue of order dated21.09.2022. Similarly, ACB No. 196 of 2022 is at the instance of originalinformant and he too is praying for cancellation of bail granted bylearned Additional Sessions Judge Kandhar, i.e. same order as is putto challenge by the State.Submissions on behalf of learned APP in ACB 199 of 2022 :2.Learned APP pointed out that crime was registered at SonkhedPolice Station, Taluka Loha, District Nanded for commission ofoffence punishable under Sections 307, 326, 324, 143, 147, 148, 149, ACB-199-2022+-3- 504 and 506 of the Indian Penal Code [IPC]. Learned APP took thisCourt through the FIR dated 19.10.2021 at the behest of oneBasweshwar Vaijnath Dhonde. At the out set, learned APP submittedthat it is fairly settled position that FIR is not an encyclopedia.Therefore, according to him, when FIR is by an injured, all details arenot expected to be narrated. He pointed out that, at present there isconcern of grant of anticipatory bail to accused no. 6 Satyam(respondent herein) who is also named in FIR. He would submit thathe is the informant and on receiving telephonic information from hisuncle Mahadu. he had been to his rescue. He had seen accusedpersons armed and had encircled his uncle and he had also seen theassault. He too was targeted. It is pointed out that his statement wasrecorded in the hospital. He further pointed out that thoughanticipatory bail application was at the instance of all accused, exceptrespondent herein, namely accused no.6 Satyam, learned trial courthas rejected anticipatory bail of all other accused. 3.It is further pointed out that learned Additional Sessions Judgehas failed to appreciate the accusations raised in FIR and furthererred in observing that no role is attributed to present respondentSatyam. He pointed to the grounds of objection raised byInvestigating Officer, which were also conveyed to the learned ACB-199-2022+-4- Additional Sessions Judge at the time of hearing, and would submitthat, still learned trial court granted anticipatory bail only to accusedno.6 Satyam. He further tried to submit that as regards to accusedno.6 is concerned, recovery is yet to be caused and therefore, it is hissubmission that, anticipatory bail so granted to accused no.6 Satyamis unjustified. Consequently, he prays to set aside the order of learnedAdditional Sessions Judge dated 21.09.2022.Submissions in support of ACB 196 of 2022 :4.Learned senior counsel also took this court through thecontents of the FIR as well as papers in the charge sheet and wouldsubmit that present respondent Satyam is specifically named in theFIR. He too pointed out that still learned Additional Sessions Judgesurprisingly held that no role is attributed to him and gave benefit ofanticipatory bail in a serious offence of attempt to murder. He pointedout that injured were required to be hospitalized for days together.Then learned senior counsel took this Court through the observationsof learned Additional Sessions Judge in order dated 21.09.2022, moreparticularly para 7 and 8, and would submit that such observationsare patently perverse and contrary to the investigation papers. Hepointed out that there are allegations of use of deadly weapon. That, ACB-199-2022+-5- the nature of crime, gravity of offence and magnanimity of theincident has not been taken into account by learned trial Judge whilegranting anticipatory bail. 5.He further pointed out that except present respondent, all otheraccused were required to seek regular bail. That, none is thebeneficiary of anticipatory bail except present respondent Satyam. Healso pointed out that there is recovery and proper interrogation to bemade from him. That, investigation has not been taken to the logicalend yet. He further pointed out that for one or other reason, matterhas been deliberately prolonged by the respondent with sole intentionof continuing to remain at large. He further submitted that thoughlaw is fairly settled that bail once granted cannot be cancelled,however, according to him, case in hand is an exceptional case wherethere is non-application of mind to the seriousness of the accusationsand the role, and benefit of anticipatory bail has been grantedwithout assigning proper reason. For all above reasons, he prays towithdraw the relief granted by Additional Sessions Judge bycancelling the bail. ACB-199-2022+-6- Submissions on behalf of the respondent-accused :6.Justifying the relief granted to the respondent, learned counselMr. Ghanekar submitted that, no doubt crime has been registered andpresent respondent is also named therein. However, he pointed outthat on due consideration of the nature of accusations, role attributedto the present respondent, and finding that no overt act was spelt outagainst him in the FIR, learned trial court has correctly extended thebenefit. He pointed out that moreover, present incident is a fall out ofprevious enmity. There was desperate attempt to falsely implicate. 7.He further pointed out that since grant of anticipatory bail bythe learned Additional Sessions Judge on 21.09.2022, respondent isfully cooperating the investigating machinery. No adverse remark hasbeen placed on record by prosecution till today showing non co-operation so as to withdraw the benefit granted. He emphasized thatit is fairly settled that liberty on bail once granted cannot bewithdrawn unless there are compelling circumstances. According tohim, there are none. Therefore, he prays to dismiss both theapplications.8.Heard both sides. ACB-199-2022+-7- 9.Record shows that crime was registered on 19.10.2021 atSonkhed Police Station, District Nanded. Anticipatory bail applicationat the instance of present respondent Satyam, along with otheraccused, appears to have been moved on 18.05.2022. LearnedAdditional Sessions Judge, Kandhar seems to have decided saidCriminal Bail Application No. 97 of 2022 on 21.09.2022 grantinganticipatory bail to respondent Satyam alone. Record further shows that against such order of grant ofanticipatory bail to respondent- Satyam, State has preferred ACB No.199 of 2022 on 07.10.2022. Likewise, informant also seems to havecome with similar prayer for cancellation of anticipatory bail by filingACB No. 196 of 2022 on 07.10.2022. Finally, both the applications have been heard by this Court on16.04.2024.10.Therefore, what is emerging from above discussion is that grantof anticipatory bail dated 22.09.2022 is challenged on 07.10.2022and applications are pressed into service almost after over one andhalf year. Be it so. ACB-199-2022+-8- 11.Both above proceedings are for cancellation of grant ofanticipatory bail. Before adverting to the merits, it would apposite togive a brief account of judicial precedents regarding parameters andfactors to be taken into account for cancellation of anticipatory bailalready granted. In Mahant Chand Nath Yogi v. State of Haryana (2003) 1 SCC326, the Hon’ble Apex Court held that, “normally, very cogent andoverwhelming grounds or circumstances are required to cancel thebail already granted”.In Savitri Agarwal v. State of Maharashtra (2009) 8 SCC 325,dealing with similar issue of propriety of cancellation of anticipatorybail, the Hon’ble Apex Court observed that, “very cogent andoverwhelming circumstances are necessary for an order directingcancellation of bail already granted.”In Hazari Lal Das v. State of W.B. (2009) 10 SCC 652, theHon’ble Apex Court, while dealing with cancellation of anticipatorybail and its propriety, held, “High Court by impugned ordercancelling appellant’s anticipatory bail – Nothing brought on record ACB-199-2022+-9- to show that there had been interference, or attempt to interfere withdue course of administration of justice by appellant, or concessiongranted to him had been abused in any manner, or any superveningcircumstance had surfaced justifying cancellation of anticipatory bail”.In Padmakar Tukaram Bhavnagare v. State of Maharashtra(2012) 13 SCC 720, in para 13 it is held that ; “13. Generally speaking the grounds for cancellation ofbail broadly are interference or attempt to interfere withthe due course of justice or abuse of the concessiongranted to the accused in any manner. These instancesare illustrative and bail can be cancelled where the orderof bail is perverse because it is passed ignoring evidenceon record or taking into consideration irrelevantmaterial.”In Mahipal v. Rajesh Kumar alias Polia (2020) 2 SCC 118, inpara 16, it is observed :“16. The considerations that guide the power of anappellate court in assessing the correctness of an ordergranting bail stand on a different footing from anassessment of an application for the cancellation of bail.The correctness of an order granting bail is tested on the ACB-199-2022+-10- anvil of whether there was an improper or arbitraryexercise of the discretion in the grant of bail. The test iswhether the order granting bail is perverse, illegal orunjustified. On the other hand, an application forcancellation of bail is generally examined on the anvil ofthe existence of supervening circumstances or violationsof the conditions of bail by a person to whom bail hasbeen granted.”In Vipan Kumar Dhir v. State of Punjab (2021) 15 SCC 518, theprinciple governing Section 438 of IPC is summarized as under :“The well settled legal principle is that the cancellation ofbail is to be dealt with on a different footing incomparison to a proceeding for grant of bail. It isnecessary that “cogent and overwhelming reasons” arepresent for the cancellation of bail. Conventionally, therecan be supervening circumstances which may developpost the grant of bail and are non-conducive to fair trial,making it necessary to cancel the bail. …… In addition,the bail can also be revoked where the court hasconsidered irrelevant factors or has ignored relevantmaterial available on record which renders the ordergranting bail legally untenable. The gravity of the offence,conduct of the accused and societal impact of an undueindulgence by court when the investigation is at thethreshold, are also amongst a few situations, where aSuperior Court can interfere in an order of bail to prevent ACB-199-2022+-11- the miscarriage of justice and to bolster theadministration of criminal justice system. The SupremeCourt has repeatedly viewed that while granting bail,especially anticipatory bail which is per se extraordinaryin nature, the possibility of the accused to influenceprosecution witnesses, threatening the family members ofthe deceased, fleeing from justice or creating otherimpediments in the fair investigation, ought not to beoverlooked.”In Prashant Singh Rajput v. State of M.P. (2022) 14 SCC 645, itis held that,“correctness of an order granting bail is tested on theanvil of whether there was an improper or arbitraryexercise of the discretion in the grant of bail and test iswhether the order granting bail is perverse, illegal orunjustified.” On the other hand, it is further held that, “prayer for cancellation of bail is generally examined onthe anvil of the existence of supervening circumstancesor violations of the conditions of bail by a person towhom bail has been granted.”