1
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO.2786 OF 2009.
Manoj Prabhakar Lohar,
of District Thane, Indian
Inhabitant and was posted as
Addl. Superintendent of
Police, Chalisgaon, Dist.
Jalgaon. ... Applicant.
Versus
The State of Maharashtra ... Respondent.
...
Mr.R.M.Agrawal, Mr.R.S.Deshmukh, and
Mr.S.A.Vaidya, advocates for the applicant.
Mr.N.B.Khandare, Public Prosecutor assisted by
Mr.R.B.Raghuwanshi, counsel for the
Respondent/State.
...
WITH
CRIMINAL APPLICATION NO.2766 OF 2009.
Dhiraj Yashwant Yeole,
Age 39 years, Occ.Business,
R/o Chalisgaon,Dist.Jalgaon. ... Applicant.
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Versus
The State of Maharashtra ... Respondent.
...
Mr.Nirmalkumar Suryawanshi, advocate holding for
Mr.Vinod Patil, advocate for the applicant.
Mr.N.B.Khandare, Public Prosecutor assisted by
Mr.R.B.Raghuwanshi, counsel for the
Respondent/State.
...
ig CORAM : V.R.KINGAONKAR,J.
Date : 05.09.2009.
ORAL JUDGMENT
1. These are applications filed U/s 438 of
the Cr.P.C. seeking directions that in the event
of arrest, the applicants may be released on bail.
2. The incident giving rise to the
applications is said to have occurred between
30.6.2009 and 1.7.2009. It appears that one
Purshottam Patel, a contractor, had lodged a
report against Dr.Uttam Dhana Mahajan, pertaining
to alleged defrauding in respect of certain
amounts which were payable to him. It was alleged
by said complainant Purshottam that he was duped
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and cheated by said Dr. Uttam Mahajan. In
pursuance to the said complaint, applicant No.1
Manoj, who was then the Additional Superintendent
of Police at Chalisgaon, called Dr. Uttam Mahajan,
in his office around 10/10-30 a.m. on 30.6.2009.
The applicant Manoj deputed PSI Nimbalkar to call
said Dr. Uttam Mahajan. Allegedly, Dr. Uttam
Mahajan is member of Congress Party and was about
to proceed to attend some rally or function at
Nasik along with some other co-workers. He was
taken on motor cycle by PSI Nimbalkar to the
office of applicant Manoj. The applicant Manoj
confronted him with the complaint application of
Purshottam Patel and told him that some inquiry
was to be conducted. He asked Dr.Uttam Mahajan to
request the political party co-workers, who
lateron came there, to proceed to Nasik and
accordingly they left for Nasik, whereas Dr.
Uttam Mahajan remained behind.
3. The allegations would show that
applicant Manoj threatened Dr.Uttam Mahajan to
settle the matter regarding monetary dispute
between himself and complainant Purshottam Patel.
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Intermittently, he was asked to shell out the
money for settlement of the said dispute.
However, the victim (Dr.Uttam) expressed inability
to pay. After some talks and interrogation,
another applicant – Dhiraj Yeole, arrived at the
office of the Additional Superintendent of Police.
He asked the victim whether should he intervene.
Thereafter, he urged applicant Manoj to release
the victim. ig There was a demand of ransom of Rs.
60,00,000/- (Rupees sixty lacs) which ultimately
was reduced due to intervention of applicant
Dhiraj Yeole. Allegedly, the matter was settled
when the victim agreed to issue cheques in respect
of the amounts payable to complainant Purshottam
Patel along with the demanded amount of Rs.
25,00,000/- (Rupees twenty five lacs) payable to
applicant Manoj. The amount of Rs.25,00,000/-
(Rupees twenty five lacs) was not available with
the victim. The victim contacted his father-in-
law on cell phone and thereafter it was assured
that the amount would be paid in the next morning.
The applicant – Dhiraj Yeole was the middleman and
allegedly remained as surety for such payment.
The victim was taken to house of a relative
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applicant Dhiraj in the evening and in company of
PSI Nimbalkar, who was deputed to keep vigil. At
odd hours of the night, the victim was shifted
from house of the relative of applicant Dhiraj to
his own house. The victim was not allowed to go
anywhere. In the next morning, the victim was
found moving on terrace of that house. His son
arrived at the place along with the father-in-law
to whom the information was given on the earlier
day. They had some talk. Since the victim was
under custody of applicant Dhiraj and PSI
Nimbalkar, who was armed with a revolver, the son
of the victim sent a fax letter to the
Superintendent of Police, Jalgaon about the whole
episode alleging that amount of Rs.21,00,000/-
(Rupees twenty one lacs) was demanded for payment
to be made to said Purshottam Patel and the victim
was put under duress to issue cheques for such
amount. The victim was thereafter called at
office of applicant-Manoj and was released
around mid-day.
4. The Superintendent of Police proceeded
to Chalisgaon along with his two superior Police
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Officers and conducted an inquiry into the
complaint about such high-handedness of applicant
Manoj. He forwarded a report to the higher Police
authority as regards his findings arrived at
after the inquiry. Thereupon the further
investigation was handed over to CID Nasik Region
with a direction to register appropriate offence.
The offence vide Crime No.145/2009 was registered
at Chalisgaon
ig Police Station for offences
punishable U/ss, 347, 364-A, and 385 read with
Section 34 of the I.P.Code. The applicants,
however, eluded the arrest. They filed
applications U/s 438 of the Cr.P.C. in the Court
of Sessions at Jalgaon. The learned Sessions
Judge, rejected their applications. Hence, they
have filed these two separate applications seeking
directions.
5. The applications are opposed by the
State on several grounds. The affidavit-in-reply
filed by Mr.Nitin Mitkar, S.P.(CID) would indicate
that arrests of the applicants is sought for the
purpose of custodial interrogation. It is stated
that the information about probable conspiracy
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with said Purshottam Patel and advocate Pravin
Chavan and the applicants is required to be
unearthed.
6. Heard learned counsel for the applicants
and learned Public Prosecutor for the State. Main
thrust of the argument advanced on behalf of the
applicants is that there exists no prima facie
case to infer commission of the offence U/s 364-A
of the I.P.Code.
7. With the help of learned Public
Prosecutor Mr.Khandare, I have gone through the
investigation papers, including the information
regarding bad antecedents of applicant Dhiraj.
For, it is alleged that applicant Dhiraj is
involved in several serious crimes and is a
notorious person.
8. So far as legal position is concerned,
the criteria which needs to be applied in such
matters is well settled. The Apex Court in
“Gajanand Agrawal Vs. State of Orissa and others”
2007 AIR SCW 2857, recapitulated the factors to be
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taken into consideration. It is held that where
bail was being granted, particularly, where the
accused was charged of having a serious offence,
it is necessary for the Courts dealing the with
application for bail to consider among other
circumstances, the following factors :
“(i) The nature of accusation and the
severity
ig of punishment in case ofconviction and the nature of supporting
evidence;
(ii) Reasonable apprehension of
tampering of the witness or
apprehension of threat to the
complainant;
(iii) Prima facie satisfaction of the
Court in support of the
charge.” (Emphasis supplied by me)
9. Considering the above legal position, it
is amply clear that prima facie case ought to be
made out to indicate that the applicants are
involved in commission of an offence of cognizable
nature. There must be prima facie supporting
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evidence to reach the conclusion that the
applicants are involved and reasonably could be
accused of a serious crime of cognizable nature.
In the present case, it is no doubt true that
there is prima facie material to infer that
applicant Manoj is a highly placed Police Officer
and applicant Dhiraj has some past bad record and,
therefore, they have potential to tamper the
witnesses or to threaten the complainant.
ig Thus,
ordinarily the bail application of the applicants
can not be considered if it is shown that they are
involved in a serious crime of cognizable nature.
10. Clinching question is whether there is
prima facie material to show that the applicants
or either of them are involved in offence
punishable U/s 364-A of the I.P.C. The other two
offences registered against them viz; U/s 347 and
U/s 385 of the I.P. Code are the bailable
offences. Therefore, unless the material on record
is found to be enough to prima facie infer
complicity of the applicants or either of them in
the commission of offence U/s 385-A of the
I.P.Code, the discretionary bail can not be denied
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to them.
11. Before I embark upon consideration
analysis of the material available, it would be
useful to mention here that Section 364-A was
introduced by the Parliament on the Statute book
in view of the incidents of kidnapping by the
terrorists for ransom or by anti social elements
so as to
ig create panic among the people. The
objects of the amendment as enunciated in the
Amendment Act, 1993 (Act 42 of 1993) can be
gathered from the following paragraph used while
introducing such amendment.
” Kidnappings by terrorists for
ransom, for creating panic amongst the
people and for securing release of
arrested associates and cadres have
assumed serious dimensions. The
existing provisions of law have proved
to be inadequate as deterrence. The Law
Commission in its 42nd Report has also
recommended a specific provision to deal
with this menace. It was necessary to
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amend the Indian Penal Code to provide
for deterrent punishment to persons
committing such acts and to make
consequential amendments to the Code of
Criminal Procedure, 1973.”
12. On plain reading of the objects and
reasons which propelled the amendment of Section
364-A in ig1993, it would be amply clear that
ordinarily the acts of terrorism or the acts of
gangsters, wherein the kidnapping or abduction is
committed with intention to fulfill demand for
ransom are brought within the purview of this new
penal provision. The allegations in the complaint
will have to be considered prima facie without
threadbare analysis of the evidence.
13. On perusal of the fax letter issued by
son of the victim to Superintendent of Police,
Jalgaon, immediatley in the morning of 1.7.2009,
it may be gathered that there was no threat given
to the victim to the effect that he would be done
to death on his failure to pay the demanded
amount. What transpires from the statement of the
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victim, which was recorded lateron by the
Superintendent of Police, is that he was
threatened that he would be put behind the bars.
In other words, applicant Manoj is said to have
threatened the victim of his arrest in connection
with the complaint lodged by said Purshottam
Patel. It may be that applicant Manoj acted with
high-handedness. It may be that he was harsh while
dealing with
ig the victim. It may be that he
unnecessarily took help of the intermeddler
probably to coerce or to say coax the victim to
shell out the money. There are two possibilities.
First, he wanted to detain the victim until the
payment to said Purshottam was ensured due to some
other considerations. Another possibility is that
he wanted to extract some money from the victim by
putting him under fear of arrest. Here it may be
noticed that applicant Manoj had the legal
authority to effect the arrest.
14. The most significant aspect of the
matter is that the Superintendent of Police,
Jalgaon (Mr.Rastogi) reported that the facts
revealed from his inquiry indicated commission of
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the offences U/s 347 and 385 of the I.P.Code. He
did not say that offence U/s 364-A read with
Section 34 of the I.P.Code could be registered
against the applicants. It emerges from the
record that applicant Manoj and the S.P.
(Mr.Rastogi) were not pulling on well with each
other. Thus, it does not prima facie appear that
Mr.Rastogi could have intentionally tried to
screen applicant Manoj.
ig Needless to say, there is
prima facie material to reach conclusion that the
charge for offence U/s 364-A was lateron added
when the investigation came in the hands of the
C.I.D. Why the opinion of Mr.Rastogi (S.P.)
should be brushed aside.? There appears no
satisfactory explanation. On the other hand,
probability of subsequent addition of the charge
in aggravated form is prima facie borne out from
the record.
15. The entire episode prima facie shows
reprehensible attitude of applicants Manoj and
Dhiraj. No doubt, there is prima facie material
to infer that the other two charges may stick to
them. Even so, the material placed on record does
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not prima facie indicate that the victim was
abducted or kidnapped at the inception, with a
view to demand ransom by putting him under fear of
death. For, the prosecution story is that the
victim was called by PSI Nimbalkar and was taken
to the office of applicant Manoj on the motor-
cycle as a pillion rider. After a short while,
other co-workers of his party went to the office
of the Additional Superintendent of Police and met
the victim. In other words, the public members
and staff members of the office of the applicant
Manoj were knowing that the victim was brought to
that office. In the broad day light and in
presence of several public members, it is
difficult to say that there was “abduction with
intention to force the victim to pay ransom” when
he was taken to the office. The statement of the
victim indicated that he was rashly dealt with. To
put in his words appliant – Manoj talked “In
Police language” and gave abuses while he was in
that office.
16. Faced with this difficulty, learned
Public Prosecutor Mr.Khandare, invited my
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attention to certain observations in “Malleshi Vs.
State of Karnataka” 2004 AIR SCW 5585. The Apex
Court has observed that to attract provisions of
Section 364-A of I.P.Code, what is required to be
proved is :
“(i) that the accused kidnapped or
abducted the person;
(ii)
ig kept him under detention aftersuch kidnapping and abduction; and
(iii) that the kidnapping or abduction
was for ransom.”
These observations can not be, however, read in
isolation inasmuch as, the Apex Court in para 7
reproduced Section 364-A and moreover, the fact
situation of the given case is not clear in order
to examine whether the kidnapped victim by name
Vijay Bhaskar was threatened to do away with his
life on failure to pay ransom so demanded. The
Apex Court in “Vishwanath Gupta Vs. State of
Uttaranchal” in Special Leave Petition (Cri.)
4516/2006, analysing Section 364-A and in para 6
of the judgment observed :
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“There are three stages in this Section,
one is the kidnapping or abduction,
second is threat of death coupled with
the demand of money and lastly when the
demand is not made, then causing death,
if the three ingredients are available,
that will constitute the offence under
Section 364-A of the I.P.Code.”
Mr.Khandare, would submit that in said case, the
Apex Court was mainly concerned with the
jurisdictional issue. The Apex Court held that any
of the three ingredients can take place at one
place or at different places. Still, however, the
main ingredient at the second stage is “threat of
death coupled with the demand of money” and that
should be prima facie satisfied in the peculiar
fact situation so as to attract Section 364-A of
the I.P.Code.
17. In the context, a Division Bench of this
Court in “Philips Fadrick D’souza and another Vs.
State of Maharashtra and another” 2008 (4)
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Mh.L.J. 380 observed :
“The essential ingredients of the
statutory provision, apart from the act
of kidnapping, abduction or, as the case
may be, keeping a person in detention
thereafter, are a threat to cause hurt
or a reasonable apprehension of such a
consequence or causing death or hurt, in
order to compel the payment of ransom or
the doing or abstention from doing any
act by government, a foreign state, an
inter governmental body or by any
person. The purpose of the unlawful act
is to demand ransom or to compel the
doing or abstention from doing of a
particular act. Kidnapping or the
abduction by itself does not lead to an
inference of the underlying purpose with
which it was carried out. The purpose
must exist at the time when the act of
kidnapping or abduction takes place.”
18. The material on record would show that
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the applicant-Manoj did not visit house of
applicant Dhiraj or that of his relative during
the night time or till next morning. What is
alleged and is prima facie explicit from the
material on record is that he was detained and
wrongfully confined at residential house of a
relative of applicant Dhiraj and subsequently at
the house of said Dhiraj. The learned Public
Prosecutor Mr.Khandare, would point out that PSI
Nimbalkar was deputed to keep vigil and that it
has been specifically alleged that PSI Nimbalkar
was armed with revolver. Mere fact that an armed
Police Officer was deputed to keep watch on the
victim would not even prima facie indicate threat
conveyed to the victim of putting him to the fear
of death. In no express words such threat was
communicated nor version of PSI Nimbalkar shows
that he was asked to eliminate the victim if the
ransom was not paid.
19. Mr.Khandare, would submit that custodial
interrogation of both the applicants is necessary
in order to effectively carry out the
investigation and only a prima facie view has to
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be taken. He referred to observations in “State
Rep. by the C.B.I. Vs. Anil Sharma” (1997) 7
Supreme Court Cases 187. The Apex Court
highlighted importance of custodial interrogation
in an appropriate case. It is observed that
success in such interrogation would elude if the
suspected person knows that he is well protected
and insulated by a pre-arrest bail order during
the time he is interrogated.
ig Mr.Khandare, also
invited my attention to certain other observations
in “Adri Dharan Das Vs. State of W.B.” (2005) 4
Supreme Court Cases 303, wherein the Apex Court
analysed a catena of case law on the subject and
held that interim order to the effect that the
accused be not arrested can not be passed U/s 438
of the Cr.P.C. There are cases and cases.
Ultimately, the Court is required to strike down
balance between liberty of a person and the
necessity of custodial interrogation in public
interest.
20. The learned Public Prosecutor
Mr.Khandare, would submit that the custodial
interrogation of the applicants is likely to
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reveal certain important facts like possibility of
conspiracy between them and said Purshottam Patel
as well one Asdvocate Mr.Pravin Chavan. He would
submit that the information regarding vehicle and
the ownership of the vehicle so used for shifting
of the victim from place to place is also to be
revealed. The applicants Manoj and Dhiraj were
asked to appear before the I.O. during the period
from earlier order till today.
ig It is undisputed
that they had appeared before the I.O. It also
appears that they were interrogated by the I.O.
The learned Public Prosecutor would submit that
except denial, no much cooperation is given by the
applicants. In my opinion, recovery of the
vehicles used during the night time is not
necessary and very important part of the
investigation. Secondly, whether conspiracy was
hatched out by the applicants and said Purshottam
Patel along with advocate Pravin Chavan is also
not germane to the constitution of the offence U/s
364-A of the I.P.Code. In my opinion, the
significant omission regarding the threat to the
life of the victim on his failure to pay the
alleged ransom will be a material criteria to be
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considered.
21. Reverting to the factors which are set
out in case of “Gajanand Agrawal Vs. State of
Orissa and others” (supra), when the nature of
supporting evidence and prima facie satisfaction
of the Court in support of the charge of abduction
for the purpose of extracting ransom under threat
of death is absent, the applicants are entitled to
liberty. However, stringent conditions will have
to be imposed in order to ensure that the
investigation is not impaired. It may be mentioned
that if substance is found in the allegations made
against applicant Manoj, the Home Department is at
liberty to take appropriate action so as to dispel
any apprehension about tampering of the evidence.
If such apprehension still exists, it is difficult
to comprehend as to why he is not put under
suspension. It is reported that he has been
transferred but he has not joined the new posting.
This allegation is, however, refuted on his behalf
on the ground that he is not given any particular
posting as such. I do not wish to enter into
the thicket of the controversy which is alien to
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the present matter.
22. Under the circumstances, both the
applications are allowed on following terms :
(i). The applicants be released on bail on
furnishing of bail bonds in sum of Rs.50,000/-
(Rupees fifty thousand) each, in the event of
their arrest, before the concerned Police Officer;
(ii) Both the applicants shall not enter
limits of Jalgaon District during the period of
investigation and shall not contact any of the
witness or shall make no attempt to tamper with
the prosecution evidence;
(iii) Both the applicants shall attend office
of the Investigating Officer at Nasik on each
Tuesday and Saturday between 10-00 and 1-00 p.m.
and shall cooperate with him. If so required, the
I.O. is at liberty to record their interrogation
on audio player.
(iv) If after collecting due material, the
Investigating Officer is satisfied that sufficient
evidence is available to infer any prior
conspiracy and commission of the offence U/s 364-A
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of the I.P.Code, with the help of newly available
material, then he would be at liberty to seek
Narco Analysis Test and for such purpose may apply
to the concerned Judicial Magistrate or Sessions
Judge as the case may be. In case such a request
is granted by the concerned Court, the applicants
shall appear personally to undergo such a
scientific test or any like test.
(v)
The applicants are put on notice that if
any of the above mentioned conditions is breached
then the bail order would be cancelled only for
the reason of such breach and without considering
any other matter.
23. The Criminal Applications are
accordingly disposed of.
(V.R.KINGAONKAR,J.)
asp/office/Crapp278609
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