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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
V.M. DESHPANDE, J.
Kum. Mahima - Applicant
Versus
State of Maharashtra - Respondents
Criminal Application No. 2624 of 2015
Decided on : 21-07-2015
Cancellation of Bail - Criminal Procedure - Code of Criminal Procedure, 1973, Section 439 - Indian Penal Code, Section 376(2), 354(D)(ii), 504, 506 - Protection of Children from Sexual Offences Act, 2012, Section 3(b)(d), 4, 5(H)(I), 6
Fact of the Case:
The applicant sought cancellation of bail granted to the respondent under Section 439 of the Code of Criminal Procedure for offenses under various sections of the Indian Penal Code and the Protection of Children from Sexual Offences Act. The prosecutrix alleged that the respondent committed sexual offenses against her in 2013, and the FIR was lodged in 2015.
Finding of the Court:
The court considered the change in circumstances after the rejection of the first bail application and the subsequent filing of the charge sheet. It emphasized the need to consider all material brought before the court when deciding on personal liberty. The court also highlighted the principles for cancellation of bail, emphasizing that deprivation of liberty should be considered a punishment and that bail should not be canceled without considering supervening circumstances.
Issues: The issues revolved around the change in circumstances for filing successive bail applications, the consideration of material not part of the charge sheet, and the delay in lodging the FIR.
Ratio Decidendi: The court held that the filing of the charge sheet subsequent to the rejection of the first bail application constituted a change in circumstances, allowing the accused to press for liberty based on the material in the charge sheet. It also emphasized the need to consider all material brought before the court when deciding on personal liberty and highlighted the principles for cancellation of bail.
Final Decision: The court dismissed the criminal application for cancellation of bail and discharged the rule.
Certainly. Based on the provided legal document, the key points are as follows:
The filing of a charge sheet after the rejection of an initial bail application constitutes a change in circumstances, which allows the accused to reapply for bail based on the new material presented in the charge sheet (!) (!) (!) (!) .
When considering bail, the court must evaluate all material brought before it, including evidence not necessarily part of the charge sheet, provided its authenticity is not doubted (!) (!) (!) (!) .
The change in circumstances, such as the filing of a charge sheet, is a substantial factor that warrants fresh consideration of bail applications, and it is not permissible for the court to deny bail solely on the basis that the charge sheet was filed without further analysis (!) (!) .
The court emphasized that the decision to cancel or grant bail should be based on supervening circumstances and not on superficial or mechanical grounds. The principles for cancellation of bail include considerations such as interference with justice, evasion, abuse of liberty, or risk of absconding (!) (!) .
The court highlighted that deprivation of liberty is akin to punishment and should be imposed only under justified circumstances, ensuring that the liberty granted is not revoked arbitrarily or without proper evaluation of supervening factors (!) (!) .
The overall order was to dismiss the application for cancellation of bail and discharge the rule, affirming that the bail granted should not be canceled unless compelling reasons are established (!) (!) .
The court also noted that the delay in lodging the FIR and the consideration of additional evidence, such as chat messages, should be evaluated carefully, but their consideration does not per se invalidate the bail or the order granting it (!) (!) (!) .
The principles outlined reinforce that bail decisions are to be made judiciously, keeping in mind the rights of the individual and the interests of justice, with a focus on whether supervening circumstances justify revisiting the bail order (!) (!) .
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1. Rule. Rule is made returnable forthwith. Heard finally by the consent of the learned counsel for the parties.
2. This is an application u/s 439 (2) of the Code of Criminal Procedure for cancellation of bail. Learned Additional Sessions Judge, Aurangabad vide Order dated 20/03/2015 granted application filed on behalf of respondent No. 2 u/s 439 of the Code of Criminal Procedure and thereby released him on bail on he executing P.R. and surety Bond of Rs. 1,00,000/- [Rupees One Lakh] in connection with Crime No. 17/2015 registered with M.I.D.C. CIDCO police station, Aurangabad for the offences punishable u/s 376 (2), (I), 354(D)(ii), 504, 506 of the Indian Penal Code and u/s 3 (b)(d),4,5(H)(I),6 of the Protection of Children from Sexual Offences Act.
3. Heard Mr. V.D. Sapkal, learned counsel for the applicant, Mrs. Pratibha Bharad, learned A.P.P. for Respondent No. 1 – State and Mr. Shirish Gupte, learned Senior Counsel along with Mr. A.D. Ostwal, learned counsel instructed by Mr. Joydeep Chatterji and Mr. S.S. Thombre, learned counsel for Respondent No. 2 in extenso.
4. A very detail and elaborate submissions were made from both the sides. However, I wish not to make any observations on the merits or demerits of the prosecution case since it will prejudice the case of the prosecution as well as respondent No. 2. At this stage, Court is expected to observe only whether a case is made out for cancellation of bail or not.
5. The gist of the submissions made by Mr. V.D. Sapkal, learned counsel for the applicant is as under :
[I] Order impugned is perverse.
[II] Order impugned is passed without considering the record.
[III] Considered the material which is not placed along with the charge sheet.
[IV] Learned Judge of the Court below himself, on earlier occasion, rejected the bail application filed by respondent No. 2.
Thus, there was no change in the circumstances.
The learned counsel for the applicant has pointed out various Judgments.
6. Per contra, Mr. Shirish Gupte, learned Senior Counsel submitted that the first bail application of respondent No. 2 was filed prior to filing of the charge sheet and its rejection was prior to the submission of the charge sheet.
Learned Senior Counsel submitted that another bail application, which was granted by the learned Court below, was filed after filing of the charge sheet. He submitted that filing of the charge sheet itself is the change of circumstance. He also relied upon various Judgments. He submitted that after grant of bail, it is not reported that respondent No. 2 has misused the liberty.
7. It is an admitted position that applicant/prosecutrix is resident of Secandarabad, whereas respondent No. 2 is resident of Aurangabad [Maharashtra]. As per prosecution both prosecutrix and respondent No.2 were Face Book friends. On 22/05/2013, prosecutrix had been to Aurangabad in connection with the marriage of her relative. It is the further case of the prosecution that at Aurangabad, prosecutrix met respondent No. 2. Sum and substance of the F.I.R. is that after having a coffee, while they were going by car, respondent No. 2 started touching private parts of the prosecutrix and also gave his private part in her hand. Though the prosecutrix resisted such obnoxious act of respondent No. 2, on the point of knife he extended threat to kill her. Thereafter, he dropped prosecutrix at Jymkhana Club, wherein she was staying. According to prosecution, she was tensed and, therefore, she did not narrate the same to anybody. As per the prosecution, on 21/01/2015, she made Complaint by Email to the Police Commissioner and narrated the entire incident and thereafter formal F.I.R. was lodged on 23/01/2015. Thus, for the incidence of 23/05/2013, F.I.R. is lodged on 23/01/2015.
8. There is no quarrel on the part of respondent No. 2 that his first bail application was rejected by the Additional Sessions Judge, Aurangabad. Said bail application was rejected on 26/02/2015. There is no dispute by either side that when
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