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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

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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

learned

was in the custody of the accused no.1. Ultimately, the

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

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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

on 11th June, 2008. Thereafter Criminal Misc.Application
Court

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

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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

anticipatory bail were prosecuted by the State and by the
cancellation of

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

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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

anticipatory bail.

bail which would require cancellation

He submitted that only on the basis
of

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

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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.

APP supported the impugned judgment and order and prayed
The learned

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

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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

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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

in his favour.

possessing a copy of the order granting anticipatory bail

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

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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,

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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-

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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
                     ig 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,

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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

shielding

placed before the Division Bench

the principal accused
that the applicant is

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

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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.

the observations made by the Division Bench it is obvious
Going by

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

acceded to and the said prayer is rejected.

                                                          relief       cannot      be
                    
      

                                           A.S.Oka, J
   






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