Amar Sadhuram Mulchandani vs State Of Maharashtra

Sandeep K. Shinde, J

Heard Mr. Kadam the learned counsel for the applicant and Ms. Shinde, the learned Additional Public Prosecutor for the State.

Taking exception to the standard operating practice,. application. was. moved. in. the. Morning sessions with a request to take up the same for

hearing in the second session.

3 Mr. Kadam, the learned counsel for the applicant was asked to serve the State. Accordingly, the State is served. Prayer Clause (a) in the

application reads as under:

a Allow the Applicant - Shri Amar Sadhuram Mulchandani to constructively surrender into magisterial custody on 04.06.2021., in connection with

C.R.NO.241/2019 registered with the Pimpri Police Station, Pimpri for the ofences punishable under Sections 409, 406, 420, 120B r/ w 34 of the

Indian Penal Code, 1860, while undertaking medical treatment at the Ruby Hall Clinic, Pune and thereby declare such a surrender as sufcient

compliance of undertaking at Clause (2) of the operative portion of order passed by this Honourable Court in Interim Application (Stamp) No.8591 of

2021 in Bail Application No.1587 of 2021.

4 Herein the applicant was arraigned as accused in Crime No.241 of 2019 registered with Pimpri Shivgan Police Station, Pimpri for the ofences

punishable under Sections 409, 406, 420, 120B of the Indian Penal Code, 1860. Applicant is also accused in Crime No.243 of 2021. On 26th May,

2021, this court granted temporary bail in Crime No.241 of 2019 for ten days. In terms of clause 2 of the order, applicant is required to surrender on

4th June, 2021 to the Superintendent, Central Jail, Yerwada. Clause 2 of the order reads as under:

(2) The statement on instructions made by Mr. Kadam, the learned counsel apppearing for the applicant along with Mr. S.S.Bedekar, learned

advocate on record that the applicant in any case shall surrender on 4 th June, 2021 to Superintendent Central Jail, Yerwada, and shall not seek any

further extension in the matter on whatsoever count is accepted as an undertaking to this Court.

5 It may be stated that the learned Sessions Judge has also granted temporary bail to the applicant for ten days in Crime No.243 of 2021. 6 Bail was

granted to enable the applicant to perform the last rites of his mother.

It may be stated that on 2nd June, 2021, applicant had moved the Court for extension of temporary bail. It was declined and application was

directed to be listed for hearing on 9th June, 2021. 8 Mr. Kadam, learned counsel for the applicant on instructions would submit that the applicant has

been admitted to Ruby Hall Clinic as he was diagnosed on 3rd June, 2021 for coronary angiography. Letter from Ruby Hall Clinic is placed on record.

The submission is that admission of the applicant in the hospital be held as 'constructive surrender', in the magisterial custody on 4th June, 2021 in

Crime NO.241 of 2019. 9 It may be stated that Clause 2 of the operative order in clear terms injuncts applicant from seeking extension of bail period

in the matter on whatsoever count. In context of this observation, Mr. Kadam the learned counsel for the applicant submits that applicant is not

seeking extention of the order.

Thus, submitted that in the exceptional circumstances, applicant was required to admit in the hospital before expiry of the temporary bail period.

Argued, thus, that this Court may entertain the application and hold that applicant's hospitalisation be construed as 'constructive surrender to the

magisterial custody'. 10 It may be stated that though the applicant has been granted temporary bail, he is under magisterial custody. Thus, power to

extend the custody is to be exercised by the Magistrate though this Court may have power to exercise the remand jurisdiction in exceptional

circumstances as held in the case of Sandip Bafna reported in 2016 SCC 623. As such, prayer of the applicant that his hospitalisation, be construed as

surrender to the magisterial custody cannot be entertained. In my view, in terms of the order dated 25th May, 2021, applicant is bound to surrender to

the magisterial custody on 4th June, 2021 being undertaking to this Court. If so advised, the applicant may adopt the appropriate proceedings in the

Court of competent jurisdiction to seek relief as sought by him before the Court.

11 With this liberty, application is disposed of. 12 It is made clear that this Court has not expressed any opinion on the merits of the matter. 13 All

parties to act on authenticated copy of this order.

14 In consideration of the facts of the case, if application is moved by the applicant, the Court shall decide the same expeditiously on its own merits

without being infuenced by the order of this Court since applicant is facing serious health issues .