1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1794 of 2010 Sakharam Sampat Wadhai ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Palandur, Dist. Bhandara. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R.M.Daga, Advocate for the Applicant Mr. P.V.Bhoyar, A.P.P. for Respondent / State. CORAM : Prasanna B. Varale, J. DATED : 16 th Decem ber , 2010 . Heard. By the present application, the applicant is seeking anticipatory bail in connection with Crime No. 14/2010 registered with Police Station, Palandur, Dist. Bhandara for the offences punishable under Sections 302, 120-B of I.P.C. as he is apprehending his arrest. Mr. Daga, learned Advocate for the applicant submitted that the applicant is a Soldier in Army and posted at Delhi Cantt. The applicant had joined the army services in the year 1990 and since then he is posted at Delhi. He occasionally visits village Lohara. According to the learned Advocate, apart from the occasional visits, he is not involved in any affairs of the village. Learned Advocate has further submitted that the applicant is falsely involved in the crime and there is no material against him. According to him, though the report was lodged on 16/2/2010 about the incident which took place on 15/2/2010, the investigating agency was silent in respect of the applicant for a period of three months from the incident. On 2 23/5/2010, the investigating agency visited the office of the applicant at Delhi and recorded his statement. Even thereafter, for the reasons best known to them, the investigating agency was inactive for a period of 3 months and in the month of November, 2010, the investigating agency started moving in search of the applicant. Learned Advocate for the applicant submitted that the investigating agency was silent in respect of the applicant for three months from the incident and was inactive for further period of three months from recording his statement on 23/5/2010 and there is no justification to that effect. According to him the silence or inaction on their part is willful. The investigating agency would have acted promptly, if it had some material against the applicant. Learned Advocate submitted that the applicant is still in army service and is ready to cooperate with the investigating agency as and when directed and shall abide by the conditions imposed by this Court. Learned Advocate further submitted that the other 5 co-accused persons are already released on bail and therefore, prayed for grant of protection to the applicant. Per contra, Mr. Bhoyar, learned APP for the State has strongly opposed the application by filing the reply. Learned APP submitted that there is strong material against the applicant. He made available to the Court the material collected by the investigating agency. It reveals from the record and the material produced before the Court that at the initial stage, the cause of death of the victim was not certain and the investigating agency arrived at a conclusion only on receiving the C.A. report. It is mentioned in the reply (para 3) that the C.A. report was received and query was made to the Medical Officer, Rural Hospital, Lakhani, District Bhandara who gave report that the death is due to insecticide poisoning as mentioned in C.A. report of viscera. The C.A. Report reveals detection of poisonous substance organ phosphorous insecticide present in the viscera. 3 Learned APP further submitted that the statements recorded by the investigating agency reveals that there was enmity between the deceased and the accused persons on demand of Rs.5 lakhs. Learned APP submitted that there is a strong material against the applicant in the nature of statement of one eye-witness. Perusal of the record shows that the statement of said so called eye-witness was recorded on 16/2/2010. The record further reveals that the investigating agency was silent about the said statement of eye-witness on every occasion i.e. before the Sessions Court and before this Court at the first instance when the reply was filed by the State and it emerges as if a bolt from the blue in the additional affidavit filed by the State. If the investigating agency was keen to apprehend the applicant, the efforts could have been seen in other positive way, but, unfortunately, the record reveals otherwise. After lapse of nearly 6 to 8 months from recording of the statement i.e. 16/2/2010, the investigating agency for the reasons best known to it, has not referred to such material at any point of time where ever consideration of the application moved by the applicant for bail was pending. Now, it is not open for the investigating agency at this stage to say that custodial investigation of the applicant is needed, whereas their own acts reflects otherwise. Considering the fact that other accused are released on bail and the applicant, who is in army services and will not leave either his place of service or would not be in a position to hamper the investigation, which is being carried out by the investigating agency at Palandur Police Station, the apprehension expressed by the agency can be taken care of by putting the applicant on conditions. In view of the record produced and in view of the submissions, I am of the opinion that prima facie case is made out. In the result, the application is allowed. 4 The interim protection granted by this Court by order dated 29/10/2010 is hereby confirmed on the same conditions as contained in the said interim order, with the following added condition : The applicant to cooperate with the investigating agency and attend the police station, Palandur, Dist. Bhandara on every 2nd Saturday between 9.00 a.m. to 12.00 noon, for a period of six months. In case of breach of any conditions, the prosecution agency to take necessary steps in accordance with the provisions of law. JUDGE Diwale