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Judgment
Rule. Rule is made returnable forthwith. Heard finally by consent of the parties.
This Court has heard the submissions of Mrs. Manju M.
Ghatode, the learned counsel for the applicant, Mr. Ved Deshpande, the learned counsel for non-applicant no.2 and Mr. Amit Madiwale, the learned Additional Public Prosecutor for the non-applicant no.1/State.
By the present application, the applicant is challenging the order passed by the learned Additional Sessions Judge, Akola on 12.10.2017 in Other Misc. Criminal Application No. 81/2017, filed under Section 439(2) of the Code of Criminal Procedure by the present non-applicant no.2. By the said order, the learned Additional Sessions Judge allowed the application filed on behalf of the non-applicant on.2 and cancelled the regular bail granted in favour of the applicant on 17.2.2017.
The genesis of all the dispute, as it could be seen from the record, is the matrimonial discord between the applicant and the non-applicant no.2. The non-applicant no.2 approached Police Station, Khadan of Akola city on 10.11.2016 and registered a complaint. The said complaint was taken up by the Police Station Officer of Khadan police station as Crime No. 468/2016 for the
offences punishable under Sections 307, 504, 506 of the Indian Penal Code.
As per the first information report, the applicant is her husband and the couple had one son and one daughter aged about 18 years and 14 years, respectively. The applicant works in police department and discharging his duties as Head Constable. It is seen from the report that since last two years, due to the bickering in their matrimony started which resulted in the quarrels between them and ultimately the non-applicant no.2/first informant started residing separately at a house situated at Gaurakshan Road at Akola, whereas the applicant resides at village Rajanda. It is also stated in the first information report that the applicant has married with one Sangeeta.
It is stated that on 10.11.2016, when the non-applicant no.2/first informant was present in her house along with the children that time the applicant visited her house and pressurized her for withdrawal of the cases, which the non-applicant no.2 had earlier filed against the applicant. The said was refused by the non-applicant no.2 and it resulted into an assault on the first informant and also an attempt to pour kerosene on the person of the first informant.
The applicant was arrested in the said crime on
15.11.2016. The applicant, thereafter, filed an application under Section 439 of the Code of Criminal Procedure for releasing him on
bail. The said application was filed on 10.2.2017. The application for bail moved by the applicant was registered as Misc. Criminal Application No. 83/2017. The learned Additional Sessions Judge, Akola on 17.2.2017 enlarged the applicant on bail. While enlarging him on bail, conditions were imposed upon the applicant. Those conditions were -
1] That the applicant shall attend police station, Khadan on every Sunday in between 11.00 am to 2.00 pm.
2] That he shall not enter into the area where at the complainant resides even for collecting rent from his tenants.
3] That the applicant shall not even try to make any contact with the complainant at any other place nor try to pressurize her in any manner.
4] That he shall not tamper with the evidence in any manner and shall remain present before the Court on each and every date except he is exempted from personal appearance, till conclusion of the trial.
After the order of bail, the applicant was released from
jail. On 09.8.2017, the non-applicant no.2 filed an application before the learned Additional Sessions Judge under Section 439(2) of the Code of Criminal Procedure for cancellation of bail on the ground that the applicant has committed breach of the conditions imposed upon him while releasing on bail. The said application was registered as Other Misc. Criminal Application No. 81/2017. the learned Additional Sessions Judge vide order dated 12.10.2017 allowed the application filed on behalf of the non-applicant no.2 and thereby cancelled the bail granted in favour the applicant on
17.2.2017.
This Court on 17.10.2017 has already stayed the effect and operation of the order dated 12.10.2017.
The reply is filed on behalf of the non-applicant no.2 to this application. Along with the reply, the non-applicant no.2 has placed on record two Non-Cognizable reports (1) N.C. Report No.184/2017 dated 30.4.2017 and (2) N.C. Report No. 230/2017 dated 23.5.2017. It is the submission of the learned counsel for the non-applicant no.2 that the applicant has shown disrespect to the order passed by the learned Additional Sessions Judge and according to her the conditions imposed upon the applicant while releasing him on bail were not adhered with or those were not followed and
therefore, the learned Additional Sessions Judge has rightly cancelled the bail.
Though, the prosecution at no point of time has filed any application for cancellation of bail by filing reply to this application has supported the first informant/non-applicant no.2.
As observed in earlier paragraph of this order, certain conditions were imposed on the applicant. The first condition was that the applicant shall attend the police station on every Sunday in between 11.00 am to 2.00 pm. Neither the non-applicant no.1 - the prosecuting agency nor the non-applicant no.1 - first informant has any grievance about the applicant's attendance to Police Station, Khadan. Thus, the applicant is regularly attending Police Station, Khadan on every Sunday in between 11.00 am to 2.00 pm.
The condition no.2 that was imposed upon the applicant was that the applicant shall not enter in the area where the complainant resides even for collecting the rent from tenants and for collection of the rent, it was directed that he shall inform the tenants through an independent person to pay him rent at the place where he resides. The reply or any of those to NC reports are conspicuously silent to the fact that at any point of time the applicant had entered in the area namely VHB Colony, Gaurakshan Road, Akola even for collection of the rent from his tenants. Had he entered in that area for collecting rent, it would have been possible for the non-applicant no.2 to make a reference of the tenant with whom the applicant had contacted for collecting rent. Further, even according to the learned counsel for the non-applicant no.2, the area where at the non-applicant no.2 resides, falls within the jurisdiction of Police Station, Khadan. Had the applicant entered in that area, it was open for the non-applicant no.2 to approach to Police Station, Khadan by lodging the report, however, nothing of that sort is being done by the non-applicant no.2. Thus, it is clear that the applicant has not committed breach of condition no.2.
The condition no.3 is that the applicant shall not even try to make any contact with the complainant. The NC reports which are available at pages 65 and 66 of the compilation, are filed at Police Station, Barshitakli. The place of occurrence is shown at village Rajanda, where at even according to the first information report, the applicant resides. Further, both these NC reports are silent that at any point of time the applicant tried to contact with the non-applicant no.2, on the contrary it appears that the non-applicant no.2 had been to village Rajanda for the agricultural purposes and there the dispute on the agricultural land has occurred. Thus, even the condition no.3 is also not breached.
Those instances mentioned in aforesaid two N.C. reports may gain a different cause of action for the non-applicant no.2 to proceed against the present applicant before the appropriate Court, however, that cannot be termed as breach of any of the conditions.
In my view, the learned Additional Sessions Judge has swayed away with the fact of lodging of two NC reports against the present applicant and appears to have termed those as breach of the conditions, which in my view is incorrect. In that view of the matter, I pass the following order :
ORDER
1] The criminal application is allowed.
2] The order passed by the learned Additional Sessions Judge, Akola dated 12.10.2017 in Other Misc. Criminal Application
No. 81/2017 is hereby quashed and set aside and the order granting regular bail in favour of the applicant by the learned Additional Sessions Judge, Akola on 17.02.2017 in Misc. Criminal Application
No. 83/2017 stands restored along with all conditions imposed therein.
3] Rule is made absolute. No costs.