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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