STATE OF MAHARASHTRA Vs. NAGNATH MUNJAJI SHIKARE

JUDGEMENT

(1.) THE State has moved this Court by the present application under sections 439 (2) and 482 of the Code of Criminal Procedure for cancellation of bail granted by an order dated 25-8-1998 to Respondents Nos. 1 to 12 in Criminal Application No.379 of 1998 by the Second Additional Sessions Judge, Nanded.

(2.) ON the basis of the F. I. R. lodged at Sankhed Police Station, District Nanded, offences under sections 302, 147 to 149, Indian Penal Code and section 135 of the Bombay Police Act, were registered at Cr. No.31 of 1997 against 35 accused persons 26 accused came to be arrested in connection with the aforesaid offence and 7 were found absconding. Out of these arrested accused, 18 persons had filed Criminal Application No.475 of 1997 to the Sessions Court at Nanded and the bail was granted in favour of the then Petitioner No.17 Tanaji, the state approached this Court against the said order granting bail to Tanaji in Criminal Application No.1613 of 1997 and on hearing both the sides this Court by an order dated 12-11-1997 set aside the order of the Sessions Court and cancelled the bail. ON completion of the necessary investigation, the charge sheet came to be filed in the Sessions Court and the accused again approached the lower Court in Criminal Application No.626 of 1997 for the same relief of bail. By an order dated 6-12-1997, the learned Sessions Judge rejected the bail in respect of applicants Nos. 1 to 7 and 19 and granted bail to applicant No.6. The accused persons, who were refused bail by an order dated 6-12-1997 approached this Court in separate applications, but they were either withdrawn without any liberty or with liberty to the petitioners to approach the Sessions Court afresh. Similarly, one of the accused, namely, Umakant Dhondu had also challenged the order refusing bail by his application being Criminal Application No.817 of 1998 before this Court, but it was also allowed to be withdrawn on hearing with liberty to the petitioner to move the Sessions Court for bail. Respondents Nos. 1 to 12 then approached the Sessions Court and filed Criminal Application No.379 of 1998 for the same relief of bail and by an order dated 25-8-1998 the bail has been granted to Respondents Nos. 1 to 12. It is in respect of this order granting bail to the Respondents that the State has approached this Court for its cancellation in this Criminal Application.

(3.) BEFORE considering the facts and circumstances on record, it would be proper to refer to the position of law in respect of cancellation of bail under section 439 (2) of the Code of Criminal Procedure. The Supreme Court in Bhagirathsigh Judge V. State of Gujarat, 1984 Cri L. J. 160, has ruled that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail and the power to grant bail is not to be exercised as if the punishment before trial is being imposed.