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Hanzala Rafi Momin vs The State Of Maharashtra on 18 September, 2019

ba.2470.19.912.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 2470 OF 2019

Hanzala Rafi Momin …Applicant
Versus
State of Maharashtra …Respondent
Mr. A. R. Shaikh a/w Mrs. A.M.Z. Ansari and Mrs. Nasreen Ayubi for the
Applicant

Mr. P. H. Gaikwad-Patil, A.P.P for the Respondent-State

PSI Mr. Irshad Sayyed from Nizampura Police Station, Bhiwandi, Thane
City, is present

CORAM : REVATI MOHITE DERE, J.
WEDNESDAY, 18th SEPTEMBER 2019
P.C. :
1 Heard learned counsel for the parties.

2 By this application, the applicant seeks his enlargement on bail

in connection with C.R. No. I-233 of 2018 registered with the Nizampura

Police Station, Bhiwandi, District Thane, for the alleged offences

punishable under Sections 498A, 323, 504, 506 r/w 34 of the Indian Penal

Code.

3 Perused the papers. According to the complainant, she got

married to the applicant on 26th November 2006. The complainant has

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stated that it was a love marriage and that after marriage, her father had

given Rs. 3,00,000/- to the applicant for business purpose. According to

the complainant, her mother-in-law used to abuse and assault her and

would ask her to bring more money from her parents. The complainant has

also alleged that her sister-in-law would come to the matrimonial house

during her holidays and would assault her. Pursuant to which, she left the

house on 23rd March 2016 along with her daughter. The complainant has

alleged that the applicant would come to her matrimonial house to meet

their daughter. According to the complainant, the applicant would also

assault her daughter. Pursuant to the incident dated 29th November 2018,

which took place at about 11:30 p.m, the aforesaid FIR was lodged. It is

alleged that on the said date, the applicant came to the complainant’s

maternal house to meet his daughter and asked the complainant to

accompany him. She has stated that she and her daughter went with the

applicant to her matrimonial house. She has further alleged that the

applicant assaulted her and broke her mobile. She has further alleged that

on 30th November 2018 at about 7:30 p.m, her parents came to see her,

however, her in-laws did not permit them to enter the house and picked up

a quarrel and the applicant assaulted her by fist and kick blows. A perusal

of the statement of the applicant’s daughter shows that the applicant had

mixed certain pills in a juice for being administered to the complainant.

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4 The applicant has filed an affidavit stating that he will not

contact his daughter nor will he file any proceedings for access and custody

of his daughter during the pendency of the aforesaid case. It appears that

initially the offences were registered under Section 498A etc. and after 11

days, Section 328 was added. The applicant is in custody since 30 th March

2019. Investigation is complete and charge-sheet is filed.

5 Considering the aforesaid as well as the affidavit of the

applicant, the application is allowed on the following terms and

conditions :

ORDER

(i) The applicant be released on cash bail in the sum of

Rs. 15,000/-, for a period of six weeks;

(ii) The applicant shall within the said period of six weeks, furnish

P.R. Bond in the sum of Rs. 15,000/- with one or two local sureties

in the like amount;

(iii) The applicant shall not tamper with the evidence or attempt to

influence or contact the complainant, their daughter, witnesses or any

person concerned with the case;

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(iv) The applicant shall inform his latest place of residence and

mobile contact number and/or change of residence or mobile details,

if any, from time to time to the Court seized of the matter and to the

Investigating Officer of the concerned Police Station;

(v) The applicant to cooperate with the conduct of the trial and

attend all the dates before the trial Court, unless exempted;

(vi) The applicant shall file an undertaking with regard to clauses

(iii) to (v) in the trial Court, within two weeks of his release;

(vii) If there are two consecutive defaults in appearing before the

trial Court, or breach of any of the aforesaid conditions, the

prosecution shall be at liberty to seek cancellation of the applicant’s

bail.

6 The application is accordingly disposed of.

7 It is made clear that the observations made herein are prima

facie, and the trial Court shall decide the case on its own merits, in

accordance with law, uninfluenced by the observations made in this order.

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8 Before parting with the aforesaid order, it is pertinent to note

that the submission made by the learned A.P.P in the trial Court that an

application after filing of charge-sheet does not amount to change of

circumstances, is completely untenable and contrary to the legal position.

Similarly, the judgment relied upon by the learned Judge in para 8 of the

order quotes a headnote, which is contrary to the actual order passed by the

Apex Court in the case of Virupakshappa Gouda and Anr. v. State of

Karnataka Anr.1. Nowhere in the said judgment, the Apex Court has

said that filing of charge-sheet is not the change of circumstance.

9 Registry to communicate the above order to the Additional

Sessions Judge-8, Thane, who has passed the order dated 13 th August 2019,

rejecting the applicant’s regular bail.

10 Learned A.P.P to ensure that the above order is communicated

to the A.P.P, who appeared in the said application, before the trial Court.

11 All concerned to act on the authenticated copy of this order.

REVATI MOHITE DERE, J.

1 2017 Cri. L.J. 2769

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