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Avinash Singh Biji-vs-The State Of Maharashtra & Anr on 30 June, 2009

Bombay High Court Avinash Singh Biji-vs-The State Of Maharashtra & Anr on 30 June, 2009
Bench: A.S. Oka

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE SIDE

CRIMINAL APPLICATION NO.2581 OF 2009

Avinash Singh Biji … Applicant vs

1.The State of Maharashtra & anr .. Respondents ..

Mr.S.K.Shinde a/w Mr.Sagar Kasar i.b Mr.Satyajeet Dighe for Applicant

Mr.Y.M.Nakhwa APP for Respondents.

CORAM: A.S.OKA, J

DATED: 30th June, 2009

JUDGMENT

1. The submissions of the learned counsel appearing for the applicant and learned APP appearing for the respondent-State were heard yesterday. The challenge in this Criminal Application filed under section 482 of the Code of Criminal Procedure, 1973 is to the order dated 8th June 2009 passed by the Sessions Court. By the impugned order, the anticipatory bail granted in favour of the applicant under order dated 11th June 2008 has been cancelled and the applicant has been ordered to surrender before the 2nd respondent.

2. It will be necessary to refer to the facts of the case in brief:

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One Manpreet Nanaksingh Biji filed a complaint alleging commission of offences under sections 109,342, 343, 344,345,346,363,364A, 365,368,120B read with section 34 of IPC against the applicant and others. On the said complaint, the learned Magistrate passed an order under section 156 (3) of the Criminal Procedure Code, 1973 (hereinafter referred to as the said Code). In the said complaint, the applicant was arraigned as accused no.3. The case made out in the said complaint was that marriage between the complaint and the 1st accused Nanaksingh was solemnised on 19th February 2006 and a male child was born to them on 9th January 2007. It appears that subsequently a matrimonial dispute arose between the complainant and the 1st accused. The case of the complainant is that on 17th January 2008 the 1st accused assaulted her and threw her down the stairs as a result the complainant became unconscious and she was admitted to a hospital on the next day. The case made out by the complainant is that while she was hospitalised when her mother and maternal aunt visited her matrimonial home the applicant/accused no.3 was alone in the house. The minor child was also in the house. The mother and the maternal aunt of the complainant found that the child was looking hungry and was crying loudly. When an attempt was made by the mother and the maternal aunt to comfort the child, the applicant (accused no.3) forcibly snatched away the child from them and drove away in a car. The complainant – 3 –

registered an FIR with the concerned police station on 18th January 2008 alleging commission of offences under sections 498A, 324, 504, 506 read with section 34 IPC. According to the case of the complainant the child was wrongfully confined by accused nos. 1 to 3. Therefore, the complainant moved the Court of the learned Magistrate under section 97 of the Code. In the said proceedings the accused no.1 did not remain present and the accused nos. 2 and 3 appeared and contended that the minor child was in the custody of the accused no.1. Ultimately, the learned Magistrate issued a search warrant. The concerned Officer of the police station filed a report stating that the accused no.1 and the minor were not found at the given address and accused nos. 2 and 3 though present refused to give any information regarding the whereabouts of the minor or the accused no.1. A reference has been made in the complaint to the proceedings filed in the District Court under the Guardians and Wards Act. It is contended in the said proceedings that an order was passed by the learned Additional District Judge granting interim custody of the child to the complainant. Though the order was served to the accused nos.1 to 3, the same was not complied with. An application was made by the accused nos. 1 to 3 before the District Court for setting aside the interim order of custody and the said application was rejected. The allegation in the complaint filed by the complainant is – 4 –

that though accused nos. 2 and 3 were aware of the whereabouts of the child they were acting hand-in-glove with accused nos. 1 and 2 they were using the child as a shield to protect them from being prosecuted on the complaint lodged by the complainant.

3. On an order passed under section 156 (3) of the said Code on the said complaint, FIR was registered by Ambad police station at Nasik. Anticipatory bail was granted in favour of the applicant by the Sessions Court on 11th June, 2008. Thereafter Criminal Misc.Application No.1535 of 2008 was filed by the Investigating Officer for cancellation of the anticipatory bail. On 20th January 2009, the learned Sessions Judge passed the following order on the said application for cancellation of anticipatory bail:

Since Mr.Mane DGP submitted that he has no

objection if it is disposed of as purpose has already been over. Hence, it is disposed of and closed.

4. There was one more application made being Criminal Misc.Application No.1537 of 2009 filed for cancellation of bail of another accused. The said application was dismissed as none appeared for the State in support of the application.

5. In the meanwhile, the complainant approached this Court by filing a Writ Petition No.877 of 2008 seeking a – 5 –

writ of habeas corpus directing the State and the accused to produce her minor son during the pendency of the said petition. On 16th January, 2009 an application being Criminal Misc.Application No.506 of 2009 was filed by the State for cancellation of anticipatory bail granted in favour of the applicant.

6. By an order dated 16th April, 2009, a Division Bench of this Court recorded its displeasure about the manner in which applications for cancellation of anticipatory bail were prosecuted by the State and by the police. By a detailed order, the Division Bench adjourned the petition to 6th May 2009. While adjourning the petition, the Division Bench directed that investigation of the case shall be handed over to the State CID. Certain directions were given to the State CID to trace out the child. The Division Bench observed that if any application for cancellation of bail is made by the State CID, the same shall be decided in accordance with law after hearing the concerned accused. Thereafter an application for cancellation of bail being Criminal Misc.Application No.506 of 2009) was taken out in the Sessions Court and by the impugned order dated 8th June 2009 the anticipatory bail granted in favour of the applicant has been cancelled.

7. The learned counsel appearing for the applicant – 6 –

submitted that there was no power vesting in the Sessions Court to cancel the anticipatory bail granted in favour of the applicant. He submitted that power of review is not vested in the Sessions Court. He submitted that there is no finding recorded in the impugned order that after grant of the anticipatory bail the applicant has committed any breach of the terms and conditions on which bail was granted or that there is any overt act committed by the applicant subsequent to the order granting anticipatory bail which would require cancellation of anticipatory bail. He submitted that only on the basis of the observations made by the Division Bench of this Court in its order dated 16th April 2009 that the anticipatory bail has been cancelled. His submission is that the observations made by the division bench are only prima facie observations and the order of the division bench has been passed in an altogether different proceedings. He pointed out that the Division Bench was dealing with a petition seeking a writ of habeas corpus and the scope of the said proceedings is totally different. He submitted that by letter dated 17th April 2009 sent by the applicant to the concerned officer of State-CID the applicant had disclosed his address and cell phone number and had offered to extend co-operation in the investigation. He submitted that there is no allegation that the applicant has not co-operated with the State-CID. Without prejudice to his contention that – 7 –

the Sessions Court had no power to cancel anticipatory bail, he placed reliance on various decisions of various Courts and of Apex court and submitted that none of the grounds for cancellation of bail has been established by the prosecution. Lastly, he submitted that the order granting anticipatory bail in favour of the applicant is not available with him and he was possessing only the operative part of the said order. He sought time to enable him to peruse the order granting anticipatory bail and grounds on which bail has been granted. The learned APP supported the impugned judgment and order and prayed that no interference is called for.

8. The first submission of the learned counsel appearing for the applicant was that the Sessions court had no power to cancel the anticipatory bail granted by the same court in favour of the applicant. On this aspect it will be necessary to refer to sub-section 2 of section 439 of the Code which reads thus :

A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit

him to custody.

9. Chapter XXXIII of the said Code of 1973 deals with bail. Section 438 forms part of the same chapter. The order under section 438 of the said Code of – 8 –

1973 in essence is an order releasing a person on bail. The only distinction between section 438 and section 439 is that the power under section 439 is exercised by the Sessions Court after the accused is taken into custody and the power under section 438 is in the nature of grant of pre-arrest bail. By exercising the said power, the Sessions Court can direct that in the event of arrest of the applicant, he shall be released on bail. The effect of order under section 438 of the said Code of 1973 is of grant of bail. Under sub-section 2 of section 439, there is a power conferred on the Sessions court as well as this Court of directing that any person who has been released on bail under chapter XXXIII be arrested and committed to custody. Therefore, power under sub-section (2) of section 439 is not confined to order granting bail under sections 437 and 439 of the said Code of 1973 but, the power extends even to a pre-arrest bail granted under section 438 of the said Code of 1973. Hence, the said preliminary objection raised by the counsel for the petitioner will have to be rejected.

10. At this stage, it will be necessary to deal with the last submission made by the counsel for the applicant. He sought time on the ground that reasons recorded for – 9 –

granting anticipatory bail in favour of the applicant by order dated 11th June 2008 are not available with him. It is not his contention that the reasoned order granting anticipatory bail was not before the Sessions court when the said Court heard and decided the application for cancellation of bail. The petition has been filed on 11th June 2009 and was on board on 11th June 2009 when a limited protection was granted to the applicant. It is impossible to believe that the applicant is not possessing a copy of the order granting anticipatory bail in his favour. Even assuming that he is not possessing the copy, nothing prevented the applicant from getting the said copy especially when on 11th June 2009 this Court adjourned the matter till 23rd June 2009 and on 23rd June 2009 the matter was adjourned till yesterday. Therefore, the submission has to be rejected.

10. Earlier an application made by the State being Criminal Misc.Application No.1535 of 2009 for cancellation of bail of the applicant was disposed of on 20th January 2009 on the basis of the statement made by the learned District Government Pleader that he has no objection if the application is not disposed of as the purpose of filing the said application was over. The submission of the learned counsel appearing for the applicant was that after the said application was disposed of there was no change in circumstances which – 10 –

warranted filing of a second application for cancellation of bail. He submitted that merely because investigation was transferred to another agency that was no ground to cancel the anticipatory bail as the change of investigating agency does not bring about any change in circumstances. He placed reliance on a decision of this Court in the case of Satish Dhond-vs-State of Goa (2006 All M.R. (Cri)1412.) He has also placed reliance on the decision of the Apex Court in the case of State of U.P.vs.Amarmani Tripathi ((2005) 8 Supreme Court Cases 21) Bhagirathsinh Judeja -vs-State of Gujrat (AIR 1984 Supreme Court 372) and Puran-vs-Rambilas & anr (AIR 2001 Supreme Court 2023.) His submission is that the grounds on which bail could be cancelled have been laid down by these decisions and none of the grounds has been admittedly made out by the prosecution in this case and therefore, there was no occasion for cancellation of bail. In this connection, he submitted that the anticipatory bail could not have been cancelled on the basis of the observations made by the Division Bench in a petition seeking a writ of habeas corpus in as much as the said observations were prima facie observations made while this Court was exercising an altogether different jurisdiction.

11. It will be necessary to refer to the order of the division bench. In paragrqaph 4 of the said decision, – 11 –

the Division bench has held thus :-

Prima facie, we are of the opinion

that respondents 3 and 4, brother

and father of absconding accused

Nanaksingh are shielding Nanaksingh and

are purposely not furnishing information to the police. Prima facie we are of

the opinion that they know where child

Guruashish is. Ambad police station,

Nasik has made some efforts, particulars of which have been given by Mr.Ramakant

More, API in his affidavit. We have

already noted that the petitioner and

the investigating officer are receiving

threatening calls. Calls are received

from remote places of Punjab. In such

circumstances, in our opinion Ambad

police station may not be in a position to effectively deal with respondents 2 to 4. We feel that the investigation must

therefore, be handed over to some4

specialised agency like State-CID which

will have better infrastructure and

manpower to deal with respondents 2 to 4. About the conduct of respondents 2 to 4

much can be said but we do not want to

burden our present order with those details. At the appropriate stage we will

have to advert to their conduct. For the present, we feel that the investigation should be handed over to State-CID.

Mr.Madhukar Talpade,

Superintendent of Police, State-CID

Nasik is present in Court. We direct

that investigation of M.E.C.R.9 of 2008 be handed over to State-CID.

12. A perusal of the decision of the Division Bench shows that the division bench has discussed in a thread- bare the manner in which the investigation proceeded. After considering all the factual aspects,a prima facie finding has been recorded that the applicant and the co- – 12 –

accused are shielding Nanak Singh (accused no.1) and are purposely not furnishing information to the police. The second finding recorded by the division bench is that the applicant and other co-accused (his father) know the whereabouts of the child. The division bench also noted that the complainant and the Investigation officer were receiving threatening calls from remotes place in Punjab. It must be noted here that age of the child is only 2 1/2 years.

13. In the earlier application for cancellation of anticipatory bail, it is stated that after the anticipatory bail was granted, the applicant did not report to the police station and he was not available at the address disclosed by him. The second ground in the said application was that in criminal Writ Petition No. 877 of 2008 non-bailable warrant has been issued against the applicant. It must be noted here that the said application was disposed of on the basis of a concession made by the District Government Pleader. There was no affidavit of the Investigating officer placed on record stating that custody of the applicant was not required. The Division Bench has expressed its displeasure about the manner in which the prosecutor gave concession for the disposal of the said application.

14. The complaint filed by the complainant on 17th May, – 13 –

2008 records that the applicant snatched the minor child from the mother and the maternal aunt of the complainant. Till today, the police machinery is unable to trace out the minor child. Anticipatory bail was granted in favour of the applicant on 11th June, 2008. Till today, the minor child could not be traced. Today, what is operating in the field is the order of the Division Bench of this Court dated 16th April 2009 which records a prima facie finding on the basis of consideration of the material placed before the Division Bench that the applicant is shielding the principal accused Nanak Singh and is purposely not furnishing information to the police. The Division Bench has also recorded a prima facie opinion that the applicant is fully aware of the whereabouts of the minor child. Thus, the prima facie observation made by the Division Bench is that not only that the applicant is aware of the whereabouts of the child but, he is shielding the principal accused. This view taken by the Division Bench is sufficient to come to a conclusion that the applicant has not cooperated with the investigating agency. These observations are sufficient to come to the conclusion that though the order granting anticipatory bail directed the applicant to make himself available for investigation, the applicant has not effectively co-operated for the investigation. Apart from this, the Division Bench found that the local police station was not able to effectively deal with the – 14 –

investigation and therefore, it deserves to be transferred to the State CID. The State-CID will now have to investigate into the offence as per the directions of the Division Bench and that is one more reason why the custodial interrogation of the applicant will now be necessary. There is no merit in the contention of the counsel for the applicant that the observations of the Division Bench will have to be ignored as the same form part of an order made on an application seeking a writ of habeas corpus. Going by the observations made by the Division Bench it is obvious that the said observations are relating to the conduct of the applicant subsequent to the order granting anticipatory bail and therefore, the submission of the counsel for the applicant that no ground for cancellation of bail as laid down by the various decisions of this Court and by the Apex Court has been made out.

15. The applicant has invoked the jurisdiction of this Court under section 482 of the said Code. The said jurisdiction has to be exercised sparingly and only in rare cases. In the light of what has been observed by the Division Bench of this Court and for reasons which are set out earlier it is not possible to interfere with the impugned order. Hence, I pass the following order : (i) Criminal Application is rejected.

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(ii) At this stage, learned counsel appearing for the applicant states that though the applicant has started he has not reached the Court. He prays that order passed today be stayed. When a query was made whether the applicant is likely to appear before this Court learned counsel for the applicant states that he will take telephonic instructions and make a statement. Hence, this prayer for grant of stay will be considered at 3 p.m. today.

Called out today at 3 p.m. Learned counsel appearing for the applicant states that applicant has not come to the Court. In view of this statement, the prayer made for continuing the ad interim relief cannot be acceded to and the said prayer is rejected.

A.S.Oka, J

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