Shri Samit A. Vaidya And R.B. Mokashi (Resp.No.2)

Order - Status 10: FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3167 of 2009 ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders 3 or directions and Registrar's Orders None present for the applicant. respondent no.2. Ms.S.N.Dabhodkar i/b Mr.Samir Vaidya for Mr.S.A. Shaikh A.P.P. for the State. CORAM : D.G. KARNIK, J DATE : 11th March 2010. P.C. : Applicant and his counsel are absent when called. Application is dismissed for non prosecution/ default. (D.G. KARNIK, J.)

Order - Status 11: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4542 OF 2009 The State of Maharashtra .. Applicant V/s. Avit A. Bole .. Respondent WITH CRIMINAL APPLICATION NO.3167 OF 2009 Ravindra M. Jadhav .. Applicant V/s. The State of Maharashtra & Another .. Respondents. Mrs. A.S.Pai, A.P.P. for State-Applicant in Cr. Appln. No.4542 of 2009. Shri C.K.Pendse, for Applicant in Cr. Appln. No.3167 of 2009. CORAM : A.R.JOSHI, J DATED : JUNE 30th, 2010. P.C. Criminal Application No.3167 of 2009 is already dismissed for default vide order dated 11th March, 2010 by another bench. Presently, there is no restoration application before this Court. However, the learned Advocate Shri Pendse submitted that Criminal Application No.392 of 2010 is already preferred for restoration. So far as Criminal Application No.4542 of 2009 is concerned, which is filed by the State, it is submitted by the learned A.P.P. for State, that applicants/original accused has violated certain conditions imposed while granting him bail by the Additional Sessions Judge, Bombay. She further states that she will take instructions from concerned Investigating Officer regarding stage of the matter and whether charge is framed and in that event, the present application can be conveniently disposed off, if not pressed by the State. S.O. to 14th July, 2010. (A.R.JOSHI,J.)

Order - Status 15: apln3167&4542-09 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION [1] CRIMINAL APPLICATION NO.3167 OF 2009 Ravindra Madhukar Jadhav. Applicant. Vs. 1. The State of Maharashtra, & 2. Avit Anant Bhole. Respondents. ALONG WITH [2] CRIMINAL APPLICATION NO.4542 OF 2009 The State of Maharashtra. ..Applicant. Vs. Avit Anant Bole. ..Respondent. .......... Mr.C.K. Pendse, Advocate for the Applicant in Cri.Application No.3167/2009. Mr.S.A. Vaidya, Advocate a/w. Mr.R.B. Mokashi, Advocate for respondent No.2 in Cri.Application No.3167/2009 and respondent in Cri.Application No.4542/2009. Mrs.A.S. Pai, A.P.P. for the State in both applications. .......... CORAM : A.R.JOSHI, J. DATED : 06TH AUGUST, 2010 P.C. By the present order both these applications for cancellation of regular bail are being disposed of, as what is challenged in both the applications, respectively by the orig.complainant and by the State, is the order dated 1st July, 2009 passed by the Additional Sessions Judge, Greater Bombay granting regular bail to the present respondent/orig.accused. Prior to appreciating the rival submissions so far as cancellation or otherwise of the regular bail, certain factual position as per the narrations in the FIR is required to be mentioned. The incident happened on the night of 31st May, 2009. The first informant was proceeding towards his home after consuming some liquor along with his three friends. At about 11:40 p.m. the complainant and his friends left the liquor bar and started for their respective homes. When his 2 friends left him, the complainant was alone proceeding on the road. That time, he was hit on his head by stump like wooden bamboo. The impact was grave and due to which the complainant shouted for help. By that time, his two friends who had just left him, rushed to the spot and found that the respondent/accused had given blow on the head of the complainant just above the eyebrow. The assault was also on the right hand and right leg. After the assault, present respondent/accused ran away from the spot. The complainant was removed to the hospital by his two friends and through them the identity of the present respondent/accused was revealed and the complainant knew that the present respondent/accused assaulted him by means of a cricket stump and that leaving the said stump on the spot the respondent had ran away. Accordingly on 1.6.2009, first information report was lodged with Chembur police station. During the investigation, initially the offence was registered for Section 326 of Indian Penal Code vide C.R. No. 202 of 2009. Present respondent was arrested. He preferred first application for bail bearing Bail Application No.1223 of 2009. Said bail application was rejected on the ground that the investigation was in progress. The victim/complainant was still in hospital and reportedly he had lost the vision of one eye due to the assault and also suffered the fracture. By making these observations, the Additional Sessions Judge, Greater Bombay rejected the bail at that juncture vide order dated 17.6.2009. Thereafter still during pendency of the investigation, another Bail Application No.1309 of 2009 was filed before the same Additional Sessions Judge and it was disposed of vide order dated 1st July, 2009 granting bail to the present respondent in the sum of Rs.15,000/ with directions to attend the concerned police station once a week during 5:00 p.m. to 6:00 p.m. till filing of the chargesheet. This is the order which is impugned in both the present applications for cancellation of bail. During the arguments, learned Advocate for the orig.complainant brought to the notice of the Court that during the investigation steps were taken by the investigating agency to apply the provisions of the penal Section 307 instead of Section 326 of IPC considering the gravity of the injury and the part of the head on which the assault was inflicted by means of a cricket stump. It is also argued and brought to the notice of the Court that a detailed report was filed by the concerned police station dated 10.6.2009 objecting the first bail application. Virtually similar such report was filed by the police prior to the order on the second bail application. However, with specific mention that the injured is discharged from the hospital. Vide said reply, objection was raised for the grant of bail. However, inspite of such written submission, further argued, the investigating officer gave no objection for grant of bail which was second time filed by the respondent/accused. This conduct on the part of the investigating officer has been deprecated by the complainant. Moreover the State has also filed the application for cancellation of bail on the ground that just within a span of about 13 days, there was no much changed circumstances, however, the same Additional Sessions Judge, Greater Bombay allowed the bail application when the investigation was still continuing. Counter to the above arguments, it is vehemently submitted by the learned Advocate Shri Vaidya for the respondent that the investigation was virtually over and infact the victim was already discharged from the hospital and there was nothing brought before the Court as to any steps being taken by the investigating agency for application of Section 307 of IPC under the circumstances of the case. It is also vehemently submitted on behalf of the respondent that there is nothing perverse in the said order passed, in as much as, legal requirement to quash the same and take the respondent in the custody during pendency of the trial. Reliance was placed on behalf of the respondent to 6 the ratios propounded by the following authorities : [i] (1984) 1 Supreme Court Cases 284 Bhagirathsinh s/o Mahipat Singh Vs. State of Gujarat [ii] AIR 1993 SUPREME COURT 1 Aslam Babalal Desai Vs. State of Maharashtra. [iii] (2007) 10 Supreme Court Cases 368 Rizwan Akbar Hussain Syyed Vs. Mehmood Hussain and Another. [iv] 2009 Cri.L.J. 4290 Savitri Agarwal & Ors. Vs. State of Maharashtra & Anr. Considering the ratios and the parameters required to be considered in order to undone the order of grant of bail, it is to be seen under the specific circumstances of the present matter whether the order of grant of bail is of such a perverse nature so that it is required to be undone and whether there is a legal necessity to put the respondent in custody during the trial, still if it is considered that the matter is punishable under Section 307 of IPC and when the chargesheet is already filed and that after framing of the charge the matter can be expeditiously taken for recording of the evidence. In order to answer the above point, the wordings of the impugned order, appearing in paragraph Nos.3 & 4 are reproduced for ready reference, as under : "3. The I.O. is present. He has no objection to grant bail to the applicant accused. The investigation is almost over. The victim has been discharged from the hospital. There is a history of dispute between the family of the complainant and the applicant/accused. The applicant has been behind the bars for about a month. It would take time for trial of the case. Pretrial detention is, in the circumstances, unwarranted. The application is, therefore, allowed." After ascertaining the above factual position and reasoning given by the learned Additional Sessions Judge and considering the release of the respondent since July, 2009, it cannot be said that the circumstances do warrant arrest of the accused and send him in custody till conclusion of the trial still considering that he is to face the charge punishable under Section 307 of IPC. This is more so when according to the learned APP for the State, the process of applying Section 307 instead of Section 326 of IPC started sometime by end of September, 2009 i.e. much after passing of the impugned order. In view of the above, there is nothing to reverse the impugned order of grant of bail. However, certain directions can be given to the concerned learned Additional Sessions Judge. Hence, the order: :: O R D E R :: [i] Both Criminal Application Nos.3167/2009 & 4542/2009 stand rejected. [ii] Direction are given to the learned Additional Sessions Judge who is seized of the matter to dispose of the matter as early as possible. [iii] The learned Additional Sessions Judge shall not be influenced by any observations made in the present order so far as merits of the case are concerned and shall deal with the matter according to law. (A.R.JOSHI,J.) PPD