AVINASH SINGH BIJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The submissions of the learned counsel appearing for the applicant and learned APP appearing for the respondent-State were heard yesterday. The challenge in this Criminal Application filed under section 482 of the code of Criminal Procedure, 1973 is to the order dated 8th June 2009 passed by the Sessions Court. By the impugned order, the anticipatory bail granted in favour of the applicant under order dated 11th June 2008 has been cancelled and the applicant has been ordered to surrender before the 2nd respondent.

(2.) It will be necessary to refer to the facts of the case in brief: one Manpreet Nanaksingh Biji filed a complaint alleging commission of offences under sections 109,342, 343, 344,345,346,363,364a, 365,368,120b read with section 34 of IPC against the applicant and others. On the said complaint, the learned Magistrate passed an order under section 156 (3) of the Criminal Procedure Code, 1973 (hereinafter referred to as the said Code ). In the said complaint, the applicant was arraigned as accused no. 3. The case made out in the said complaint was that marriage between the complaint and the 1st accused Nanaksingh was solemnised on 19th February 2006 and a male child was born to them on 9th January 2007. It appears that subsequently a matrimonial dispute arose between the complainant and the 1st accused. The case of the complainant is that on 17th January 2008 the 1st accused assaulted her and threw her down the stairs as a result the complainant became unconscious and she was admitted to a hospital on the next day. The case made out by the complainant is that while she was hospitalised when her mother and maternal aunt visited her matrimonial home the applicant/accused no. 3 was alone in the house. The minor child was also in the house. The mother and the maternal aunt of the complainant found that the child was looking hungry and was crying loudly. When an attempt was made by the mother and the maternal aunt to comfort the child, the applicant (accused no. 3) forcibly snatched away the child from them and drove away in a car. The complainant registered an FIR with the concerned police station on 18th January 2008 alleging commission of offences under sections 498a, 324, 504, 506 read with section 34 IPC. According to the case of the complainant the child was wrongfully confined by accused nos. 1 to 3. Therefore, the complainant moved the Court of the learned Magistrate under section 97 of the Code. In the said proceedings the accused no. 1 did not remain present and the accused nos. 2 and 3 appeared and contended that the minor child was in the custody of the accused no. 1. Ultimately, the learned Magistrate issued a search warrant. The concerned Officer of the police station filed a report stating that the accused no. 1 and the minor were not found at the given address and accused nos. 2 and 3 though present refused to give any information regarding the whereabouts of the minor or the accused no. 1. A reference has been made in the complaint to the proceedings filed in the District Court under the guardians and Wards Act. It is contended in the said proceedings that an order was passed by the learned additional District Judge granting interim custody of the child to the complainant. Though the order was served to the accused nos. 1 to 3, the same was not complied with. An application was made by the accused nos. 1 to 3 before the District Court for setting aside the interim order of custody and the said application was rejected. The allegation in the complaint filed by the complainant is that though accused nos. 2 and 3 were aware of the whereabouts of the child they were acting hand-in-glove with accused nos. 1 and 2 they were using the child as a shield to protect them from being prosecuted on the complaint lodged by the complainant.

(3.) In the meanwhile, the complainant approached this court by filing a Writ Petition No. 877 of 2008 seeking a writ of habeas corpus directing the State and the accused to produce her minor son during the pendency of the said petition. On 16th January, 2009 an application being criminal Misc. Application No. 506 of 2009 was filed by the state for cancellation of anticipatory bail granted in favour of the applicant.