MHTH010053862021 1 2022-05-25

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Cri. M.A. No. 370 of 2021

CNR No. MHTH010053862021
The State of Maharashtra

(At the instance of Shantinagar P.S.
C.R. NO.I345/2021) … Applicant
V/s.
Deepchand Purushottam Kesarwani … Respondent.
: Order Below Exh.1 :
1] This is an application under Section 439(2) of Cr.P.C. for

cancellation of bail on the grounds set out in the application, mainly
on the grounds that vide order dated 25.6.2021 in Bail Application
No.1971/2021 the respondent was enlarged on anticipatory bail on
certain terms and conditions, however inspite of issuance of notice
under Section 41A(1) of Cr.P.C. on 1.7.2021, 8.7.2021 and 12.7.2021
he did not appear before I.O. for the purpose of investigation, he has
not at all cooperated the investigating agency, he left the jurisdiction
of Thane District without prior permission of this Court and thereby
breached the terms and conditions of impugned bail order, therefore
anticipatory bail granted to the respondent may be cancelled.
2] The respondent has filed say at Exh.8 and submitted that

present application is moved with malafide intention only to harass
the respondent, he has appeared before the investigation officer as
and when called for the purpose of investigation and rendered all
possible cooperation, he has also furnished the documents sought by
the investigation officer but the investigation officer neither marked
his presence in the diary nor issued any acknowledgement, the
respondent has also addressed a letter to the Shantinagar Police
Station to the effect that on 25.8.2021 he attended the police station,
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he has not breached any terms and conditions of the impugned order,
therefore, the application is liable to be rejected.
3] Heard learned A.P.P. Shri. Sanjay for the applicant and

Advocate Shri Jitendra Patil for the respondent. They argued as per
application and say. Perused documents on record.
4] In short, the contentions of applicant/prosecution are that

the investigating officer has tried to serve a notice under Section 41(1)
(a) of Cr.P.C. on respondent/accused for his appearance before him,
but he was not found at the given address and even after
communication on his mobile it was learnt that he was out of station.
Thus, respondent/accused had committed breach of the conditions on
which he was released on anticipatory bail. On the contrary, it is the
contention of respondent/accused that he has not breached any
condition, he has appeared before the investigation officer as and
when called for the purpose of investigation and rendered all possible
cooperation, he has also furnished the documents sought by the
investigation officer but the investigation officer neither marked his
presence in the diary nor issued any acknowledgement, the
respondent has also addressed a letter to the Shantinagar Police
Station to the effect that on 25.8.2021 he attended the police station.
The copies of entries taken by the I.O. in the station diary are on
record. The report dated 16.9.2021 shows that the notice was
served on respondent on the given address itself. It falsifies the main
contents of the application. Cancellation of a bail already granted, is
certainly a drastic and serious action. It is well settled that the
cancellation of bail is a drastic action against the accused and it should
be used sparingly and in exceptional cases. No such ground is made
out by the applicant. No doubt the respondent was granted
anticipatory bail on the condition that he shall attend concerned police
station as and when called by I.O. till filing of chargesheet and shall
cooperate the police for investigation. In this respect only there is a
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conflict between the parties. According to the applicant/prosecution,

respondent/accused is not attending the police station, while
according to respondent/accused he is attending the police station.
On this backdrop considering the prayer clause (b) of the say of
respondents/accused, some modifications in the existing aforesaid
conditions on which he was released on bail, can be made. Those
modifications will resolve the aforesaid dispute between the parties.
So, following order is passed :
:ORDER:
1] Application is rejected.
2] In continuation of condition no.2 imposed upon
respondent/accused vide order dated 25.6.2021 in Criminal Bail
Application No.1972/2021 it is directed that the investigating officer
of Shantinagar Police Station as well as the respondent/accused shall
maintain two separate diaries with them for marking the entry of the
attendance of respondent/accused at police station. In the diary of
respondent/accused the investigating officer shall put his dated
signature and seal while in the diary maintained at police station
respondent/accused shall put his dated signature on every date of his
attendance.
3] All the other conditions of the bail order shall remain as it is.
Digitally signed
by narendra
narendra kedar brahme
kedar Date:
2022.05.27
brahme 18:19:42
+0530
Date: 25/05/2022 ( N. K. Brahme )

Additional Sessions Judge,
Thane

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Cri. M.A. No. 370 of 2021

The State of Maharashtra

: Order Below Exh.1 :

1] This is an application under Section 439(2) of Cr.P.C. for

2] The respondent has filed say at Exh.8 and submitted that

3] Heard learned A.P.P. Shri. Sanjay for the applicant and

4] In short, the contentions of applicant/prosecution are that

conflict between the parties. According to the applicant/prosecution,

Date: 25/05/2022 ( N. K. Brahme )

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