{"id":268350,"date":"2009-06-30T00:00:00","date_gmt":"2009-06-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/avinash-singh-biji-vs-the-state-of-maharashtra-anr-on-30-june-2009"},"modified":"2018-06-10T13:07:23","modified_gmt":"2018-06-10T07:37:23","slug":"avinash-singh-biji-vs-the-state-of-maharashtra-anr-on-30-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/avinash-singh-biji-vs-the-state-of-maharashtra-anr-on-30-june-2009","title":{"rendered":"Avinash Singh Biji vs The State Of Maharashtra & Anr on 30 June, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Avinash Singh Biji vs The State Of Maharashtra & Anr on 30 June, 2009<\/div>\n
Bench: A.S. Oka<\/div>\n
                                     - 1 -\n\n\n\n\n                                                                        \n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                      CRIMINAL APPELLATE SIDE\n                CRIMINAL APPLICATION NO.2581 OF 2009\n\n\n\n\n                                                \n     Avinash Singh Biji                       ...     Applicant\n\n             vs\n\n\n\n\n                                               \n     1.The State of Maharashtra & anr ..             Respondents\n\n\n                        ..\n\n\n\n\n                                   \n     Mr.S.K.Shinde a\/w Mr.Sagar Kasar i.b Mr.Satyajeet Dighe\n     for Applicant\n     Mr.Y.M.Nakhwa APP for Respondents.\n                    \n                   \n                               CORAM: A.S.OKA, J\n                                DATED: 30th June, 2009\n\n     JUDGMENT\n<\/pre>\n
     1.      The submissions of the learned counsel appearing<\/p>\n
     for   the    applicant   and   learned    APP    appearing         for     the<\/p>\n
     respondent-State were heard yesterday.               The challenge in<\/p>\n
     this Criminal Application filed under section 482<\/a> of the<\/p>\n
     Code of Criminal Procedure, 1973 is to the order dated<\/p>\n
     8th June 2009 passed by the Sessions Court.                          By the<\/p>\n
     impugned order, the anticipatory bail granted in favour<\/p>\n
     of the applicant under order dated 11th June 2008 has<\/p>\n
     been cancelled and the applicant has been ordered to<\/p>\n
     surrender before the 2nd respondent.\n<\/p>\n
     2.    It will be necessary to refer to the facts of the<\/p>\n
     case in brief:\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span><\/p>\n
                                                – 2 –\n<\/p>\n
            One   Manpreet          Nanaksingh         Biji    filed      a    complaint<\/p>\n
     alleging commission of offences under sections 109<\/a>,342<\/a>,<\/p>\n
     343<\/a>, 344<\/a>,345<\/a>,346<\/a>,363<\/a>,364A<\/a>, 365<\/a>,368<\/a>,120B<\/a> read with section<\/p>\n
     34<\/a> of IPC against the applicant and others.                           On the said<\/p>\n
     complaint, the learned Magistrate passed an order under<\/p>\n
     section 156<\/a> (3) of the Criminal Procedure Code<\/a>, 1973<\/p>\n
     (hereinafter referred to as the said Code).                           In the said<\/p>\n
     complaint, the applicant was arraigned as accused no.3.\n<\/p>\n
     The case made out in the said complaint was that marriage<\/p>\n
     between the complaint and the 1st accused Nanaksingh was<\/p>\n
     solemnised on 19th February 2006 and a male child was<\/p>\n
     born   to    them       on    9th    January       2007.     It     appears       that<\/p>\n
     subsequently        a    matrimonial         dispute       arose     between        the<\/p>\n
     complainant     and          the    1st    accused.         The     case     of     the<\/p>\n
     complainant is that on 17th January 2008 the 1st accused<\/p>\n
     assaulted her and threw her down the stairs                           as a result<\/p>\n
     the complainant became unconscious and she was admitted<\/p>\n
     to a hospital on the next day.                    The case made out by the<\/p>\n
     complainant is that while she was hospitalised when her<\/p>\n
     mother and maternal aunt visited her matrimonial home the<\/p>\n
     applicant\/accused no.3 was alone in the house.                            The minor<\/p>\n
     child was also in the house.                  The mother and the maternal<\/p>\n
     aunt of the complainant found that the child was looking<\/p>\n
     hungry and was crying loudly.                     When an attempt was made<\/p>\n
     by the mother and the maternal aunt to comfort the child,<\/p>\n
     the applicant (accused no.3) forcibly snatched away the<\/p>\n
     child from them and drove away in a car.                        The complainant<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                        – 3 –\n<\/p>\n
     registered an FIR with the concerned police station on<\/p>\n
     18th January 2008 alleging commission of offences under<\/p>\n
     sections 498A<\/a>, 324<\/a>, 504<\/a>, 506<\/a> read with section 34<\/a> IPC.\n<\/p>\n
     According to the case of the complainant the child was<\/p>\n
     wrongfully confined by accused nos. 1 to 3.                        Therefore,<\/p>\n
     the complainant moved the Court of the learned Magistrate<\/p>\n
     under section 97<\/a> of the Code.                 In the said proceedings<\/p>\n
     the accused no.1 did not remain present and the accused<\/p>\n
     nos. 2 and 3 appeared and contended that the minor child<\/p>\n
     learned<\/p>\n
     was in the custody of the accused no.1. Ultimately, the<\/p>\n
                 Magistrate         issued     a   search       warrant.            The<\/p>\n
     concerned Officer of the police station filed a report<\/p>\n
     stating that the accused no.1 and the minor were not<\/p>\n
     found at the given address                and accused nos. 2 and 3<\/p>\n
     though present refused to give any information regarding<\/p>\n
     the whereabouts of the minor or the accused no.1.                                 A<\/p>\n
     reference     has   been      made      in    the    complaint          to     the<\/p>\n
     proceedings     filed    in     the     District       Court       under       the<\/p>\n
     Guardians and Wards Act<\/a>.              It is contended in the said<\/p>\n
     proceedings    that     an    order     was   passed      by    the     learned<\/p>\n
     Additional District Judge granting interim custody of the<\/p>\n
     child to the complainant. Though the order was served to<\/p>\n
     the accused nos.1 to 3, the same was not complied with.\n<\/p>\n
     An application was made by the accused nos. 1 to 3 before<\/p>\n
     the District Court           for setting aside the interim order<\/p>\n
     of custody and the said application was rejected.                              The<\/p>\n
     allegation in the complaint filed by the complainant is<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                             – 4 –\n<\/p>\n
     that    though    accused       nos.    2      and    3   were      aware      of    the<\/p>\n
     whereabouts of the child they were acting hand-in-glove<\/p>\n
     with accused nos. 1 and 2              they were using the child as a<\/p>\n
     shield    to   protect     them       from      being      prosecuted          on    the<\/p>\n
     complaint lodged by the complainant.\n<\/p>\n
     3.      On an order passed under section 156<\/a> (3) of the<\/p>\n
     said Code on the said complaint, FIR was registered by<\/p>\n
     Ambad    police    station       at    Nasik.        Anticipatory          bail      was<\/p>\n
     granted in favour of the applicant by the Sessions<\/p>\n
     on 11th June, 2008.            Thereafter Criminal Misc.Application
\n                                                                                      Court<\/p>\n
     No.1535 of 2008 was filed by the Investigating Officer<\/p>\n
     for     cancellation      of    the     anticipatory             bail.      On      20th<\/p>\n
     January    2009,    the     learned         Sessions         Judge      passed       the<\/p>\n
     following order on the said application for cancellation<\/p>\n
     of anticipatory bail:\n<\/p>\n
               Since Mr.Mane DGP submitted that he has no
\n             objection if it is disposed of as purpose has<\/p>\n
             already been over. Hence, it is disposed of and
\n             closed.\n<\/p><\/blockquote>\n
     4.      There was one more application made being Criminal<\/p>\n
     Misc.Application No.1537 of 2009 filed for cancellation<\/p>\n
     of bail of another accused.                     The said application was<\/p>\n
     dismissed as none appeared for the State in support of<\/p>\n
     the application.\n<\/p>\n
     5.      In the meanwhile, the complainant approached this<\/p>\n
     Court by filing a Writ Petition No.877 of 2008 seeking a<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                            – 5 –\n<\/p>\n
     writ of habeas corpus directing the State and the accused<\/p>\n
     to produce her minor son during the pendency of the said<\/p>\n
     petition.         On 16th January, 2009 an application being<\/p>\n
     Criminal Misc.Application No.506 of 2009 was filed by the<\/p>\n
     State for cancellation of anticipatory bail granted in<\/p>\n
     favour of the applicant.\n<\/p>\n
     6.    By    an    order     dated    16th     April,    2009,       a   Division<\/p>\n
     Bench of this Court recorded its displeasure about the<\/p>\n
     manner      in<\/p>\n
                        which     applications        for<\/p>\n
     anticipatory bail were prosecuted by the State and by the
\n                                                               cancellation           of<\/p>\n
     police.          By   a    detailed     order,      the      Division       Bench<\/p>\n
     adjourned the petition to 6th May 2009. While adjourning<\/p>\n
     the   petition,           the   Division        Bench        directed         that<\/p>\n
     investigation of the            case shall be handed over to the<\/p>\n
     State CID.         Certain directions were given to the State<\/p>\n
     CID to trace out the child.               The Division Bench observed<\/p>\n
     that if any application for cancellation of bail is made<\/p>\n
     by the State CID, the same shall be decided in accordance<\/p>\n
     with law after hearing the concerned accused.                       Thereafter<\/p>\n
     an application for cancellation of bail being Criminal<\/p>\n
     Misc.Application No.506 of 2009) was taken out in the<\/p>\n
     Sessions Court and by the impugned order dated 8th June<\/p>\n
     2009 the         anticipatory bail granted in favour of the<\/p>\n
     applicant        has been cancelled.\n<\/p>\n
     7.    The    learned       counsel     appearing       for    the       applicant<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                             – 6 –\n<\/p>\n
     submitted that there was no power vesting in the Sessions<\/p>\n
     Court to cancel the anticipatory bail granted in favour<\/p>\n
     of the applicant.              He submitted that power of review is<\/p>\n
     not vested in the Sessions Court.                          He submitted that<\/p>\n
     there is no finding recorded in the impugned order that<\/p>\n
     after grant of the              anticipatory bail the applicant has<\/p>\n
     committed any breach of the terms and conditions on which<\/p>\n
     bail was granted or that there is any overt act committed<\/p>\n
     by    the     applicant        subsequent       to     the      order      granting<\/p>\n
     anticipatory<\/p>\n
     anticipatory bail.\n<\/p>\n
                         bail   which      would     require        cancellation<\/p>\n
                                     He submitted that only on the basis
\n                                                                                          of<\/p>\n
     of the observations made by the Division Bench of this<\/p>\n
     Court    in       its   order    dated      16th     April      2009       that     the<\/p>\n
     anticipatory bail has been cancelled. His submission is<\/p>\n
     that the observations made by the division bench are only<\/p>\n
     prima facie observations and the order of the division<\/p>\n
     bench       has    been    passed      in      an     altogether           different<\/p>\n
     proceedings. He pointed out that the Division Bench was<\/p>\n
     dealing with a petition seeking a writ of habeas corpus<\/p>\n
     and     the   scope       of    the    said     proceedings           is     totally<\/p>\n
     different.         He submitted that by letter dated 17th April<\/p>\n
     2009 sent by the applicant to the concerned officer of<\/p>\n
     State-CID the applicant had disclosed his address and<\/p>\n
     cell phone number and had offered to extend co-operation<\/p>\n
     in the investigation.                 He submitted that there is no<\/p>\n
     allegation that the applicant has not co-operated with<\/p>\n
     the State-CID. Without prejudice to his contention that<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                     – 7 –\n<\/p>\n
     the Sessions Court had no power to cancel anticipatory<\/p>\n
     bail, he placed reliance on various decisions of various<\/p>\n
     Courts and of Apex court and submitted that none of the<\/p>\n
     grounds for cancellation of bail has been established by<\/p>\n
     the prosecution.        Lastly, he submitted that the order<\/p>\n
     granting anticipatory bail in favour of the applicant is<\/p>\n
     not available with him and he was possessing only the<\/p>\n
     operative part of the said order.                  He sought time to<\/p>\n
     enable him to peruse the order granting anticipatory bail<\/p>\n
     and grounds on which bail has been granted.\n<\/p>\n
     APP supported the impugned judgment and order and prayed
\n                                                                   The learned<\/p>\n
     that no interference is called for.\n<\/p>\n
     8.     The     first   submission      of    the      learned        counsel<\/p>\n
     appearing for the applicant was that the Sessions court<\/p>\n
     had no power to cancel the anticipatory bail granted by<\/p>\n
     the same court in favour of the applicant. On this aspect<\/p>\n
     it will be necessary to refer to sub-section 2<\/a> of section<\/p>\n
     439<\/a> of the Code which reads thus :\n<\/p>\n
             A High Court or Court of Sessions may direct
\n            that any person who has been released on   bail
\n            under this Chapter be arrested and commit
\n            him to custody.\n<\/p><\/blockquote>\n
          9. Chapter XXXIII of the said Code of 1973 deals with<\/p>\n
            bail.    Section 438<\/a> forms part of the same chapter.\n<\/p><\/blockquote>\n
            The order under section 438<\/a> of the said Code of<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p><\/blockquote>\n
                                            – 8 –\n<\/p><\/blockquote>\n
           1973 in essence is an order releasing a person on<\/p>\n
           bail.     The only distinction between section 438<\/a> and<\/p>\n
           section 439<\/a> is that the power under section 439<\/a> is<\/p>\n
           exercised by the Sessions Court after the accused<\/p>\n
           is taken into custody and the power under section<\/p>\n
           438<\/a> is in the nature of grant of pre-arrest bail.\n<\/p><\/blockquote>\n
           By exercising the said power, the Sessions Court<\/p>\n
           can   direct      that    in    the     event    of    arrest       of    the<\/p>\n
           applicant,     he    shall       be     released      on    bail.         The<\/p>\n
           effect of order under section 438<\/a> of the said Code<\/p>\n
           of<\/a> 1973 is of grant of bail.                    Under sub-section 2<\/a><\/p>\n
           of section 439<\/a>, there is a power conferred on the<\/p>\n
           Sessions court as well as this Court of directing<\/p>\n
           that any person who has been released on bail under<\/p>\n
           chapter     XXXIII        be     arrested       and        committed       to<\/p>\n
           custody.     Therefore, power under sub-section (2) of<\/p>\n
           section 439<\/a> is not confined to order granting bail<\/p>\n
           under sections 437<\/a> and 439<\/a> of the said Code of 1973<\/p>\n
           but, the power extends even to a pre-arrest bail<\/p>\n
           granted under section 438<\/a> of the said Code of 1973.\n<\/p><\/blockquote>\n
           Hence, the said preliminary objection raised by the<\/p>\n
           counsel     for     the        petitioner       will       have     to     be<\/p>\n
           rejected.\n<\/p><\/blockquote>\n
     10.   At this stage, it will be necessary to deal with the<\/p>\n
     last submission made by the counsel for the applicant.\n<\/p>\n
     He sought time on the ground that reasons recorded for<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                       – 9 –\n<\/p>\n
     granting anticipatory bail in favour of the applicant by<\/p>\n
     order dated 11th June 2008 are not available with him.\n<\/p>\n
     It is not his contention that the reasoned order granting<\/p>\n
     anticipatory bail was not before the Sessions court when<\/p>\n
     the said Court heard and decided the application for<\/p>\n
     cancellation of bail.          The petition has been filed on<\/p>\n
     11th June 2009 and was on board on 11th June 2009 when a<\/p>\n
     limited protection was granted to the applicant.                        It is<\/p>\n
     impossible        to   believe    that      the       applicant      is     not<\/p>\n
     in his favour.\n<\/p>\n
     possessing a copy of the order granting anticipatory bail<\/p>\n
                            Even assuming that he is not possessing<\/p>\n
     the copy, nothing prevented the applicant from getting<\/p>\n
     the said     copy especially when on 11th June 2009 this<\/p>\n
     Court adjourned the matter till 23rd June 2009 and on<\/p>\n
     23rd June 2009 the matter was adjourned till yesterday.\n<\/p>\n
     Therefore, the submission has to be rejected.\n<\/p>\n
     10.   Earlier     an   application       made    by    the   State        being<\/p>\n
     Criminal     Misc.Application            No.1535        of      2009        for<\/p>\n
     cancellation of bail of the applicant was disposed of on<\/p>\n
     20th January 2009 on the basis of the statement made by<\/p>\n
     the learned District Government Pleader that he has no<\/p>\n
     objection if the application is not disposed of as the<\/p>\n
     purpose of filing the said application was over.                            The<\/p>\n
     submission   of    the    learned     counsel      appearing        for     the<\/p>\n
     applicant       was    that   after   the       said    application         was<\/p>\n
     disposed of there was no change in circumstances which<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                           – 10 –\n<\/p>\n
     warranted filing of a second application for cancellation<\/p>\n
     of bail.     He submitted that merely because investigation<\/p>\n
     was transferred to another agency that was no ground to<\/p>\n
     cancel     the     anticipatory          bail       as    the      change        of<\/p>\n
     investigating agency does not bring about any change in<\/p>\n
     circumstances.       He placed reliance on a decision of this<\/p>\n
     Court in the case of Satish Dhond vs State of Goa (2006<\/p>\n
     All M.R. (Cri)1412.) He has also placed reliance on the<\/p>\n
     decision    of    the    Apex    Court    in    the      case   of    State      of<\/p>\n
     U.P.vs.Amarmani Tripathi<\/a> ((2005) 8 Supreme Court Cases<\/p>\n
     21) Bhagirathsinh Judeja              vs State of Gujrat (AIR 1984<\/p>\n
     Supreme Court 372) and Puran vs Rambilas<\/a> & anr (AIR 2001<\/p>\n
     Supreme Court 2023.)            His submission is that the grounds<\/p>\n
     on which bail could be cancelled have been laid down by<\/p>\n
     these    decisions       and    none     of     the      grounds      has     been<\/p>\n
     admittedly made out by the prosecution in this case and<\/p>\n
     therefore,       there   was    no   occasion       for    cancellation          of<\/p>\n
     bail.      In     this    connection,          he     submitted       that      the<\/p>\n
     anticipatory bail could not have been cancelled on the<\/p>\n
     basis of the observations made by the Division Bench in a<\/p>\n
     petition seeking a writ of habeas corpus in as much as<\/p>\n
     the said observations were prima facie observations made<\/p>\n
     while this Court was exercising an altogether different<\/p>\n
     jurisdiction.\n<\/p>\n
     11.     It will be necessary to refer to the order of the<\/p>\n
     division bench.          In paragrqaph 4 of the said decision,<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                – 11 –\n<\/p>\n
     the Division bench has held thus :-\n<\/p>\n
               Prima facie, we are of the opinion
\n               that respondents 3 and 4, brother
\n               and father of absconding accused
\n               Nanaksingh are shielding Nanaksingh and<\/p>\n
               are purposely not furnishing information     to
\n               the police. Prima facie we are of
\n               the opinion that they know where child
\n               Guruashish is. Ambad police station,
\n               Nasik has made some efforts, particulars     of<\/p>\n
               which have been given by Mr.Ramakant
\n               More, API in his affidavit. We have
\n               already noted that the petitioner and<\/p>\n
               the investigating officer are receiving
\n               threatening calls. Calls are received
\n               from remote places of Punjab. In such
\n               circumstances, in our opinion Ambad<\/p>\n
               police station may not be in a position      to
\n               effectively deal with respondents 2    to 4.\n<\/p><\/blockquote>\n
               We feel that the investigation         must
\n               therefore, be handed over to some4
\n               specialised agency like State-CID which<\/p>\n
               will have better infrastructure and
\n               manpower to deal with respondents 2 to       4.<\/p><\/blockquote>\n
\n   \n\n\n\n               About the conduct of respondents 2     to 4\n               much can be said but we do not want    to\n               burden our present order with those    details.\n               At the appropriate stage we            will\n               have to advert to their conduct.       For the\n\n\n\n\n\n               present, we feel that the        investigation\n               should be handed over to    State-CID.\n               Mr.Madhukar Talpade,\n<\/pre>\n
               Superintendent of Police, State-CID
\n               Nasik is present in Court. We direct
\n               that investigation of M.E.C.R.9 of 2008      be
\n               handed over to State-CID.\n<\/p><\/blockquote>\n
     12.   A perusal of the decision of the Division Bench<\/p>\n
     shows that the division bench has discussed in a thread-\n<\/p>\n
     bare the manner in which the investigation proceeded.\n<\/p>\n
     After considering all the factual aspects,a prima facie<\/p>\n
     finding has been recorded that the applicant and the co-\n<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span><\/p>\n
                                         – 12 –\n<\/p>\n
     accused are shielding Nanak Singh (accused no.1) and are<\/p>\n
     purposely not furnishing information to the police.                            The<\/p>\n
     second finding recorded by the division bench is that the<\/p>\n
     applicant    and    other    co-accused       (his      father)      know      the<\/p>\n
     whereabouts of the child.            The division bench also noted<\/p>\n
     that the complainant and the Investigation officer were<\/p>\n
     receiving threatening calls from remotes place in Punjab.\n<\/p>\n
     It must be noted here that age of the child is only 2<\/p>\n
     1\/2 years.\n<\/p>\n
     13.   In    the\n                     ig earlier      application       for     cancellation          of\n                   \n     anticipatory       bail,     it     is      stated      that      after        the\n\n     anticipatory      bail    was     granted,    the     applicant        did     not\n\n<\/pre>\n
     report to the police station and he was not available at<\/p>\n
     the address disclosed by him.                The second ground in the<\/p>\n
     said application was that in criminal Writ Petition No.<\/p>\n
     877 of 2008 non-bailable warrant has been issued against<\/p>\n
     the applicant.           It must be noted here that the said<\/p>\n
     application was disposed of on the basis of a concession<\/p>\n
     made by the District Government Pleader.                       There was no<\/p>\n
     affidavit of the Investigating officer placed on record<\/p>\n
     stating that custody of the applicant was not required.\n<\/p>\n
     The Division Bench has expressed its displeasure about<\/p>\n
     the manner in which the prosecutor gave concession for<\/p>\n
     the disposal of the said application.\n<\/p>\n
     14.   The complaint filed by the complainant on 17th May,<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                          – 13 –\n<\/p>\n
     2008 records that the applicant snatched the minor child<\/p>\n
     from the mother and the maternal aunt of the complainant.\n<\/p>\n
     Till today, the police machinery is unable to trace out<\/p>\n
     the minor child.            Anticipatory bail was granted in favour<\/p>\n
     of the applicant on 11th June, 2008.                        Till today, the<\/p>\n
     minor child could not be traced. Today, what is operating<\/p>\n
     in the field is the order of the Division Bench of this<\/p>\n
     Court dated 16th April 2009 which records a prima facie<\/p>\n
     finding on the basis of consideration of the material<\/p>\n
     shielding<\/p>\n
     placed before the Division Bench<\/p>\n
                     the    principal       accused
\n                                                       that the applicant is<\/p>\n
                                                         Nanak      Singh       and     is<\/p>\n
     purposely not furnishing information to the police.                              The<\/p>\n
     Division Bench has also recorded a prima facie opinion<\/p>\n
     that the applicant is fully aware of the whereabouts of<\/p>\n
     the minor child.            Thus, the prima facie observation made<\/p>\n
     by   the     Division       Bench   is    that    not     only         that        the<\/p>\n
     applicant is aware of the whereabouts of the child but,<\/p>\n
     he is shielding the principal accused.                      This view taken<\/p>\n
     by     the   Division       Bench   is    sufficient         to     come      to    a<\/p>\n
     conclusion that the applicant has not cooperated with the<\/p>\n
     investigating agency.            These observations are sufficient<\/p>\n
     to come to the conclusion that though the order granting<\/p>\n
     anticipatory bail directed the applicant to make himself<\/p>\n
     available       for     investigation,        the     applicant         has        not<\/p>\n
     effectively       co-operated for            the investigation.               Apart<\/p>\n
     from    this,         the   Division     Bench    found      that     the     local<\/p>\n
     police station was not able to effectively deal with the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span>\n<\/p>\n
                                       – 14 –\n<\/p>\n
     investigation      and       therefore,       it      deserves         to      be<\/p>\n
     transferred to the State CID.                 The State-CID will now<\/p>\n
     have   to    investigate       into    the     offence        as     per      the<\/p>\n
     directions of the Division Bench and that is one more<\/p>\n
     reason why the custodial interrogation of the applicant<\/p>\n
     will now be necessary.                There        is no merit in the<\/p>\n
     contention of the counsel for the applicant that the<\/p>\n
     observations      of   the   Division       Bench     will     have      to    be<\/p>\n
     ignored as the same form part of an order made on an<\/p>\n
     application seeking a writ of habeas corpus.\n<\/p>\n
     the observations made by the Division Bench it is obvious
\n                                                                          Going by<\/p>\n
     that the said observations are relating to the conduct of<\/p>\n
     the    applicant       subsequent      to      the       order        granting<\/p>\n
     anticipatory bail and therefore, the submission of the<\/p>\n
     counsel for the applicant that no ground for cancellation<\/p>\n
     of bail     as laid down by the various decisions of this<\/p>\n
     Court and by the Apex Court has been made out.\n<\/p>\n
     15.    The applicant has invoked the jurisdiction of this<\/p>\n
     Court under section 482<\/a> of the said Code.                            The said<\/p>\n
     jurisdiction has to be exercised sparingly and only in<\/p>\n
     rare cases. In the light of what has been observed by the<\/p>\n
     Division Bench of this Court and for reasons which are<\/p>\n
     set out earlier it is not possible to interfere with the<\/p>\n
     impugned order.        Hence, I pass the following order :\n<\/p>\n
                 (i)   Criminal Application is rejected.\n<\/p><\/blockquote>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:43:38 :::<\/span><\/p>\n
                                      – 15 –\n<\/p><\/blockquote>\n
             (ii) At this stage, learned counsel appearing for<\/p>\n
            the applicant states that though the applicant has
\n            started he has not reached the Court. He prays
\n            that order passed today be stayed. When a query was<\/p>\n
            made whether the applicant is likely to appear
\n            before this Court learned counsel for the applicant
\n            states that he will take telephonic instructions
\n            and make a statement. Hence, this prayer for grant
\n            of stay will be considered at 3 p.m. today.<\/p><\/blockquote>\n
            Called   out   today     at    3     p.m.       Learned        counsel<\/p>\n
     appearing for the applicant states that applicant has not<\/p>\n
     come to the Court. In view of this statement, the prayer<\/p>\n
     made   for<\/p>\n
                  continuing   the    ad       interim<\/p>\n
     acceded to and the said prayer is rejected.\n<\/p>\n
                                                          relief       cannot      be\n                    \n      \n\n                                           A.S.Oka, J\n   \n\n\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 14:43:38 :::<\/span>\n            - 16 -\n\n\n\n\n                                            \n                    \n                   \n          \n       \n      \n      \n   \n\n\n\n\n\n\n                    ::: Downloaded on - 09\/06\/2013 14:43:38 :::<\/span>\n            - 17 -\n\n\n\n\n                                            \n                    \n                   \n          \n       \n      \n      \n   \n\n\n\n\n\n\n                    ::: Downloaded on - 09\/06\/2013 14:43:38 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Avinash Singh Biji vs The State Of Maharashtra & Anr on 30 June, 2009 Bench: A.S. Oka – 1 – 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-268350","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAvinash Singh Biji vs The State Of Maharashtra & Anr on 30 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/avinash-singh-biji-vs-the-state-of-maharashtra-anr-on-30-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Avinash Singh Biji vs The State Of Maharashtra & Anr on 30 June, 2009 - 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