STATE OF MAHARASHTRA Vs. ARUN GULAB GAWLI

JUDGEMENT

(1.) THIS is an application filed by the State, challenging the judgment and order passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Bombay dated 3/12/2005 whereby he was pleased to grant an order of anticipatory bail in favour of the respondent.

(2.) BRIEF facts which are relevant for the purpose of deciding the present application are as under:-

(3.) THE learned Chief Public Prosecutor Shri Borulkar, appearing on behalf of the State, strenuously urged that the Sessions Court had not taken into consideration the material which was produced by the State on the merits of the case and had decided the matter on certain material which was not germane to the main issue which was involved in the said application. He invited my attention to the impugned order passed by the Sessions Court. He submitted that the Sessions Court had not taken into consideration the material which was filed by the State in affidavit-in-reply to the anticipatory bail application and, on the contrary, had recorded a finding that the State had not argued the application on merits. The learned Chief P.P. submitted that the Sessions Court was mainly irked by non-attendance of the complainant and the other witnesses and proceeded to draw an adverse inference on account of their non-attendance. He submitted that the attendance or non-attendance of the complainant and the witnesses was not required at the stage of hearing of the anticipatory bail application. He submitted that the Sessions Court was required to consider whether there was a prima facie material available on record to proceed against the accused. He submitted that instead of considering this material on merits, the trial court had relied upon certain other aspects such as non-attendance of the complainant and other witnesses. He relied upon the judgment of the Supreme Court in the cases of Muraleedharan vs. State of Kerala reported in AIR 2001 SC 1699, Puran vs. Rambilas and another reported in AIR 2001 SC 2023 and State of U.P. through CBI Vs. Amarmani Tripathi reported in 2005 (8) SCC 21 in support of his submissions.