NIRMALABEN BUPATRAI BHALERIA Vs. DHARMESH PRAVINCHANDRA MEHTA

JUDGEMENT

(1.) THIS is an application for cancellation of bail. The Applicant Smt.Nirmalaben is the mother of one Deepti Mehta who was married to Respondent No.1 Dharmesh Mehta. The deceased Deepti was married to Respondent No.1 sometime in the year 1993 and on 23.11.1996 she sustained burn injuries. There were 43 percent burns. The incident in question took place at about 11.30 a.m. she was in her husband's house i.e. the matrimonial home. She succumbed to the Hospital. Initially she was admitted to Masina Hospital at Byculla and later on shifted to Bhagwati Hospital. The F.I.R. in this case was lodged by the present Applicant who is the mother of the deceased and the same was lodged at Nallasopara Police Station on 25.1.1997 and the offence was registered on the basis of the said report. It appears that according to the Applicant, she had approached the Nallasopara Police Station on 5.12.1996 but she was turned down then she again written a complaint on 6.12.1996, but no cognizance of the same was taken. Respondent No.1 came to be arrested on 27.1.1997 in C.R.No. I-23/97 for offence punishable under section 498-A and 304-B of the I.P.C. Respondent No.1 filed an application for bail to the Sessions Court at Palghar, and the learned Addl. Sessions Judge released Respondent No.1 on bail by order dated 19.2.1997.

(2.) THE present application seeks an order for cancellation of this bail granted to Respondent No.1 by the learned Addl. Sessions Judge, Palghar. At the very commencement of the argument of the learned Counsel for the Applicant, I enquired with the learned Counsel as to whether any incident had taken place after the passing of the bail order which calls for cancellation of bail and the learned Counsel for the Applicant was fair enough to concede that no such incident is reported to have been taken place after the bail order was passed by the learned Sessions Judge and as such this cannot be treated to be an application for cancellation of bail. At the most this is an application challenging the order of bail on the basis that at the very inception the order is bad-in-law and would not stand scrutiny of this Court. In order to make it such a case, the Applicant has to show that the order is wrong, capricious or malicious and is passed without taking into consideration the material placed on record by the learned Judge. Unfortunately for the Applicant no such case could be made out in the present Application. I have heard at length Shri Naik, Advocate for Applicant and the learned A.P.P. for State and Shri Marwadi, Advocate for Respondent No.1.

(3.) THE learned Addl. Sessions Judge has also given liberty to the Applicant of being heard and has considered her argument before passing of the order. In his order the learned Addl. Sessions Judge has dealt with the arguments advanced on behalf of the Applicant at length and has pointed out that even in the Police report given on 25.1.1997 by the present Applicant, it was not directly or indirectly or even remotely suggested that she died because kerosene was poured on her person and Respondent No.1 set on fire. Her report raises certain doubt regarding the manner of death and it was her contention that the death was suicidal one. There were also allegation of cruel treatment meted out to her daughter and certain demands having been made by her husband and in-laws. The learned Judge has pointed out that the report of the present Applicant in contrary to the submission made before him by the learned Advocate appearing for the Applicant and it was tried to be contended by the learned Advocate that it was a case of homicidal death, when the Applicant's report of 25.1.1997 suggested that it was a case of suicidal death. Thus the first dying declaration of the deceased recorded in the presence of the Medical Officer was to the effect that it was a case of accidental death and report of the Applicant dated 25.1.1997 i.e. long after more than 1 1/2 months of the death of the deceased was to the effect that it was a case of suicide. The learned Judge has also taken into consideration the report given by one private detective to the Applicant, although in my opinion it was not necessary for the learned Judge to consider the same. Still in the interest of justice, the learned Judge found it proper to take it into consideration.