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MHCC020002072024
Received on
: 04/01/2024
Registered on
: 04/01/2024
Decided on
: 15/01/2024
Duration
: 11 Days
IN THE SPECIAL COURT FOR PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT, 2012 AT FORT, GREATER BOMBAY.
CRIMINAL BAIL APPLICATION NO.46 OF 2024
Mohommad Kayum Mohommad Rafiq @ Khalifa, aged 35 years
R/o. Room No.35, Dr Jakir Hussain Nagar,
Near Sai Baba Mandir, G. M. Link Road,
Govandi, Mumbai 400 043.
… Applicant/accused
V/s.
The State of Maharashtra,
(Through Deonar Police Station, Mumbai.
C.R.No.575/2023 dated 29/10/2023
..Respondent/Prosecution
Appearance :
Ld. Adv. Mr. Bind Devilal for applicant/accused.
Ld. SPP Ms. Pranjali Joshi for the respondent/prosecution.
CORAM : H.H. THE ADDL. SESSIONS JUDGE
PRIYA P. BANKAR
THE DESIGNATED JUDGE UNDER
PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT, 2012.
COURT ROOM NO.28
DATE :
15TH JANUARY, 2024
ORAL ORDER
1.

The applicant/accused Mohommad Kayum Mohommad Rafiq
@ Khalifa, has preferred this application as per provision of Sec.439 of the
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Code of Criminal Procedure in C.R. No.575/2023 dated 29/10/2023 for the
offences punishable u/s.306, 498-A, 323, 504 & 506 of the Indian Penal Code,
registered with Deonar Police Station, Mumbai.
2.

Prosecution has strongly opposed the application filed by
applicant/accused for grant of bail by filing their reply at Exh.2.

The
complainant has also filed her reply at Exh.3 and opposed the present
application.
3.

Heard Ld. Advocate Mr. Bind Devilal for applicant/accused and
Ld. SPP Ms. Pranjali Joshi for the respondent/prosecution.
4.

The allegations against the accused are that, he is husband of
deceased and their marriage was taken place on 20/08/2020. After one year
of the marriage, accused was quarreling with deceased and deceased had
informed her mother about it on a phone call. Accused was asking deceased
to bring the amount from her mother. After delivery of the first child, she
again returned to her matrimonial house. Then deceased came to know that
the first marriage of the accused taken place and he has taken divorce. Prior to
one year of the incident, there were frequent quarrels between the accused
and the deceased due to demand of amount. Accused did not give money to
the deceased for monthly household expenses. The deceased informed about
it to the informant by making phone calls. Prior to four months of the
incident, accused demanded Rs.30,000/- for Air Conditioner, but maternal
relatives of the deceased could not fulfill that demand. On that reason,
accused was abusing and beating her. On 28/10/2023, the deceased had
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informed her mother that, her husband is abusing her and not giving her food
and she asked her mother to take her back to maternal house. During the said
phone call, informant heard that, accused was abusing deceased. When
informant was talking with accused, he stated that, do whatever you want to
do and had disconnected the phone call. Thereafter, informant has persuaded
to her daughter. After that around 11.30 a.m., the accused called informant
and told that, his wife is no more. On the enquiry, he told that, while he was
out of the house, his wife has strangulated herself by dupatta and
disconnected the phone. Thereafter, informant came to Mumbai, and lodged
report against accused.
5.

According to the applicant/accused, now, the prosecution has
completed the investigation and filed the charge-sheet against the accused.
He has not involved in any offence. He has been falsely implicated in this
case.
6.

Further, according to the applicant/accused to implicate for the
offence punishable u/s.306 of the IPC, two things are required. First is that,
there must be abatement of the Act of the commission of suicide, either by
instigation, conspiracy or by giving an intentional aid and secondly that the
act which amounts to abatement must have some reasonable proximity and
nexus with the actual commission of the suicide. So, according to the Ld.
Advocate for the applicant/accused, the said ingredients have not been
fulfilled and therefore, there is no prima facie case against the
applicant/accused about his involvement in the crime.

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7.

On the other hand, looking to the allegations against the accused
in the FIR, it appears that there was quarrel between the accused and the
deceased. On 28/10/2023 at about 10.18 a.m., deceased had made a phone
call to the complainant. As the complainant did not hear anything, she has
asked her son to make a phone call to the deceased.

Thereafter, at about
10.20 a.m., son of the informant made a phone call on the mobile phone of
the applicant/accused. At that time, deceased had informed to the informant
that accused was abusing her and not giving her food and she has asked her
to take her to the maternal house. So, informant asked deceased to give
mobile phone to the applicant/accused and then she asked him as to whether
she will bring her daughter at her maternal house.

On that,
applicant/accused told her whatever she wants to do she can do and
disconnected the mobile phone call. After the said incident, she again made a
phone call to her daughter and had pursued her for about 13 minutes & 44
seconds. At about 11.30 a.m., the applicant/accused had informed to the
informant about the death of her daughter and on the enquiry, he said that he
doesn’t know anything and when he went outside, the deceased has
committed suicide. Even the informant has confirmed the said fact at about
11.43 a.m. It shows that immediately before the incident, there was quarrel
between the applicant/accused & the deceased. Even the informant was
constantly in touch with them and she knows about the harassment & illtreatment given by the applicant/accused to the deceased. Almost up to
11.00 a.m., informant was in contact with the deceased and thereafter, within
half an hour or hour, accused has made a phone call and informed about the
death of deceased. So, the incident has taken place immediately, after the
quarrels were taken place between deceased & applicant/accused. In that
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case, it cannot be said that there is no prima facie case showing the
involvement of the applicant/accused in the crime. It is further argued by Ld.
SPP that deceased having two years old son. In that case, deceased will not
take any such action unless there are unbearable torture, ill-treatment &
harassment.
8.

As it appears that, deceased was residing alongwith the
applicant/accused alongwith her child. Immediately before the incident, there
was quarrel between them and incident of suicide was also taken place. So,
the said allegations show the nexus and therefore, the arguments on behalf of
applicant/accused cannot be accepted.
9.

Further according to the accused, the prosecution has completed
the investigation and his presence in the custody is not required. Further
according to him, the considerable time will be required to dispose of the case
and therefore, he is entitled to be released on bail. On the other hand,
according to the prosecution, the offence is of serious in nature and there is
sufficient evidence against the accused, showing his involvement in the crime.
Further according to the prosecution, though the prosecution has filed chargesheet, it is not a change of circumstances and therefore, this second
application for grant of bail is not tenable.
10.

Looking to the facts & circumstances, nature of allegations &
prima facie involvement of the applicant/accused in the crime and also, there
is no possibility about the applicant/accused to remain present for the trial, I
do not find it is a fit case to release the applicant/accused on bail. With this, I
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proceed to pass the following order :ORDER
1.

Criminal Bail Application No.46/2024 in connection with C.R.
No.575/2023, registered with Deonar Police Station, Mumbai, is
hereby rejected.

2.

Application is disposed off accordingly.
(Dictated and pronounced in open Court).

Date: 15/01/2024
Mumbai
Dictated on
Transcribed on
Draft given on
Received correction on
Corrected on
Signed on
( PRIYA P. BANKAR )
Designated Judge under
Protection of Children from
Sexual Offences Act, 2012,
for Gr.Bombay
:15/01/2024
:17/01/2024
:18/01/2024
:19/01/2024
:20/01/2024
:
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED ORDER.”
20/01/2024 at about 05.00 p.m.

Name of the Judge
(With Court Room No.)

Date of Pronouncement of ORDER
(Vidya Abhijit Mande)
Stenographer (Grade-I)
Court Room No.28, Gr. Mumbai
SMT PRIYA P. BANKAR,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.28, Gr. Mumbai
15/01/2024
ORDER signed by Presiding Officer on 20/01/2024
ORDER uploaded on
20/01/2024 at about 05.00 p.m.