1 18311

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

vgm

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 183 OF 2011

Bertram D'Silva,

Age 52 years, Occupation Service,

pesently residing at C/o. Russel Dias,

Avlin, 10, Ranwar, Veronica Street,

Bandra (W), Mumbai 400 050 ...Petitioner V/s.

1. The State of Maharashtra

2. Commissioner of Police, Mumbai

3. The Sr. Inspector of Police,

Bandra Police Station, Mumbai

4. Suman, Age 65 years

5. Faruk, Age 45 years

6. Simi, Age 40 years

4, 5, 6 residing at Harbour, 4 Mount Carmel Road, Bandra (W), Mumbai 400 050

7. Samir,

Adult, Occupation not known,

residing at Preeti Co-operative Housing Society, Bandra Reclamation Area,

Near Leelawati Hospital, Bandra (W),

Mumbai 400 050 ...Respondents Mr. Robert Sequiera i/by Ms. Sarojini Upadhyay for the Petitioner Ms. M.H. Mhatre, A.P.P., for Respondent Nos. 1 to 3 Mr. Nishant Gupta i/by M/s. V.R. Gupta & Associates for Respondent Nos. 4 to 7

2 18311

CORAM:- A.M. KHANWILKAR AND

R.G. KETKAR, JJ.

DATE OF RESERVING:- JANUARY 13, 2012

DATE OF PRONOUNCING:- JANUARY 27, 2012

JUDGMENT (PER A.M. KHANWILKAR, J.):-

This petition under Article 226 of the Constitution of India was filed on 19th January, 2011, praying for direction against the State Authorities to appoint and authorise Crime Branch, C.I.D., Mumbai, to carry out the investigation in respect of offences disclosed in the petition and more particularly in Exhibit 'B' to the petition falling under Sections 201, 202, 302, 338, 341, 342, 344, 345, 346, 347, 356, 362, 365, 366, 367, 380, 383, 385 and 387 red with 341, 114 and 120-B of the Indian Penal Code. It is further prayed that, in connection with the said offences, respondent Nos. 4 to 7 be arrested and detained in the course of investigation of the crime disclosed in the complaints dated 15th and 29th December, 2010 (Exhibits 'A' to 'D' to the petition). The petitioner has further prayed for direction against the above-named investigating agency to submit a full and comprehensive report in respect of the investigation made by them within specified time. 3 18311

The petitioner has further prayed that, in the event Irvin D'Silva (hereinafter referred to as "Irvin", for short) (his brother) has died, to ascertain the cause of death and the investigating agency be directed to exhume his dead body and conduct post mortem examination to evoke opinion of Surgeon General and/or competent medical professional.

2. The petitioner had also prayed for direction against all the respondents to produce and keep present Irvin in Court and further prohibit respondent Nos. 4 to 7 from meeting and/or approaching Irvin, except with the permission of the Court. As regards this relief, by an amendment dated 17th February, 2011, the same has been deleted. 3(a) The background, in which the petitioner has approached this Court, can be culled out from the averments in the writ petition. The sum and substance of the assertion in the petition is that the petitioner was the brother of Irvin. Irvin was residing in Mumbai, whereas the petitioner, due to his employment, is residing in the State of Jharkhand. The petitioner has filed this petition, as very serious offences and/or imminent attempt to murder Irvin can be discerned from the facts and circumstances stated in the petition. For, the petitioner visited Mumbai on 11th December, 2010, since he was told 4 18311

that Irvin was ill, suffering from kidney problems, in respect of which, he was being treated at Holy Family Hospital, Hill Road, Bandra (West), Mumbai 400 050. Irvin, since his childhood, was residing in a building known as "Harbour", situated on a plot of land at 4, Mount Carmel Road, Bandra (West), Mumbai 400 050. The said property is said to be valued over Rs. 10 crores. According to the petitioner, he was informed by Irvin (described in petition as "said deceased" in paragraph 5) that one Mrs. Suman (respondent No. 4) had befriended him some years' ago, and had pleaded with him to allot her to stay in one of the rooms in the said building, Harbour. She was given shelter by Irvin by allowing her to occupy an attic room on the terrace of the said building. Respondent No. 4 was previously married woman, and had two children from her previous marriage(s), by name Faruk (Respondent No. 5), presently aged about 45 years, and Simi (respondent No. 6), presently aged about 40 years. (b) The petitioner further asserts that he was informed by Irvin that he was induced by respondent No. 4 to go through a marriage ceremony by suppressing the fact of earlier marriage(s); and, thereafter, Irvin (described as "said victim" in paragraph 6) came across certain connection between respondent No. 4 and her previous 5 18311

husband. In that, the previous husband of respondent No. 4 was remitting substantial sum of money to her.

(c) The petitioner, then, asserts that, after the so-called marriage between respondent No. 4 and Irvin (described as "said victim" in paragraph 7 of the petition), in the year 1996, the validity of which was, and is, in question, respondent No. 4 brought her abovenamed two children to live with her in the room allotted to her in the said building by Irvin. The petitioner asserts that respondent No. 4, after having got foothold into the said building, aided and abetted by respondent Nos. 5 and 6, started asserting themselves, and reduced Irvin to the position of a servant and/or a bonded labour. The petitioner asserts that, within a couple of months after the marriage between respondent No. 4 and Irvin, the mother of Irvin was informed by respondent No. 4 that there was nothing in the so-called marriage between her and Irvin. No conjugal rights or relationship between them existed. The petitioner asserts that the so-called marriage between respondent No. 4 and Irvin was a mockery and/or a fraud committed by respondent No. 4 , aided and abetted by respondent Nos. 5 and 6, who had no roof over their heads, and thus, to enter the said property of Harbour Building and/or to misappropriate the said 6 18311

property. The petitioner asserts that Irvin suffered indignities and harassments meted out to him by respondent Nos. 4 to 6. He had asked the said respondents to leave the building, but they did not pay any heed to that request.

(d) The petitioner then asserts that, from the events then unfolded in the course of time, it has become clear that the intention of respondent Nos. 4 to 6 was to misappropriate the assets of Irvin in the guise of living in friendship and/or harmony with him. The true intention or motive of respondent Nos. 4 to 6 was, however, to misappropriate the assets of Irvin, including his rights and claim in the said property, Harbour. The petitioner asserts that serious allegations of attempt to commit murder, etc., were made in the strained relationship between respondent No. 4 and Irvin. Further, she would use any means, including abduction, wrongful confinement, to usurp the said property and/or to oust Irvin therefrom, and take over the same, as is mentioned in the complaint dated 15th December, 2010 given by the petitioner to Bandra Police Station. (e) The petitioner, then, asserts that respondent Nos. 4 to 6, far from being law-abiding citizens, were connected with criminal 7 18311

elements vis-a-vis respondent No. 7, and were in the process of taking law in their own hands, inter alia, in the dealings with the said victim, i.e., Irvin.

(f) The petitioner has, then, asserted that the said victim, i.e., Irvin, was being treated at Holy Family Hospital, which was in close proximity of the residence of Irvin. The relationship between respondent Nos. 4 to 6 and Irvin had become strained since year 1996. The said respondent Nos. 4 to 6 got the help and support of respondent No. 7, who, it appears, has connections with the underworld, whose modus operandi was to take over the valuable properties in places such as Bandra (West) by any means. Respondent Nos. 4 to 6, even though were aware that Irvin was in serious financial difficulties, and needed financial help for his expensive medical treatment, did not provide him any help whatsoever. Instead, they continuously harassed him. Irvin, however, was provided full financial support by the true friends of Irvin, viz., Mr. Francis Fernandes and his sister, Miss Casandra Fernandes, during the hospitalisation of Irvin. They also looked after him for nearly one month during the period when Irvin was undergoing treatment. Respondent Nos. 4 to 6, however, did not provide any financial help, nor even paid one visit to the hospital. Taking 8 18311

advantage of absence of Irvin, the said respondent Nos. 4 to 6 changed the lock of the front gate, so that the entry of Irvin in the building Harbour could be prevented - though they have no legal rights to the said property. The said respondents were aided and abetted by respondent No. 7. They were bent upon causing the death of Irvin by all illegal means.

(g) The petitioner, then, asserts that, after Irvin was discharged from Holy Family Hospital in the month of June, 2010, he was required to take alternative treatment of Kidney Dialysis uninterruptedly, failing which, it could aggravate his ailment to the extent of definite death.

(h) The petitioner, then, asserts that respondent Nos. 4 to 6, aided and abetted by respondent No. 7, calculated to cause the death of Irvin, which was clear from the circumstances stated by the petitioner. The acts of the said respondents attracted offence under Section 302 read with 120-B of the Indian Penal Code, which needed immediate investigation by the Investigating Officer. However, the Investigating Officer was only making a show of investigation. He did not consider it necessary to arrest respondent Nos. 4 to 7, in spite of the seriousness 9 18311

of the offence. Considering the conduct of the Investigating Officer, the investigation of the case was required to be transferred to Crime Branch to be carried out under supervision of the Commissioner of Police, Mumbai, who, in turn, should submit report to the Court, including on the material collected during such investigation. The petitioner has stated that there was possibility of destruction of evidence by respondent Nos. 4 to 7, for which reason, it was necessary to arrest and interrogate them forthwith. The petitioner states that the acts of misconduct, harassment and offence committed by respondent Nos. 4 to 7 will be stated in greater detail in the investigation in relation to the serious offences, such as intimidation and even possibly murder committed by them in collaboration with her hirelings. (i) The petitioner has then relied on the written complaints given by the petitioner to Bandra Police Station dated 12th and 15th December, 2010. According to the petitioner, written complaint dated 15th December, 2010 was in the form of an F.I.R. disclosing serious cognizable offence of abduction, criminal intimidation, wrongful confinement, threats and possibility of murder.

10 18311

(j) The petitioner, then, asserts that he attempted to contact the Investigating Officer of Bandra Police Station on regular basis after 15th December, 2010; but, for reasons known to the Investigating Officer of the Chowky at Mount Mary's Road, he was not available until 25th December 2010. It is stated that the said Investigating Officer, on the basis of written complaint of the petitioner dated 15th December, 2010, reduced the information in writing in Marathi. The petitioner is not familiar with the said language, and does not know to read or write Marathi. It is stated that the Investigating Officer showed indifference and lack of interest, in spite of the seriousness of the offence and every likelihood of murder of Irvin. The petitioner, therefore, addressed further communication to the Commissioner of Police dated 29th December, 2010. The petitioner states that he personally met the Joint Commissioner of Police, Law and Order, on 30th December, 2010; and impressed upon him about the necessity and duty to lodge immediate investigation in order to prevent the possibility of murder of Irvin and to locate and bring back Irvin. The petitioner has relied upon the contents of the said complaint, as deemed to be incorporated in the petition.

11 18311

(k) Since the petitioner was convinced that no action and/or investigation worth the name has been done, the petitioner made another representation, dated 7th January, 2011 to the Joint Commissioner of Police and Home Minister's Office, Government of Maharashtra, Director General of Police, Mumbai, and Human Rights Commission, Mumbai. In this backdrop, the petitioner has approached this Court by way of present Writ Petition, alleging that the circumstances referred to in complaints, dated 15th and 29th December, 2010, clearly spell out that there is a very strong motive for the accused, who are bound to commit offences, including murder of Irvin. The petitioner states that, if, due to providence, the offence of murder has not yet taken place, immediate action should be taken by the police under the supervision of Joint Commissioner / Commissioner of Police, Mumbai, without further loss of time. The petitioner has alleged that the police have failed to discharge their duty and carry out investigation on the basis of complaints given by him.

(l) In paragraph 16 of the petition, it is stated that the rights of various parties in respect of the said property known as "Harbour" were also involved. There were very valuable documents and other possessions kept by Irvin in the said building, Harbour, including Will, 12 18311

said to have been signed and executed by him. The said documents form important evidence, which was likely to be destroyed, as, apparently, the victim has been done away and/or was forcibly removed by the respondents in order to misappropriate the valuable property and/or to obstruct due process of law and/or realisation of what was due to the said victim from the Administrator of the estate of Shri S.J. Almeida, who was the legal owner of the said building and the land on which the said building was standing.

(m) The petitioner has, then, stated that he has been informed that Irvin had signed certain Consent Terms in the legal proceedings between him and the Administrator in the High Court of Judicature at Bombay. The petitioner has asserted that it is also evident that the respondents must have got the signature of Irvin by force and/or under coercion / duress in order to commit further and serious offences and fraud in respect of the said property.

(n) At the end in paragraph 17, the petitioner has alleged that, since the complaint filed by him, dated 15th December, 2010, discloses commission of cognizable offence of wrongful confinement of Irvin after his abduction by respondent Nos. 4 to 7, it is the duty of 13 18311

respondent Nos. 1 to 3 to investigate, locate and bring the victim before the Court. The petitioner has, thus, approached this Court by way of present Writ Petition of Habeas Corpus and/or suitable writs and orders, including to direct the respondents to produce Irvin before the Court; and, if such reliefs were not granted, the life of his brother, Irvin, would be in grave danger, leading to other serious offences, including murder, which cannot be compensated in terms of money or any other means.

4. This petition is resisted by the respondents. The Investigating Officer, Vijay Gulab Sathe, Assistant Police Inspector attached to Bandra Police Station, has filed his reply-affidavit, dated 3rd February, 2011. In his reply-affidavit, he has stated that, on receipt of application, dated 12th December, 2010 from the petitioner that his brother was missing from his residence at Bandra, a missing complaint, being Entry No. 86/10, came to be recorded on 13th December, 2010. Thereafter, on 14th December, 2010, Irvin was found in Nair Hospital. As a result, the missing entry was cancelled.

5. Thereafter, on 16th December, 2010, the petitioner's application / complaint was received in the police station, stating that 14 18311

Irvin has been abducted and has been kept in wrongful confinement by respondent Nos. 4 to 7, without disclosing his whereabouts to him as well as Nair Hospital where he was earlier treated for his ailment. By the said communication, the petitioner asked for lodging of F.I.R. and to investigate the matter. Further, the petitioner personally remained present before him on 25th December, 2010 and complained against respondent Nos. 4 to 7. The petitioner's statement was immediately recorded. Two constables were sent along with the petitioner for enquiry to the house of his brother, Irvin, at Bandra. The house was, however, found locked. On the same day, in the presence of the petitioner, he had telephoned respondent No. 7, whose telephone number was mentioned in the application given by the petitioner. Respondent No. 7 informed that he was not available in Mumbai.

6. Thereafter, on 27th December, 2010, the step-daughter of Irvin came to the police station. Her statement was recorded by him. She produced the Death Certificate of Irvin, showing the cause of death as natural on 22nd December, 2010. Thereafter, statement of respondent No. 4, wife of deceased Irvin, came to be recorded. 15 18311

7. He has, then, stated that, during the course of the investigation, it was revealed that deceased Irvin was admitted in Nair Hospital on 10th December, 2010 as Indoor Patient No. 43455/2010 vide OPD No. 225348/2010 for ailment of kidney, and thereafter, on 14th December, 2010, he was shifted to Sion Hospital against the advice of doctors of Nair Hospital. Further, while undergoing treatment for ailment of kidney at Sion Hospital, Irvin died on 22nd December, 2010. Thus, the question of registering offence for abduction and wrongful confinement did not arise at all.

8. Soon after the reply-affidavit was filed by the Investigating Officer, the petitioner took permission to amend the petition, and, accordingly, amended the petition on 28th February, 2011. This amendment has been carried out by the Constituted Attorney of the petitioner, one Russel Carlyle Dias.

9. By way of amendment, it is asserted by the petitioner that the affidavit of Vijay Gulab Sathe, the Investigating Officer, contains totally false, misleading and untenable statements, as the said affidavit states that no offence whatsoever has been committed. The grounds, for which, the said affidavit should be discarded, have been stated. 16 18311

The petitioner has reiterated that his complaint, dated 12th December, 2010, discloses the serious cognizable offence of abduction, wrongful confinement, criminal intimidation, robbery, etc., committed by respondent Nos. 4 to 7 as a result of well-planned conspiracy in order to oust and get rid of the deceased and/or to dispossess him from the valuable property, Harbour, in which, he was residing, worth several crores of rupees.

10. It is, then, stated that, after filing of the complaint, it has now come to the knowledge of the complainant that respondent No. 7 is a Medical Practitioner, who used to be a frequent visitor and has intimate relationship with respondent No. 6, unmarried daughter of respondent No. 4. He was also interested in the said property, Harbour.

11. It is, then, stated that the conduct of respondent Nos. 4 to 7 of depriving the deceased medical treatment in the Holy Family Hospital, Bandra, which was in close proximity of the victim's residence, Harbour, forcibly removing (abducting him), snatching his mobile phone to prevent him from contacting his relations to save him when he was forcibly confined (with the help of the attendant appointed by the said respondents), keeping a constant watch on the 17 18311

victim, who was wrongfully confined in a bed enclosed on four sides and again removing the victim against medical advice from Nair Hospital as soon as the said respondents came to know about the visit of the petitioner and his sister-in-law, who had gone to see Irvin, telling the police constable, who visited Building Harbour after the F.I.R. was filed that the whereabouts of the deceased were not known and of not disclosing to the petitioner the whereabouts of the victim and/or his demise on the score that the respondents' advocate had advised them not to disclose any information concerning the victim, all these circumstances, disclose sufficient material to constitute mens rea and also a very strong prima facie case that the said respondents have committed the said offences.

12. The petitioner has, then, asserted that the Investigating Officer only made a mock enquiry, which facilitated the said respondents to destroy evidence, which was most valuable. It was necessary for the Investigating Officer to collect the same. There was an obligation on the part of the Investigating Officer to arrest respondent Nos. 4 to 7 and/or to trace the victim, which could have helped him in saving the life of the victim. It is alleged that there is conspiracy between respondent Nos. 4 to 7 and the Investigating 18 18311

Officer, who facilitated them to cause the death of the victim, and, more particularly, with the help of respondent No. 7, who was Medical Practitioner, and played important role in the commission of the crime. No explanation is forthcoming as to why, against medical advice, the victim was shifted from Nair Hospital soon after respondent Nos. 4 to 7 came to know that the petitioner had visited the hospital, and met the victim and had moved legal machinery in order to save the victim. That was, obviously, done to prevent recording of statement of the victim, which would have helped to establish and prove the offence committed by the said respondents. Respondent No. 7 played dominant role and/or used influence to destroy evidence and/or fabricate evidence and/or give a colour of natural death by removing the victim against medical advice from Nair Hospital. The acts of the respondents constitute offence of abduction and wrongful confinement and having hatched a conspiracy to cause the murder of the victim.

13. The petitioner, then, asserts that the Investigating Officer failed to ascertain various details and facts and collect evidence as regards the time when the victim was removed against medical advice from Nair Hospital, as to who forcibly took him away therefrom, what were the various steps, actions and acts committed by the persons who 19 18311

abducted / removed the victim from Nair Hospital till he was admitted to another hospital, with absolutely no reasonable ground or explanation forthcoming.

14. By way of amended paragraph 19B, the petitioner has highlighted the steps and/or omissions. In that, the victim was removed from Nair Hospital against medical advice. Respondent No. 7 played dominant role, leading to the death of Irvin. He was, however, made to administer substances and/or create aggravations of the ailments of the deceased when the victim was removed from Nair Hospital and/or abducted and taken to a place, which was not notified either to the victim's closest relations, including the petitioner, who was in Mumbai during the material time, the victim's nearest relation, sister-in-law, Emelia, who had also gone to see the victim along with the petitioner, to the nephews and nieces of the victim. The petitioner submits that, all that has been stated by the Investigating Officer is to whitewash and / or cover up the crime and offences committed by the private respondents with offences and/or abetment and/or common intention and/or with conspiracy to commit the said offences (to cause the death of the victim), which was obviously with the knowledge and 20 18311

intention to cause the death by wrongfully suggesting that the death was by natural causes.

15. The petitioner further submits that the private respondents, as well as the Investigating Officer, have acted with common intention resulting in the death of the victim and have caused necessary evidence to be destroyed, inter alia, by cremating the body of the victim to prevent exhuming the body for a post mortem. The petitioner asserts that the deceased was a devoted Catholic, and was visiting church on regular basis every day. He should have been cremated as per the Catholic Rites. The private respondents, however, did not give any intimation to the petitioner and/or the Police Authorities and/or to the nephews of the victim and/or the victim's sister-in-law and/or to the persons, who were friendly with the victim and had helped the victim for medical treatment earlier in the Holy Family Hospital, where the victim wanted to be treated at all material times. Further, there was not even an announcement concerning the death of the victim in any of the newspapers, which is the normal practice amongst Christians, to enable the relations, friends and well- wishers to take part in the burial and religious ceremonies. 21 18311

16. By way of amendment, the petitioner has also prayed for two additional reliefs. Firstly, for an order directing the Joint Commissioner of Police and/or Deputy Police Commissioner attached to Bandra Police station to submit and file a detailed affidavit with regard to the complaints annexed to the petition and/or to the averments in the petition. The second relief is that this Court should monitor the investigation carried on and to be carried on preferably by a senior officer attached to the Crime Branch under the supervision of the Joint Commissioner of Police and to submit report to this Court periodically by proper investigation, including recording of evidence of all persons, parties, authorities such as the Holy Family Hospital, Nair Hospital, Sion Hospital and others.

17. In response to the petition, respondent No. 4 has filed, in all, three reply-affidavits. The first is affirmed on 28th March, 2011, the second affidavit is pursuant to the amendment carried out by the petitioner affirmed on 8th June, 2011, and the third is additional affidavit affirmed on 12th July, 2011.

18. Respondent No. 4 has stated that she is residing at the address given in the cause title since the last fifteen years with her 22 18311

husband, Irvin, along with two children, respondent Nos. 5 and 6. Respondent No. 5 was presently 29 years of age, and he has left Mumbai in March, 2005 for Europe, and is permanently and continuously living there.

19. She has then stated that respondent No. 6, her unmarried daughter, is presently 33 years' old. She was presently residing with her at the given address. Having stated this, respondent No. 4 has then asserted that the allegations contained in the Writ Petition are preposterously false, vicious and slanderous in nature. She has stated that the petitioner has misled the Court by fabricating lies and concealing vital facts from this Court. He has not approached this Court with clean hands. She has stated that her family members have known her husband, Irvin, since about year 1975. She got legally married with him in 1996 according to both, Hindu and Christian Rites. She has stated that, at the time of her marriage, both were divorcees and which fact was known to them as well as the Authorities of the Catholic Church in Mumbai, viz., present Archbishop Oswald Gracias, who was in-charge of all matters and investigations regarding the impending second marriage between her and Irvin. After thorough and satisfactory investigations were done by the said Authority as well as 23 18311

the Parish Priest of Mount Carmel's Church, Bandra (West), permission was granted and marriage was solemnised on 31st July, 1996 by the old respected Father John Rodrigues at Mount Carmel's Church, Bandra (West).

20. She has stated that Irvin was not having any issue out of his first marriage. She had two children from her first marriage, and that fact was known and happily accepted by Irvin at the time of their marriage. She has asserted that Irvin loved both her children as his own. After the marriage, she, along with her two children, respondent Nos. 5 and 6, started living with Irvin at the stated address, in Building Harbour, as her matrimonial house. At the time of marriage, her son, respondent No. 5, was only 14 years of age and daughter, respondent No. 6, was 18 years of age, and was working in Dubai, U.A.E.

21. She has then stated that, until mid-2009, Irvin was having good health, but, during the routine check-up, it was observed that he was suffering from Renal Failure. He was given medical treatment for that ailment. No dialysis was recommended at that time, but, in May, 2010, he was diagnosed with Chronic Renal Failure. Since then, she herself, respondent No. 6, and her fiancee (respondent No. 7) took 24 18311

good care of Irvin, till he died on 22nd December, 2010. He died while he was in hospital under medical care of L.T.M.G. Hospital, Sion. He was cremated on the same day, as per his instructions and last wishes. Respondent No. 4 asserts that, on 1st May, 2010, her husband was admitted in Holy Family Hospital, Bandra (West), and was discharged on 15th June, 2010, after certain tests and medical treatment for C.R.F. Since then, he was at home. But thereafter, he required regular dialysis, check-ups and tests. She herself used to take him for the same, whenever he desired.

22. She then asserts that Irvin was a very stubborn and bad- tempered man by nature. She states that, on 6th December, 2010, Irvin had asked her and her daughter, respondent No. 6, to take him to Holy Family Hospital for dialysis. On 9th of December, 2010, at night, Irvin complained of extreme weakness. As a result, respondent No. 4, along with her daughter, respondent No. 6, tried to admit him in Holy Family Hospital, but they were told that no bed was available. Hence, he was admitted in the nearby Bhabha Hospital, Bandra (West), but the doctor on duty informed her that the said hospital did not have dialysis facility, and suggested to take him to Nair Hospital, Bombay Central. Accordingly, she, along with her daughter, respondent No. 6, and her 25 18311

fiancee, Dr. Sameer, respondent No. 7, who had come to help them, admitted her husband, Irvin, in Nair Hospital. She asserts that this fact was told by her to Respected Father Joe Periera of Kripa Foundation, Mt. Carmel's Church, a friend Ms. Bernie Tellis residing close by and a few other well-wishers / neighbours. She has stated that Irvin was under medical treatment at Nair Hospital until 14th December, 2010. On her husband's instructions, she transferred him to L.T.M.G. Hospital, Sion, because of two highly disturbing incidents on the 11th and 12th December, 2010, which had traumatised and angered him. She has stated that she, along with her daughter, respondent No. 6, and her fiancee, respondent No. 7, took all possible care and caution which they could take in looking after her husband, Irvin.

23. In the para-wise comments, respondent No. 4 has denied all the material allegations made by the petitioner in the Writ Petition, including the fact that the petitioner is brother of her late husband, Irvin. She has asserted that the petitioner had never visited or stayed in the matrimonial home.

24. Notably, the petitioner has not filed any rejoinder- affidavit, but has merely chosen to amend the Writ Petition on the basis 26 18311

of affidavit of his Constituted Attorney, Russel Carlyle Dias, and the subsequent affidavit of one Francis Ambrose Fernandez, claiming to have family association with Irvin.

25. With regard to the allegation in the Writ Petition that the marriage between respondent No. 4 and Irvin was a mock marriage, respondent No. 4 has not only denied the same, but has asserted that her late husband and she had made affidavit pertaining to the fact that both their previous marriages were dissolved and they were free to be married to each other. Her late husband, Irvin, was fully aware that there was absolutely no communication between her and her previous husband for many years even prior to their marriage.

26. She has denied the petitioner's allegations that her late husband Irvin had to suffer indignities and harassments. She has stated that, at the time of marriage, her family had gifted her late husband a tempo vehicle, as he wanted to start his own transport business. He had joined the transport company called "Home Pack", and drive for them for several years with their own vehicle. She has denied that she and her children from the first marriage had no roof over their heads. 27 18311

She has asserted that, prior to her marriage with Irvin, they were residing in Andheri.

27. She has stated that the averments in paragraphs 7 and 8 of the petition were self-contradictory. For, on the one hand, the petitioner asserts that respondent No. 4 treated her husband, Irvin, during his stay in Building Harbour as a servant and/or bonded labour, and, on the other hand, it is alleged that respondent No. 4 and her children were putting on an act under the garb of living in friendship and/or harmony with Irvin with true intention or motive to oust and evict him so as to misappropriate his assets. She has asserted that she was living with Irvin as normal family. She has denied that she did not provide any assistance to her husband during his difficult period, and, in particular, kidney ailment. She has asserted that she had lovingly and unselfishly cared for her late husband, Irvin, giving him full financial support throughout the fifteen years of their marriage, even to the extent of selling all her gold jewellery, plus indebted herself to taking monies from her mother, late Mrs. A. Sinha, and also her uncle, Ashok Lall in Canada, to help with the heavy medical expenses of Irvin.

28 18311

28. Respondent No. 4 has denied that financial support was given by persons named by the petitioner or, for that matter, any other help. She has asserted that neither Francis nor Cassandra was friend of her late husband, and, in the fifteen years of her marriage, she had not seen them visiting their home for any get-togethers, special occasions or to visit Irvin when he returned from the hospital. She has denied that she or her daughter did not visit Irvin when he was in hospital in the month of May, 2010. She has stated that her husband had instructed her not to pay frequent visits, since he was concerned about her mother's health, who was also not keeping well during the same period and expired on May 22, 2010. Even her mother was cremated on the same day when she died on 22nd May, 2010. She has stated that Irvin was extremely upset and saddened by the demise of his mother- in-law (mother of respondent No. 4), as he had very close and loving relationship with her.

29. Respondent No. 4 has denied that she has no legal rights in the property. She has asserted that the said property is her matrimonial house, where she, along with her children, is staying continuously for over fifteen years. She has denied that she has conspired to cause the death of Irvin or that respondent Nos. 6 and 7 29 18311

had abetted the crime. She has asserted that, after Irvin was discharged from Holy Family Hospital in June, 2010, he was free to take dialysis from any hospital that had a Nephrology Department, where such facility was available. Since she was aware that delay in providing dialysis would be fatal, she used to take utmost care to ensure that Irvin received medical treatment for C.R.F. (Chronic Renal Failure) as per the instructions of the doctors. She denied that she, along with her daughter and respondent No. 7, calculated to cause death of Irvin. She denied that there was conspiracy and/or common intention and/or abetment in that behalf. She has denied that any offence such as abetment, wrongful confinement, intimidation and even possibly murder were committed by her and respondent Nos. 6 and 7 in collaboration with their hirelings, whose name is given as Sameer, who, in fact, is respondent No. 7, fiancee of her daughter, respondent No. 6. In short, she has denied all the allegations made by the petitioner and has asserted that the allegations made in the Writ Petition or the written complaints submitted to Bandra Police Station and other Authorities were motivated so as to dislodge her and her daughter from the said Building, Harbour, which is her matrimonial house and to grab the said property by any means, taking advantage of filing false complaint and pressurising for her and her daughter's arrest in 30 18311

connection with such complaint. She has asserted that the petitioner, along with one Robert Sequiera and one Dirk Allams, who are bent on misappropriating the said Building Harbour and the land on which the said building stands, are themselves involved in commission of crime of misappropriating the said building and other property, which is evident from the numerous police complaints made by her and declarations of Irvin, on which she would rely. Respondent No. 7 has prayed for dismissal of the Writ Petition.

30. In the further affidavit filed in reply to the amended Writ Petition, respondent No. 4 has reiterated her plea in the reply-affidavit already filed. In addition, she has relied on the Marriage Certificate of her marriage, solemnised on 31st July, 1996, in the Church of Our Lady of Mount Carmel. She has also relied on her Baptism Certificate, dated 23rd May, 2003. She was baptised on 31st July, 1996. She has also relied on Memorandum of Marriage issued by the Registrar of Marriages. She has also placed on record the Death Certificate of late Irvin and the Medical Certificate of Cause of Death issued by the Sion Hospital, which states that the death was caused naturally on account of Uremic Encephalopathy, Zia Case of Chronic Renal Disease. It also 31 18311

records the fact that the patient was in hospital for eight days, and was given treatment for the said ailment.

31. In the additional affidavit filed by respondent No. 4, besides reiterating the plea taken in the earlier two affidavits filed by her, she has produced copy of Discharge Card issued by Holy Family Hospital and the medical papers of Bhabha Hospital, Bandra (West), evidencing that late Irvin was admitted in that hospital on 9th December, 2010 and was discharged on 10th December, 2010. She has also produced the notarised copy of the Declaration of late Irvin, dated 16th December, 2010. This Declaration gives graphic details of the complete background, including the circumstances necessitating removing Irvin from Nair Hospital and for shifting to Sion Hospital on his own advice. In this Declaration, he has stated that respondent Nos. 4, 6 and 7 were very helpful after December 9, 2010, when his health suddenly took a turn for the worse. Respondent Nos. 4 and 6 admitted him in Holy Family Hospital, Bandra (West), from 1st to 29th May, 2010, and then again from 29th May, till 15th June, 2010. They received generous concession on the hospital charges, he being Catholic patient. However, when he was required to be admitted on the 9th of December, 2010, they were informed that no bed was available in 32 18311

the hospital at that time. He had suggested to respondent No. 4 to take him to Bhabha Hospital, Bandra (West). Accordingly, he was admitted in that hospital, but was informed that dialysis facility was not available. He was, instead, advised to go to Nair Hospital, Bombay Central, by the doctors in Bhabha Hospital.

32. Thereafter, respondent No. 6 contacted her fiancee, respondent No. 7, who was like a son to Irvin and respondent No. 4. Respondent No. 7 was requested to provide assistance to take Irvin to Nair Hospital, as it was late night. Respondent No. 7 helped them in taking Irvin to Nair Hospital in his car and also in getting admitted in that hospital. He also arranged for the dialysis immediately. Irvin has then stated that he had told respondent Nos. 4 and 6 to go home. They arranged medical attendant to stay with him and look after his needs. He has further stated that his wife, Suman, asked him, if he wanted to contact any friends or relatives, on his behalf, about his hospitalisation. He told her that, since no one had enquired about his health or welfare in the past for so many months, he did not wish to see anyone. He then advised respondent No. 4 and respondent No. 6 not to leave the house unattended for long period, since he suspected that Dirk Allams had picked up his mobile phone and house keys on 3rd 33 18311

December, 2010, and would use those keys to illegally enter into their premises. He has stated that Simmi and her fiancee, Sameer, then, contacted an agency called "Sai Services", and arranged for 24 hours' medical attendants to stay with him and look after all his needs, taking care of his meals and other nutrition, getting his medicines, changing his clothes and linen and assisting him to bathe. He has also noted that respondent Nos. 4, 6 and 7 kept on visiting him on daily basis, while he was in the hospital and was grateful to them for their love and care.

33. Irvin has then mentioned about the incident, which occurred on 11th December, 2010. The incident was at the instance of Dirk Allams, and Irvin was not found by hospital staff for some time and was reported absconding. He did not disclose the said incident to respondent No. 4 or respondent No. 6. However, on 14th December, 2010 at around 3.00 P.M., when he was sleeping, he was horrified to see Dirk Allams standing beside him, along with Robert Sequiera, his brother Bertram D'Silva (petitioner) and two other people, one of whom was a woman. He instructed Gopal, attendant, to quietly call his wife, and to report this development. Said Dirk Allams and petitioner started questioning him and demanded that he should go with them. Robert Sequiera tried to coerce him into signing some papers, which he 34 18311

refused to do. By that time, the doctor arrived on the scene, and asked the people to leave immediately. At that time, respondent No. 7 had also arrived, who was introduced to Dirk Allams that he was his family doctor, which would make them leave him alone. Thereafter, Dirk Allams and other persons went away. He then expressed desire to be shifted to another hospital immediately, as he apprehended further problem.

34. It is then stated as to how respondent No. 7 made suggestion to move to J.J. Hospital, which was nearby, but he did not agree because J.J. Hospital would make it easy for Dirk Allams, the petitioner and Robert Sequiera to find him again, and, instead, decided to be admitted to Sion Hospital. In that backdrop, they left for Sion Hospital in the car belonging to respondent No. 7.

35. As aforesaid, the petitioner, in spite of opportunity, has not chosen to file any response to the further documents brought on record by the private respondents. He merely caused to file affidavit of Francis Ambrose Fernandez dated 14th July, 2011. 35 18311

36. She claims that her family had cordial association with Irvin. The affidavit suggests that Irvin had confided in her about the problems he was facing. The same have been mentioned in this affidavit. Along with this affidavit, a complaint sent by respondent No. 4 to Senior Inspector of Police, Bandra Police Station, dated 6th May, 2010, has been brought on record, which refers to the information given by respondent No. 4 about the incident on 29th April 2010 when her husband, Irvin, started fighting with her. He abused her and threatened to kill her and her daughter, Simmi. This has been brought on record to demonstrate the point that the relations between Irvin and respondent No. 4 were not cordial; and that Irvin was subject to ill- treatment and humiliation by respondent No. 4 and her children.

37. In the backdrop of the above pleadings and material, we have to decide this case. The principal argument is that, from the contents of the written complaints submitted by the petitioner on 12th December, 2010, 15th December, 2010 and, lastly, on 29th December, 2010, there was no option for the officer-in-charge of the local police station, but to register F.I.R and investigate the matter in accordance with law.

36 18311

38. It is, however, noticed that, after the first written complaint sent by the petitioner, dated 12th December, 2010, it was registered as a missing complaint. The said written complaint reads thus:-

"From

To, Alvin, 10, Ranwar, The Senior Inspector of Police Veronica Street,

Bandra Police Station Bandra (W),

Hill Road Mumbai 400 050

Mumbai 400 050

Date: 12.12.2010

Sub.: Complaint of Missing Person Mr. Irwin D'Silva resident of Harbour, 4, Mount Carmel Road, Bandra (W)

Mumbai - 400050.

Sir,

1. I am the brother of Mr. Irwin D'Silva, 60 yrs. of age, who has not been keeping good health and as requested I have to come to Mumbai from Jharkhand where I have my

permanent residence at Ena Lodge, Canary Hill Road, Dipugarha, Hazaribagh, Jharkhand - 825301, to see my said brother who is said to be suffering from Kidney Failure which requires Dialysis. My brother Irwin has been under medical treatment at Holy Family Hospital, Hill Road, Bandra, Mumbai since about May 2010.

2. I went to see my said brother at his above mentioned residence on 11.12.2010 at about 4:30 p.m. and when I entered the place, I was informed by one Mrs. Suman said to be married to my brother Irwin, that Irwin was not at home. I was not given any further information by the said Suman regarding the whereabouts of my brother Irwin. My earlier enquiries at about 4:00 p.m. at the Holy Family Hospital, Bandra revealed that he was not in the said hospital and that he has not come to the hospital for about a week prior to 11.12.2010.

3. I again visited the Holy Family Hospital today at about 5:00 p.m and on enquiry made by me with the staff, I was informed that Mr. Irwin D'Silva has not been admitted and was not in that hospital today.

37 18311

4. From my enquiries I have come to know that the relationship between my brother Irwin and the said Mrs. Suman and her daughter and son Faruk on the other hand has been strained and there is a lot of bad feelings between them and my said brother.

5. I have reason to believe that the disappearance of my brother Irwin from his said residence is due to foul play and that his life may (be) in danger. I have also reason to believe that my brother Irwin may also be forced to sign papers etc. concerning the property i.e. Harbour.

6. I would earnestly request you to make enquiries regarding the present whereabouts of my brother and his disappearance so that the danger to his life can be averted and offences that may take place can be avoided. I would request you to kindly take up this application on a very urgent basis. I will come to your police station again tomorrow at 11:00 a.m. to see the duty officer so that immediate enquiry may be made in this matter.

Thanking you,

Sd/-

Mr. Bertram D'Silva"

Considering the contents of the said complaint, no fault can be found with the local police station for having registered it as a missing complaint. Moreover, in due course, on 14th December, 2010, it transpired that the victim was admitted in Nair Hospital at the instance of his relatives, namely, wife and daughter. He was undergoing treatment in the said hospital for his kidney ailment. Thus, it was not a case of missing person as such.

38 18311

39. The petitioner then sent second written complaint, dated 15th December, 2010, to the Senior Inspector of Police, Bandra Police Station. The same reads thus:-

"From:

Mr. Bertram D'Silva

C/o. Russel Dias

Alvin, 10, Ranwar,

Veronica Street,

Bandra (W)

Mumbai - 400 050

C/o. No.: 9833563410

9833563419

Date: 15.12.2010

To,

The Senior Inspector of Police

Bandra Police Station,

Hill Road,

Bandra (W), Mumbai - 50.

Sir,

MOST URGENT

Re.: Cognizable Complaint of Abduction Criminal

Intimidation Wrongful Confinement Threats etc,

concerning the brother of this complainant viz Mr. Irwin D'Silva resident of Harbour, 4, Mount Carmel Road, Bandra (W), against Suman, Simmi, Faruk presently residing at Harbour Ist Floor 4 Mount Carmel Road, and Sameer having mobile no. 9920599127.

1. I am the brother of Mr. Irwin D'Silva aged about 60 years about 5'8" height, swathy complexion, slim, who was found missing when I had come from Jharkhand to see him on 11.12.2010 at his above residence Harbour. In this connection I had submitted a complaint to your Police Station dt. 12.12.2010 a copy of which is annexed for ready reference.

2. On enquiries made by me I came to know from one Russel Dias with whom I have been residing in Bandra on 14.12.2010 that he i.e. Russel had also made enquiries and came to know that brother Irwin has been admitted in Nair Hospital, Mumbai Central, Mumbai. Therefore, I along with my sister in law Emelia D'Silva went to Nair Hospital to see 39 18311

my brother about 4.45 p.m. on 14.12.2010 and we located Mr. Irwin D'Silva my brother on the 7th floor, Ward No. 22, Bed No. 2.

3. On 14.12.2010 about 4.50 pm. When I spoke to my brother in the presence of the said Emelia, my brother appeared to be in a state of fear and it took him some time to tell me the following facts. As stated by my brother Mr. Irwin, he could not immediately recollect who had brought him to the hospital and did not know when he was admitted in the Nair Hospital. After some time he recollected that one Mr.Sameeer along with one Miss Simmi, daughter of Mrs. Suman who is said to be married to my brother Irwin had brought him forcibly in a car driven by a person called Sameer some days back and since then he has been detained in the Nair Hospital though my said brother wanted to go back to his home that is the Harbour. My brother further told me that as he had been treated at Holy Family Hospital Bandra since last several months he wanted to be treated for his Kidney Ailment / Dialysis at the said Holy Family Hospital Bandra but the said Suman, the said Simmi and one Faruk said to be the son of Suman were preventing him by force from going to the Holy Family Hospital Bandra. My brother further told me that one Sameer was visiting the said Suman, Simmi and Faruk living on the first floor of the building Harbour and he had heard the conversation that the said Sameer was interested in the said property Harbour. My brother further told me that the same Sameer was visiting the building Harbour on many occasions and that Sameer along with the said Faruk and said Simmi and their mother Suman had physically lifted him (Irwin) and put him in a car and taken him to the Nair Hospital where according to my brother he was forcibly detained against his wish. My brother Irwin also told me that he was warned by the said Sameer, Simmi and Faruk that if he talks to anybody about him being put in the Nair Hospital he will never go back to his house Harbour. Then I enquired with my brother as to why he did not contact me or our relatives on mobile telephone, he said that his mobile was forcibly taken from him by the said Faruk and Suman and there was a young person who was kept near his bed side who was preventing him from making a telephone call. The said person near his bed who gave his name as Samir Bhai, when questioned by me stated that he was following instructions of his boss Sameer and other two persons not to allow him (Irwin) to leave the hospital. I also asked the said person in attendance at my brother's bed as to who had kept him, he stated that three persons i.e. Sameer, one lady Simmi and one Faruk had asked to keep a watch. He gave the telephone number 40 18311

9920599127 stating that was the number given to him by his boss Sameer. This said attendant person gave me the description of Sameer as about 5'6" tall fair complexion, stout and he had a car. I told my brother that I will come again the next day and make arrangements to take him to the Holy Family Hospital, Bandra. I enquired with the staff on the 7th floor in the Hospital as to whether any telephone number has been left with them when they stated that the records were in the office and the information can be made available the next day.

4. I again visited the Nair Hospital today at about 12.00 noon today and went to the 7th floor at Ward No. 22, Bed No. 2, when I found my brother as well as the said private attendant whom I had seen on the previous day missing. I then inquired from the staff on the 7th floor as to where my brother was when I came to know that three persons whom they had seen when he Irwin was earlier admitted were the same person who had physically removed my brother from the Hospital on 14.12.2010 after getting my brother discharged against Medical Advice late at night when he Irwin was in a helpless (condition) and abducted my brother were the said Sameer owner of a Car having mobile telephone no. 9920599127. From the description of the said four persons I say that the said three persons who had taken away my brother who was earlier present along with the aforesaid three persons namely Suman, Simmi and Faruk who had forcibly taken my brother away and abducted him without leaving any information with the Nair Hospital Staff or with the relations of my brother Irwin namely myself and said Emelia or any other relations for urgent reference and for inquiry.

5. This is a very serious matter involving the very life safety and survival of my brother who has been abducted and (obviously) been kept in wrongful confinement by the aforesaid person namely Suman, Simmi, Faruk and Sameer without disclosing either to the Nair Hospital authorities or to me or to the said Emelia as to where he has been kept. On enquiries made by me at my brother's residence thereafter I was informed by the said Simmi and Suman that my brother is not at home and that they will not give me the address of the place where my brother has been kept.

6. Considering the very serious offences disclosed in this complaint involving the very life of my brother Irwin and the valued property Harbour in which the above four persons are interested namely Suman, Simi, Faruk, Sameer, I would request you to make immediate investigation including at the 41 18311

Nair Hospital and other Public Hospitals, Nursing Homes, Mumbai and also send messages to the other Police Stations so the life and safety of my brother can be safeguarded. Please treat this as my FIR against the said Suman, Simmi and Faruk residents of the said building Harbour 4 Mount Carmel Road, Bandra and the said Sameer having mobile telephone no. 9920599127.

Yours faithfully,

Sd/-

Mr. Bertram D'Silva

C.C.:

1) The Commissioner of Police Mumbai

2) The Dean Nair Hospital, Mumbai Central, Mumbai 3) The Sr. Inspector of Police, Agripada Police Station, Mumbai.

4) The Home Minister, Govt. of Maharashtra Mantralaya, Mumbai.

5) Hon'ble Chief Justice High Court, Mumbai. "

The facts averred in this written complaint suggest that Irvin was brought forcibly in a car by Sameer and was detained in Nair Hospital, although Irvin wanted to go back home and be treated at Holy Family Hospital, Bandra, for his kidney ailment / dialysis. Thus, Irvin was prevented by force from going to Holy Family Hospital. The petitioner claims that this disclosure was made to him by Irvin when he had visited Irvin in Nair Hospital on 14th December, 2010 at about 4.50 P.M.

42 18311

40. It is then stated that, when the petitioner visited Nair Hospital again on 15th December, 2010 at about 12.00 Noon, he found that his brother, Irvin, as well as the private attendant, whom he had met on the previous day, was missing. On enquiries, he was told that Irvin was physically removed by the same person, who had earlier admitted him in the hospital against the medical advice late at night, when Irvin was in a helpless condition. It is stated that neither Nair Hospital has been informed about the whereabouts of Irvin, nor he has been told about it by the private respondents. Thus, the complaint was about likelihood of commission of offences of abduction, wrongful confinement and threat by respondent Nos. 4 to 7. The petitioner suspected that the life of his brother, Irvin, was at risk, due to the valued property, Harbour, in which, the private respondents were interested. Therefore, the petitioner wanted the local police station to treat the complaint as F.I.R. and proceed to investigate and save the life of his brother, Irvin.

41. Going by the contents of the said written complaint, no doubt, it may appear that the same discloses commission of serious cognizable offences, for which, the officer-in-charge of the police station was obliged to register F.I.R., and proceed with the investigation in 43 18311

accordance with law. Ordinarily, the Court would lean in favour of issuing direction to the local police to register F.I.R. However, interest of justice would warrant consideration of the stand taken by the private respondents that the allegations in the complaints are baseless, false and motivated so as to dishouse respondent No. 4 from her matrimonial home. Those issues, in the fact situation of this case, in our opinion, are required to be addressed at the instance of the private respondents on the touchstone of principles governing quashing of F.I.R., to do substantial justice.

42. Be that it may, it cannot be lost sight that the petitioner had already made written complaint only few days back, i.e., on 12th December, 2010, about disappearance of his brother, Irvin, and then, it was noticed that on 14th December, 2010, Irvin was, in fact, admitted in Nair Hospital and undergoing treatment for his ailment. There is nothing in the petition to suggest that the petitioner had personally contacted the Investigating Officer with the said complaint dated 15th December, 2010 asking him to register the same as F.I.R. The said complaint was received directly in the police station on 16th December, 2010. Indeed, a vague averment is made in paragraph 12 of the writ petition that the petitioner sought to contact the Investigating Officer of 44 18311

the concerned Bandra Police station repeatedly on subsequent dates after the said complaint dated 15th December, 2010, but, for reasons best known to the Investigating Officer of the Chowky at Mount Mary's Road, he was not available; and, eventually, the petitioner was able to meet him only on 25th December, 2010. From the reply- affidavit of the Investigating Officer, it is obvious that, as soon as the petitioner met him on 25th December, 2010, he immediately deputed two constables, along with the petitioner, for enquiry to the house of Irvin at Bandra, but the house was found locked. On the same day, in the presence of the petitioner, the Investigating Officer had telephoned respondent No. 7, whose telephone number was made available by the petitioner. Respondent No. 7 informed the Investigating Officer that he was not available in Mumbai on that day. Thus, the Investigating Officer attended to the petitioner immediately. Notably, thereafter, on 27th December, 2010, the daughter of deceased Irvin remained present in the office of the Investigating Officer, and produced Death Certificate, disclosing that Irvin died natural death on 22nd December, 2010 while he was in the hospital undergoing treatment for his kidney ailment. The said certificate discloses that Irvin was in the said hospital for eight days, and was treated for Chronic Renal Disease, and died 45 18311

naturally. In that case, the question of registering offence of murder does not arise.

43. Indeed, from the allegations in the abovesaid written complaint, it may appear that case of abduction, wrongful confinement and threat is also made out. However, considering the fact that respondent No. 4 was none other than the wife of deceased Irvin and respondent No. 6 was the step-daughter of Irvin and daughter of respondent No. 4 from her first marriage; and all of them were staying in Building Harbour together from 1996, the complaint about abduction and wrongful confinement or threat by the wife and daughter, on the face of it, becomes questionable. There is nothing in the written complaint or in the entire writ petition to even remotely suggest that the staff and medical officers of Nair Hospital, in the first place, or Sion Hospital, where Irvin was later on admitted, had any role to play. In absence of such allegation, it is too much to assume that it would be a case of wrongful confinement. As regards the case of abduction, it is founded on the allegation that respondent No. 7 was seen to have bodily lifted Irvin and taking him in his car, along with respondent Nos. 4 and 6, to the hospital. If a person is admittedly unwell, and was suffering from serious ailment warranting his hospitalisation, there is 46 18311

nothing wrong, if he is provided help in getting into the car, as he was unable to walk himself.

44. Significantly, the notarised declaration dated 16th December, 2010 given by Irvin speaks volumes, and belies the entire case made out by the petitioner. The notarised declaration reads thus:- " DECLARATION

I, Mr. Irwin Gerard D'Silva, Indian Christian Inhabitant and Senior Citizen aged 60 +years residing at The Harbour, 4 Mount Carmel Road, Bandra (W), Mumbai-400 005, being in possession of all my reasoning faculties and good judgment, do hereby make and declare the following statement.

1. On the night of December 9th 2010, my health suddenly took a turn for the worse, and I requested my wife Suman D'Silva and my step daughter Simmi Hasham, to admit me into hospital. They inquired about the needful at Holy Family Hospital Bandra (W), as I had earlier been admitted there from 1st May 2010 to 29th May, 2010 and then again from 29th May, 2010 till 15th June, 2010 respectively and also received a generous concession on the Hospital charges being a Catholic patient, but were informed that no beds were available at the time. I then suggested they take me to Bhabha Hospital, Bandra (West). After I was admitted there, we were informed that the Hospital does not have a Dialysis unit and the Doctors there advised us to go to Nair Hospital, Bombay Central.

2. My step daughter Simmi then contacted her Fiancee Dr. Sameer Sanap, who is like a son to my wife and me, to take us to Nair Hospital as it is far from Bandra and it was late night. Sameer met us at Bhabha Hospital and we proceeded to Nair Hospital in his car. Sameer also helped me with admission there and with all medical tests I needed at the time and also arranged for my Dialysis etc. As it was already 6 A.M. at that time I told my wife and Simmi and Sameer to go home and then he arranged for a Medical Attendant to stay with me and look after my needs.

3. At this time my wife Suman asked me if I wanted her to contact any friends or relatives on my behalf, to inform them about my hospitalization. I specifically told her in no uncertain terms that since NO ONE HAD BOTHERED ABOUT MY HEALTH 47 18311

OR WELFARE in any way for so many months, I DID NOT WISHTO SEE ANYONE.

4. The next day when Suman and Simmi came to meet me, I advised them not to leave our house unattended for long periods of time, since I suspected DIRK ALLAMS had picked up my Mobile phone and house keys on the 3rd December, 2010 and would use the keys to illegally enter into our premises. At this time Simmi and her fiancee Sameer contacted an agency called SAI SERVICES and arranged for 24 hours medical attendants to stay with me and look after all my needs, taking care of my meals and other nutrition, getting my medicines, changing my clothes and linen and assisting me to bathe.

5. Suman, Simmi, or Dr.Sameer still came to visit and be with me on a daily basis, and I appreciate their love and care for which I am also grateful.

6. On the 11th December, 2010 at around 5 P.M. my medical attendant Gopal Waghela went to get me some medicines. I needed to go to the bathroom and when I proceeded to go there, 2 unknown men accosted me and forcibly took me to a deserted ward that was under construction. I heard them mention the name DIRK ALLAMS and got scared and started shouting for help. That is when they pushed me down and ran from there. I felt giddy and weak and passed out in that deserted ward under construction. When I gained consciousness I was still there and had soiled my clothes with the trauma. I was later found by a hospital staff and taken back to my ward. Fearing harmful repercussions and an even bigger threat to the safety and well being of Suman and Simmi I decided to keep quiet about the traumatic incident at the time.

7. On the 14th December, 2010 around 3 p.m. when I was sleeping I was rudely awakened by someone shaking me. I was horrified to see DIRK ALLAMS standing at my bedside along with Robert Sequiera, my brother Bertram D'Silva and 2 other people one of whom was a woman. I immediately told Gopal to quietly call my wife and tell her about what was taking place. DIRK ALLAMS and Bertram started questioning me and demanded that I should go with them and Robert Sequiera tried to coerce me into signing some papers. I refused to comply to their demands and told them to leave and stop bothering me while I'm sick in Hospital. On seeing this commotion one of the Doctors on duty came to my bedside to inquire about what's happening. When the Doctor approached my bedside and asked what these people wanted, they all left, except for DIRK ALLAMS. Shortly after Sameer arrived to be with me and I informed DIRK ALLAMS that Dr. Sameer is our family doctor, hoping this would make him leave me alone, and then DIRK ALLAMS quietly left the ward. Soon after this Suman and Simmi 48 18311

came, very worried about me and what had happened. I told them that I wanted to be moved to another hospital immediately. Dr. Sameer then suggested I be moved to J.J. Hospital, close by. But I refused as I felt the close proximity of J.J. Hospital would make it easy for DIRK ALLAMS, Bertram D'Silva and Robert Sequiera to find me again.

8. In the car, on the way to Sion Hospital, Simmi expressed her concern over DIRK ALLAMS continuous harassment towards herself and her mother and was very upset that he went to the extent of locating me at Nair Hospital to harass me also. I assured her NOT to be scared of DIRK ALLAMS, as LEGALLY he could do NOTHING against her and Suman, so he was trying to frighten them with bullying harassments and illegal activities on the premises of our home.

9. Although I was already upset and disappointed with my brother Bertram for his lack of concern about my health and well being these past months, I never expected him to turn against me by siding with DIRK ALLAMS and Robert Sequiera. I no longer trust Bertram and have also warned Suman to be careful and NOT to entertain any attempts of communication from his side or on his behalf. I have also specifically instructed Suman, Simmi and Sameer NOT to trust Bertram, DIRK ALLAMS and Robert Sequiera in any way or for any reason. I believe that BERTRAM, DIRK ALLAMS, AND ROBERT SEQUIERA are conspiring

together against me any my wife and step daughter over the property 'THE HARBOUR' 4 Mount Carmel Road, Bandra (W), Mumbai - 400 050.

NOTARY

M.H.CHOWDHARY

REGN NO. 8058

MUM/MAH

ROUND SEAL

GOVT.OF INDIA

Sd/- BEFORE ME Sd/-

DHANRAJ PATIL Sd/- (IRWIN D'SILVA)

ADVOCATE,HIGH COURT M.H.CHOWDHARY

ESPLANDE COURT MUMBAI PUBLIC NOTARY 16 DEC 2010 " GOVT.OF INDIA

49 18311

45. No rejoinder has been filed by the petitioner to deal with the genuineness of this declaration or the contents thereof. It is not even remotely suggested that this declaration was taken by the private respondents by force or misrepresentation from Irvin or, for that matter, in anticipation of this petition. Going by the said declaration, we are persuaded to hold that even the allegation regarding abduction, wrongful confinement or threat given to Irvin by respondent Nos. 4 to 7 is completely false, motivated and baseless. Thus understood, even if we were to hold that the written complaint dated 15th December, 2010 did disclose commission of cognizable offence at least of abduction and wrongful confinement of Irvin and of giving threats to him, which necessitated registration of F.I.R., in the light of material, which has come on record in this Writ Petition, and which material has remained uncontroverted by the petitioner, coupled with the fact that the whole controversy appears to be revolving around the rights in the property where Irvin stayed along with respondent No. 4 and her children after her marriage from 1996, the question of exercising Extra-ordinary Jurisdiction of this Court to issue direction to register F.I.R. on the basis of the said complaint does not arise. It would be nothing short of abuse of process in the fact situation of this case. 50 18311

46. It will be too much to accept the case of the petitioner that even the Investigating Officer had connived with respondent Nos. 4 to 7 in commission of the offence of murder, abduction and wrongful confinement of Irvin by them or of having given threats to him. The Investigating Officer was personally contacted by the petitioner only on 25th December, 2010. Immediately on the same day, he deputed his two constables along with the petitioner and also telephoned respondent No. 7 on the number given by the petitioner. On 26th December, 2010, again constable was deputed by him to the house of Irvin when the private respondents were, in fact, present. On the next day, i.e., 27th December, 2010, the daughter of the deceased presented herself before him along with the Death Certificate of Irvin indicating that he died natural death. It is not the case of the petitioner that any time thereafter, the petitioner had attempted to contact the Investigating Officer with any further vital information. Instead, he sent another communication to the Commissioner of Police, with a copy thereof to the Home Minister, Director General of Police and Human Rights Commission, reiterating the allegation contained in the earlier written communication and alleging inaction of the Investigating Officer, which reads thus:-

51 18311

"From: Bertram D'Silva

C/o. Russel Dias

Alvin, 10 Ranwar

Veronica Street

Bandra (W)

Mumbai 400 050

C/o No. 9833563410

Dt. 29-12-2010

To

The Commissioner of Police

Off. Mahatma Phule Market

Mumbai 400 001.

MOST URGENT

Sir,

Re: Cognizable Complaint of Abduction

Criminal Intimidation Wrongful Confinement

Threats etc., concerning the brother of this

complaint viz., Mr. Irwin D'Silva resident of

Harbour, 4 Mount Carmel Road, Bandra (W)

against Suman, Simi, Faruk presently

residing at Harbour, 1st Floor, 4 Mount

Carmel Road, and Sameer having Mobile No.

9920599127.

1. On 16-12-2010 I had submitted a complaint dated 15-12-2010 to the Sr. Inspector Police i.e. Bandra Police Station in respect of serious offences e.g. abduction, wrongful confinement, threats, robbery etc. involving the very life and property of my brother Irwin D'Silva which was marked most urgent. Thereafter on the next four days I made inquiries at the Bandra Police Station to know the progress of the complaint but I did not get proper information from the duty officers. Eventually on 24-12-2010 I was informed by the duty officer of the Bandra Police Station that the matter has been assigned to S.I. Sathe. However S.I. Sathe was said to be very busy in respect of some bundobast at Bandra and on being contacted by me on the next day S.I. Sathe at the Bandra Police Station, he discussed the matter with another officer at the Bandra Police Station and according to them the offences had taken place within the jurisdiction of Agripada Police Station and I should go to that Police Station. I pointed out to S.I. Sathe that the offences had taken place at the residence of my brother Irwin i.e. the Building called Harbour, Mount 52 18311

Carmel Road, Bandra and also at the Nair Hospital at Mumbai Central. S.I. Sathe then asked me to see him at the Mount Mary Chowky at about 11.00 a.m. On 25-12-2010. Thereafter he took my statement said to be recorded in Marathi (with which I am not well conversant) and asked me to sign the same saying that it was recorded as per my written complaint dated 15-12-2010 which he had with him. At about 3.30 p.m. on 25-12-2010, S.I. Sathe sent two police constables with me to show them the place i.e. the building called Harbour on Mount Carmel Road at Bandra. The constable rang the bell at the front of the building Harbour i.e. on the front door and nobody opened the front door. The constables did not make an attempt to check up at the rear door of the building to make inquiries or to call the persons mentioned in the complaint. I therefore left the building and the constables went back. The next day i.e. on 26-12-2010 I again telephoned S.I. Sathe at about 10.00 a.m. He asked me to meet him at the said Chowky at Mount Mary Road Bandra between 4.00 p.m. to 7.00 p.m. I went to meet S.I. Sathe at the said Chowky at about 5.15 a.m. On 26-12-2010 when S.I. Sathe was not available at the said chowky and the constables at the said chowky informed that S.I. Sathe had no come to the chowky in the afternoon. At about 5.30 p.m. pm 26-12-2010 I again telephoned S.I. Sathe on his mobile 9870310187 who after speaking to me, spoke on the telephone to one of his constables at the said chowky asking him i.e., the constable to accompany me to the building Harbour. I proceeded to the said building with the police constable. Suman, Simmi and Sameer (who are the accused in my complaint dated 15-12-2010) were present in the front room. Suman and Simmi and Sameer met the police

constable. The constable asked them as to where Irwin D'Silva was. Suman answered saying that Irwin was not at home and when the constable again asked them as to where Irwin was, Suman stated that her advocate told her not to disclose Irwin's whereabouts. The constable did not ask Suman or Simmi or Sameer to come to the police station. The constable did not make any attempt to go inside the building to find it out if Irwin was inside. I have reason to believe that the I.O. is not at all interested in making proper and lawful investigation and is merely making a show of making enquiry and fooling me with an ulterior motive.

2. On 28-12-2010 at about 7.00 p.m. when I was near the building Harbour I had seen a bonfire of clothes, papers, wooden articles etc. being burnt at the rear of the building Harbour inside the compound. I have reason to believe the clothes etc. belonging to my brother Irwin have been destroyed. My brother Irwin who had also kept the front 53 18311

room locked has been broken open by the abovementioned person and they have removed all his belongings including the clothes, documents etc. in order to destroy evidence.

3. I have every reason to believe that the Bandra Police (or the I.O.) are not interested in investigating and collecting evidence and/or apprehending the accused persons mentioned in my complaint dated 15-12-2010 where the very safety and life of my brother Irwin are n very serious danger which is likely to cause his death, destruction of the evidence and misappropriation of the property worth several crores of rupees which is likely to be misappropriated and the requisite evidence is bound to be destroyed including valuable documents pertaining to the same.

4. Considering the seriousness of the offence and to the need to save the life of my brother I would request to entrust the investigation to the Crime Branch on a most urgent basis. A copy of my complaint dated 15-12-2010 is annexed.

5. I would very respectfully submit that if prompt action is not taken to apprehend the accused, collect evidence etc. leading to serious miscarriage of justice and likely loss of life, I will be constrained to take immediate legal proceedings including filing a writ Petition in the High Court, Bombay.

Yours faithfully,

Sd/-

Bertram D'Silva

CC:

1. Home Minister

Govt. of Maharashtra

Mantralaya, Mumbai

with the copy of the complaint dt. 15-12-2010

2. Director General of Police

Bombay.

With the copy of the complaint dt. 15-12-2010

3. Human Rights Commission

Bombay.

With the copy of the complaint dt.15-12-2010"

54 18311

From this communication, it does appear that the petitioner had contacted the Investigating Officer on 26th December, 2010. It is also noticed that immediately, the Investigating Officer got in touch with one of his constables at the said Chowky, and directed the said constable to accompany the petitioner to Building Harbour. The petitioner, along with the said constable, proceeded to "Harbour", where they found respondent Nos. 4, 6 and 7 present in the front room. When asked about the whereabouts of Irvin, they told the said constable that Irvin was not at home, and that their advocate had instructed them not to disclose Irvin's whereabouts. But, as aforesaid, immediately on the next day, i.e., 27th December, 2010, respondent No. 6 presented herself before the Investigating Officer in his office and divulged all the necessary information. It is not the case of the petitioner that, after respondent No. 6 had visited the office of the Investigating Officer, he got in touch with the Investigating Officer, whereas it is seen that the petitioner thought it appropriate to straightaway forward abovesaid communication, dated 29th December, 2010, to the Commissioner of Police on the specious reasoning that, on 28th December, 2010, at about 7.00 P.M., he had noticed a bonfire of clothes, papers, wooden articles, etc., near Building Harbour, and he 55 18311

had reason to believe that the crucial evidence was being destroyed by the private respondents.

47. The petitioner's case, throughout, appears to be that all respondent Nos. 4 to 7 were acting in conspiracy. Respondent No. 4, on affidavit, has stated that respondent No. 5 has shifted to U.K. as back as in year 2005, and is continuously living there. In response to this stand, no rejoinder has been filed by the petitioner, not even an iota of material is forthcoming to dispel that assertion. That means that the petitioner has knowingly implicated respondent No. 5 with ulterior purpose. The ulterior purpose seems to be to ensure that respondent Nos. 4 to 7 are arrested and kept in custody, so that he can succeed in his attempt to grab Building Harbour, which is presently in occupation of respondent No. 4 and her children. There is force in the case made out by the private respondents that most probably the petitioner must have been instigated or is acting under the instructions of Dirk Allams and Robert Sequiera.

48. The Declaration signed by Irvin on 16th December, 2010 refers to threatening manner in which the said Dirk Allams, Robert Sequiera and the petitioner had dealt with Irvin when he was in Nair 56 18311

Hospital on 14th December, 2010. As a matter of fact, the incident referred to in the Declaration itself indicates that the attempt was to get rid of respondent Nos. 4 to 7 by implicating them in false cases and, maybe, to take that as a main plank for driving them out of the property, which is presently occupied by respondent No. 4 and her children. There is force in the plea so taken by respondent Nos. 4 to 7, which merits acceptance, for the simple reason that there is nothing in the entire Writ Petition to even remotely suggest that, since 1996, the petitioner had ever bothered about the health problem of Irvin or about the alleged matrimonial dispute between respondent No. 4 and Irvin. The petitioner, for the first time, visited Mumbai from Jharkhand on 11th December, 2010, obviously when he has been informed by persons interested in uprooting respondent Nos. 4 and 6 from the property, Harbour, which is a valuable property, that Irvin was seriously ill on this occasion, and it was necessary to get some documents executed from him. The petitioner was, obviously, being used by those persons to influence Irvin, who was not willing to execute documents in their favour. On the other hand, if respondent Nos. 4 to 7 wanted documents to be executed from Irvin, they would not have looked after Irvin during his health problem, nor Irvin would have executed the Declaration, while he was in hospital, on 16th December, 2010. 57 18311

49. One thing that appears from the record is that, admittedly, Irvin was suffering serious health problem, and he died in the hospital while he was being treated for that since 9th December, 2010, until his death on 22nd December, 2010. The allegations in the written complaint are entirely figment of imagination and to create a false record to pursue property dispute, so as to uproot respondent Nos. 4 and 6 from the said property, Harbour, where they have been staying since 1996, along with respondent No. 5 and Irvin, till his demise on 22nd December, 2010 and even thereafter till now. The attempt is to dispossess them by not following due process of law, but by resorting to criminal complaint, including false accusations and not even sparing the Investigating Officer.

50. We are more than convinced that the complaints and this petition are a well-thought action, which is, essentially, counterblast to the the property dispute or claim of respondent Nos. 4 to 6 in the said property.

51. The assertion of the petitioner that Irvin was forcibly taken to Nair Hospital, instead of Holy Family Hospital, is based on 58 18311

figment of imagination of the petitioner. The real events, which unfolded from 9th December, 2010 till Irvin was admitted to Nair Hospital on 10th December, 2010, have been spelt out in the reply filed by respondent No. 4, which stand is substantiated by the certificates / documents issued by the concerned hospitals, including the Declaration given by Irvin himself. For that reason, the allegation of abduction, wrongful confinement or of giving threat to Irvin does not stand to reason.

52. We would now consider as to any thing turns on the alleged circumstance of not giving intimation to any relatives / friends of Irvin while he was being shifted to hospital or about his death and cremation. The same also stands answered in the reply-affidavit of respondent No. 4. The assertions made in the reply-affidavits of respondent No. 4 have remained uncontroverted. Besides the affidavit of respondent No. 4, the declaration given by Irvin himself explains the position as to why he was required to be shifted from one hospital to another. The revelations made in the Declaration would also belie the stand of the petitioner that Irvin had confided in him, based on which, he had submitted written complaint, dated 15th December, 2010, or that Irvin was not even allowed to use the telephone to enable him to contact anyone. In this view of the matter, the case made out by the 59 18311

petitioner even of abduction or wrongful confinement of Irvin or that he was pressurised, is belied. As regards the cremation of dead body on the same day, respondent No. 4, on affidavit, has explained the circumstances and also the fact that intimation was given to persons mentioned in the reply-affidavit. Once it is found that Irvin had died a natural death, as certified by Sion Hospital, where he was undergoing treatment for Chronic Renal Failure Disease, coupled with the fact that there is no allegation against the staff of the said hospital or any medical officer of that hospital in any of the complaints or the entire Writ Petition, the fact that the dead body was cremated on the same day when Irvin died, does not take the matter any further. The argument of the counsel for the petitioner was, essentially, to persuade the Court to discard the reply-affidavit filed by the Investigating Officer, being cryptic and vague and also having gone to the extent of suggesting that it is an after-thought, which argument, in our opinion, will have to be stated to be rejected.

53. As aforesaid, it is intriguing to note that the petitioner has not even left out respondent No. 5, who is staying abroad since 2005. It is incomprehensible that the petitioner may not be aware of that fact, especially when he claims to know all other details about the 60 18311

matrimonial discord between Irvin and respondent No. 4. In fact, the tenor of the writ petition is to disown the relationship of respondent No. 4 with Irvin. Not only that, in the writ petition, the petitioner has gone to the extent of suggesting that respondent No. 7 has connection with underworld. It is, again, incomprehensible that the petitioner has named respondent No. 7 in the petition, as being instrumental in the commission of the alleged offences, but had no other information about him, except to state that he presumably has underworld connection. As a matter of fact, respondent No.7 is a doctor by profession. He is none other than fiancee of respondent No.6, which fact was not only known to respondent No. 4, being mother of respondent No. 6, but also to Irvin. The dexterity with which the complaints have been drafted, as also this petition, leaves no manner of doubt that the real purpose and attempt of the petitioner is to embroil respondent Nos. 4 to 7, in particular, respondent No. 4, in false proceedings and criminal cases with ulterior purpose. In spite of the elaborate reply-affidavit, the contents whereof are supported by documents as also declaration of Irvin, the petitioner has not chosen to file any rejoinder-affidavit. The amendment carried out by the petitioner through his Constituted Attorney does not even remotely deal with those matters, much less rebut, the case made out by the private respondents. Further, 61 18311

considering the fact that the petitioner, at more than one place in the petition, has described Irvin as "deceased", there is good reason to infer that, when this writ petition was filed on 19th January, 2011, the petitioner was fully aware that Irvin has already died a natural death, but, to deflect the real issue and/or to create a gloss, chose to pray for relief of habeas corpus and production of Irvin as the primary relief in the writ petition. We are of the opinion that the writ petition is not a bona fide petition, but is completely motivated. In all probability, the petitioner is acting under instructions of persons who wish to re- develop the valued property, Harbour. Interestingly, the petitioner does not claim that, since 1996, he had visited Mumbai to meet his brother even once or tried to sort out the differences between his brother Irvin and respondent No. 4. There is no justification noticed from the record as to why the petitioner has only now become conscious and emotional about the well-being of his brother Irvin. There is nothing in the writ petition to re-assure the Court that the petitioner was always in contact with Irvin and supportive of his cause. Perhaps, the petitioner is well- advised that, if he succeeds in ensuring that respondent Nos. 4 to 7, and in particular respondent No. 4, are embroiled in false litigation and criminal case with a charge on their head of having caused death of Irvin, he would alone inherit the rights of Irvin in respect of valued 62 18311

property, Building Harbour at Bandra. This plea of the private respondents appears to be most probable, and deserves acceptance, having remained uncontroverted by the petitioner.

54. Suffice it to observe that, in the fact situation of the present case, it would not be appropriate to issue direction to the State Authorities to register F.I.R. because of the false, baseless and motivated allegations contained in the written complaints of the petitioner.

55. On the other hand, we are of the considered opinion that this petition not only deserves to be dismissed, but, at the same time, the private respondents, in particular, should be given liberty to pursue appropriate legal action in connection with the incidents referred to in the reply-affidavit, as well as in the Declaration, against the concerned persons, which proceedings will have to proceed in accordance with law.

56. We may place on record that the reply-affidavit filed by the private respondents, at more than one place, refers to the presence of one Mr. Robert Sequiera. We, therefore, before pronouncement of 63 18311

the judgment, ascertained from the counsel appearing for the petitioner before us as to whether that name resembles to his name or the fact so stated in the affidavit refers to him. In response, he stated that the fact mentioned in the affidavit refers to him personally. He further submits that he was of the opinion that that should not deter him from appearing in the matter to espouse the cause of the petitioner. Indeed, he did mention that, if the Court found this to be objectionable, he was prepared to withdraw from the proceedings. In fact, this vital fact should have been disclosed by the Advocate at the outset before addressing the Court on merits. Whether to appear in the matter or otherwise is, indeed, discretion of the advocate. The propriety of his appearance in a particular case is an issue that may have to be addressed by the Bar Council. We do not think it necessary to advise the advocate in this behalf or to dilate any further.

57. While parting, we may place on record that, during the course of hearing of this petition on more than one occasion, we had suggested to the counsel for the petitioner that, since the petitioner is inviting finding of this Court on the merits of contentions raised by both the private parties, it may affect the cause of the petitioner in some other proceedings. The counsel for the petitioner unhesitatingly 64 18311

informed the Court that he would better invite the finding of this Court, instead of being told that the petitioner's cause will be prejudiced in some other proceedings.

58. Hence, this petition is dismissed.

R.G. KETKAR, J. A.M. KHANWILKAR, J.