Bombay High Court
Sandra Cecilia D'Mello vs The State Of Maharashtra on 9 September, 2019
Author: S.S. Shinde
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1584 OF 2019
Sandra Cecilia D'Mello ...Petitioner
Versus
The State of Maharashtra ...Respondents
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Mr. Abad Ponda i/b. Mrs. Mallika A. Ingale for Petitioner.
Mr. Subodh Desai i/b. Ms. Dione C. Baptista for Respondent No. 2.
Mr. A.R. Patil, APP for Respondent - State.
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CORAM : S.S. SHINDE, J.
DATE : 9th SEPTEMBER 2019 PER COURT:
1. Learned counsel appearing for the Petitioner has tendered across the bar, the affidavit on behalf of the Petitioner, same is taken on record. Learned counsel for the Petitioner relying upon the affidavit filed by the Petitioner, her husband alongwith annexures on 6/9/2019 and also affidavit filed today, made following submissions-
2. The Petitioner and her husband are under statutory obligation to convert their PIO cards (Person of Indian Origin) and change it to Overseas Citizen of India (OCI) card by 30.09.2019 as per the directions given by Bureau of Immigration, Government of India for which Petitioner is Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 2/15 1 WP-1584-19.doc required to attend the office of Indian Consulate at Sydney. The Petitioner and her husband have to complete tax filing by end of September, 2019.
Petitioner's elder daughter is currently pregnant and expecting her second child in December, 2019. Her daughter is staying alone in Sydney, Australia. The Petitioner was working at child care center before came to India in December, 2018. The Petitioner have already lost his job. The house of the Petitioner in Australia has been mortgaged with Bank West of Australia, Sydney. The Petitioner and her husband is required to clear the bank dues. The Petitioner and her husband are originally from Mumbai, India. Their relatives are locates in Mumbai. Petitioner's ancestral properties as well as her husband's property are located in Mumbai. They have fully co-operated with the investigating agency till date. The Petitioner been available all throughout till date after getting enlarged on bail on 21.12.2018. The Petitioner through her advocate attending the proceeding filed before this Court on every date. The Petitioners have been consistently visiting India since 2003. The Petitioner is undergoing dental implant treatment in Mumbai as it costs a lot in Australia compared to India. The Petitioner is required to come back to India to complete the treatment. Husband of the Petitioner has a property i.e. Flat No. 2 (admeasuring approx. 500 sq. feet), at School view Building, 16/2 JBC, Sunder Lane, Orlem, Malad (West), Mumbai- 400 064 which is currently under redevelopment. Her husband is currently drawing Rs. 20,000/- rent per month from the developer. The Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 3/15 1 WP-1584-19.doc details of the same is filed in the affidavit dated 06.09.2019. The Petitioner have their other ancestral properties in Mumbai. The Petitioner have undivided share in the ancestral Immovable property located at Marol, Andheri CTS number 1414/A (admeasuring about 4788 Sq. mtrs as per the record available in the office of City Survey Officer) and other ancestral properties. It is submitted that, this property is under occupation of the complainant and her family members. Also as per the record of City Survey Office land bearing CTS No. 1414/1, 1415, 1421, 1424 and 1429 situated at Marol, Andheri and at Kolekalyan, Kalina, Santacruz (East) are ancestral properties. The Petitioner is taking all the efforts to get the relevant documents regarding these ancestral properties and wish to take effective steps to assert her rights and her siblings' rights in the same. The Petitioner is abided by the order dated 14.08.2019 passed by this Court directing the learned Trial Court to separate the trial and frame the charge. The Petitioner attended the proceedings before the learned Trial Court on 30.08.2019 and pleaded not guilty. The learned Trial Court has now framed the charges. The Petitioner is also defending the civil suit being Suit No. 147 of 2017 filed by the complainant before this court. The Petitioner engaged advocates to duly represent her in the said civil suit where the Petitioner is joined as Defendant No. 7 and advocates of the Petitioner have been attending the suit proceedings after their engagement. It is submitted that, 1/8th share as claimed by the complainant in the disputed property (subject matter of Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 4/15 1 WP-1584-19.doc present FIR) is protected by this Court (Coram:- S.C. Gupte, J.) by order dates 4th August 2017.
Learned counsel submits that, the Petitioner and her husband will abide by the statements made in the affidavits which are placed on record. He further submits that, the Petitioner also abide by the statement made by the Petitioner and which is recorded by the this Court on 6/9/2019 in para 2 and 3 of the order dated 6/9/2019.
3. Learned counsel appearing for the Petitioner submits that, pending the writ petition the petitioner is praying for allowing/permitting the Petitioner to travel to Australia for the reasons stated in the affidavit which is tendered across the bar and also affidavit which is already taken on record on 6/9/2019. Learned counsel for the Petitioner submits that, in case the Petitioner is permitted to travel to Australia, the Petitioner will come back on or before 25/1/2020.
4. In response to the affidavit filed by the husband of the Petitioner, learned counsel appearing for the intervener i.e. original complainant submits that, the property which is mentioned in the affidavit filed by the husband of the Petitioner and the agreement annexed with the affidavits is not a development agreement, and the same premises were tenanted premises in the name of father of husband of the Petitioner and Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 5/15 1 WP-1584-19.doc consent of other five sisters has not been obtained, and therefore, undertaking given by the husband of the Petitioner that, if the Petitioner won't return to India on or before 25/1/2020, in that case, said property may be liquidated cannot be accepted in absence of no objection from other five sisters.
5. Learned counsel relying upon the note of concise points of Respondent No. 2/original complainant already placed on record made following submissions-
a) The Petitioner has indulged in blatant falsehood and contumacious conduct before the courts of law which dis-entitled the Petitioner from seeking any relief whatsoever. Certain instances are as follows-
b) In Petitioner's application seeking permission to travel abroad dated 15.01.2019 [Ref. Pg.327 to 333, Ex.P of the compilation of Writ Petition] filed before the Ld. Magistrate (Miscellaneous Application No. 95/2019), the Petitioner mischievously and deliberately tampered with and altered the registered deed of rectification of 41 pages [Ref: Pg. 218 to 259, Ex. B] and exhibited the freshly altered document of 14 pages at Exhibit 9 thereto [Ref. Pg. 305 to 318, Ex. N]. The Petitioner further annexed at Exhibit 4 [Ref: Pg. 288 to 304, Ex. N] an unregistered, 15 page version of the Deed of Release of 1985, devoid of the official remarks of the Sub-
Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 6/15 1 WP-1584-19.doc Registrar of Assurance present in the registered, 16 page Deed of Release [Ref: Pg. 117 to 132, Ex.F]. These acts committed by the Petitioner after being released on bail, has been confirmed and reported by the Investigating Officer (I.O.) of the MIDC Police Station in his letter dated 06.02.2017 [Ref:
Pg. 284 to 287, Ex. N] to the Ld. Magistrate and in letter dated 29.07.2019 [Ref: Pg. 340 to 341, Ex. H] of affidavit in reply dated 29.07.2019 to additional affidavit].
c) The Petitioner has referred to City Survey Plan [Ref: Pg. 357 in list of additional documents of the Petitioner and Para 5 a. of the grounds/reasons tendered on 08.08.2019]. This, to the Petitioner's knowledge, is false and misleading in as much as a major portion of the said property is sold by her father and others in the year 1980. There is a physical division and a seven storey hotel is running on the said sold portion since 2009. A portion has also been acquired by Airport Authorities of India.
In all the proceedings pertaining to Application for Bail and permission to travel abroad before all the courts including the present writ petition, the Petitioner has given her address of residence as 'School View, 16/2, Joseph Braz Colony, Orlem, Malad (W)'. On physical verification of the said address it is found to be in a completely dilapidated condition and inhabitable since the past seven years.
d) Other proceedings before various authorities-
Pursuant to the order of Konkan Divisional Commissioner, Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 7/15 1 WP-1584-19.doc further proceedings for cancellation of the amalgamation orders passed will continue before the Collector Mumbai Suburban District (MSD) who has already stayed [Ref: Pg. 271 to 276, Ex. I] the said amalgamation orders related to the disputed property. The Petitioner is a party respondent in the said proceedings. In the eventuality of the said cancellation, Petitioner who has indemnified the City Survey Department and the Developers i.e. Partners of M/s Swift Developers (Accused Nos. 1 and 2) and M/s. Crescent Builders and Developers (Suspect), can be made liable for prosecution and damages amounting to tens (10's) of crore's of Rupees even by the 26 flat purchasers.
e) Civil Suit No. 147/2017 filed before the Hon. High Court of Bombay by the present Respondent is at the stage of filing of evidence, etc [Ref: Pg. 268 to 269, Ex.O]. The Petitioner is Defendant No. 7 in the said suit.
f) Pursuant to representations made before the Municipal Commissioner and other Authorities of the MCGM for revocation/cancellation of IOD/CC and conditional OC granted to the developers, the said permission have been stayed [Ref: Pg. 330, 332, Ex. E of Affidavit in reply dated 29.07.2019 to Additional Affidavit]. In the likely event that action would be taken by the MCGM to revoke the said permission, the Petitioner would be liable for prosecution as well as damages on account of her acts of commission and omission which are at Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 8/15 1 WP-1584-19.doc the root of the subject matter of the steps initiated before the MCGM. [Ref:
Pg. 320 to 338, Ex. E and F] of Affidavit in reply dated 29.07.2019 to Additional Affidavit].
6. Conduct of Petitioners Real brother and sister (Accused Nos. 4 and 5):
Petitioners real brother i.e. Accused No. 4 was permitted to travel abroad by order dated 07.08.2017 [Ref: Pg. 277 to 279, Ex. J] on a written undertaking dated 08.08.2017 [Ref: Pg. 280, Ex. K] to the learned Trial Court that he shall return to face trial in 5 months, notwithstanding any extensions on healthy or any other grounds.
Despite this undertaking Accused No. 4 failed to appear on 22 (Twenty-Two) continuous dates before the Ld. Trial Court and finally a proclamation under Section 82 of the Code of Criminal Procedure has been issued on 17.06.2019 [Ref: Pg. 313 to 315, Ex. B] of affidavit in reply dated 29.07.2019. Petitioner's sister i.e. Accused No. 5, who is resident/citizen of New Zeland in declared as a wanted Accused since May, 2017 and has been placed on Look Out Circular (LOC). The Jt. Commissioner of Police (EOW) has directed that a Red-Corner Notice be issued against against her to secure her presence.
7. The impugned order of the Sessions Court dated 12.03.2019 Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 9/15 1 WP-1584-19.doc takes on record that the Accused and complainant are senior citizens and states the present criminal case will have to be taken up on priority basis [Ref. Para 16, Pg. 107].
Both the impugned orders, i.e. order of Ld. Magistrate [Ref. Para 8 and 9, Pg. 94 and 95] and order of Hon. Sessions Court Judge [Ref. Para 5, Pg. 102] record that the Trial is being protracted due to absence of Accused No. 4.
8. In the grounds / reasons tendered by the Petitioner on 08.08.2019 with regard to para. 8, it is seen from the online website (printout annexed hereto at Exh. B) that there is provision for registering and voting online. Also on failure to provide sufficient reason for not voting, a simple payment of 55 dollar fine would suffice.
In the grounds / reasons tendered by the petitioner on 8.8.19 with regard to para 9, it is seen from the online website (printout annexed hereto Exh. C) that person of Indian origin (PIO) cards are valid only till September 2019 and thus, the same cannot in any way be renewed as submitted by petitioner and further that the overseas citizen of India (OCI) card can be applied for online.
9. The intervener i.e., the complainant in his affidavit's dated Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 10/15 1 WP-1584-19.doc 15.04.2019 and 29.06.2019 before this Hon'ble Court exhaustively pointed out falsities and or contradictions indulged in by the Petitioner in the proceedings before the subordinate courts and before this Hon'ble High Court as well as in her written submission. The prominent once are :
A Bail Application Writ Petition
Petitioner states that she has not From Development Agreement it is seen
gained anything from the that Petitioner received Rs. 14,00,000/
ancestral/disputed property, Para consideration Pg. 133, Pg. 137, Pg. 144.
3m, Pg 324, Ex. O. Ex. G.
B Bail Application Writ Petition
Petitioner states that since the Petitioner states that she often comes to
year 2000 she has very rarely India.
visited India. Para 3f, Pg. 322, Ex. Para 2, Pg. 4 of Writ Petition.
O.
C Bail Application List of Additional Documents
Petitioner states that she has Petitioner for the first time states that
visited India only for their she has been coming to India for
cousin's marriage or on holidays. property work. Pg. 346.
Para 3f, Pg. 322, Ex.O.
D Criminal Revision Application Affidavit in reply dated 15.04.2019
Petitioner states that she is not a Petitioner is Defendant No. 7 in the
party to the civil suit pending Civil Suit.
before the Hon'ble High Court of Pg. 270, Ex. H.
Bombay.
Para 11, Pg. 338, Ex-Q.
E Bail Application Writ Petition
Petitioner states that she has no Petitioner now states that she has shares
rights in ancestral property in lands bearing CTS Nos. 1414/A,
inherited by her father and that 1414/1, 1415, 1421, 1424, 1437 and
the entire right vests with her 1429.
brother, she has signed a Release Para 2, Pg 4 of Writ Petition.
Deed in his favor. Fact is Petitioners rights in the above
Para 3g, Pg. 323, Ex-O. mentioned ancestral properties have
been acquired by the Airport Authorities
of India/Sold/seriously disputed.
Inference may be drawn from the petitioners statement in her criminal revision application before the Hon'ble Sessions Court : if she knew Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 ::: 11/15 1 WP-1584-19.doc consequences of coming, she may not have tried to come in 2017 for the weeding and she may not have come this time, two for dental implant treatment. (Ref :Pg. 339 para 16 of Ex.Q)
10. The petitioner has no self earned property in India. The property sought to be claim in the ground / reasons tendered on 08.08.2019 is incorrect and her claim is seriously disputed. There is no security and guarantee that is provided by the petitioner for which she would return for facing trial.
Therefore, learned counsel for contesting respondent submits that prayer of the petitioner to allow / permit her to travel to Australia and came back to Indian on 25.01.2020, pending the present Writ Petition may be rejected.
11. Heard learned counsel for the parties. At the outset it would be apt to reproduce herein below the order passed by this Court on 06.09.2019.
1. At the outset learned counsel appearing for the Petitioner prays that the Petitioner may be permitted to file precise affidavit indicating the reasons for which she wish to go to the Australia and come back on 24th January 2020. Leave to file such affidavit is granted.
Bhagyawant
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2. Heard learned counsel appearing for the Petitioner and learned counsel appearing for the contesting Respondent for some time. Learned counsel for the petitioner has tendered across the bar affidavit of the Petitioner and her husband. Same are taken on record. The Petitioner in said affidavit in paragraph no. 2 has stated thus:
I state that as a security towards my return back to Mumbai, India, my husband has undertaken to deposit the Development Agreement dated 18th February 2019 regarding his property i.e. Flat No. 2 (admeasuring approx. 500 sq.feet), School View Building, 16/2 JBC, Sunder Lane, Orlem, Malad (West), Mumbai - 400 064 valued at approximately Rs. 55 lakhs (as per the current market rate) and has further undertaken not to create any third party rights in respect of the said Flat till I come back to Mumbai, India. My husband had also undertaken to allow the Ld. Trial Court to attach the said Flat and conduct the sale of the same, if I fail to return back to India on or before the date as may be directed by this Hon'ble Court. Annexed hereto is an affidavit dated 6th September, 2019 of my husband. Mr. Nereus D'Mello as Annexure 1.
3. In addition to statement in paragraph no. 2 made by the Petitioner in the affidavit tendered across bar today, learned counsel appearing for the Petitioner on instructions submit that, in addition to the property which is mentioned in paragraph no.
Bhagyawant
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2 Petitioner will deposit Rs. 2,00,000/- (Two Lacs) in the Trial Court as security amount. Statement accepted.
4. Learned counsel appearing for the contesting Respondent wish to verify the correctness of the statement made in paragraph no. 2 of the said affidavit and respond to it.
5. Stand over to 9th September 2019 at 4.00 PM.
12. The prayer of the petitioner is being considered for limited period pending the writ petition and on an undertaking given in the affidavit filed by the Petitioner on 06.09.2019 and also on 09/09/2019 that, if the petitioner is permitted to travel to Australia, she will come to India on 25.01.2020. Keeping in view the undertaking filed by the Petitioner and her husband by affidavit dated 06.09.2019 and keeping in view the important reason i.e. clause 3 of the affidavit tendered today, this court is inclined to allow the prayer of the petitioner to travel to Australia from 12.09.2019 till 25.01.2020 on following condition:
A) During this period petitioner will not dispute her identity. B) Petitioner will not seek adjournment in the pending matter. C) Petitioner undertakes to come back to India on or before 25.01.2020.
D) The Petitioner to attend/visit Indian Consulate in Sydney,Australia once a month and keep them informed about her whereabouts.
Bhagyawant
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E) In case the process of furnishing surety is not completed before
the Trial Court, the petitioner shall first complete the same before departure.
F) The petitioner shall extend full co-operation to investigating agencies through e-mail or any other modes of communication till 25.01.2020 for further investigation.
G) The Petitioner will abide by the undertaking given in the affidavit by her and also by her husband before this Court. H) In case of breach of undertaking given to this court, needless to observe that the property which is mentioned in the affidavit of the husband will be liquidated and the rights of the petitioner from the said property will automatically stand forfeited, and neither the Petitioner nor her husband or other relatives will not be entitled to initiate any proceedings in any other court within the supervisory jurisdiction of this Court. I) The petitioner shall also comply with the statement made before this Court which is recorded in order dated 06.09.2019 in para 3 of the said order and deposit Rs. 2,00,000/- (Rupees Two Lakhs only) in the Trial Court towards security amount in addition to property mentioned in the undertaking given by the Petitioner and her husband.
J) The Petitioner shall furnish to the Trial Court her details/itinerary of her visit to Australia, her mobile number, her Email-id, her facebook account and all social media contacts and undertaking that, she will not change the same till her return to India i.e. 25.01.2020.
Bhagyawant
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K) The Petitioner shall also file an undertaking before the Trial
Court that, she would appear before the Court as and when directed by the Court.
8. Place petition for further consideration on merits on 28.01.2020. All the contentions on merits are kept open to be considered at the time of hearing of the writ petition.
9. Parties to act upon an authenticated copy of this order.
[S.S. SHINDE, J.] Bhagyawant ::: Uploaded on - 11/09/2019 ::: Downloaded on - 11/09/2019 20:57:14 :::