Bombay High CourtAPPLN/663/2015others disposed off

Sandhya Gaurav Malik Alias Hans v. Kamlesh Jagdish Malik And ORS

2017-07-03Hon'Ble Shri Justice Sandeep Kashinath Shinde9 pages

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.663 OF 2015 Ms. Sandhya Gaurav Malik alias Hans ......Applicant

Versus

Mrs. Kamlesh Jagdish Malik & Ors.

.......Respondents Mr. Vikas Singh, Advocate for Applicant.

Mrs. G.P.Mulekar , APP for Respondent-State.

CORAM :

CORAM : SANDEEP K. SHINDE, J.

SANDEEP K. SHINDE, J.

DATE : July 3, 2017.

P.C. :

It is an application for cancellation of anticipatory It is an application for cancellation of anticipatory bail granted to respondent nos.1 to 3 in Crime No.254 of 2015 bail granted to respondent nos.1 to 3 in Crime No.254 of 2015 registered at Oshivara Police Station for the offences registered at Oshivara Police Station for the offences punishable under Sections 498-A, 420, 406, 467, 468, 323, punishable under Sections 498-A, 420, 406, 467, 468, 323, 324, 504, 506 read with Section 34 of the IPC. Respondent 324, 504, 506 read with Section 34 of the IPC. Respondent no.1 is mother-in-law , respondent no.2 is sister-in-law and no.1 is mother-in-law , respondent no.2 is sister-in-law and respondent no.3 is brother-in-law of the applicant, eventually respondent no.3 is brother-in-law of the applicant, eventually the respondent nos.1 to 3 before this Court. Yet another the respondent nos.1 to 3 before this Court. Yet another accused in the said crime is husband of the applicant, whose accused in the said crime is husband of the applicant, whose

* 2/9 * 14-APPLN-663-2015.doc name is Gaurav Jagdish Malik. He was not afforded protection name is Gaurav Jagdish Malik. He was not afforded protection by the learned Sessions Judge. He was arrested and after by the learned Sessions Judge. He was arrested and after remanding him to the police custody for some days, he was remanding him to the police custody for some days, he was released on bail. Respondent Nos.1 to 3 were granted released on bail. Respondent Nos.1 to 3 were granted anticipatory bail vide order dated 16.9.2015 passed by the anticipatory bail vide order dated 16.9.2015 passed by the learned Additional Sessions Judge in Anticipatory Bail learned Additional Sessions Judge in Anticipatory Bail Application No.1943 of 2015. Respondent Nos.1 to 3 are Application No.1943 of 2015. Respondent Nos.1 to 3 are residents of Surat, Gujarat.

residents of Surat, Gujarat.

The applicant got married with Gaurav Malik who The applicant got married with Gaurav Malik who is son of respondent no.1 in June, 2005. Out of the said wedis son of respondent no.1 in June, 2005. Out of the said wedlock, a son was born. After the marriage, applicant, her lock, a son was born. After the marriage, applicant, her husband and respondent no.1 (mother-in-law) were residing husband and respondent no.1 (mother-in-law) were residing together at Surat. Admittedly, sister-in-law and brother-in-law together at Surat. Admittedly, sister-in-law and brother-in-law are living separately and not in the matrimonial house of the are living separately and not in the matrimonial house of the applicant. In June, 2015, the applicant lodged complaint applicant.

In June, 2015, the applicant lodged complaint alleging that her husband and in-laws were harassing her to alleging that her husband and in-laws were harassing her to meet unlawful demands and for non-fulfilment of same meet unlawful demands and for non-fulfilment of same causing physical harassment to her. She would also allege that causing physical harassment to her. She would also allege that respondent nos.1 to 3 misrepresented about academic and respondent nos.1 to 3 misrepresented about academic and financial status of her husband. The said complaint was lodged financial status of her husband. The said complaint was lodged when she was residing at her parents house at Mumbai. In when she was residing at her parents house at Mumbai.

* 3/9 * 14-APPLN-663-2015.doc supplementary statement dated 13.6.2015, she alleged that supplementary statement dated 13.6.2015, she alleged that her husband forged her signature and without her consent her husband forged her signature and without her consent mortgaged her house property with bank and availed loan of mortgaged her house property with bank and availed loan of Rs.20 Lakhs. She further alleged that for repaying said loan, Rs.20 Lakhs. She further alleged that for repaying said loan, he further availed second loan from L & T Bank, Ring Road at he further availed second loan from L & T Bank, Ring Road at Surat in a sum of Rs.36 Lakhs and at that time also forged her Surat in a sum of Rs.36 Lakhs and at that time also forged her signature. She would further allege that she was shown as cosignature.

She would further allege that she was shown as coborrower without her consent and knowledge. In the borrower without her consent and knowledge. In the circumstances, she was forced to sell her flat. In the course of circumstances, she was forced to sell her flat. In the course of these events, he was frequently assaulting her. On this set of these events, he was frequently assaulting her. On this set of facts, she alleged that husband has committed the offence of facts, she alleged that husband has committed the offence of forging valuable security.

forging valuable security.

Apprehending the arrest, husband, mother-in-law, Apprehending the arrest, husband, mother-in-law, brother-in-law and sister-in-law of the applicant preferred an brother-in-law and sister-in-law of the applicant preferred an application for anticipatory bail. The learned Judge refused to application for anticipatory bail. The learned Judge refused to grant anticipatory bail to the husband. Others were afforded grant anticipatory bail to the husband. Others were afforded protection vide order dated 16.9.2015. The learned counsel protection vide order dated 16.9.2015. The learned counsel for the applicant urged that liberty afforded to the respondent for the applicant urged that liberty afforded to the respondent nos.1 to 3 has been misused by them in a sense that on the nos.1 to 3 has been misused by them in a sense that on the very day on which they were released on bail, she had very day on which they were released on bail, she had received threats in the name of her husband from one mobile received threats in the name of her husband from one mobile

* 4/9 * 14-APPLN-663-2015.doc which is stated in the complaint.

which is stated in the complaint.

The learned counsel has brought to my notice The learned counsel has brought to my notice complaint dated 16.9.2015 as well as complaint dated complaint dated 16.9.2015 as well as complaint dated 17.9.2015 filed by the applicant with Navsari Rural Police 17.9.2015 filed by the applicant with Navsari Rural Police Station and Umra Police Station at Surat respectively. Perused Station and Umra Police Station at Surat respectively. Perused both the complaints. In the first complaint, it is alleged that both the complaints. In the first complaint, it is alleged that while she was travelling from Surat to Valsad at Vesma while she was travelling from Surat to Valsad at Vesma National Highway one Maruti van pushed her car which had National Highway one Maruti van pushed her car which had broken the glass of the rear side of the car.

In the said broken the glass of the rear side of the car. In the said complaint, she reported to the police that call was received complaint, she reported to the police that call was received from no.2232237938 in the name of her husband Gaurav and from no.2232237938 in the name of her husband Gaurav and threats were extended to her. Yet in another complaint dated threats were extended to her. Yet in another complaint dated 17.9.2015, she reported to Umra Police Station that she had 17.9.2015, she reported to Umra Police Station that she had received calls from two numbers whereby she was threatened received calls from two numbers whereby she was threatened to withdraw the complaints. On the basis of these two to withdraw the complaints.

On the basis of these two complaints, the learned counsel for the applicant urged that complaints, the learned counsel for the applicant urged that liberty has been misused by the respondent nos. 1 to 3. liberty has been misused by the respondent nos. 1 to 3.

* 5/9 * 14-APPLN-663-2015.doc kidnap her son.

kidnap her son.

It may be stated that Anticipatory Bail Application of It may be stated that Anticipatory Bail Application of Gaurav Malik was rejected by the learned Sessions Judge. This Gaurav Malik was rejected by the learned Sessions Judge. This complaint does not indicate that any of the respondents before complaint does not indicate that any of the respondents before me have misused the liberty granted to them by the learned me have misused the liberty granted to them by the learned Judge while affording the protection.

Judge while affording the protection.

Another contention of the learned counsel for the Another contention of the learned counsel for the applicant is that the learned Judge while granting applicant is that the learned Judge while granting anticipatory bail to the respondent nos.1 to 3 has overlooked anticipatory bail to the respondent nos.1 to 3 has overlooked the allegation of forgery and, therefore, on this count also, the the allegation of forgery and, therefore, on this count also, the order is liable to be recalled and protection afforded to the order is liable to be recalled and protection afforded to the respondent nos.1 to 3 be revoked.

respondent nos.1 to 3 be revoked.

I have perused the FIR. First statement dated I have perused the FIR. First statement dated 1.6.2015 and supplementary statement dated 13.6.2015. 1.6.2015 and supplementary statement dated 13.6.2015. Allegations of forgery are in the supplementary statement Allegations of forgery are in the supplementary statement recorded 10 days after the FIR. Be that as it may, allegations recorded 10 days after the FIR. Be that as it may, allegations in the FIR are mainly against the husband.

in the FIR are mainly against the husband.

After going through the relevant documents and After going through the relevant documents and perusing the two complaints filed by the applicant with Surat perusing the two complaints filed by the applicant with Surat Police Station, in my view, contention of the applicant that the Police Station, in my view, contention of the applicant that the

* 6/9 * 14-APPLN-663-2015.doc respondent nos.1 to 3 have misused the liberty cannot be respondent nos.1 to 3 have misused the liberty cannot be accepted. Both the complaints do not show that alleged threats accepted. Both the complaints do not show that alleged threats were at the instance of respondent nos.1 to 3. The first were at the instance of respondent nos.1 to 3. The first complaint would say that phone call was received in the name complaint would say that phone call was received in the name of husband. Save and except bare words in the complaint, no of husband. Save and except bare words in the complaint, no other material is placed on record to show that respondent other material is placed on record to show that respondent nos.1 to 3 had misused the liberty granted to them. nos.1 to 3 had misused the liberty granted to them.

In so far as non-consideration of the allegations of In so far as non-consideration of the allegations of forgery while granting anticipatory bail is concerned since forgery while granting anticipatory bail is concerned since such allegations are against the husband and that too in such allegations are against the husband and that too in supplementary statement. In fact, there was no occasion for supplementary statement. In fact, there was no occasion for the learned trial Court to deal with the allegations of forgery the learned trial Court to deal with the allegations of forgery vis-a-vis respondent nos.1 to 3 and record the finding. vis-a-vis respondent nos.1 to 3 and record the finding.

The learned counsel for the applicant has relied on The learned counsel for the applicant has relied on the judgment of the Supreme Court in the judgment of the Supreme Court in Mehboob Dawood Mehboob Dawood Shaikh v. State of Maharashtra Shaikh v. State of Maharashtra reported in reported in (2004) 2 (2004) 2 SCC 362 SCC 362. I have gone through the said judgment. In the very . I have gone through the said judgment. In the very judgment, reference has been made to judgment in the case of judgment, reference has been made to judgment in the case of Raghubir Singh v. State of Bihar Raghubir Singh v.

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doc liberty by indulging in similar criminal activity, (ii) interferes liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety etc.

attempts to place himself beyond the reach of his surety etc. These grounds are illustrative and not exhaustive. It must also These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly the liberty of the individual and hence it must not be lightly resorted to.

resorted to.

Yet another judgment relied on is in the case of Yet another judgment relied on is in the case of State of Bihar v. Rajballav Prasad State of Bihar v. Rajballav Prasad reported in 2017(1) reported in 2017(1) Bombay C.R. (Cri) 9 wherein it is held that " Bombay C.R. (Cri) 9 wherein it is held that "it is correct to say it is correct to say that unless it is found that discretion exercised by the Court that unless it is found that discretion exercised by the Court while granting the bail was exercised on extraneous while granting the bail was exercised on extraneous consideration and/or passed by ignoring relevant material, consideration and/or passed by ignoring relevant material, the Court would normally not interfere with any such orders. the Court would normally not interfere with any such orders. Unless there are cogent and overwhelming circumstances, Unless there are cogent and overwhelming circumstances, interference has not called for.

interference has not called for." In " In State of Bihar (Supra), State of Bihar (Supra),

* 8/9 * 14-APPLN-663-2015.doc in in paragraph 14, the Hon'ble Supreme Court observed thus: paragraph 14, the Hon'ble Supreme Court observed thus: "The present case falls in the former category "The present case falls in the former category as the appellant is not seeking cancellation of as the appellant is not seeking cancellation of bail on the ground that the respondent bail on the ground that the respondent misconducted himself after the grant of bail or misconducted himself after the grant of bail or new facts have emerged which warrant new facts have emerged which warrant cancellation of bail. That would be a case where cancellation of bail. That would be a case where conduct or events based grant of bail are to be conduct or events based grant of bail are to be examined and considered. On the other hand, examined and considered.

On the other hand, when order of grant of bail is challenged on the when order of grant of bail is challenged on the ground that grant of bail itself is given contrary ground that grant of bail itself is given contrary to principles of law, while undertaking the to principles of law, while undertaking the judicial review of such an order, it needs to be judicial review of such an order, it needs to be examined as to whether there was arbitrary or examined as to whether there was arbitrary or wrong exercise of jurisdiction by the Court wrong exercise of jurisdiction by the Court granting bail. If that be so, this Court has power granting bail. If that be so, this Court has power to correct the same."

to correct the same."

Keeping in mind law laid down by the Supreme Keeping in mind law laid down by the Supreme Court on a issue of cancellation of bail and upon taking into Court on a issue of cancellation of bail and upon taking into consideration the facts in the case in hand, in my view, consideration the facts in the case in hand, in my view, respondent nos.1 to 3 have neither misused the liberty nor respondent nos.1 to 3 have neither misused the liberty nor indulged in similar criminal activities. They have not indulged in similar criminal activities. They have not interfered with the course of investigation. They have not interfered with the course of investigation. They have not tampered with the prosecution evidence or witnesses. There is tampered with the prosecution evidence or witnesses. There is no likelihood of their being fleeing away to another country. no likelihood of their being fleeing away to another country.

* 9/9 * 14-APPLN-663-2015.doc They also have not indulged in the activities which has They also have not indulged in the activities which has hampered investigation. Not a single incident was brought to hampered investigation. Not a single incident was brought to my notice by the learned APP to hold that respondent nos.1 to my notice by the learned APP to hold that respondent nos.1 to 3 have misused the liberty. That the allegations made in the 3 have misused the liberty. That the allegations made in the two complaints lodged with Surat Police Station donot indicate two complaints lodged with Surat Police Station donot indicate phone calls or such other allegations were at the behest of the phone calls or such other allegations were at the behest of the respondent nos.1 to 3.

respondent nos.1 to 3.

That even otherwise, respondent nos.2 and 3 are That even otherwise, respondent nos.2 and 3 are living separately and not in the matrimonial house of the living separately and not in the matrimonial house of the applicant. Neither FIR nor supplementary statement suggests applicant. Neither FIR nor supplementary statement suggests that respondent nos.1 to 3 were parties to the alleged forgery. that respondent nos.1 to 3 were parties to the alleged forgery. In my view, there is no substance in the application. In my view, there is no substance in the application. Consequently, application is rejected and disposed of Consequently, application is rejected and disposed of accordingly.

accordingly.

(SANDEEP K. SHINDE, J) (SANDEEP K. SHINDE, J)