Allowed

Muttuswami Ambala Kounder @ Naidu v. the State of Maharashtra

Bombay HC16 Jun 2014BA/663/2014

Case brief

AI extract

What is this about?

The High Court allowed the bail application to enlarge an accused arrested under sections 354 and 342 IPC. The court noted a significant delay in crime registration due to alleged victim trauma and questioned the basis of adding section 376 IPC based on a statement recorded after the bail cancellation application. The court imposed stringent conditions, noting the applicant had been in jail since

What did the court decide?

The applicant was enlarged on bail on furnishing a PR bond of Rs. 20,000 with sureties and undertaking not to contact the victim or her brother.

Muttuswami Ambala Kounder @ Naidu Vs the State of… — Medical Negligence | Bombay HC (2014)

¶1

BA-663-14.sxw

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL BAIL APPLICATION NO. 663 OF 2014

¶4

Muttuswami Ambala Kounder @ Naidu	Applicant
vs.	(Orig. Accused)
The State of Maharashtra ...	Respondent
	(Orig. complainant.

¶5

Mr. Ayaz R. Khan, with Zehra Charania,Advocate for the applicant. Mr. S.S.Pednekar, APP, for the respondent-State.

¶6

CORAM: SMT.SADHANA S.JADHAV,J. DATE : 16^th June , 2014.

¶7

P.C .

¶8

Heard. This is an application under Section 439 of Code of Criminal Procedure, 1973.

¶9

2. On 11.5.2013, Police Constable Nilofer Inamdar lodged a report at L.T.

¶10

Marg Police Station on behalf of State alleging therein that on 8.5.2013 at about 7 p.m. she received an intimation from the G.T. Hospital that the victim was injured in her residential house and that she has been brought to G.T.Hospital. On 8.5.2013, the neighbour of the victim had taken her to the hospital with the help of a social worker. The informant had been to the hospital to record statement of

¶11

the victim at the hospital. They learnt that she was referred to Cama & Albless

¶12

Mhi 2 BA-663-14.sxw

¶13

Hospital. The informant had been to Cama Hospital. The victim was undergoing treatment. The Medical Officer had informed the informant that the victim is in a state of trauma and, therefore, her statement cannot be recorded. The first informant has further alleged that she had made an attempt to record the statement of the victim. However, the victim had not disclosed anything about the injuries sustained by her. Thereafter, the informant had approached Riya Mayekar, who happens to be a member of the NGO viz. Pratham Mumbai Shikshan Upakarm. The victim was referred for medical examination on the same day. The doctor had recorded the history of “assault by unknown person on 7.5.2013 time not known”. The victim was having multiple injuries over the body and nasal bleeding was present. On the basis of the said statement, Crime No.158/2013 was registered at the police station against two unknown persons for offences punishable under Sections 451, 354, 323 read with Section 34 of IPC.

¶14

3. On 12.5.2013, statement of the brother of the victim was recorded in which he had stated that he had seen that the present applicant, who happens to be the maternal uncle of the victim had kept her in detention and on 7.5.2013, he had been to the house of the victim. The brother had informed that on 7.5.2013, he had been to the house of the applicant to attend the wedding of the daughter of the present applicant. While he was going, he had seen the present applicant opening the room where the victim was lodged. He switched on the light. After some

¶15

Mhi 3 BA-663-14.sxw

¶16

time her brother had been to the said room and he found that she was lying in a corner of a room in an injured condition. He called upon the present applicant and a neighbour lady i.e. Kalpana who gave bath to the victim. It is alleged that thereafter the applicant had again locked the room. He had also seen the present applicant visiting the room of the victim. On 8.5.2013, he had seen that the people were taking her to G.T.Hospital. On the basis of the statement of the brother of the victim, the present applicant was arrested on 12.5.2013. The offences alleged against the accused were under Sections 354 and 342 of IPC and hence the applicant was enlarged on bail on 17.5.2013. The vaginal swab was sent to the Forensic Department. The medical report was received by the Medical Officer along with the doctor's opinion on 9.10.2013.

¶17

4. Thereafter, the Investigating Officer filed an application before the Addl. Chief Metropolitan Magistrate, 47^th Court, Esplanade, Mumbai on 19.11.2013 requesting the Magistrate to cancel the bail as the offence under Section 376 of IPC was added. The statement of the victim recorded under Section 164 of Cr.P.C. The concerned Court passed an order “Investigating Officer is at liberty to take necessary steps according to law. It is pertinent to note that no notice was issued to the present applicant although it amounted to cancellation of bail under Section 439(2) of Cr.P.C.

¶18

5. The statement of the victim was recorded under Section 164 of Cr.P.C. on

¶19

Mhi 4 BA-663-14.sxw

¶20

16.12.2013. However, the application seeking cancellation of bail was filed on 19.11.2013 and at that time statement was not yet recorded.

¶21

It is pertinent to note that the respondent-State filed an affidavit in reply opposing grant of relief in favour of the present applicant upon instructions from the P.I. of L.T. Mag Police Station, Mumbai. It is specifically stated in the affidavit that an application seeking re-arrest was filed because Section 376 of IPC came to be added after recording statement of the victim girl under Section 164 of Cr.P.C. through the Magistrate and she disclosed the name of the applicant. The said averment is against the records. On the date of filing of application statement u/s 164 was not recorded.

¶22

Perused the statement of the victim which is recorded under Section 164 of Cr.P.C. as well as the statement dated 30.1.2014 recorded by the P.I. of L.T. Marg Police Station. In the statement recorded by the P.I., she had stated that she was assaulted by two persons. She had given the name of the present applicant. In reference to the other unknown person, she had referred to him as a `dacoit'. It was specifically stated that she was only assaulted. In her statement under Section 164 of Cr.P.C. a detailed statement was recorded wherein she had stated that she was assaulted and thereafter she had touched her private parts and stated that the persons had acted perversely. She has again referred to the other person

¶23

Mhi 5 BA-663-14.sxw

¶24

as a `dacoit'. She had stated that they had quarreled with her. However, the overt act has been attributed to the present applicant.

¶25

Perused the medical case papers. In the said report, it is specifically stated that there was no injury/bleeding from vulva. The hymen was intact. Perineum was also intact and there was no evidence of any injury to her private parts. Vaginal swabs was taken. Swab was sent for DNA examination and it is negative.

¶26

Besides the merits of the case, it is to be noted that the order under Sec. 439(2) of Cr.P.C. was passed by the Magistrate without issuing notice to the present applicant i.e. the accused. It is true that Section 439 (2) of Cr.P.C. does not mandate issuance of notice to the accused. However, in the present case, the Court was misled by the prosecuting agency. In the interest of justice, the Court ought to have issued notice to the present applicant since the first information report was filed under Section 354 of IPC and the bail was being sought to be cancelled on the ground that Sec. 376 of IPC is added. It is further pertinent to note that the victim was referred to the hospital on 8.5.2013. The first informant had approached the doctor. She had also attempted to record the statement of the victim. Inspite of this, the offence was registered after three days i.e. 11.5.2013. There is no plausible explanation for the delay in registration of the offence.

¶27

BA-663-14.sxw

¶28

Moreover, the applicant was arrested only after the statement of the brother of the victim was recorded.

¶29

The learned APP on instructions, submits that the victim is in Observation Home. It is reported that the victim suffers from low syndrome and merely keeping her in the observation home would not suffice the cause. The State shall make all provisions to give her medical treatment and if necessary to refer her to a psychiatrist for a psycho analysis as need be.

¶30

For the reasons mentioned above, the applicant, who is in jail since 20.1.2013, is entitled to be enlarged on bail on imposing certain stringent conditions.

¶31

O R D E R

¶32

(i) The application is allowed. The applicant be enlarged on bail on furnishing P.R. Bond in the sum of Rs.20,000/- with one or two sureties in the like amount.

¶33

(ii) The applicant shall not contact the victim or her brother in any way till the conclusion of the trial.

¶34

The application is allowed and disposed of in the above terms.

¶35

(SMT.SADHANA S.JADHAV, J.)

Muttuswami Ambala Kounder @ Naidu v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Muttuswami Ambala Kounder @ Naidu v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dattatraya Vyankappa Bhimnath and Ors. Vs the State of Maharashtra and Anr.

Shaikh Ismail Haji Usman and Anr. Vs the State of Maharashtra

Dattatraya Vyankappa Bhimnath and Ors. Vs the State of Maharashtra and Anr.

Sanjay Anandrao Jadhav Vs Sujata Sanjay Jadhav and Ors.

Philips Palraj Nadar Vs the State of Maharashtra

Kailas Datta Chaudhari Vs State of Maharashtra