Allowed

Shri Bhiva Yashwant Tilve v. State through Pernem Police Station

Bombay HC19 Nov 2009WPCR/81/2009

Case brief

AI extract

What is this about?

This High Court set aside an order cancelling the petitioner's bail. The trial court had relied on an application by a witness alleging pressure to dissuade the witness from testifying. The higher court found that the witness had testified without mentioning such pressure and the subsequent police complaint failed to name the petitioner, rendering the trial court's presumption misplaced.

What did the court decide?

Bail bond of the petitioner accused no. 4 Bhiva Yashwant Tilve to continue subject to terms and conditions previously imposed.

Shri Bhiva Yashwant Tilve Vs State through Pernem… — Criminal Trial and Appeal | Bombay HC (2009)

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IN THE HIGH COURT OF BOMBAY AT GOA.

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CRIMINAL WRIT PETITION NO. 81/2009 .

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Shri Bhiva Yashwant Tilve, R/o. H. No.200/1, Deulwada, Palyem, Pernem, Goa. ….... Petitioner.

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Versus

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State through Pernem Police Station, Pernem Goa.

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.….... Respondent.

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Mr. S. D. Lotlikar, Advocate for the petitioner.

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Mr. C. A. Ferreira, Public Prosecutor for the respondent.

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CORAM :- U. D. SALVI, J. DATE : 19th November, 2009

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ORAL JUDGMENT:-

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Rule, made returnable forwith. Taken up for final

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hearing with the consent of the parties.

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This Criminal Writ Petition seeks to challenge the Order dated 12.11.2009 cancelling the bail granted to the petitioner/accused no. 4 Bhiva Yashwant Tilve, granted in the year

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2005 in Sessions Case no. 15/2008.

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One of the witness PW10 Jagannath Parab in the said Sessions Case moved an application for cancellation of bail granted to the petitioner vide application dated 8/10/2009, exhibit 97 on the allegation that he was pressurized by the petitioner with the threat so as to procure his abstinence from stepping in the witness box and he had lodged the complaint dated 12.9.2009 about the violent conduct of the petitioner with the local police. These allegations were countered by the petitioner with the reply. The petitioner denied having violated any terms and conditions of the bail granted to him.

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Learned Assistant Sessions Judge-II, Panaji Goa trying the Sessions Case no. 15/2008 after considering the application, affidavit in support dated 28.9.2009, copy of the complaint dated 12.9.2009, reply of the petitioner, believed the applicant's version with the following observations:-

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“At the time of lodging the complaint it is possible that the complainant may by oversight fail to name the person who was pressuring the witness. On reading of the

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entire complaint it can be seen that the pressure was from accused no. 4( Petitioner Bhiva Yashwant Tilve). It is also possible that till the time deposition is given by the witness in the witness box he may be really under the influence of pressure of the accused. That under the influence pressure he may not state the name of the accused no. 4 when he was in the witness box.

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The act of the accused no. 4 on the very next day makes me believe that the accused no. 4 must have been pressuring the said witness.”

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With these observations, the learned Assistant Judge, II, Panaji arrived at the decision to cancel the bail granted to the petitioner.

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Learned Advocate Mr. Lotlikar for the petitioner submitted that applicant witness Jagannath Parab did not speak out anything about he being pressurized by the petitioner before the Trial Court while he was giving his deposition, and the complaint lodged with the local police did not specially mention the

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petitioner as the person who was pressurising him for not appearing before the Court. He further pointed out from the copy of the complaint dated 12.9.2009 annexed to the petition that the alleged incident referred to by the applicant witness Jagannath Parab was following his deposition and at the best it can be said to be a post morterm of he giving the deposition before the Court and nothing more. On this background, learned Advocate Mr. Lotlikar for the petitioner submitted that the learned trial Court ought not to have placed credence on the applicant witness Parab for resorting to the harsh measure of cancellation of bail. He further submits that the considerations for grant of bail and cancellation of bail stand on different footing and such harsh measures can be resorted to only when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with the evidence or witnesses, or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, in support of his contention he relied upon a judgment in the case of

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Manjit Prakash Vs. Shobha Devi, reported 2008 ALL MR(Cri)

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2605 .

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Facts leading to the cancellation of bail have not been disputed by the State. Learned Public Prosecutor Mr. C. A. Ferreira, for the State fairly concedes to the fact that the complaint made to the local police a day after giving deposition in the Court does not reveal any attempt on the part of the accused person to tamper with the evidence or hamper smooth progress of the trial, particularly at the hands of the petitioner.

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Perusal of the complaint dated 12.9.2009 to the local police reveals that the applicant/witness did not name the petitioner as the person instrumental for pressurising him in order to dissuade him from appearing in the Court. It is not disputed that the applicant/witness Jagannath Parab did stand in the witness box as a prosecution witness no. 8 on 11.1.2009 and reveal whatever he wanted to reveal, and yet he did not make any grievance about any such pressure on him before the trial Court. Complaint dated 12.9.2009 refers to an incident of giving abuses by the petitioner on 12.9.2009.

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Observations in the Order do not reveal the basis for

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presuming possibility of failure on the part of the complainant to mention the name of the person pressurising him in the complaint due to oversight as well as of failure to reveal the fact of the pressure tactics of accused no. 4 before the Court under undue influence. There was no reason for the learned trial Court to have presumed such possibilities. Trust based on such presumption was therefore misplaced. Order of cancellation of bail therefore deserves to be set aside.

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Bail bond of the petitioner accused no. 4 Bhiva Yashwant Tilve to continue subject to terms and conditions previously imposed on him by the trial Court.

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Rule made absolute with no order as to costs.

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vn*

Shri Bhiva Yashwant Tilve v. State through Pernem Police Station

Case brief

What is this about?

What did the court decide?

Shri Bhiva Yashwant Tilve v. State through Pernem Police Station

Case brief

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What did the court decide?

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