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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.