1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 523 of 2010 Manohar J. Shetty ... Applicant versus The State of Maharashtra ... Respondent ... Mr.Shrikant Bhat i/b Mihir Gheewala for the applicant. Mr.S.V.Kotwal for original complainant. Mr.K.V.Saste APP for the State. CORAM : D.G. KARNIK, J. DATED : 8th February 2010 P.C. 1. Heard. 2. By this application, applicant seeks bail u/s.438 of the Code of Criminal Procedure (for short “the Cr.P.C”) for an offence registered at C.R.No. 3 of 2010 at Shivaji Park Police Station, Bombay. 3. The facts stated briefly are that the applicant is the son of Prafulla Jaya Shetty (hereinafter referred to as “the complainant”) Husband of 2 the complainant was a hotelier and after his death, the family is running four hotels. There are disputes between the complainant and the applicant on the property and in the year 2007, the applicant had assaulted the complainant. However, the complainant did not lodge any police complaint as he was her own son. However, on 2nd January 2010, the applicant abused the complainant and assaulted her. He gave several slaps on both the cheeks of the complainant. Then he also hit the complainant on the head with a mobile phone due to which applicant fell down. The maid servant came to the rescue of the applicant but she was also abused. Thereafter, the applicant left the place by uttering that this time the complainant survived but next time he would kill her. Initially, an offence was registered u/s.323, 324, 504 and 506 (II) of the IPC. The applicant was arrested but was granted bail by the learned Addl. Chief Metropolitan Magistrate. Later, on receipt of medical report regarding the nature of the injuries to be grievous, the offence was converted into one punishable under section 326 of the IPC. Consequently, the prosecution moved the learned Addl. Chief Metropolitan Magistrate for cancellation of the bail. Notice was issued to the applicant and after hearing the applicant, by an order dated 28th March 2010, learned Addl.Chief Metropolitan Magistrate cancelled the bail granted to the applicant. The applicant did not 3 challenge the order of the Magistrate cancelling the bail but moved the Sessions Court for an anticipatory bail u/s.438 of the Cr.P.C. By an order dated 29th January 2010, learned Adhoc Addl. Sessions Judge, Sewree, Mumbai rejected the application. Hence, applicant has approached this court for bail u/s.438 of the Cr.P.C. 4. Mr.Kotwal appearing for the original complainant seeks leave to be heard. Leave granted. Learned APP also addressed the court and opposed the prayer for pre-arrest bail. Learned APP pointed out that several N.C complaints have been lodged against the applicant including 3/2010, 31/2010, 88/2010, 94/2010 and 1109/2010. He further pointed out that applicant has been threatening not only the complainant but also the Investigating Officer. He submitted that on 22nd January 2010 at about 7.10 p.m the applicant telephoned to the Investigating Officer on his mobile phone and threatened him. An entry in the station diary to this effect has been made at Serial No.46 of 2010 on 22nd January 2010. Learned APP as well as Mr.Kotwal submitted that applicant and complainant live in the same flat and the applicant is constantly threatening the complainant. If bail is granted there is every possibility of his repeating the assault. 4 5. When this matter came up for hearing in the morning, I inquired with the applicant’s counsel whether the applicant was willing to give an undertaking whether he would stay away from the flat which is stated to be in joint occupation of the complainant and applicant to obviate the possibility of any further threats and/or assault at the instance of the applicant. At the request of the applicant’s counsel, matter was adjourned to the afternoon session to enable the counsel to take instructions. After instructions, learned counsel stated that the applicant does not wish to give an undertaking. The matter was therefore heard on merits. 6. After hearing the parties, I am inclined to believe the submission of the counsel for the complainant as well as the learned APP that the apprehension that the applicant is likely to threaten, and also repeating the offences is not imaginary. In fact, he had gone to the extent of even threatening the Police Officer who is investigating into the crime. Offence u/s.326 is a serious offence and punishable with imprisonment for life or with imprisonment which may extend to 10 years. Taking into consideration the gravity of the offence and also taking into consideration the fact that it would be extremely difficult to protect the complainant from the threats and possible assault at the hands of 5 applicant if he is allowed to stay in the same house. In my view, applicant cannot be granted bail. Hence, the application is rejected. 7. After this order was pronounced in the open court, learned counsel for the applicant submitted that applicant may be granted one week’s time to surrender and assured the Court during this period the applicant would not enter the flat in which the complainant is living, save and except for collecting back his belongings. He further submitted that he would accompany the investigating police for the purpose of collecting the belongings. Learned APP as as well as the learned counsel for the complainant have no objection for grant of one week’s time. Hence, the applicant is granted one week’s time to surrender subject to a condition that applicant shall not enter the flat in which the complainant (his mother) is living except in the presence of the investigating police officer for the purpose of collecting his belongings. 7. Certified copy is expedited. (D.G. KARNIK,J.)