Sunday 22 June 2014

Whether application for cancellation of bail is maintainable before High court without going to Sessions Court?



preliminary objection 
was   raised   on   behalf   of   the   respondent   No.2   as   to 
maintainability   of   the   application   for   cancellation   of   bail 

before   this   Court   on   the   submission   that   firstly   the 
complainant   should   go   before   the   Sessions   Court   for 
cancellation of bail and after that he can come to High Court 
though the provisions of Section 439 of Cr.P.C. give concurrent 
jurisdiction to the Sessions Court and also to the High Court 
to entertain the application for cancellation of bail.
As   the   above   mentioned   preliminary   issue   of 

maintainability   was  seriously  agitated,  it   was  finally  heard 
and disposed of by this Court vide order dated 8 th  January, 
2014 by giving reasoned order and it is  held that the present 
application for cancellation of bail is maintainable before this 
Court without there being any initial attempt to go before the 
Sessions Court. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1844 OF 2011
[FOR CANCELLATION OF BAIL]
Mr. Hiranand @ Dabbu Kimmatram
Aswani

Versus
The State of Maharashtra  &  
Deepak Hiralal Mewani 

             CORAM 
         :   A. R. JOSHI, J.
             
             PRONOUNCED ON :  13th FEBRUARY, 2014
Citation;2014(2)crimes 478 Bom

This   application  is   preferred   by   the   original 
complainant  for cancellation of bail granted in favour of the 
present   respondent   No.2   in   the   matter   of   offence   under 
sections 115 and 120B of IPC registered under CR No.39 of 

2010   of   Pimpri  Police   Station,Pune.   Respondent   No.2   / 
original accused No.1 was arrested on 20th January, 2010 for 
the   offence   of   conspiracy   to   kill   the   complainant   –   present 
applicant.   Without   going   into   much   details   as   to   various 
events   happened  regarding  filing of  bail  applications  before 
the trial  Court and before this Court, suffice it to say that 
criminal bail application preferred before this Court bearing 

No. 704 of 2010 was granted on 10 th March,2010 (Coram : Shri 
B.R.Gavai,J).   According   to   the   applicant,   respondent   No.2 
violated the conditions of bail and also indulged in criminal 
activities   and   a   number   of   serious   offences   were   registered 
against   him.   As   such,  according  to   the  applicant   –   original 
complainant, respondent no.2 has rendered himself unworthy 
of liberty granted by the bail order and hence the application 
for cancellation of bail filed by the applicant bearing No.1844 
of 2011.
2. 
Though the present application for cancellation of 
bail   was   preferred   long   back   in   the   year   2011,   for   various 
reasons   it   remained   pending   and   when   on   last   date   the 
matter was taken up for the arguments, preliminary objection 
was   raised   on   behalf   of   the   respondent   No.2   as   to 
maintainability   of   the   application   for   cancellation   of   bail 

before   this   Court   on   the   submission   that   firstly   the 
complainant   should   go   before   the   Sessions   Court   for 
cancellation of bail and after that he can come to High Court 
though the provisions of Section 439 of Cr.P.C. give concurrent 
jurisdiction to the Sessions Court and also to the High Court 
3. 
to entertain the application for cancellation of bail.
As   the   above   mentioned   preliminary   issue   of 

maintainability   was  seriously  agitated,  it   was  finally  heard 
and disposed of by this Court vide order dated 8 th  January, 
2014 by giving reasoned order and it is  held that the present 
application for cancellation of bail is maintainable before this 
Court without there being any initial attempt to go before the 
Sessions Court.  As such, the rival submissions were heard at 
length   on   the   merits   of   the   present   application   for 
cancellation of bail.
4. 
The main points canvassed by the learned Senior 
Counsel on behalf of the applicant (original complainant) are 
twofold – firstly, the respondent had violated the conditions of 
bail inasmuch as  he indulged in activity of threatening the 
prosecution witnesses and not attending the concerned police 
station on every Sunday, and secondly  that he   had indulged 

in criminal activities after his release on bail.
On the above submissions, the learned Counsel for 
5. 

the respondent No.2 pointed out that the respondent No.2 had 
not indulged into any activity like threatening the prosecution 
witnesses and moreover the said prosecution witnesses have 
given their affidavits in support of   respondent No.2 stating 
that whatever   complaints made by them regarding threats, 

were   made   under   mistake   of   factual   position   and   without 
ascertaining the correctness of the circumstances.  Secondly it 
is argued that the respondent No.2 was all along visiting the 
concerned   Police   Station   on   every   Sunday   as   directed,   but, 
after July, 2010 the concerned Police Station did not give any 
endorsement or any acknowledgment to the respondent No.2 
for his continued attendance.   It is also submitted that the 
present   application   for   cancellation   of   bail   is   pending   since 
the year 2011 and at this belated stage in the year 2014, it is 
not   warranted   that   he   may   be   taken   in   custody.     On   the 
contrary, direction may be given for expeditious trial.
6. 
In order to appreciate the rival submissions in the 
light of the facts narrated during the arguments, the case of 
the complainant as against the present respondent No.2, in 

According to the complainant (present applicant) a 

which he was granted bail, are narrated in nutshell as under :
conspiracy was hatched by the present respondent No.2 to kill 
the   complainant   and   for   that   purpose   the   respondent   No.2 
had approached one Gopal Khatri, who is a witness in this 
matter, and tried to give him a contract for killing and offered 
to pay  R10 lakhs.   Said Gopal Khatri refused to do so and, 

therefore,   respondent   No.2   took   assistance   of   some   other 
persons i.e. Amar Mulchandani and Kanu Matani.   Realizing 
the said plot of contract killing, the complainant approached 
the Police and lodged a complaint under C.R. No.39/2010.  It 
was   registered   on   19.1.2010   and   the   respondent   No.2   was 
arrested.     As   mentioned   earlier,   the   application   for   bail 
bearing   BA   No.704/2010   was   granted   on   10.3.2010   by   this 
Court   (Coram:   B.R.  Gavai,J.).       Prior   to  that  on  24.1.2010 
present respondent No.2 threatened the wife of said witness 
Gopal Khatri to withdraw the statement of said Gopal Khatri 
given   to   the   Police   in   the   case   registered   against   the 
respondent   No.2.     To   that   effect,   a   non­cognizable   (NC) 
complaint was lodged by the wife of Gopal Khatri on the same 
day with Chinchwad Police Station.

As   mentioned   above,   the   respondent   No.2   was 
7. 

granted bail in BA No.704/2010 and final order reads thus :
“10.  
11.  
Criminal   Application   No.704   of   2010   is, 
therefore, allowed. The applicants are directed to be 
released on bail on furnishing bail bonds in the sum 
of   Rs.50,000/­   (Rupees   Fifty   Thousand   only)   each 
with   one   or   two   sureties   in   the   like   amount.   The 
applicants   shall   report   to   Pimpri   police   station   on 
every Sunday between 10 a.m. and 12.00 noon.
The applicants shall not make any attempt to 
Despite the order of this Court “not to influence the 
8. 

influence the witnesses or tamper with evidence.”
witnesses”,     the   respondent   No.2   threatened   the   witness 
Gopal Khatri and his wife.  As such, a written complaint was 
made by the said Gopal Khatri dated 27.4.2010 addressed to 
the Commissioner of Police, Pune giving all the details and 
also asking for the police protection.   In the said letter it is 
mentioned that there were eminent threats to life of the said 
witness at the hands of the respondent No.2.
9.  
After   the   above,   there   was   a   curious   factual 
circumstance   inasmuch   as   a   criminal   complaint   was 
registered   against   the   said   witness   Gopal   Khatri   at 
Hingewadi   police   station   being   C.R.   No.3215/2011   on 
18.9.2011   and   the   offences  alleged   against   the   said   witness 

Gopal   Khatri   were   punishable   under   Section   3(25)   of   the 
Arms Act and Sections 4 & 5 of the Explosive Substance Act 
and Section 37(1) & 135 of Bombay Police Act.   During the 
course of investigation in the said matter it was revealed that 
said Gopal Khatri was falsely implicated and it was the act of 
false implication done   by the present respondent No.2.   As 
such, a report under Section 169 of Cr.P.C. was filed by the 

investigating agency on 27.12.2011 and said Gopal Khatri was 
discharged   from   the   proceedings   and   in   stead   present 
respondent No.2 was arraigned as an accused in the said C.R. 
No.3215/2011.   Said report under Section 169 of Cr.P.C. was 
filed by the P.I. Crime Branch, Unit No.1, Pune.  In the said 
C.R. No.3215/2011 present respondent No.2 was arrested and 
was   released   on   bail   on   13.6.2012   by   order   of   this   Court 
(Coram:   K.U.   Chandiwal,J.),   in   Criminal   Bail   Application 
No.530/2012.  The final order of bail reads thus :
“7. 
The   accused   –   applicant   Deepak 
Hiralal Mewani be released on furnishing PR bonds 
and   sureties   in   the   sum   of   Rs.25,000/­   (Rupees 
twenty five thousand only).
8. 
After   his   release   the   applicant   shall 
not   stay   within   the   limits   of   Pimpari   Chinchwad 
Municipal Corporation and also within the limits of 
Hinjewadi   police   station   except   for   attending   the 
police   station   or   attending  the   Court   cases.   The 
applicant   shall not  directly  or   indirectly  make any 
inducement,   threat   or   promise   to   any   person 

acquainted   with   the   facts   of   the   case   so   as   to 
disauade him / her from disclosing such facts to the 
police officer or to the Court. The applicant shall not 
leave   the   country   without   prior   permission   of   the 
trial Court. 
9. 
Application   allowed   in   the   above 
terms.”
10.  
The   respondent   No.2   preferred   an   application   for 
relaxation of condition of bail as he wanted to enter the limits 

of   Pimpri   Chinchwad   Municipal   Corporation.   In   the   said 
application, the respondent No.2 pleaded that for a period of 
one year he obeyed the conditions and now wants to enter the 
Municipal Corporation area as his family resides there.  Vide 
order   dated   19.7.2013   (Coram:   Abhay   M.   Thipsay,J.),   this 
Court relaxed the said condition and the important directions 
are in paragraphs ­ 6,   7 & 8 of the said order, which read 
thus :
“6 
The condition imposed in paragraph no.8 of 
the order dated 13 June 2012, shall be relaxed to the 
extent that the applicant may stay within the limits 
of   Pimpri   Chinchwad   Municipal   Corporation   and 
prohibition imposed upon him by the said order, in 
that regard, is removed. However, the applicant shall 
not contact, meet or approach any of the prosecution 
witnesses, in any manner, whatsoever. 

In particular, the applicant shall not attempt 
to contact Gopal Khatri, at any time, and under any 
circumstances. 

11. 
7.00 p.m till the disposal of the case against him.”

The applicant shall report to the Chinchwad 
Police Station on every Sunday between 5.00 p.m to 
It is also brought to the notice of this Court by the 
learned   Senior   Counsel   on   behalf   of   the   applicant/orig. 
complainant that after relaxation of the condition as above, 
the   respondent   No.2   again   started   his   activities   of 

threatening the witnesses i.e. Gopal Khatri and his wife and 
on   this,   these   witnesses   have   lodged   complaints   at   Shivaji 
Nagar   Police   Station   and   Chinchwad   Police   Station   on 
7.7.2013 and 8.8.2013.   These complaints were registered as 
NCs   under   Section  506 of  IPC.   Even  representations were 
made   to   DCP,   Zone   III,   Chinchwad,   Pune   and   also   to   the 
Chief Minister,   Home Minister and Commissioner of Police, 
Pune.
12. 
On   the above aspect, the learned Counsel for the 
respondent   No.2   brought   attention   of   this   Court   to   the 
contents of the affidavit filed by the respondent No.2 and also 
brought to the notice of the Court the documents annexed to 
the said affidavit.   The contents of  the said affidavit dated 
28.1.2014 are perused.  Along with the said affidavits copies of 
the letters are filed.   One of these letters is dated 25.7.2010 

addressed   to   the   Deputy   Commissioner   of   Police,   Pimpri 
Division   making   a   grievance   that   though   every   Sunday 
between 10:00 a.m. to 12:00 noon, the respondent No.2 was 
attending   the   police   station,   the   concerned   Officer   was   not 
acknowledging   such   visits   for   few   Sundays.     By   that   letter, 
directions   were   sought   for   appropriate   action   against   the 
Officer.  Another letter dated 18.9.2011 is also annexed to the 

affidavit.  Said letter also contains verbatim same allegations. 
There are three more letters annexed to the affidavit which 
are dated 12.1.2014, 19.1.2014 and 26.1.2014, again containing 
verbatim same allegations as to visit at the Police Station but 
no   acknowledgment   given.     By   this,   it   is   tried   to   argue   on 
behalf   of   the  respondent  No.2  that   he  had  not  violated   the 
conditions of attendance and it was negligence on the part of 
the   Police   Officer   not   to   give   the   acknowledgments.     This 
aspect is required to be dealt with in the light of the report 
filed   by   the   Senior   P.I.   Pimpri  Police   Station.     By   the   said 
letter,   the  concerned Officer had intimated his superior i.e. 
Assistant Commissioner of Police, Pimpri Division being the 
officer   under   Right   to   Information   Act.     By   this   letter   and 
annexure thereto, it is brought to the notice of the superior 
that   the respondent No.2 had attended the concerned police 
station on   Sundays only between 14.3.2010 to 11.7.2010 and 

thereafter he had never attended the police station.   Similar 
such attendance report was given with respect to another co­
accused in that matter of C.R. No.39/2010, however,   that is 
not relevant for the purpose of the present application.  If both 
the above circumstances are viewed in juxtaposition of each 
other    i.e.   the  letters apparently  written  by the respondent 
No.2 making grievance that his attendance was not marked 

and   the   information   given   by   the   Sr.P.I.   of   Pimpri   Police 
Station mentioning that there was no attendance at all since 
July, 2010, it must be said that there is a room to entertain 
the   arguments   advanced   on   behalf   of   the   complainant   that 
the respondent No.2 had violated the condition of attendance. 
13. 
Needless to mention that in fact it was the duty of 
the   concerned   police   officer   to   bring   it   to   the   notice   of   the 
appropriate authority or to the Court which has granted the 
bail regarding such violation of condition of attendance, but, 
apparently it has not been done.  On the other hand, even the 
respondent No.2 has not made any such grievance before this 
Court as to his attendance not being marked after July, 2010. 
It is not a question of one or two days of non­attendance or the 
attendance   without   any   acknowledgment,   but   the   period   is 
sufficiently long i.e. from July, 2010 to apparently January, 

2014.  Except the two letters produced along with the affidavit 
of respondent No.2 i.e. letters dated 25.7.2010 and 18.9.2011, 
there  is   no  correspondence  till  12.1.2014 and the last three 
letters,   as   mentioned   above,   are   dated   12.1.2014,   19.1.2014 
and 26.1.2014.   This gap in the dates speaks volume and is 
required to be taken into account while analyzing the conduct 
of   the   respondent   No.2   and   to   ascertain   whether   he   has 

obeyed the directions of this Court while he was released on 
14. 
bail either in C.R. No.39 of 2010 and in C.R. No.3215/2011.
Now   coming   to   the   aspect   of   tampering   of   the 
prosecution witnesses and mainly Gopal Khatri and his wife, 
during the arguments the learned Counsel for the respondent 
No.2 brought attention of this Court towards the copies of the 
affidavits filed along with his affidavit dated 28.1.2014.  Along 
with   the   said   affidavit,   copies   of   the   letters   respectively 
written by Gopal Khatri and his wife both dated 15.1.2014 are 
also produced.  The tenor of the said letters and the affidavits 
sworn   by   Gopal   Khatri   and   his   wife   is   to   the   effect   that 
whatever earlier  complaints he and his wife made, were on 
some   misunderstanding   and   that   they   withdraw   all 
allegations against the respondent No.2.   It is significant to 
note   the   timing   of     such   letters   to   the   Police   Officials   and 

higher   officials   and   the   timing   of   the   affidavit.     In   this 
context,   it   is   a   factual   position   that   when   this   matter   was 
taken before this Bench for effective hearing on 6.1.2014, it 
was adjourned and then a preliminary issue was raised as to 
maintainability of the present application for cancellation of 
bail and said issue was vehemently argued on behalf of the 
respondent No.2.  As mentioned earlier, the said preliminary 

objection was decided by this Bench vide order dated 8.1.2014 
by   discussing   all   the   details   and   law   on   the   subject.     By 
pointing out these circumstances, the learned Senior Counsel 
for the applicant submitted that it is an attempt on the part of 
the respondent No.2 to stall the proceedings and to linger the 
present   application   for   cancellation   of   bail.     It   is   further 
submitted  that  the applications and the affidavits allegedly 
prepared by the witness Gopal Khatri and his wife is nothing 
but an attempt on the part of the respondent No.2 to interfere 
with   the   criminal   cases   pending   against   him   including   the 
present   matter   under   C.R.   No.39/2010.     In   support   of   this 
submission,   following   authority   is   cited   on   behalf   of   the 
applicant :
[i]  

AIR 2002 SUPREME COURT 1475(1)
[Ram Govind Upadhyay Vs. Sudarshan Singh 
& Ors. 

By taking shelter of the ratio of the said  authority 

it is submitted that tampering with evidence and threatening 
the   witnesses   are   two   basic   grounds   for  cancellation   of   bail 
and   as   such   both   are   existent   as   against   the   present 
respondent No.2 and as such his bail is liable to be cancelled. 
15. 
On carefully considering the rival submissions and 
the   material   produced   for   the   inspection   of   this   Court,   as 

discussed   in   detail   above,   so   also   on   going   through   the 
criminal   antecedents   against   the   present   respondent   No.2 
which   are   apparent   from   the   police   report   dated   10.2.2014 
produced by the learned APP, curative action is required to be 
taken   against   the   respondent   No.2.   Following   cases   are 
pending against the present respondent No.2 :
C.R. No. Sections Present 
                   Status
1 Chinchwad Police  238/2011 324, 354, 452, 506,  Pending 
    Station 34 of IPC 
2 Pimpri Police Station N.C.  3 Hinjwadi Police Station 3215/2011 3(25)   Arms   Act,  Pending
                           507 IPC 37(1), 135 of Bombay 
                            1884/2011 Police Act, 9(B) of the 
                                          Explosive Substances 
                                           Act,   1908   and 
                                             Explosive Substances 
                                              Rule,   17   r/w.   21   of 
                                                  N.D.P.S.   Act   read 
                                                    with 120B of IPC.
Sr.  Police Station 
  No. 

Apart from the above, there are total 13 criminal 
16. 

matters   pending   against   the   present   respondent   No.2   and 
they are  ranging  from the year 1989 till 2011 and many of 
them   are   under   the   Arms   Act,   under   the   Prohibition   Act, 
under the Bombay Police Act, under the Explosive Substances 
Act, and also for the preventive action under Chapter Cases 

and   also   under   the  offences  against  body  punishable  under 
Sections   307,   323,   324,   354,   542,   506   IPC   etc..         The 
cumulative effect of the material as against the respondent 
No.2   and   the   apparent   conduct   of   the   respondent   No.2   is 
sufficient   to   hold   that   the   present   respondent   No.2   is   not 
worthy of the bail granted to him in the present matter, more 
so, when there is an attempt to tamper with the prosecution 
witnesses and when the case is yet to start for final hearing.
17. 
Under   these   circumstances,   for   violation   of   the 
conditions of bail – specifically regarding the attendance and 
tampering of the witnesses, the present respondent No.2 do 
not deserves to be on bail and hence the present application 
for   cancellation   of   bail   must   succeed   and   the   same   is 
accordingly allowed with following order :

 O R D E R 
and accordingly disposed of.
i. Criminal  Application  for cancellation of bail is allowed 
ii. The bail granted to the respondent No.2 vide order dated 
10.3.2010   is   set   aside.     The   respondent   No.2   shall 
surrender before the concerned trial Court forthwith or 

otherwise   appropriate   action   shall   be   initiated   by   the 
trial Court for securing his presence and taking him in 
judicial custody.
(A. R. JOSHI, J.)
        

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