1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1774 of 2010 Riyazuddin Gayasuddin Deshmukh ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Nagpuri Gate, Amravati. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A.M.Rizwy, Advocate for the applicant. Mr. A.S.Parihar, A.P.P. for the respondent/State. CORAM : Prasanna B. Varale, J. Order reserved on : 14th December, 2010. Order pronounced on : 22nd December, 2010. Heard. By this application under Section 438 of the Code of Criminal Procedure, the applicant is seeking pre-arrest bail in connection with Crime No.3118/2001 registered with Police Station, Nagpuri Gate, Amravati for the offences punishable under Sections 10((iv), 10(b)(ii), 13(i)(b), 13(ii) and 19 of the Unlawful Activities (Prevention) Act,1967. Mr. Rizwy, learned Advocate for the applicant submitted that the applicant is a Police Inspector and presently he is placed under suspension and he has unblemished service record at his credit. He further submits that the applicant also hold the post of Senior Intelligence Officer in the State Police Department and also recipient of various rewards. In the year 2001, an offence was registered against two accused persons namely Mujahid Siddiqui and one Anis Ahmad. Along with these two accused persons one Izhar Ahmad and Khwaja Moinuddin Deshmukh were subsequently added as accused. Izhar Ahmad is brother-in-law of the applicant whereas Khwaja Moinuddin is the son of applicant. The Charge sheet was filed against 2 these persons before Judicial Magistrate, First Class, Court No.5, Amravati and the they were released on bail by the learned Magistrate on the first day of their appearance. It was alleged in the said report that all these accused persons were the members of one organization namely Students Islamic of India (hereinafter referred as “SIMI”). There was a criticism that the SIMI organization is glorifying Osama Bin Laden and his activities. One article was published in daily newspaper “Deshonnati” on 26/9/2001 and one poem was published. This poem was in an attempt to glorify the terrorist Osama Bin Laden. The allegation against Khwaja Moinuddin and Izhar Ahmed is that they started publishing newspaper under the name and style as ‘Qasid-E Waqt’ and said poem glorifying Osama Bin Laden was published in their news paper ‘Qasid-e Waqt’ and distributed. The applicant raised grievance about the action against accused Khwaja Moinuddin and Anis Ahmed with various higher authorities and called for action against such illegal act at the hands of police authorities. According to the learned Advocate, as the police officers had a grievance in their mind because of the representations made by the applicant, the applicant was falsely involved in the crime alleging that he is harbouring accused persons, inspite of the fact that he being a police officer and have no knowledge about the unlawful activities of the accused persons. Learned Advocate submitted that though initially the applicant was no where in the picture either in the FIR lodged in the year 2001 nor at the subsequent time, but only in the supplementary charge sheet, which was filed in the year 2008 i.e. after lapse of 7 years, the applicant is falsely roped in the crime. Learned Advocate for the applicant submitted that the Unlawful Activities Act 1967 has undergone a change and inspite of the subsequent change in the act, 3 the authorities with revengeful attitude are behind the applicant. Learned Advocate further submits that none of the act as alleged against the applicant attracts action for committing an offence under the provisions of Unlawful Activities Act against the applicant. He further submitted that Khwaja Moinuddin being his son was residing with him and as such there is no substance in the allegation that the applicant was harbouring the accused. Learned Advocate further submitted that as the applicant approached the higher authorities with a grievance of high handedness of the police authorities, he is booked in the crime. The applicant being a senior police officer will not run away or abscond and he is ready to cooperate with the investigating agency. He therefore, prayed for protection to the applicant. Learned Advocate for the applicant has invited my attention to the provisions of the Unlawful Activities Act and submitted that there is no material with the investigating agency so as to constitute the offence as alleged by the investigating agency. He further submitted that the other accused persons are released on bail by the court below and therefore, he claims parity. The record shows that the other accused persons surrendered before the court and thereafter they were released on bail by the Court, whereas the applicant is seeking his pre-arrest bail and as such he cannot claim parity with other accused persons. Learned APP has strongly opposed the application by filing the reply. At the very outset, learned APP submitted that the applicant has approached this court seeking pre-arrest bail, but in view of the fact that the charge sheet is filed, the application may not be entertained. As learned APP has raised objection about maintainability of the application, learned Advocate for the applicant submitted that in view of the recent judgment of the Apex Court in 4 the case of Siddharam Mhetre ..vs. State of Maharashtra and others, reported in 2010 (12) SCALE 691, the objection raised by learned APP is not sustainable. Learned APP submitted that the applicant is a senior police officer and if he is released on bail, he may pressurize the witnesses, which may hamper the investigation. He, therefore, prayed for rejection of the application. In Siddharam Mhetre’s case the Apex Court has elaborately dealt with the issues of life of pre-arrest bail and maintainability of pre-arrest bail application and the point where filing of charge sheet takes away the right of seeking pre-arrest bail under Section 438 Cr.P.C. The Apex Court has arrived at a conclusion that in view of the Constitution Bench Judgment of Apex Court in Gurubaksh Singh Sibbia and others .vs. State of Punjab (1980) 2 SCC 565 wherein the view is taken that there is a limitation over the life of pre-arrest bail, is not in conformity with Siddharam’s case. The Apex Court observed that “the judgment in Salauddin Abdulsamad Sheikh (supra) is contrary to the legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention”. The Apex Court in clear terms observed that mere filing of charge sheet or final report would not prohibit a person to approach the Court under Section 438 of Cr.P.C. apprehending his arrest. The Apex Court dealing with principles of liberty under Article 21 of the Constitution qua pre-arrest bail under Sec.438 of Cr.P.C. dealt with the powers of arrest, the action to be taken by the arresting officer, the various facets and law relating to these subject. It is observed that “the restriction on the provision of anticipatory bail under section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the Constitution. The added observation is nowhere found in the enactment and bringing in restrictions which are 5 not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi’s case (supra) in which the court observed that in order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable” (para 107). The Apex court also observed that “it is a settled legal position crystallized by the Constitution Bench of this Court in Sibbia’s case (supra) that the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it”. (para 113). The learned Advocate for the applicant also placed reliance on the judgment of Apex Court in the case of Bharat Chaudhary and another .vs. State of Bihar and another, reported in AIR 2003 Supreme Court 4662 : “Cri. P.C. S. 438 – Anticipatory bail – Grant of – Powers of Court – Courts have power to grant anticipatory bail in non-bailable offences even when cognizance is taken or charge sheet is file provided facts of case requires courts t do so.” In view of judgment of Apex Court in Bharat Choudhary’s case as well as latest judgment of the Apex Court in Siddharam Mhetre’s case, there cannot be any other opinion than that merely filing of charge-sheet would take away the right of a person to approach the Court seeking pre-arrest bail under Section 438 Cr.P.C. In view of the position as emerged, which is discussed above, I find considerable merit in the submission of learned Advocate for the applicant that the objection raised by learned APP is not sustainable. Now, the point for consideration would be whether on the 6 basis of the material the applicant is entitled to be protected at the hands of this Court or not. I have gone through the reply filed by the State and the material placed on record by learned APP. Though, learned Advocate for the applicant has submitted that only because of the applicant has raised grievance against the action taken by the police authorities, he is falsely involved in the crime, the record shows that the accused Izhar Ahmed and Khwaja Moinuddin were residing in the house of the applicant at Amravati. The publication namely ‘Qasid-e Waqt’ was published and printed from the house of the applicant wherein the accused Izhar Ahmad and Khwaja Moinuddin were residing. The record also reveals that initially the applicant has shown total ignorance about the accused persons. The applicant was a senior police official and as such it is hard to believe that he was unaware about the activities being conducted by his own son and brother-in- law, who were residing in his residence and publishing a newspaper. Perusal of the representations made by the applicant, which are annexed to the application, reveals that the applicant has exceeded in the representation by alleging that the police authorities of Amravati city are taking action only against the people from Muslim community and certify that his son and brother-in-law, have not committed any offence. It is further stated in the representation that the police authorities are taking action against the poor muslim people whereas they are protecting the Hindu people. As such the representations made by the applicant to various authorities claiming that the accused are innocent persons, falsifies so called ignorance of the applicant. The material also discloses that the organization SIMI was indulged in unlawful activities and under the provisions of Section 19 of the Unlawful Activities Act, punishment is provided for the persons, whoever voluntarily harbors or conceals, or attempts to 7 harbour or conceal any person knowing that such person is a terrorist and it is the case of the prosecution that the accused Khwaja Moinuddin and Izhar Ahmed were indulged in terrorist activities and residing in the house of the applicant and as such the applicant is alleged to have harboured the accused. It is not in dispute that punishment for the offences punishable under Section 10 & 13(a)(b)(ii) is enhanced to life imprisonment and the offences are serious in nature. In the circumstances, the apprehension expressed by learned APP that the applicant being senior police officer may pressurize the witnesses, is justifiable. Considering the submissions of leaned Advocate for the applicant and taking over all view of the matter, I am of the opinion that the applicant is not entitled to be protecte d at the hands of this Court. In the result, the application is rejected. JUDGE Diwale