Law Web: Whether accused can surrender and seek bail before high court if they had previously surrendered before the magistrate?

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. {Para 24}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL BAIL APPLICATION NO. 718 OF 2021

Kausalya Dnyanoba Dhemdhere Vs The State of Maharashtra

CORAM : PRAKASH D. NAIK, J.

DATE : 01st APRIL, 2021

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 11th

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-

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, sisterin- 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

this Court. The said application was rejected by Order dated 23rd

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 23rd August 2020, she expressed

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 sisterin-

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-inlaw

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 5th

January 2021, the Hon’ble Supreme Court had rejected the Special

8 BA 718-2021 aw IA 1012-2021.odt

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

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

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 18th

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

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

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 21st 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 12th 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 1st February 2021,

rejected the Bail Application No.422 of 2021 preferred by the

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

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

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

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 12th 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

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 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 23rd 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

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

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 16th 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

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 1st 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

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

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