ASHOK SHANKARAPPA HASURE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN the early hours of 6th October, 1990 two brothers namely, Baswaraj and Dhanraj, were sleeping in a cattle shed situated in Survey No. 29-A of village Badur, Taluka Nilanga, guarding crops and cattle when they were assaulted by some persons. One of the victims namely, Dhanraj, died on the spot and Baswaraj, also injured, managed to escape and then lodged a complaint. Crime No. 84 of 90 was registered under sections 302 and 307 of the Penal Code by Kasarsirsi Police Station and petitioner Nos. 1 to 3 were arrested on 6th October, 1990 and petitioner No. 4 was arrested on 10th October, 1990. Charge-sheet in this case came in be filed on 16th January, 1991 and as the charge-sheet was filed beyond the statutory limitation for detention of accused during investigation as laid down by section 167 of the Code of Criminal Procedure, 1973, accused prayed for bail and were released on bail by an order of learned Addl. Sessions Judge, Latur, dated 31st January, 1991.

(2.) ON 7th February, 1991 an application was moved by the State for cancellation of the bail granted to the accused on 31st January, 1991. In this Criminal Misc. Application No. 49 of 1991, it was contended by the State that the complainant himself is an injured eye-witness who has witnessed the assault on deceased Dhanraj and his testimony would go to show that accused have committed a serious offence punishable with death or imprisonment for life. It was further alleged that one of the accused is Sarpanch of the village and all of them are influential persons in the village and they are threatening the prosecution witnesses and thus they are likely to tamper with the prosecution evidence. Learned Addl. Sessions Judge, Latur, after hearing parties was pleased to allow this application and by his order dated 30th March, 1991 cancelled the bail granted to the petitioners. It is this order which is subject-matter of challenge in this Criminal Application.

(3.) SHRI N. H. Patil, learned Counsel appearing for petitioners, submitted that once the accused are released on bail under section 167, cancellation of bail would be governed by the same considerations which would be relevant for cancellation of the bail if it is granted under other provisions of the Code. He further submitted that though the bail granted for the non-compliance of the provisions of section 167 is not a bail on consideration of the merits and is a result of default on the part of the prosecution, it would stand on par with bail granted under section 437 or section 439. Relying on a judgment of Supreme Court in (The State through the Delhi Administration v. Sanjay Gandhi) A. I. R. 1978 S. C. 961, he further contended that the consideration for rejection of the bail when it is applied for would not be sufficient for the cancellation of the bail and unless it is made out that the accused enlarged on bail have misused their liberty, bail cannot be cancelled.