BALKRISHNA MAHADEV LAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an Application for bail made by the Respondent in the Appeal against acquittal preferred by the State. The Respondent in the Appeal was acquitted for the offences punishable under Sections 364, 376(2) (f) and 302 of the Indian Penal Code. On 18th July, 2011, the Appeal was admitted and action under Section 390 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973") was ordered. Accordingly, the Trial Court issued a warrant against the Applicant in accordance with Section 390 of the said Code of 1973. Accordingly, the warrant was executed and the Applicant was brought before the learned Additional Sessions Judge, Mumbai on 20th January, 2012. The learned Judge committed him to the custody till 3rd February, 2012.

(2.) The Applicant applied for bail. By an order dated 25th January, 2012, the Application was rejected. The learned Additional Sessions Judge recorded the objection of the learned APP that if the Applicant is enlarged on bail, he will abscond and his presence before this Court cannot be secured. The learned Judge observed that the Applicant was arrested at his native place i.e. Sunderwarchi Wadi, Post Makhjan, TalukaSangmeshwar, District Ratnagiri. The learned Judge observed that the Applicant has not produced any document to show that he is a permanent resident of Mumbai and, therefore, if he is released on bail, he will abscond.

(3.) The learned counsel appearing for the Applicant submitted that the Applicant is residing with his sister at Ratnagiri. He stated that the Applicant is ready and willing to furnish a detailed address of place of his residence. He submitted that in view of the direction issued by this Court in the case of State of Maharashtra Vs. Bapu Pandu Mali, 2010 AllMR(Cri) 120, the Applicant was entitled to be enlarged on bail as a matter of right. He submitted that in fact the learned Sessions Judge has acted completely contrary to the directions issued by this Court in the aforesaid case. He submitted that the Applicant is entitled to be enlarged on bail. The learned APP has placed reliance on a decision of the Apex Court in the case of Amin Khan Vs State of Rajasthan & Others, 2009 3 SCC 776. The learned APP submitted that under Section 390 of the said Code of 1973, discretion is conferred on the Court before which the Accused is brought under Section 390 of the said Code of 1973 either to commit the accused to prison pending the disposal of the Appeal or admit him to bail. The learned APP submitted that the said Court always has a power to direct that the Respondent in the Appeal against acquittal shall remain in custody till disposal of the Appeal. The learned APP relied upon a decision of the Apex Court in the case of State of U.P. Vs Poosu & Another, 1976 AIR(SC) 1750. The learned APP submitted that as held by the Apex Court, after an appeal against acquittal is admitted, the status of the Respondent to the appeal as the accused person is revived. The learned APP submitted that the submission that the Applicant is entitled to bail as a matter of right is completely contrary to the express provisions of Section 390 of the said Code of 1973 and to the decisions of the Apex Court in the cases of State of U.P. as well as Amin Khan . The learned APP submitted that the view taken by this Court in the case of Bapu Pandu Mali needs reconsideration. The learned APP submitted that in the present case, the address of the Applicant as disclosed on record of the Trial Court is "Grant Road (West) footpath, Opposite Railway Station, Mumbai". The learned APP submitted that considering his address which is of a footpath opposite Railway Station in Mumbai, it will be impossible to secure his presence before this Court. The learned APP submitted that considering the gravity of the offence alleged against the Applicant, this is not a case where the Applicant can be enlarged on bail. She pointed out that the allegation against the Applicant is of committing offence of rape against the victim girl who was only five years old and of brutally murdering the victim girl.