2002 ALL MR (Cri) 776
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.K. BATTA, J.

Kamlabai W/O Surendra Jaiswal @ Zende Vs. The State Of Maharashtra Through P.S.O.

Criminal Application No. 1493 of 2001

6th September, 2001

Petitioner Counsel: Mr. SUDEEP JAISWAL
Respondent Counsel: Mr. K.S.DHOTE

Criminal P.C. (1973), S.438 - Grant of anticipatory bail - Application for - Applicant apprehending arrest for the offence under, S.302 r/w.S.34 of I.P.C. - No material on record to connect the applicant with the crime in question - No reason to deny anticipatory bail to the applicant - However, if the prosecution is able to collect evidence showing complicity of the applicant in the offence, prosecution can file an application for cancellation of bail.

Penal Code (1860), Ss.302 r/w. 34. (Para 4)

JUDGMENT

JUDGMENT :- The applicant, apprehending arrest for the offence under Section 302 read with Section 34 of the Indian Penal Code, along with her son, sought anticipatory bail which was rejected by the learned Additional Sessions Judge, Wardha vide order dated 19.10.2001. The applicant has, therefore, approached this Court for grant of anticipatory bail.

2. Learned Advocate for the applicant urged before me that there is no material on record to connect the applicant with the crime in question though, in the F.I.R. it is stated by the complainant - mother of the deceased that at the instance of the applicant, her husband had left her since there was suspicion relating to the child in question. He further pointed out that in the mean while there were divorce proceedings between the parties, the mother of the deceased had also filed maintenance proceedings. In the divorce proceedings there was settlement and about 20 days prior to the incident in question, mother of the deceased started living with the son of the applicant in rented house. According to the learned Advocate for the applicant, the case of the mother of the deceased is that when she enquired about the child, the applicant rudely told her whether she had hidden the child in her saree. Learned Advocate for the applicant further urged before me that the mother of the deceased had given in writing that the child in question was not from her husband Vijay, but from another person by name Jagdish Sitaram Jaiswal whom she wanted to marry, but her parents had forcibly married her with the son of the applicant. Therefore, he contends that there is no evidence to connect the applicant with crime and the applicant be enlarged on anticipatory bail.

3. Learned APP, on the other hand, urged before me that in view of the allegations in the First Information Report, anticipatory bail application be rejected. He has further stated that according to the prosecution case, Vijay - father of the deceased had taken the deceased after informing the complainant/mother of the deceased that he was taking the child to his mother's place and that he went there. According to learned APP, the Investigating Officer has still not varified about the authenticity of the document at page 23 of the record, copy of which was furnished by learned Advocate for the applicant. According to learned APP, the material on record is sufficient to show involvement of the applicant in the whole affair and the bail application be rejected.

4. In the First Information Report it is stated that Vijay, father of the deceased had told the complainant/mother of the deceased (his wife) that he was taking the child to his mother's place and according to the complainant, he had gone there. Till now, no investigation appears to have been made to find out as to whether said Vijay had actually taken the deceased to the house of his mother after which deceased was found dead in the well. This investigation was absolutely essential in order to confirm the accusing finger towards the present applicant. According to learned Advocate for the applicant, the said applicant is staying at a distance of about 100 feet from the tenanted premises where the co-accused Vijay and the complainant reside. In the absence of any material investigation on the aspect, as to whether actually the deceased was taken by Vijay to his mother's place and it is only thereafter that the child was found in the well, I am of the opinion that at this stage there is no reason to deny anticipatory bail to the applicant. In case the prosecution is able to collect evidence showing complicity of the applicant in the offence, the prosecution shall be at liberty to file an application for cancellation of bail.

5. For the aforesaid reasons, I order that in case of arrest, the applicant shall be released on bail upon execution of personal bond of Rs.10,000/- with one surety in the like amount to the satisfaction of the Investigating Officer, on the following conditions :-

(i) The applicant shall appear before the Investigating Officer on five different occasions which may be consecutive or spread over during the next fifteen days between 10.00 am and 01.00 pm and the applicant is entitled to take along with her a male person in case she so desires.

(ii) That, the applicant shall not, directly or indirectly, make any inducement, threat or promise to any persons acquainted with the facts of the accusation against them so as to dissuade them from disclosing such facts to the Court or to any Police Officer.

(iii) The applicant shall not leave the State of Maharashtra without obtaining prior permission of the Sessions Court having jurisdiction and in case the said applicant has to go from her residence to other parts of Maharashtra, she shall leave an advance information about it, as to the place and duration where she would be staying, with the Sessions Court having jurisdiction and also the Investigating Officer.

(iv) The anticipatory bail is granted for a period of fifteen days and the applicant shall apply for regular bail before the competent Court at the earliest, but not later than seven days from today. In case such application is filed, the Court shall decide the same within seven days of receipt of the said bail application. In case no bail application is filed within a period of seven days, the order of anticipatory bail shall stand vacated without reference to this Court. In case any such bail application is filed, the anticipatory bail order shall cease to have effect when the bail application is decided as per instructions above or 15 days from today, whichever is earlier.

It is made clear that the Trial Court shall not be in any manner influenced by any of the observations made in this order and shall come to its independent conclusion while dealing with the matter.

Application stands disposed of in the aforesaid terms. Hamdast allowed.

Application allowed.