Bombay High Court
The State Of Maharashtra vs Madurai @ Madra Devendra Mariappan on 31 July, 2025
2025:BHC-AS:32472-DB ia-5433-2024-in-appa-506-2019-in-apeal-467-2019-OR.doc
Shephali
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 5433 OF 2024
IN
CRIMINAL APPLICATION NO. 506 OF 2019
IN
CRIMINAL APPEAL NO. 467 OF 2019
The State of Maharashtra ...Applicant/Appellant
(Orig. Complainant)
~ versus ~
Madurai alias Madra Devendra Mariappan,
SHEPHALI
SANJAY Age: 44 years, Occ. Cable Operator,
MORMARE
R/o 84 Society, Room No. B-7, Near
Digitally signed
by SHEPHALI
Janakidevi School, MHADA Colony, ...Respondent
SANJAY
MORMARE Four Bunglow, Varsova, Mumbai (Orig. Accused No. 1)
Date: 2025.07.31
19:02:47 +0530
A PPEARANCES
For the Applicant-State Ms Geeta P Mulekar, APP.
For the Respondent Mr Sudeep Pasbola, Senior Advocate,
with Ayush Pasbola & Pranav
Gole, i/b Rahul Arote.
Present in Court Mr Shekhar Ashok Pawar, PSI, Juhu
Police Station.
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CORAM : SUMAN SHYAM &
SHYAM C. CHANDAK, JJ
RESERVED ON : 23RD JULY 2025.
PRONOUNCED ON : 31ST JULY 2025.
ORDER (Per Suman Shyam, J):
–
1. This Criminal Application is filed by the State of
Maharashtra under Section 483 of Bhartiya Nagrik Suraksha
Sanhita, 2023 (“BNSS”) seeking cancellation of the bail granted to
the Respondent/Original Accused No. 1, Madurai @ Madra
Devendra Mariappan in Criminal Application No. 506 of 2019
arising out of Criminal Appeal No. 467 of 2019 on the ground that
the Respondent has violated the bail conditions. The facts of the
case, in a nutshell, are that the sole Respondent/Original Accused
No. 1, along with three other co-accused, was prosecuted for
committing the murder of one Mari Raman Devendra. On
conclusion of trial the Respondent was convicted under section 302
of IPC by the judgement and order dated 18 th February 2019
passed by Additional learned Sessions Judge in Sessions Case No.
835 of 2014 arising out of C.R. No.285/2014 registered with Juhu
Police Station, for committing offence punishable under Section
302 of the IPC. Assailing the Judgment and Order dated 18th
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February 2019, the Respondent has preferred Criminal Appeal No
467 of 2019 which is pending disposal. On an interlocutory
application being Criminal Application No. 506 of 2019 filed by the
Respondent seeking bail, a Division Bench of this Court (Coram:
Shri BP Dharmadhikari & Smt Swapna S Joshi, JJ) had passed
order dated 7th August 2019 suspending the jail sentence of the
Respondent thus directing his release on bail. The conditions of
bail, as laid down in the order dated 7th August 2019, are
produced here-in-below for ready reference:
(a) The applicant shall execute personal bond in the
sum of Rs.20,000/- before the trial court for proper
behaviour and for remaining present on due dates
before the Court in the present matter with two
independent sureties in the like amount;
(b) He shall give address at which he shall always be
available during the pendency of this appeal along
with his contact numbers;
(c) Similar details in relation to his sureties shall also
be furnished;
(d) He shall not in any way directly or indirectly
attempt to contact or pressurize either complainant
or any of the witnesses in the matter;
(e) He shall keep vakalatnama of his advocate alive
and valid till the appeal is finally decided by this
Court and shall not be entitled to any fresh notice
at the stage of final hearing;
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(f) He shall report to the Superintendent/Registrar of
Sessions Court, Mumbai on first working Monday
in every two months as a condition of his release;
(g) His failure to observe any of the terms and
conditions shall entitle the respondent State to take
him in custody forthwith;
(h) Application is accordingly allowed and disposed of.
2. According to the State, the Respondent has violated the bail
conditions by threatening one Dinesh Kannaswami Devendra as a
result of which offence bearing C.R.No.120/2024 has been
registered against him in Juhu Police Station under sections
324,504,506(2), 34 of the Indian Penal Code (IPC). According to
the State, after his release on bail vide order dated 7th August,
2019, as many as three offences have been registered against the
respondent. It has, therefore, been contended that the respondent
is a habitual offender who has acted in violation of the bail
conditions set out by this court. He has no respect for law. As such,
if the respondent is allowed to remain on bail, there is every
likelihood that he may again threaten witnesses and tamper with
the evidence. Therefore, his bail is liable to be cancelled. In order
to substantiate the above plea, the Applicant-State has invited the
attention of this court to the said three offences registered against
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the Respondent arising out of incidents which took place
subsequent to the issuance of the order dated 7th August 2019.
3. The Respondent has filed Counter Affidavit resisting the
prayer made in the Application inter alia contending that he has
not violated the bail conditions. However, with a view to deprive
him of his personal liberty, false and frivolous complaints have
been lodged against the respondent. It is also the contention of the
Respondent that the complaints referred to by the State are the
outcome of business and political rivalry between the Respondent
and the complainants.
4. The learned APP, Mrs Geeta P Mulekar has strenuously
argued that notwithstanding the clear and un-ambiguous
conditions laid down in the order dated 7th August 2019 passed by
this Court, the Respondent has not only indulged in antisocial
activities but he has also tried to intimidate the brother of the
deceased viz Dinesh Kannaswami thus, making an attempt to
interfere with the complainant and witnesses connected with the
pending Criminal Appeal. It is also the submission of the learned
APP that the Respondent, by his irresponsible conduct, has violated
condition Nos (a) and (d) of the order dated 7 th August, 2019. The
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respondent constitutes a serious threat to the society and,
therefore, his bail deserves to be cancelled.
5. Mr Pasbola, learned Senior Counsel for the Respondent has
opposed the submissions made by the learned APP and submits
that there is a deliberate attempt to frame his client by registering
false FIRs. Mr Pasbola has further argued that in the incidents
referred to in the application, the Respondent is actually the
victim. However, when he approached the Juhu police, the police
refused to register his complaint. That apart, submits Mr Pasbola,
even the complaint made by his sister-in-law of stalking by one of
the complainants has been declined by the police for no valid
reason.
6. We have considered the submissions made at the bar and
have also perused the statements made in the application. It is no
doubt correct that after the Respondent was enlarged on bail by
the order dated 7th August 2019, he has apparently been involved
in as many as three separate incidents wherein, offences have been
registered against him. On 6th June 2023, an FIR was registered
with the Juhu Police Station as C.R. No. 363/2023 under Sections
325, 323, 506, 34 of IPC read with Section 142 of the Maharashtra
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Police Act, 1951. The basic complaint brought against the
Respondent in that FIR is to the effect that the complainant in that
case was assaulted by some persons on being instigated by the
Respondent.
7. On 30th January 2024, another FIR was registered as C.R.
No. 120 of 2024 under Sections 324,, 504, 506(2), 34 of the IPC.
In the said FIR, it has been alleged that the Respondent had
brutally assaulted the complainant. The stand of the Respondent,
however, is that in the said incident, he was also assaulted but
when a complaint was made by him before the police, the police
did not register the same. The Respondent has further claimed that
he had to undergo medical treatment at Cooper Hospital for the
injuries sustained by him due to the aforesaid incident.
8. On 15th October 2024, another FIR was registered bearing
C.R.No. 960/2024 under Sections 109, 353, 3(5) of the BNSS and
Section 37(1), 135 of the Maharashtra Police Act, 1951 wherein, it
was alleged that on that day, at about 1:30 hours, near Cooper
Hospital, on Indravadan Oza Road, the Respondent and one
Murgan Krushna Devendra alias Siya infurtherance of common
intention, had threatened to kill the first informant, Mr Rajan
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Devendra and then assaulted him with hand. Then they showed a
cement block to the public gathered there and threatened to
assault them, if they came forward to help. Murgan Krushna
Devendra alias Siya had hit the cement block on the head of the
first informant with intent to kill him. It was alleged that the
aforesaid act was the result of anger developed by the two accused
on account of the earlier complaint filed by the said first informant
against one Alex Selvan Devendra.
9. It will be significant to note herein that as per the statements
made in the application, investigation in connection with C.R. NO.
363 of 2023 has, in the meantime, been completed and the
Chargesheet bearing No. CC/1242/PW/2024 has been submitted.
However, in so far as C.R. No. 120/2024 and C.R. No. 960/2024
are concerned, the matter is still under investigation by the police.
It is in the backdrop of these factual matrix that this Court is called
upon to consider as to whether the Respondent has indulged in
activities, which amounts violation of conditions of the bail as laid
down in the order dated 7th August 2019, justifying cancellation of
the bail.
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10. At the very outset, it will pertinent to note herein that it is
the undisputed position of fact that after the Respondent was
released on bail vide order dated 7th August 2019, for a period of
about four years, there was admittedly no incident involving the
respondent which can even remotely be stated to be activities
amounting to violation of conditions of bail. The first incident, as
noted above, took place only on 6th June 2023 leading to
registration of C.R. No 363/2023 in Juhu Police Station.
11. Law relating to cancellation of bail is firmly settled by a
catena of judicial pronouncements of the Hon’ble Supreme Court.
It is settled law that for cancellation of bail very strong and cogent
reasons must exist. In the case of Bhagirath Singh Judeja vs State
of Gujarat,1 the Hon’ble Supreme Court has observed that very
cogent and overwhelming circumstances are necessary for an order
seeking cancellation of bail and the trend today is towards
granting bail.
12. In case of Mahboob Dawood Shaikh vs State of
Maharashtra,2 the Hon’ble Supreme Court has held that the
1 (1984) 1 SCC 284.
2 2004 (2) SCC 362.
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considerations for grant of bail and cancellation of bail stand on
different footing. In that case it has been held that bail can be
cancelled where (i) the accused misuses his liberty by indulging in
similar criminal activity, (ii) interferes with the course of
investigation (iii) attempts to tamper with evidence or witnesses,
(iv) threatens witnesses or investigation, (v) there is likelihood of
his fleeing to another country, (vii) attempts to make himself
scarce by going underground or becoming unavailable to the
investigating agency, (vii) attempts to place himself beyond the
reach of his surety, etc. These grounds were, however, held to be
illustrative and not exhaustive.
13. In Vipin Kumar Dhir V State of Punjab and Anr, 3 it was
held that for cancellation of bail, it is necessary that “cogent
and overwhelming ” reasons are present. However, there
could be supervening circumstances which may develop post
the grant of bail which are non-conducive to fair trial making
it necessary to cancel the bail.
3 (2021) 15 SCC 518.
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14. In a recent decision of the Apex Court in the case of
Himanshu Sharma v State of Madhya Pradesh ,4 the principles for
cancellation of bail have been restated. The observations made in
paragraphs 10 and 11 would be relevant for this case and,
therefore, are being reproduced here-in-below:
“10. While cancelling the bail granted to the appellants,
the learned Single Judge referred to this Court’s judgment
in the case of Abdul Basit (supra). However, we are
compelled to note that the ratio of the above judgment
favours the case of the appellants. That apart, the
judgment deals with the powers of the High Court to
review its own order within the limited scope of Section
362 CrPC. Relevant observations from the above
judgment are reproduced below:-
“14. Under Chapter XXXIII, Section 439(1)
empowers the High Court as well as the Court of Session
to direct any accused person to be released on bail.
Section 439(2) empowers the High Court to direct any
person who has been released on bail under Chapter
XXXIII of the Code be arrested and committed to custody
i.e., the power to cancel the bail granted to an accused
person. Generally the grounds for cancellation of bail,
broadly, are, (i) the accused misuses his liberty by
indulging in similar criminal activity, (ii) interferes with
the course of investigation, (iii) attempts to tamper with
evidence or witnesses, (iv) threatens witnesses or indulges
in similar activities which would hamper smooth
investigation, (v) there is likelihood of his fleeing to
another country, (vi) attempts to make himself scarce by
going underground or becoming unavailable to the
investigating agency, (vii) attempts to place himself
beyond the reach of his surety, etc. These grounds are
illustrative and not exhaustive. Where bail has been
granted under the proviso to Section 167(2) for the
default of the prosecution in not completing the4 (2024) 4 SCC 222.
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filing of a charge-sheet, the prosecution may seek to have
the bail cancelled on the ground that there are reasonable
grounds to believe that the accused has committed a non-
bailable offence and that it is necessary to arrest him and
commit him to custody. However, in the last-mentioned
case, one would expect very strong grounds indeed.
(Raghubir Singh v. State of Bihar)[(1986) 4 SCC 481].
15. The scope of this power to the High Court
under Section 439(2) has been considered by this Court
in Gurcharan Singh v. State (UT of.) [(1978) 1 SCC 118].
16. In Gurcharan Singh case [(1978) 1 SCC
118] this Court has succinctly explained the provision
regarding cancellation of bail under the Code, culled out
the differences from the Code of Criminal Procedure,
1898 (for short “the old Code”) and elucidated the
position of law vis-a-vis powers of the courts granting and
cancelling the bail. This Court observed as under:
“16. Section 439 of the new Code confers special
powers on the High Court or Court of Session
regarding bail. This was also the position under
Section 498 CrPC of the old Code. That is to say,
even if a Magistrate refuses to grant bail to an
accused person, the High Court or the Court of
Session may order for grant of bail in appropriate
cases. Similarly, under Section 439(2) of the new
Code, the High Court or the Court of Session may
direct any person who has been released on bail to
be arrested and committed to custody. In the old
Code, Section 498(2) was worded in somewhat
different language when it said that a High Court
or Court of Session may cause any person who has
been admitted to bail under subsection (1) to be
arrested and may commit him to custody. In other
words, under Section 498(2) of the old Code, a
person who had been admitted to bail by the High
Court could be committed to custody only by the
High Court. Similarly, if a person was admitted to
bail by a Court of Session, it was only the Court of
Session that could commit him to custody. This
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ia-5433-2024-in-appa-506-2019-in-apeal-467-2019-OR.docapplication for committing a person, already
admitted to bail, to custody, is lifted in the new
Code under Section 439(2). Under Section 439(2)
of the new Code a High Court may commit a
person released on bail under Chapter XXXIII by
any court including the Court of Session to custody,
if it thinks appropriate to do so. It must, however,
be made clear that a Court of Session cannot cancel
a bail which has already been granted by the High
Court unless new circumstances arise during the
progress of the trial after an accused person has
been admitted to bail by the High Court. If,
however, a Court of Session had admitted an
accused person to bail, the State has two options. It
may move the Sessions Judge if certain new
circumstances have arisen which were not earlier
known to the State and necessarily, therefore, to
that Court. The State may as well approach the
High Court being the superior court under Section
439(2) to commit the accused to custody. When,
however, the State is aggrieved by the order of the
Sessions Judge granting bail and there are no new
circumstances that have cropped up except those
already existed, it is futile for the State to move the
Sessions Judge again and it is competent in law to
move the High Court for cancellation of the bail.
This position follows from the subordinate position
of the Court of Session vis-a-vis the High Court.”
17. In this context, it is profitable to render
reliance upon the decision of this Court in Puran v.
Rambilas [(2001) 6 SCC 338]. In the said case, this Court
held (SCC p. 345, para 11) that the concept of setting
aside an unjustified, illegal or perverse order is absolutely
different from cancelling an order of bail on the ground
that the accused has misconducted himself or because of
some supervening circumstances warranting such
cancellation. In Narendra K. Amin v. State of Gujarat
[(2008) 13 SCC 584] , the three-Judge Bench of this
Court has reiterated the aforesaid principle and further
drawn the distinction between the two in respect of relief
available in review or appeal. In this case, the High Court
had cancelled the bail granted to the appellant in exercise
of power under Section 439(2) of the Code. In appeal, it
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was contended before this Court that the High Court had
erred by not appreciating the distinction between the
parameters for grant of bail and cancellation of bail. The
Bench while affirming the principle laid down in Puran
case [(2001) 6 SCC 338] has observed that when
irrelevant materials have been taken into consideration by
the court granting order of bail, the same makes the said
order vulnerable and subject to scrutiny by the appellate
court and that no review would lie under Section 362 of
the Code. In essence, this Court has opined that if the
order of grant of bail is perverse, the same can be set at
naught only by the superior court and has left no room for
a review by the same court.
18. Reverberating the aforesaid principle, this
Court in the recent decision in Ranjit Singh v. State of M.P.
[(2013) 16 SCC 797] has observed that:
“19. … There is also a distinction between the
concept of setting aside an unjustified, illegal or
perverse order and cancellation of an order of bail
on the ground that the accused has misconducted
himself or certain supervening circumstances
warrant such cancellation. If the order granting bail
is a perverse one or passed on irrelevant materials,
it can be annulled by the superior court.”
19. Therefore, the concept of setting aside an
unjustified, illegal or perverse order is different from the
concept of cancellation of a bail on the ground of
accused’s misconduct or new adverse facts having
surfaced after the grant of bail which require such
cancellation and a perusal of the aforesaid decisions
would present before us that an order granting bail can
only be set aside on grounds of being illegal or contrary to
law by the court superior to the court which granted the
bail and not by the same court.
20. In the instant case, the respondents herein
had filed the criminal miscellaneous petition before the
High Court seeking cancellation of bail on grounds that
the bail was obtained by the petitioners herein by gross
misrepresentation of facts, misleading the court and
indulging in fraud. Thus, the petition challenged the
legality of the grant of bail and required the bail order to
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be set aside on ground of it being perverse in law. Such
determination would entail eventual cancellation of bail.
The circumstances brought on record did not reflect any
situation where the bail was misused by the petitioner-
accused. Therefore, the High Court could not have
entertained the said petition and cancelled the bail on
grounds of it being perverse in law.
21. It is an accepted principle of law that when a
matter has been finally disposed of by a court, the court
is, in the absence of a direct statutory provision, functus
officio and cannot entertain a fresh prayer for relief in the
matter unless and until the previous order of final
disposal has been set aside or modified to that extent. It is
also settled law that the judgment and order granting bail
cannot be reviewed by the court passing such judgment
and order in the absence of any express provision in the
Code for the same. Section 362 of the Code operates as a
bar to any alteration or review of the cases disposed of by
the court. The singular exception to the said statutory bar
is correction of clerical or arithmetical error by the court.”
11. Law is well settled by a catena of judgments
rendered by this Court that the considerations for grant of
bail and cancellation thereof are entirely different. Bail
granted to an accused can only be cancelled if the Court is
satisfied that after being released on bail:
(a) the accused has misused the liberty granted to
him;
(b) flouted the conditions of bail order;
(c) that the bail was granted in ignorance of
statutory provisions restricting the powers of the Court to
grant bail;
(d) or that the bail was procured by
misrepresentation or fraud. In the present case, none
of these situations existed.”
15. What is crystal clear from the abovementioned decisions of
the Supreme Court, misuse of personal liberty and / or violation of
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the conditions of bail could be a valid ground to cancel the bail.
However, whether there has in fact been such violation would
depend on the facts and circumstances of each case. In the present
case, it is no doubt correct that the accused got involved in three
incidents noted here-in-before, whereby, offences have been
registered against him. However, from a mere reading of the FIR it
is not possible for this court to ascertain the circumstances under
which the incidents had actually occurred. Charge is yet to be
framed against the respondent in any of those cases. Therefore, the
allegations brought against the respondent are completely un-
substantiated as on date.
16. From the submissions made at the bar, it is apparent that the
three incidents involved in the C.R. No. 363/2023, C.R.No.
120/2024 and C.R. No. 960/2024 are not the outcome of any
premeditation on the part of the Respondent but prima facie they
appear to be incidents triggered by some happenings on the spot
whereby in one such incident involved in C.R. No. 363/2023, the
brother of the deceased was also present. However, that by itself
cannot lead to be inference that it was a deliberate attempt on the
part of the Respondent to interfere with the complainant/witnesses
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connected to the present proceeding. After going through the
contents of the respective FIRs, we are of the considered opinion
that the possibility of the incidents being triggered, either wholly
or partially by some other person(s) cannot be completely ruled
out at this stage. Therefore, the respondent getting involved in any
one or all the three incidents merely by chance cannot also be
totally ruled out.
17. It must be borne in mind that every criminal case has its own
peculiar scenario and projection. The truth can only be established
in a full length trial. However, for the purpose of an application for
cancellation of bail, the court is only required to form a prima facie
opinion as regards the conduct of the respondent. From a careful
analysis of the material on record, we are of the view that those
are insufficient to hold that there has been any deliberate attempt
on the part of the respondent to either directly or indirectly
attempt to contact or pressurize either the complainant in this case
or any of the witnesses. There is also nothing on record to show
that the respondent had indulged in commission of similar nature
of offence such as the one involved in Criminal Appeal No 467 of
2019. Moreover, from the statements made in his Counter
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Affidavit, it appears that the Respondent has all along remained
present before the court below, as and when required, thus
adhering to the first condition of bail. There is no allegation of
violation of the other bail conditions.
18. In the case in hand, the order dated 7th August 2019
granting bail to the Applicant was passed in an Interim Application
arising out of a Criminal Appeal preferred by him which is pending
before this Court. Although the Applicant has already been
convicted by the Trial Court, yet, taking note of the facts of the
case and the evidence available on record, bail was granted to the
Applicant by this Court. Ordinarily, after conclusion of trial, the
question of tampering with evidence and/or pressurising witnesses
would not arise. However, if it transpires from the material on
record that by taking advantage of the bail order, the Applicant is
making deliberate attempt to influence the outcome of the pending
Appeal by threatening the complainant, then such conduct of the
Applicant can be a relevant consideration for cancellation of his
bail. However, upon review of the material on record, no such
direct connection as regards the alleged activity of the Applicant
and threat to the complainant and/or witnesses qua the pending
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Appeal could be detected. Since this Court has already taken note
of the past conduct of the Applicant, the evidence on record as well
as the circumstances of the case, while granting him bail, the level
of scrutiny of the allegations made by the State for cancellation of
bail in this application ought to be of higher standard as compared
to one made for cancellation of bail during trial. In other words,
the parameters applicable for considering of grounds taken in the
application for cancellation of bail granted during trial and that
during the pendency of a Criminal Appeal before the High Court
would, in our view, stand on different footings and, therefore,
would have to be dealt accordingly by the Court.
19. The principle “bail as a rule and jail is an exception” is
embodied in Article 21 of the Constitution of India. Although such
a right of the accused/convict is not absolute, yet, the essence of
personal liberty guaranteed under Article 21 would be of
paramount consideration. While dealing with an application for
cancellation of bail the courts must, therefore, endeavour to strike
a balance between the individual liberty and the societal interest
and exercise jurisdiction with great care and circumspection,
bearing in mind the settled legal principles governing the issue.
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Bail once granted ought not to be cancelled in the absence of
strong, cogent and overwhelming ground. Having regard to the
facts of this case we are of the opinion that strong, cogent and
overwhelming grounds are not present in this case justifying
cancellation of the bail earlier granted to the respondent by the
order dated 7th August, 2019.
20. We also find from the record that the Police had earlier
initiated externment proceedings against the respondent. By
issuing order dated 16.05.2024, the Deputy Commissioner of
Police, Zone IX, Mumbai had directed externment of the
respondent from Mumbai City and Mumbai Sub-Urban districts for
a period of one year. However, the order dated 16.05.2024 was set
aside by this court by the judgement and order dated 4 th March
2025 passed in Criminal Writ Petition No. 732 of 2025. It would be
noteworthy that while issuing the order dated 4th March, 2025, the
learned Single Judge had taken note of all the Criminal Cases
instituted against the respondent including the proceedings
referred to in the present application.
21. It also transpires from the case record that the Respondent
has been granted anticipatory bail in connection with C.R. No. 960
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of 2024. However, there is nothing on record to indicate as to
whether the State has taken any steps for cancellation of the
anticipatory bail granted to the respondent.
22. For the reasons stated hereinabove, this application is held
to be devoid of any merit. This application for cancellation of bail,
therefore, stands rejected.
23. The State would, however, be at liberty to take appropriate
action in the matter, in accordance with law, in the proceedings in
connection with C.R. No. 363/2023, C.R.No. 120/2024 and C.R.
No. 960/2024.
(SHYAM C. CHANDAK, J.) (SUMAN SHYAM, J.)
{
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