Bombay High Court
Amol @ Avikumar Dhondiram Dhule vs The State Of Maharashtra And Anr on 4 October, 2021
Bench: Prasanna B. Varale, N. R. Borkar
J-crwp-2071-21.doc
Digitally IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
DINESH
DINESH
SADANAND CRIMINAL APPELLATE JURISDICTION
SADANAND SHERLA
SHERLA Date:
2021.10.04
CRIMINAL WRIT PETITION NO. 2071 OF 2021
14:41:17
+0500
Amol @ Avikumar Dhondiram Dhule ..Petitioner
vs.
The State of Maharashtra & Ors. ..Respondents
Mr. Vinod Gangwal a/w. Mr. Sunny Waskar and Himalee Divekar for the
Petitioner.
Mr. Arfan Sait, APP for the Respondent Nos.1 and 2- State.
Mr. Vikram Sutaria for Respondent No.3- Intervener.
Mr. Vijay C. Chavre , EOW Mumbai present.
Mr. Bharat B. Kalare, Taloja Central Jail present.
CORAM : PRASANNA B. VARALE &
N.R.BORKAR, JJ.
RESERVED ON : 13.08.2021.
PRONOUNCED ON : 04.10.2021.
JUDGMENT : (PER : N.R.BORKAR, J)
1] The petitioner, who is an accused in Crime No. 176 of 2018
registered at Cuffe Parade Police Station for the offences punishable
under sections 465, 466,468,471 and 420 of the Indian Penal Code
(IPC), has filed the present petition with following prayer:
"a. That this Hon'ble Court be pleased to issue writ, order or
direction in the nature of habeas corpus commanding the opposite
parties to produce petitioner before this Hon'ble Court and after
examining legality, validity and propriety of the continued
unauthorised detention produce the petitioner forthwith and
thereafter release the petitioner on such terms and conditions, as
this Hon'ble Court may deem fit and proper".
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2] The aforesaid crime came to be registered on the the basis of
report lodged by one Shri. Gautam P. Bhudrani. The said Gautam
Bhudrani has alleged that he had purchased land bearing Survey No.
436/1/A and 427/1 at village Wahal, Tal. Panvel, Dist. Raigad. He
wanted certain clearances/permissions from the government
departments in relation to the said lands. The petitioner/accused who
was introduced to him by his Architect friend represented to him that he
has many contacts with the concerned persons in the Office of
Collector at Raigad so also with the Deputy Conservator of Forests,
Alibag and assured him that he will be in a position to get the
necessary and relevant permissions pertaining the above said land.
Relying on the representation made by the petitioner/accused, he paid
him an advance of Rs.3,53,10,000/-. The petitioner/accused gave
certain orders passed by the Additional Collector, Raigad to him. After
verifying the documents, he found that documents given by the
petitioner/accused were forged. When he made enquiry in the vicinity,
he found that the petitioner/accused has cheated many persons by
adopting same modus operandi.
3] The grievance of the petitioner/accused is that on 39 occasions,
the learned Magistrate extended his judicial custody in a casual manner
even though on the said 39 occasions he was not produced before the
learned Magistrate either physically or through video conferencing. It is
submitted that the detention of the petitioner/accused is thus illegal
and the respondents be directed to release the petitioner/accused
forthwith. It is submitted that in such circumstances, the petition for
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habeas corpus is maintainable. In support of submissions, reliance is is
placed on the judgment reported in 2012 BomCR (Cri.) 402 in the case
of Sonu Madanlal Yogi vs. State of Maharashtra and ors..
4] It is further submitted that the report (charge-sheet) submitted by
the respondents dated 16.11.2019 is not final report within the meaning
of Section 173 (2) read with section 2 (r) of the Cr.P.C. It is submitted
that even till today, the final report is not filed. It is submitted that the
learned Magistrate has not taken cognizance on the basis of said
incomplete charge-sheet and therefore, the detention of the
petitioner/accused beyond 90 days as provided under section 167(2) of
the Cr.P.C. is illegal. It is thus, submitted the petitioner/accused needs
to be released forthwith.
5] On the other hand, the learned APP on behalf of the respondent
- State has submitted after conducting the necessary investigation,
charge-sheet has been filed against the petitioner/accused on
16.11.2019 in the court of learned Additional Chief Metropolitan
Magistrate, 47th Court, Esplanade, Mumbai. It is further submitted that
as there were some more points to be investigated, permission of
learned Magistrate was sought to conduct further investigation in terms
of section 173(8) of Cr.P.C.
6] It is submitted that after arrest of the petitioner/accused
necessary applications were moved for extension of the custody before
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the learned Magistrate and the custody of the petitioner/accused was
extended by the learned Magistrate till filing of the charge-sheet. It is
further submitted that in addition to above crime, there are 10 more
similar crimes in which the petitioner/accused is involved. It is
submitted that the present petition is thus nothing but an abuse of
process of court and same may be dismissed.
7] According to the petitioner/accused, the learned Magistrate on
39 occasions extended his custody, though he was not produced before
the learned Magistrate either physically or through V.C. It is not the
grievance of the petitioner/accused that there is no order extending his
custody. If according to the petitioner/accused, his custody was
extended in violation of provision of law, then he ought to have
challenged that order. The petitioner/accused has however, not
challenged the said orders. The custody/detention of the petitioner,
therefore, cannot be said to be illegal.
8] According to the petitioner/accused, the report (charge-sheet)
filed by the respondents/State is not final report within the meaning of
section 173(2) of the Cr.P.C. and thus his detention beyond 90 days as
provided under section 167(2) of Cr.P.C. is illegal. It appears that the
petitioner/accused has filed default bail application before the learned
Metropolitan Magistrate and the learned Magistrate rejected the said
default bail application by order dated 6.5.2021. Admittedly, the
petitioner/accused has not challenged the said order and it appears
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that the petitioner/accused has filed the present petition only after his
various bail applications came to be rejected either by this Court or
Sessions Court.
9] It appears that the petitioner/accused is in habit of abusing the
court process. The learned Single Judge of this Court, while dealing
with Criminal Bail Application No. 1578 of 2020 of the present
petitioner/accused, has observed :
"1. The Applicant had earlier approached this Court for his
release on bail vide Criminal Bail Application (Stamp)
No.1614/2020. This Court had passed the following order on
11.9.2020:
"1. After arguing for some time when I expressed my
disinclination to grant relief, learned counsel for the
Applicant prays for withdrawal of the application with
liberty to approach this Court again for the same relief
after a reasonable time.
2. Considering his request, his application is allowed to
be withdrawn. The Applicant is permitted to approach this
Court again for relief of bail in case his trial does not begin
before 31/05/2021.
3. In case of changed circumstances the Applicant is at
liberty to approach this Court even before that day. In the
aforesaid terms the application is disposed of.
4. Interim application does not survive and is disposed
of."
2. It was clearly mentioned in that order that the Applicant
was permitted to approach this Court again for the relief of bail in
case his trial does not begin before 31.5.2021. Instead of waiting
for that period to get over, the Applicant directly approached the
Court of Additional Chief Metropolitan Magistrate, 47 th Court,
Esplanade, Mumbai for his release on bail.
3. Learned Counsel for the intervenor submitted that the
Applicant has suppressed this order from the Court of
Metropolitan Magistrate.
4. I have perused the order passed by the learned Magistrate
in Bail Application No.210/BA/2020 dated 5.12.2020. In that
application, there is no reference that the Applicant had pointed
out the order passed by this Court to the learned Judge. Instead,
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the matter was again fully argued on merits. This is nothing but
suppression of material facts from the Court. It is another matter
that the learned Magistrate has also rejected the matter on
merits.
5. Even today, when learned Counsel for the Applicant
started arguing the matter he submitted that he has preferred this
application on medical grounds. In the entire memo from grounds
(A) to (L), there is not a single ground regarding his medical
condition. All the grounds are taken in respect of merits of the
case.
6. This is nothing but abuse of process of law and,
therefore, I am not inclined to entertain this application. The
Application is dismissed. The practice adopted by the Applicant is
strongly deprecated. However, on humanitarian grounds, the
Applicant is granted liberty to prefer appropriate proceedings in
case of medical emergency. The jail authorities shall provide all
the necessary medical facilities to the Applicant.
10] Considering the above facts and circumstances, we are not
inclined to entertain the present petition. In the result, the following
order is passed :
ORDER
Writ Petition is dismissed.
[N.R.BORKAR, J] [PRASANNA B. VARALE, J.]
Dinesh Sherla
