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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 hasalready 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 andare 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 ofwhich have been given by Mr.Ramakant
More, API in his affidavit. We have
already noted that the petitioner andthe investigating officer are receiving
threatening calls. Calls are received
from remote places of Punjab. In such
circumstances, in our opinion Ambadpolice 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 whichwill 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 wasmade 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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