Bombay High Court
Hiralal Manikrao Kadam vs The State Of Maharashtra on 1 April, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
8 BA 718-2021 aw IA 1012-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 718 OF 2021
1. Kausalya Dnyanoba Dhemdhere
2. Sau. Bharati Rajendra Shirke
3. Sau. Jayshree Ranjeet Shinde ... Applicants
Versus
The State of Maharashtra ... Respondent
WITH
CRIMINAL INTERIM APPLICATION NO. 1012 OF 2021
IN
CRIMINAL BAIL APPLICATION NO. 718 OF 2021
Shri Hiralal Manikrao Kadam ... Applicant/Intervener
IN THE MATTER BETWEEN
1. Kausalya Dnyanoba Dhemdhere
2. Sau. Bharati Rajendra Shirke
3. Sau. Jayshree Ranjeet Shinde ... Applicants
Versus
The State of Maharashtra ... Respondent
.....
Mr. Ajinkya Udane a/w. Mr. Nikhil Agrawal, Mr. Imtiaz Bijapure for
the Applicants.
Mr. S. S. Pednekar, APP for the Respondent - State.
Mr. Naaz Sayed i/b. Rahul Kadam, for Intervener.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 01st APRIL, 2021
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PC :
. The applicants are seeking bail in C.R.No.0557/2020
registered with Shikrapur Police Station, Tal. Shirur, Dist. Pune for
the offences punishable under Sections 306, 498-A read with 34 of
Indian Penal Code (for short 'I.P.C.')
2. The First Information Report (for short 'F.I.R.') was lodged on
14th September 2020 by Hiralal Manikrao Kadam alleging that his
daughter Sheetal was married to Deepak son of Dnyanoba
Dhemdhere on 4th July 2010 and a child who is presently aged 8
years is born out of the wedlock. His son-in-law Deepak died on 11 th
April 2020. He was engaged in brick kiln business in partnership with
Rajendra Shirke, husband of Bharati (sister-in-law of the deceased).
Deceased Sheetal used to tell him and his son that Rajendra had
borrowed money from Deepak and an amount of Rs.80 Lakhs is due
from him. Mother-in-law Kausalya, sister-in-law Bharati were abusing
her and physically assaulting her and Rajendra used to instigate
them. Her father-in-law had kept her jewellery weighing about 35 to
40 tolas in a bank locker. For withdrawal of the amount and for sale
of ornaments and for transferring the property situated at Talegaon
in the name of the accused Nos.2 and 4. The accused had constantly
pressurized her. Sister-in-laws of the deceased and sister of mother-
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in-law used to visit her home. They used to make the deceased
realize that they are entitled for share in the property. The deceased
used to inform the complainant that her father-in-law was a good
person, cultured and that he would take care of her. There was an
incident dated 7th September 2020, when some religious ceremony
relating to death of Deepak was arranged in their house.
Complainant and his wife had visited to matrimonial house of his
daughter. None of the family members including her in-laws, sister-
in-laws or sister of mother-in-law had any conversation with him.
After the function was over, they returned home. At 9.40 p.m. in the
night, the deceased Sheetal called on mobile phone of her brother
and expressed regret about what had happened. She stated that the
applicants had indulged into a verbal altercation with her. The
complainant somehow consoled his daughter and assured that if the
harassment continues, he would bring her to the parental house. On
the next day, he was informed that, Sheetal had ended her life by
jumping into well. Complainant found injuries on her body. Without
recording Panchnama body was sent for Post Mortem. She was killed.
3. The applicants preferred an application for anticipatory bail
before the Sessions Court. The said application was rejected. The
applicants then preferred an application for anticipatory bail before
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this Court. The said application was rejected by Order dated 23 rd
October 2020. While rejecting the said application, this Court had
observed that during the course of investigation, statement of minor
child of the deceased was recorded. The child had stated that after
his father had expired, his two aunts were staying in their house and
they were harassing his mother. His father and accused No.2
Rajendra were into brick kiln business. He was told by his mother
that an amount of Rs.70 Lakhs was due from Rajendra. Four to five
days prior to the incident, his elder aunt and younger aunt had put
up a ploy of false altercation and he has also stated that his two
aunts, his grandmother, his grandfather, cousin grandmother and
Rajendra used to compel his mother to do household work and the
aunts did not co-operate. He narrated incident where his mother was
very frustrated, on account of the said harassment and she had hit
her head against the wall. He stated that because of the harassment,
his mother was constrained to commit suicide.
4. This Court further observed that during investigation,
statement of Santosh Dhamdhere, who is residing in the same village
has been recorded. He is the husband of sister of deceased Sheetal.
He had received a recorded message on his Whatsapp from the
deceased. In the first message dated 23 rd August 2020, she expressed
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that she was taking an extreme step and expressed her despondency
and sought assurance from her mother that he will take care of her
son. She expressed no grievance against the father-in-law but had
stated that she will not spare her mother-in-law as well as two sister-
in-laws and it is only because of them, she has to take extreme step.
Another recorded message is dated 5th September 2020 when she
referred to the discord on account of the trivial issues that took place
in the house and for which she has attributed role to her sister-in-law.
She referred to false put up fight between the two sisters. Transcript
of the recording reveal that the two sister-in-laws and the mother-in-
law harassed her on account of claim, their share in the property and
earnings of their deceased brother.
5. The Court further observed that the deceased was in a
depressed state of mind and the harassment which she underwent at
the instance of the applicants was the immediate factor which
prompted her to take the extreme step as she had expressed to
Santosh that she is unable to tolerate it. The Court declined to grant
relief to the applicants.
6. The Order dated 23rd October 2020 was challenged by the
applicants before the Hon'ble Supreme Court. By Order dated 5 th
January 2021, the Hon'ble Supreme Court had rejected the Special
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Leave Petition filed against the order of this Court. It was observed
that, there is no ground to entertain the Special Leave Petitions and
as such the same are dismissed. The Court however observed that,
"It shall, however, be open for the petitioners to
surrender within four weeks' and make an
application for regular bail, which shall be
considered by the Court expeditiously in
accordance with law.
7. The applicants preferred an application before the Court of
learned J.M.F.C. on 12th January 2021 stating that the applicants are
appearing suo-motu and surrendering before the Court and filing the
application for bail. They are surrendering to the Court and thus,
their bail application be decided on merits. The learned Magistrate
on the same day passed the order "call say of I.O.". The application
bears the endorsement by the applicants as "Not pressed". The Court
further passed the order on the same day which is as follows :
"The application is not pressed before filing of
say by I.O. Hon'ble Supreme Court has granted
time of four weeks for surrender. Hence, this
application is filed".
Thus, the applicants had withdrawn their application for
surrender and grant of bail.
8. The applicants thereafter, preferred an application before the
Sessions Court and stated that the applicants are present in the Court
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and in pursuant to the order of the Hon'ble Supreme Court, they are
surrendering before the Court and making the application. The
learned Additional Sessions Judge, disposed of the said application
vide Order dated 16th January 2021. The order mentions that on
making inquiry with the learned Advocate for the applicants as to
why they are not surrendering before the concerned Court of
J.M.F.C., learned Advocate pointed out paragraph 7 of application
wherein it was mentioned that having surrendered before the
learned J.M.F.C. at Shirur, the Court was not ready to accept
surrender without hearing the I.O. Thereafter, they were made to
wait for the whole day, but I.O. was not available and thereafter, they
have approached the Sessions Court. The learned Additional Sessions
Judge then observed that in these circumstances, it is deemed fit to
direct the concerned J.M.F.C. to take note of the order passed by the
Hon'ble Supreme Court as mentioned above and to follow the
appropriate procedure as per law. With these directions, the
application was disposed of vide Order dated 16th January 2021.
9. Thereafter, the applicants preferred another application before
the Court of learned J.M.F.C. on 18th January 2021. It was stated that
the Special Leave Petition was dismissed by the Hon'ble Supreme
Court with directions to surrender and apply for regular bail. Four
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weeks time was granted to surrender and apply for regular bail. The
applicants are surrendering and applying for bail within the said
period of four weeks. Hence, they may be released on bail.
10. Learned APP filed say that as per the directions of the Hon'ble
Supreme Court bail application may be decided expeditiously and
Investigating Officer may be given an opportunity to be heard. As per
proviso of Section 437 of Criminal Procedure Code (for short 'Cr.P.C.')
discretion is given to the Court to grant bail to a women.
11. Learned J.M.F.C. Ghodnadi at Shirur by Order dated 18 th
January 2021, rejected the application for bail. While rejecting the
application for bail, it was observed that the accused have
surrendered before the Court and taken into judicial custody. On
perusal of F.I.R., it transpired that F.I.R. was lodged against six
persons. Considering the role of these accused, that they had abused
and assaulted the deceased. There was a property dispute. The
offence is serious and non-bailable and anticipatory bail was rejected
by the Sessions Court and the High Court. In the event of grant of
bail, there would be hurdle in investigation and custodial
interrogation the Court is required to consider the nature of gravity
of accusation, severity of punishment, danger of the accused
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absconding if released on bail, and likelihood of offence being
repeated. Considering the accusation and gravity of the offence, it
will not be proper to release the accused on bail as investigation is in
progress.
12. Surprisingly, the applicants preferred an application for interim
bail on the same day before the same Court. In the said application,
it was mentioned that as per the directions of the Supreme Court, the
applicants have surrendered before the Court and filed application
for bail to avoid any detention of the women, the Supreme Court had
also given directions to the Court to decide their bail application
expeditiously. However, the bail application is rejected. They are
ready to abide by the directions of this Court and will appear before
the Court on the next date. Hence, they may be released on P.R. bond
till date of final order on their bail application by way of interim
arrangement. Surprisingly, the learned J.M.F.C. passed the following
order :
"Perused application and heard learned Advocate
for accused. Bail application of accused is
rejected but they want to file second bail
application in Sessions Court, accused are
women. The accused Jayshree has baby of two
and half years. She is present in Court along with
baby. Another accused of 15 years with mentally
retarded. The accused Kausalya is more than 62
years. The accused ready to give personal bond
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for their appearance in Sessions Court. Hence
accused released on interim bail on furnishing
Personal bond of Rs.15,000/-. Accused are
directed to file bail application there are
exceptional and sufficient grounds."
13. The applicants thereafter, preferred an application before the
Sessions Court viz. Criminal Bail Application No.422 of 2021. The
said application was preferred on 21 st January 2021. In the said
application, it was stated that the applicants had appeared before the
Court of learned J.M.F.C. with surrender application on 12 th January
2021. The Court was then not ready to accept surrender without
hearing the I.O. The learned J.M.F.C. bent upon hearing I.O and for
the whole day Investigating Officer was not available. Therefore, the
applicants were required not to press the application of surrender.
The learned J.M.F.C., Shirur was not ready to follow the directions of
the Hon'ble Supreme Court and the Investigating Officer was not
supposed to give consent to the said application and hence, the
applicants had surrendered before the Sessions Court. Pursuant to
the directions of the Sessions Court, they had appeared before the
learned Magistrate. Hence, the applicants had preferred second
regular bail application.
14. The learned Sessions Judge by Order dated 1 st February 2021,
rejected the Bail Application No.422 of 2021 preferred by the
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applicants with directions that the information be provided to the
concerned Court and the Investigating Officer. While rejecting the
said application, it was observed that, "I.O. in his status report has
raised strong grounds of objections giving reference to the material
disclosed during investigation. The I.O. was personally present in the
Court and submitted that on 12th January 2021 he was present in the
Court of J.M.F.C., Shirur and that the applicants who had approached
the Court for surrendering left the Court before 3.30 p.m. along with
the application itself. The applicants have mislead the Court that the
learned J.M.F.C. made them wait for the entire day and that the I.O.
was not present. Since the lodging of F.I.R. itself, the applicants were
absconding and therefore, no investigation could be done from them.
If the application is granted, the applicants may pressurize the
witnesses. It is necessary to obtain their police custody. The
application was opposed by the prosecution. It was further observed
that the police have gathered strong prima facie materials against the
applicants. The deceased had spoken to her brother on the mobile
and sent recorded message on Whatsapp.
15. The learned Sessions Judge considered the observations of the
High Court while rejecting the application for anticipatory bail. The
Court further observed that decision in the case of Niranjan Singh
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relied on by the applicants is required to be distinguished in the light
of the peculiar facts of this case. The Supreme Court has held that
there is no ground to entertain the S.L.P. filed against the order of the
High Court. There has been no interrogation of the applicants. They
are the major culprits. Investigation is in progress. Hence, application
deserves to be rejected. The Court further directed that the order be
communicated to concerned Court and Investigating Officer.
16. The investigating officer then brought to the notice of J.M.F.C.
the order passed by Sessions Court on 2nd February 2021. The
learned J.M.F.C. passed the following order on 2nd February 2021.
"Information was received from I.O. that bail
application of accused is rejected by Hon'ble
Sessions Court. Accused are abusing process of
law and not followed conditions. Hence PR bond
of accused forfeited and issue remand warrant
against accused."
17. Learned Advocate for the applicants contends that in view of
the order of the Supreme Court, they had surrendered before the
Magistrate. Their surrender was not accepted. The applicants are
ladies. They have been falsely implicated. There is no prima facie
case against the applicants. The applicants are women. One of them
have a small child. Sections 306 and 498-A are not attracted. The
applicants are entitled to bail. They need not be in custody for
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applying bail under Section 439 of Cr.P.C. Investigation is now
complete. The learned Sessions Judge has committed an error in
rejecting the application for bail. In the application it is mentioned
that applicants are approaching and surrendering and seeking bail.
18. Reliance is placed on the following decisions :
(i) Sundeep Kumar Bafna V/s. State of Maharashtra and another
(2014) 16 Supreme Court Cases 623;
(ii) Niranjan Singh and Another V/s. Prabhakar Rajaram Kharote
and others (1980) 2 Supreme Court 559;
(iii) Ishan Deshmukh V/s. State of Maharashtra 2011(2) Mh.L.J.
361;
(iv) State of Haryana and Others V/s. Dinesh Kumar (2008) 3
Supreme Court Cases 222;
(v) State V/s. Maguni Charan Sahu and 10 Others 1983 SCC
Online Ori 137 delivered by the Orissa High Court;
(vi) Haji Peer Bux and Others V/s. State of U.P. and Others 1993
SCC Online All 444.
19. Learned APP submitted that the offence is of serious nature.
The application for anticipatory bail was rejected by the Sessions
Court, High Court and the Special Leave Petition was dismissed by
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the Supreme Court. The applicants were however, permitted to
surrender and apply for regular bail within a period of four weeks.
The Apex Court had not specified whether they should surrender
before the learned Magistrate or before the Investigating Officer. The
applicants preferred an application before the learned Magistrate on
12th January 2021. The said application was not pressed. The
applicants have raised false contention that they were made to wait
for the whole day. The I.O. was present in the Court on 12 th January
2021. The applicants had left the Court at 3.30 p.m. The learned
Magistrate had committed an error in granting interim bail. After
rejection of the application, the learned Sessions Judge had directed
that the Court of learned Magistrate to proceed with the application
in accordance with law. The offence is serious. While rejecting the
application for anticipatory bail, this Court had made observations
and assigned reasons. It was indicated that the custodial
interrogation of the applicants was necessary. Without undergoing
custody, the applicants are repeatedly making applications that they
should be released on bail. They were not subjected to custody for a
single day. There is no change in the situation, after rejection of the
application for anticipatory bail by this Court and dismissal of Special
Leave Petition. The contention of the applicants in their application
that the Hon'ble Supreme Court had permitted them to surrender to
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avoid custody is not correct. There is no such observation. The fact
that the order of the High Court is confirmed would indicate that the
applicants are not entitled for relief under Section 438 of Cr.P.C. and
their custodial interrogation is necessary. This application is not
maintainable in law. The applicants without going into custody
cannot state that bail may be granted to them under Section 439 of
Cr.P.C. The Judgments relied upon by the learned Advocate for the
applicants are not applicable in this case. The learned Magistrate has
issued warrant against the applicants. The applicants be directed to
appear before the learned Magistrate by rejecting this application
with directions to the said Court to proceed in accordance with law
by taking the applicants into custody.
20. Learned Counsel for the intervener also advanced similar
submissions. It is submitted that despite refusing to grant
anticipatory bail under Section 438 right up to the Apex Court, the
applications have preferred applicants on similar grounds. The
offence is of serious nature. The accused must be in custody. They
should surrender before the learned Magistrate. Warrant is issued
against them. False submissions are advanced by the applicants. They
are misleading the Courts. The victim was compelled to commit
suicide. No leniency can be shown to the applicants. The merits of
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the case was considered by the Sessions Court, this Court and the
Apex Court. Without surrendering being in custody in the facts of
this Court should not entertain the application. The decisions relied
upon by the learned Counsel for the applicants were delivered in the
facts of the case. The same are not applicable in the present case.
21. I have perused the documents on record. The F.I.R. was
registered on 14th September 2020. Specific allegations are made
against the applicants in the F.I.R. Offence is of serious nature. While
rejecting the anticipatory bail, this Court has taken note of the overt
act attributed to the applicants. The observations are reproduced in
the earlier paragraphs. This Court had observed that prima facie the
applicants had instigated the deceased to take the extreme step. This
is not the case where vague allegations are levelled against the
applicants. Their custodial interrogation is therefore necessary. The
applicants are seeking bail without undergoing custody. It would be
mockery of the Justice to grant bail to the applicants by entertaining
this application in the peculiar facts of this case. It is pertinent to
note that the order of this Court dated 23 rd October 2020 was
challenged before the Apex Court. The Special Leave Petition was
dismissed and thus, the order of this Court was confirmed. The fact
that the Hon'ble Apex Court permitted applicants to surrender and
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apply for bail would not mean that there was no need of custodial
interrogation. The record would indicate that the applicants are
trying to mislead the Courts. The Investigating Officer has strongly
disputed the contention of the applicants that he was not present in
the Court and the applicants were made to wait for the entire day.
The applicants had preferred an application before the Court of
J.M.F.C. on 12th January 2021. The learned Magistrate has passed the
order calling for say of I.O. The applicants cannot contend that the
learned Magistrate was not ready to hear the application without say
of the I.O. There is no illegality in directing I.O. to file say. It is
apparent that the applicants were not willing to undergo custody and
therefore, did not press the application since time was granted by the
Supreme Court to surrender. The order clearly state that the
application is not pressed before filing of say by I.O. This would
indicate that the applicants were not interested in waiting for the say
filed by the Investigating Officer. Surprisingly, it was contended
before the learned Sessions Judge, while preferring an application on
16th January 2021 that the applicants are surrendering before the
said Court and making the application. In that application, it was
contended that the learned Magistrate was not ready to accept
surrender without hearing the I.O. Thereafter, they were made to
wait for the whole day, but I.O. was not available and thereafter, they
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have approached Sessions Court. The contention is apparently
baseless. The record indicate that the Investigating Officer had filed
the report and stated that the applicants had left the Court without
waiting for the Investigating Officer at 3.30 p.m. In any case, the
applicants cannot contend that since I.O. was not present, they have
not pressed the application and then make an application for
surrender before the Sessions Court. Learned Sessions Judge,
directed the learned Magistrate to follow appropriate procedure as
per law and the application was disposed of on 16 th January 2021.
The applicants again moved an application before the learned
J.M.F.C. on 18th January 2021 and again submitted that they are
surrendering before the Court. The learned Magistrate by Order
dated 18th January 2021 rejected the application for bail.
Surprisingly, the learned Magistrate had not taken recourse to
procedure established by law. The Order dated 18th January 2021
passed by the learned J.M.F.C. indicate that the applicants were
taken into judicial custody. After rejection of the application, the
applicants moved an application for temporary bail before learned
J.M.F.C. It is not pointed out under what provisions of law such an
application was moved before the same Court which had rejected the
application for bail with the observations on merits. The order does
not indicate the period of bail. In application for interim bail
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preferred before learned J.M.F.C. it was contended that, the
applicants are ready to abide directions and they would appear on
next date. Bail be granted till next date of final order. The applicants
thereafter, again preferred an application before the Sessions Court
which has been rejected by order dated 1 st February 2021 with the
observations which are referred here-in-above. Thereafter, this
application is preferred before this Court.
22. The applicants had surrendered before learned Magistrate.
Order dated 18th January 2021 observes that the applicants are taken
in custody. The question of again surrendering before the learned
Sessions Judge and High Court does not arise. The erroneous order
passed by learned Magistrate granting temporary bail has come to an
end. In pursuant to order of Sessions Court, the learned J.M.F.C. has
forfeited bond and issued warrant.
23. In view of order dated 18th January 2021 passed by J.M.F.C.
rejecting application for bail after taking applicants in custody, the
application before this Court for surrender and bail cannot be
entertained. In Sundeep Kumar Bafna v/s. State of Maharashtra
(supra), the accused had preferred an application for bail under
Section 439 before the High Court by contending that he had
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surrendered before the Court. It was observed that High Court could
have taken the accused in custody and proceeded with perusal of
prayer for bail and in the event of its coming to conclusion that
sufficient grounds had not been disclosed for bail, necessary orders
for Judicial or Police custody could have been ordained. In Niranjan
Singh V/s. Prabhakar Kharote (supra), the Supreme Court has
explained the meaning of custody within Section 439 of Cr.P.C. as
person in duress either because he is held by the investigating agency
or other police or allied authority or is under the control of the Court
having been remanded by Judicial order, or having offered himself to
the Court's jurisdiction and submitted to its orders by physical
presence. It is pertinent to note that in the same decision the Court
has observed that, accused is stated to be in Judicial custody when
he surrenders before the Court and submits to its directions. The
accused applied for bail before Magistrate who refused bail and still
the accused without surrendering before Magistrate, obtained order
for stay to move Sessions Court. The direction of Magistrate was
wholly irregular and may be, enabled the accused to circumvent the
principle of Section 439 Cr.P.C. The Court did not take serious view of
such course, indifferent to mandatory provisions, by subordinate
magistracy since, the accused made up for it by surrender before
Sessions Court. The other decisions relied upon by applicants also
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deal with similar issue and also relate to grant of bail.
24. In the present case, after rejection of bail by learned J.M.F.C.
vide Order dated 18th January 2021, applicants were granted interim
bail, in spite of the fact that learned Magistrate had taken the
applicants in Judicial custody. The applicants than by mincing words
had preferred bail application No.422/2021 before the Sessions
Court. It was titled as Second Bail Application under Section 439
Cr.P.C. It was stated that the applicants are now approaching the
Court (Sessions Court) for regular bail on the grounds stated therein.
It was also contended that it is the second regular bail application of
applicants. Thus, that was an application for regular bail without
being in custody nor it was stated that they are surrendering. After
rejection of the said application, the applicants have approached this
Court. This application is wholly misconceived and circumventing
principle of Section 439 of Cr.P.C. The applicants had surrendered
before learned J.M.F.C. on 18th January 2021. They were taken in
custody. The applicants cannot prefer application for surrender and
bail before this Court. This is clear case of abuse of process of law.
25. The applicants shall appear before learned J.M.F.C. Shirur in
view of orders dated 18th January 2021 and 2nd February 2021
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issuing remand warrant. The learned Magistrate shall follow
procedure of law. The bail application of the applicant was rejected
by learned J.M.F.C. and Sessions Court. Pursuant to subjecting the
applicants to custody, the applicants will be at liberty to prefer
application for bail before J.M.F.C. which may be dealt with in
accordance with law.
26. Hence, I pass following order.
ORDER
(i) Criminal Bail Application No.718 of 2021 is rejected and disposed of.
(ii) The applicants shall appear before the J.M.F.C., Shirur on 12th April 2021.
(iii) Learned J.M.F.C. shall follow due process of law in view of Order dated 18 th January 2021 refusing bail and taking applicants in custody as stated therein and in accordance with Order dated 2nd February 2021.
(iv) Applicants will be at liberty to prefer application for bail before J.M.F.C. in terms of observations made hereinabove in this order.
(v) Criminal Interim Application No.1012 of 2021 stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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