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2011 Supreme(Bom) 1029

High Court of Bombay
Shrihari P.Davare
Ujwalaw/O. Madhukamal Hiwale
Vs.
State of Maharashtra
Criminal Application No. 2895 of 2011
Decided On : Aug 25, 2011

Advocates:
Advocate Appeared:
A.K.Gawali, R.K.Ladda, P.P.Dudile

Headnote:Criminal Procedure Code, 1973 - Sections 439 and 440-Penal Code, 1860, Section 300-Cancellation of bail-Application for-Trial Court granted bail to respondent-2, mother-in-law of victim aged about 70 years-Allegations against her in FIR appears to be of general and omnibus nature-No specific role attributed to her-Grant of bail to respondent-2 not illegal-Bail granted cannot be cancelled-Application dismissed.-Respondent No. 2 is mother-in-law of victim Smita, who is aged woman having age of about 70 years. Moreover, it is also apparent from the contents of the FIR, that the allegations against respondent No. 2 herein appear to be of general and omnibus nature and, no specific role has been attributed to her, and therefore, Court does not find any illegality in granting bail by the Additional Sessions Judge, to the respondent No. 2.

       Criminal Procedure Code, 1973 - Section 440-Cancellation of bail-Parameters for-Stringent-In absence said parameters, bail granted to respondent-2, mother-in-law of victim cannot be cancelled-As respondent-2, an old woman aged about 70 years, taking care of two children of victim aged about 6 years and 4 months respectively.-The parameters for cancellation of bail are stringent and the said parameters do not appear to be in existence in the present matter, and therefore, bail granted to the respondent No. 2 cannot be cancelled. Moreover, respondent No. 2 is an old woman aged about 70 years. It is submitted that she is taking care of two children of the victim Smita, one is son who is aged about 6 years, and younger daughter who is aged about 4 months, and it is also submitted that if her bail is cancelled, upbringing of said children would be in danger since their mother is expired and father is in jail.

JUDGMENT

(1) Perused the investigation papers which were made available for inspection purpose, as well as, heard learned respective Counsel for the parties, finally.

(2) This is an application preferred by the original complainant, namely, Ujwala w/o. Madhukamal Hiwale, for cancellation of bail granted to respondent no.2, namely, Hirabai w/o. Ramesh Ghodke, which was granted to her by the learned Additional Sessions Judge-6, Ahmednagar, by order dated 27th June 2011, passed below Exhibit 1 in Criminal Miscellaneous Application No. 808/ 2011. It was canvassed by learned Adv. Mr. A.K. Gawali, for the applicant (original complainant), that the incident of death of victim Smita took place on 16th June 2011, and thereafter, respondent no.2 was arrested under Crime No. 214/2011, registered at Kotwali Police Station, Ahmednagar, and she was enlarged on bail after 11 days i.e. on 27th June 2011 by the learned Additional Sessions Judge-6, Ahmednagar, which is canvassed to be objectionable. Learned Counsel for the applicant has also submitted that while granting bail to respondent no.2 by the learned Additional Sessions Judge-6, Ahmednagar, by order dated 26th June 2011, no condition was imposed upon her although the investigation was in progress. It is further submitted by the learned Counsel for the applicant, that victim Smita had left a letter before her death, which reflects that she was subjected to physical, mental and financial cruelty by the respondent no.2 and husband of the victim, and the said letter speaks for itself. Moreover, it is further submitted that the death of the victim Smita is suspicious and it is not clear whether she met with suicidal death or homicidal death, and apparently, she was found hanging in a dilapidated house, and that suspicion is created about the cause of her death, and hence submitted that under this scenario, bail granted to respondent no.2 deserves to be cancelled.

(3) Learned APP Smt. R.K. Ladda, for respondent no.1 / State, has supported the present application.

(4) Learned ADV. Mr. P.P. Dudile, for respondent no.2, countered the aforesaid arguments and opposed the present application by filing affidavit in reply, and submitted that the letter at Exhibit "A", allegedly written by the victim Smita, does not bear any date, and it is submitted that the said letter is fabricated. It is also canvassed by the learned Counsel for respondent no.2, that the allegations made against respondent no. 2, in the FIR, are of general and omnibus nature and they do not attribute any specific role to the respondent no.2 herein. It is also submitted by learned Counsel for respondent no.2, that the post mortem notes disclose probable cause of death of the victim Smita, as hanging, which itself clarifies that she committed suicide and the said death cannot be construed as homicidal death. Besides, learned Counsel for respondent no.2 has pointed out that the applicant herein opposed the bail application before learned Additional Sessions Judge, by filing application, and considering her submissions, bail was granted to respondent no. 2, and hence, same need not be cancelled. Moreover, learned Counsel for respondent no.2 has relied upon judgment of learned Single Judge of this Court, in the case of Prithviraj Shivaji Chavan and others Vs. State of Maharashtra and others, reported at 2002(Cri. Supp.) Bom. C.R. 294 : [2002 ALL MR (Cri) 555], wherein this Court has observed thus :

" The criteria which is to be applied for grant of bail and for cancellation of the bail always depends upon the facts and circumstances of each case which vary case to case, accused to accused, complaint to complaint. Therefore, at the time of considering the prayer of bail or at the time of considering the prayer for cancellation of bail, the Court has to be circumspect and has to inform itself about the process by which the investigating agency has collected the material against the accused for going to the trial. The Court has to inform i











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