(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 1022 of 2011 WITH Criminal Application No. 1167 of 2011 ( In Criminal Application No. 1022 of 2011 ) Criminal Application No. 1022 of 2011 Manoj s/o. Prabhakar Lohar, Age : 37 years, Occupation : Government Servant as Superintendent of Police (At present under suspension), R/o. Building No.5, Plot No. 1103, Accolade Society, Luis Wadi, Thane (West), Thane - 400 604. .. Applicant. versus The State of Maharashtra, through the Investigating Agency i.e. State (C.I.D.), Nashik. .. Respondent. ........................ Mr. Rajendra S. Deshmukh, Advocate, for the applicant. Mr. S.K. Tambe, Additional Public Prosecutor, for the respondent. ........................ (2) Criminal Application No. 1167 of 2011 ( In Criminal Application No. 1022 of 2011 ) 1. Uttamrao s/o. Dhanaji Mahajan, Age : 55 years, Occupation : Service, working as Principal, Ayurvedic College, Chalisgaon, R/o. Shivkrupa, Plot No.1, Dhule, Chalisgaon, District : Jalgaon. 2. Manoj s/o. Uttamrao Mahajan, Age : 25 years, Occupation : Student, R/o. Shivkrupa, Plot No.1, Dhule, Chalisgaon, District : Jalgaon. .. Applicants. versus 1. Manoj s/o. Prabhakar Lohar, Age : 35 years, Occupation : Service, Working as Deputy Superintendent of Police, Chalisgaon Division, Chalisgaon, R/o. Chalisgaon, District : Jalgaon. 2. The State of Maharashtra, Through Investigation Agency, State CID, Nashik, District : Nashik. .. Respondents. ........................... (3) Mr. R.B. Raghuwanshi, Advocate, with Mr. P.D. Bachate, Advocate, for the applicants. Mr. Rajendra S. Deshmukh, Advocate, for respondent no.1. Mr. S.K. Tambe, Additional Public Prosecutor, for respondent no.2. ************** CORAM : B.P. DHARMADHIKARI, J. DATE : 23RD MARCH 2011 ORAL JUDGMENT : 1. The applicant before this court has moved Criminal Application No. 1022/2011 under Section 438 of the Code of Criminal Procedure, 1973, for grant of anticipatory bail, in the event of his arrest in connection with Crime No. 145/2009 registered with Chalisgaon Police Station, on 16-7-2009, under Sections 166, 346, 348, 385, 504, 506, read with Section 34 of Indian Penal Code, and for offences punishable under Sections 9, 10 and 13(1)(a) of Prevention of Corruption Act, 1988. There was an interim prayer. But then, this court has on 10-3-2011 issued notice. After service of notice, the State of Maharashtra has filed reply. (4) 2. Similarly, the complainant in the crime, Shri Uttamrao s/o. Dhanaji Mahajan and his son Manoj have filed Criminal Application No. 1167/2011 seeking leave to assist prosecution in the matter. 3. The incident in relation to which the Crime No. 145/2009 is registered, is alleged to have occurred between 30th June 2009 and 1st July 2009. A contractor, by name, Purushottam Patel lodged report against complainant Uttam about cheating and defrauding. The present applicant, then the Additional Superintendent of Police at Chalisgaon, is alleged to have callled complainant Uttam in his office in the morning between 10 to 10.30 a.m. on 30th June 2009. PSI Nimbalkar was deputed by applicant for that purpose. It is claimed that said Uttam is member of Congress Party and he was to leave for attending some rally. He was taken on motorcycle by PSI Nimbalkar to the office of applicant Manoj where applicant confronted him with complaint of Purushottam Patel and stated that some inquiry was to be conducted. The co-workers of political party of the complainant, therefore, proceeded to the place of rally and complainant remained in the office of applicant. (5) 4. It is claimed that thereafter applicant threatened complainant and asked him to settle the monetary dispute with Purushottam Patel. He asked him to shell out money for settlement of that dispute and the complainant expressed his inability to pay. After some talks in this respect, one Dhiraj Yeole arrived in the office of applicant and he asked complainant whether he should intervene in the matter. Shri Yeole then requested applicant to release complainant. There was a demand of Rs. 60,00,000/- for such release and it was reduced due to intervention of Dhiraj Yeole. The matter was allegedly settled and complainant agreed to issue cheque in respect of amount payable to Purushottam Patel along with demanded amount of Rs. 25,00,000/- payable to Majoj. This amount of Rs. 25,00,000/- was not available with complainant and he contacted his father-in-law on cellphone, who assured that amount would be paid on next day in morning. Dhiraj Yeole was middleman and surety for such payment. Complainant was then taken to house of relative of Dhiraj in the evening in the company of PSI Nimbalkar who was deputed to keep an eye on him. 5. In the night, complainant was shifted to house of Dhiraj and was not allowed to go anywhere. Next morning, son of complainant came there along with father-in-law Shri Mali and the complainant was found moving on terrace of that house. (6) As complainant was under custody of Dhiraj and PSI Nimbalkar, son of complainant sent a fax message to the Superintendent of Police, Jalgaon, about whole episode alleging that amount of Rs. 21,00,000/- was demanded for payment to Purushottam Patel and complainant was put under duress for that purpose. The complainant was thereafter called in the office of applicant and was released around 3.30 to 4.00 p.m. on 1-7-2009. 6. Superintendent of Police, Jalgaon, proceeded to Chalisgaon along with two Police Officers and conducted an inquiry. He forwarded a report to the higher Police authority and further investigation was then handed over to CID, Nashik Region, with a direction to register appropriate offences. Offence vide Crime No. 145/2009 was registered at Chalisgaon Police Station under Sections 347, 364A and 385, read with Section 34 of Indian Penal Code. 7. The applicant then filed application under Section 438 of Cr.P.C. before Sessions Court at Jalgaon. That application was rejected and thereafter he filed Criminal Application No. 2786/2009 before this court. The other application, being Criminal Application No. 2766/2009, filed by Dhiraj, and said Criminal Application No. 2786/2009 were heard together by this court and on 5-9-2009, this court directed their (7) release on bail after imposing some conditions. This court found that the ingredients of Section 364A of IPC were not satisfied in the matter. However, it permitted Investigating Officer to seek Narco analysis test and to apply for that purpose to Judicial Magistrate or Sessions Court, as the case may be, if after collecting due material, he was satisfied that sufficient evidence was available to infer any prior conspiracy and commission of offence under Section 364A of IPC. 8. Applicants in Criminal Application No. 1167/2011 questioned this judgment dated 5-9-2009 by filing Criminal Appeal No. 349-350 of 2011 before Hon. Apex Court. On 24th January 2011, those appeals were allowed and respondent before Hon. Apex Court, namely, present applicant was left free to pursue other remedies as per law. After this order, the present applicant filed application under Section 438 of Cr.P.C. on 3rd March 2011 before Sessions Judge and Special Curt at Jalgaon, which came to be registered as Anticipatory Bail Application No. 250/2011. He sought for his release under Section 438 of Cr.P.C., in the event of his arrest in Crime No. 145/2009 registered at Chalisgaon Police Station. On the very same day, the application was rejected by the Additional Sessions Judge, Jalgaon. It appears that the learned Counsel representing the applicant there contended that the Sessions Court had no option (8) in the matter and it has either to reject the application forthwith or then to issue ad interim order for grant of anticipatory bail. After hearing the Counsel, by passing order below Exhibit 1, Criminal Bail Application No. 250/2011 came to be rejected. Thereafter, the applicant has approached this court in Criminal Application No. 1022/2011, as already mentioned above. 9. Mr. R.S. Deshmukh, learned Counsel appearing for the applicant, has contended that as per copy of inquiry report received by the applicant under Right to Information Act, the applicant and Dhiraj Yeole were found to have committed cognizable offences under Section 347, 385 read with Section 34 of IPC. He points out that the said Inquiry Officer who was specially entrusted with the job, did not find commission of offence under Section 364A of IPC. He further contends that this report is dated 4-7-2009 and for the first time on 16-7-2009, while registering FIR, only non-bailable offence in the shape of Section 364A came to be added. He further invites attention to the fact that the bail application then moved was rejected by the Sessions Court on 31-7-2009 and came to be granted by this court on 5-9-2009. He invites attention to liberty granted by this court to prosecution while granting that bail and in this background, further points out that on 9-10-2009, Superintendent of Police, Jalgaon, moved court of Chief Judicial (9) Magistrate at Chalisgaon for deletion of Section 364A from the crime. He contents that this move after about a month of the leave granted by this court shows that prosecution after investigation was then satisfied that there was no material to implicate the application under Section 364A of IPC. He further invites attention to orders passed by this court on 14-12-2009 on Criminal Application No. 3604/2009 seeking relaxation of condition and the later order dated 11-8-2010 in Criminal Application No. 3003/2010, to urge that this deletion of Section 364A by prosecution was maintained till 11-8-2010. Attention is invited to order dated 11-8-2010 to show that this court was then specifically informed that investigation in Crime No. 145/2009 was over. Attention is also invited to the information provided to the applicant on 6th December 2010 by the State Government & that it also discloses completion of investigation in relation to Crime No. 145/2009. Attention is also invited to submission of proposal for sanction under Section 197(1) on 26-5-2010 to Director General of Police and receipt of that proposal by the State Government on 5-8-2010. It also discloses that as per proposal, sanction was sought to prosecute the applicant for offences punishable under Sections 166, 346, 348, 385, 504, 506, read with Section 34 of IPC and offences punishable under Sections 9, 10, 13(1)(a) of Prevention of Corruption Act. He contends that offences under Sections 166 and 348 of IPC (10) mentioned in this communication is an addition and offences under Prevention of Corruption Act is also an addition. He further contends that only offences threrein under Prevention of Corruption Act are non-bailable. 10. The communication forwarded by Additional Superintendent of Police to the court of Judicial Magistrate (First Class) on 28-4-2010 is then pointed out to show that for the first time by the said communication, offences under Section 166 and 348 of IPC and above mentioned three Sections of Prevention of Corruption Act came to be added. His contention is, all these acts clearly show an intention only to harass and persecute the applicant. 11. It is in this background, learned Counsel for the applicant invites attention to orders of Hon. Apex Court dated 24th January 2011, to urge that the Hon. Apex Court has left other remedies of applicant in tact and hence in changed circumstances, application under Section 438 of Cr.P.C. was moved before Sessions Court on 3rd March 2011. He contends that said application could not have been treated as second application and the application was in fact first application only. He has invited attention to the fact that the investigation into Crime No. 145/2009 was complete on 26-5-2010 itself and this (11) was a subsequent event which needed to be looked into by the Sessions Court. Learned Counsel in this connection has invited attention to the subsequent effort on 7-3-2011 by which the prosecution has again added Section 364A of IPC to Crime No. 145/2009. The reasons given in reply filed before this court by prosecution for seeking custody of applicant are also stated to be illusory and without any substance. 12. He points out that though applicant was suspended from his services, there was no condition in suspension order asking him to mark his attendance anywhere or to report at any place and in this situation, the stand that applicant was not available for interrogation, in reply, is unsustainable. 13. To explain the importance of provisions of Section 438 of Cr.P.C., in the system of administration of justice & criminal jurisprudence, learned Counsel for the applicant has relied upon judgment of Hon. Apex Court reported at 2010 (12) Scale 691, in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & others, and another judgment of Hon. Apex Court reported at 2011 ALL MR (Cri) 659 (S.C.), in the case of Mukesh Kishanpuria Vs. State of West Bengal. He states that the applicant has been on bail after 5-9-2009 till 24-1-2011 i.e. for more than one and half years. He further argues that (12) there is already a finding by this court in its earlier order that ingredients of Section 364A of IPC are not available in the matter and in any case, those ingredients or facts relevant thereto cannot make out an offence under any of the provisions of Prevention of Corruption Act. Contention is, therefore, the effort of prosecution is only to show some non-bailable offence by any means with a view to harass the applicant. 14. To point out ingredients of Section 364A of IPC, learned Counsel for the applicant has placed reliance upon judgment of Pubjab & Haryana High Court, delivered on 7th September 2005, in Criminal Appeal No. 877-DB of 2004, in the case of Vinod Kumar Vs. State of Haryana, and judgment of Delhi High Court, delivered on 6th January 2010, in Criminal Appeal No. 738/2003, in the case of Surender Kumar @ Raja Vs. State. In reply to arguments of learned APP, Adv. Mr. Deshmukh, for the applicant, has relied upon two more judgments in this respect and those are (i) in the case of Vishwanath Gupta Vs. State of Uttaranchal, decided by Hon. Apex Court on 21-3-2007 vide Special Leave Petition (crl.) 4516 of 2006, and (ii) judgment of Delhi High Court in the case of Rukhsar Vs. State of NCT of Delhi, vide Criminal Appeal No. 460/2004. Learned Counsel for the applicant contends that here, as ingredients of Section 364A are not satisfied and as no non- (13) bailable offence is prima facie established, the applicant is entitled to be released on bail. To point out how the situation like this needs to be approached by the courts of law, he relies upon judgment of Hon. Apex Court reported at 2010 ALL MR (Cri) 2631 (S.C.), in the case of Pravinbhai Kashirambhai Patel Vs. State of Gujarat & others. Similarly, without prejudice to his contention that application moved on 3rd March 2011 was not second application, learned Counsel has relied upon Constitution Bench judgment of Calcutta High Court reported at 2011 ALL MR (Cri) JOURNAL 33, in the case of Sudip Sen Vs. State of West Bengal, to show that in changed circumstances, even second such application is maintainable. Lastly he has urged that even statements of father-in-law of complainant, namely, Digambar Mali, produced before Hon. Apex Court are not sufficient to show commission of offence under Section 364A of IPC. 15. Learned APP Mr. S.K. Tambe, appearing for the respondent / State, has by placing reliance upon judgment of Hon. Apex Court dated 24-1-2011, raised a preliminary objection. According to him, that order does not permit the applicant the liberty of moving such application under Section 438 of Cr.P.C. Only remedy left open to him is to apply for regular bail. Learned APP contends that being a high ranking (14) officer i.e. Additional Superintendent of Police, the applicant has to surrender and thereafter he can file appropriate application for his release on regular bail. He has further stated that though there was some delay in lodging FIR, as the grievance was against a high ranking officer, administration thought it fit to conduct preliminary inquiry and after receipt of that inquiry, FIR came to be lodged on 16-7-2009. He further states that Investigating Officer found that an offence under Section 364A of IPC was also involved in the matter and hence while filing FIR, Section 364A was also added. In this background, he contends that application, as filed on 3rd March 2011, is not only in relation to subsequently added offences under the Prevention of Corruption Act, but in relation to entire crime and, therefore, has been rightly treated as second application by the Sessions Court. 16. Learned APP further argues that after the orders of Hon. Apex Court dated 24-1-2011, the prosecution found it necessary to restore the provisions of Section 364A of IPC back to crime and accordingly on 8-3-2011, communication in this respect has been given. He points out that present applicant had filed a petition under Article 226 of the Constitution of India for quashing and setting aside of FIR and that Criminal Writ Petition No. 868/2009 has been dismissed by Division Bench of this (15) court on 10-12-2009. He further invites attention to observations in paragraph 11 by Division Bench to urge that Division Bench prima facie found disclosure of commission of cognizable offences in the matter. He further states that the Special Leave Petition (Crl) No. 9812/2009, filed against this Division Bench judgment, was rejected by Hon. Apex Court on 4-1-2010. He contends that the order of suspension prohibits the applicant from leaving his headquarter i.e. Mumbai and in this background, attention is invited to the report called by the Deputy Superintendent of Police, State Crime Investigation Department, Nashik, from the Superintendent of Police, State Control Room, Mumbai, which indicates that during suspension of the applicant, he was not at his headquarter. 17. He relies upon judgment of Hon. Apex Court reported at 2004 AIR (SC) 4865, in the case of Malleshi Vs. State of Karnataka, to urge that ingredients of Section 364A are fulfilled in the matter. To highlight the importance of custodial interrogation in such matter, he relies upon judgment of Hon. Apex Court reported at (1997) 7 Supreme Court Cases 187, in the case of State represented by the C.B.I. Vs. Anil Sharma. 18. As Criminal Application No. 1167/2011 is moved by the original complainant and the orders of this court dated (16) 5-9-2009 were questioned by applicants therein before Hon. Apex Court, learned Adv., Mr. R.B. Raghuwanshi, with Adv. Mr. P.D. Bachate, appearing for them were permitted to assist learned Additional Public Prosecutor. According to Adv. Mr. Raghuwanshi, the grievance made by Purushottam Patel was on 24-6-2009 and it was essentially a grievance of civil nature. He has attempted to point out its nature to this court. According to him, no offence or any penal provision was attracted in that cause. This grievance of Mr. Patel was kept pending by the applicant till 30th June 2009 as applicant was then not available and after his return, he has taken up that report. He has then invited attention to the communication dated 1-7-2009 sent by son of complainant and report by him on 2nd July 2009. He contends that inspite of this serious offence, as the Police machinery was not moving and no cognizance was being taken, Criminal Writ Petition No. 583/2009 was required to be filed before this court on 6-7-2009. That Criminal Writ Petition was heard on 13-7-2009 and thereafter on 16-7-2009, the FIR came to be registered. He points out that in reply filed before this court, learned APP has made reference to involvement of one Dhiraj Yeole in the matter and the said person is having past criminal record. According to him, there was talk on 17 occasions between said Dhiraj and present applicant during 30.6.2009 & 1.7.2009. He also contends that ingredients of (17) Section 364A of IPC are fulfilled in the matter. 19. In his reply arguments, Adv. Mr. Deshmukh has urged that the prosecution has not come up with case that the applicant is absconding. He points out that the alleged communication by Control Room at Mumbai does not show that inspite of previous intimation or notice, the applicant was not available or then applicant chose to ignore the same. He further contends that suspension order of applicant dated 5th February 2010, only requires him not to leave headquarter without prior permission of Director General and Inspector General of Police. In view of this position, according to the learned Counsel, the defence, that applicant was not available at headquarter, being made out on the strength of the communication from Control Room at Mumbai, is without any merit. He further argues that the alleged dispute between Purushottam Patel and complainant was for Rs. 21,00,000/- and contention that for settling it, the applicant demanded amount of Rs. 60,00,000/- cannot be accepted. He further argues that there is no connection between applicant and Dhiraj Yeole. 20. Adv. Mr. Deshmukh also points out that P.I. Nimbalkar was later on implicated as accused on 21-10-2009 and has also been released on anticipatory bail by Sessions Court (18) itself. 21. The fact that investigation was reported to be complete on 26-5-2010 is not in dispute. Learned APP has, however, contended that it was in the light of the earlier orders of this court dated 5-9-2009 and thereafter a communication dated 9th October 2009 by Investigating Officer. The situation undergoes change after 24-1-2011 when Hon. Apex Court has quashed and set aside the judgment dated 5-9-2009 delivered by this court in Criminal Application No. 2786/2009. After that communication, the Investigating Officer has added provisions of Section 364A of IPC again on 8-3-2011 and hence investigation is still not complete. 22. Perusal of judgment of this court dated 5-9-2009 shows that after considering rival arguments about the availability of provisions of Section 364A in the matter and after considering various judgments, this court has recorded a finding against the prosecution in the matter. While so doing, the judgment of Hon. Apex Court in the case of Vishwanath Gupta Vs. State of Uttaranchal (supra), cited before me by Adv. Mr. Deshmukh, was also looked into. The judgment relied upon by learned APP and reported at Malleshi Vs. State of Karnataka (supra), was also looked into. This court then proceeded to pass (19) the following order: " 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 ot 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 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. (20) (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. This issue was then taken up to Supreme Court by the applicants in Criminal Application No. 1167/2011 in Criminal Appeal No. 349-350 of 2011. Hon. Apex Court has on 24th January 2011, delivered the following order : " Leave granted. We have heard the learned counsel for the parties at length. We see that the High Court even