IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPLICATION NO. 2733 OF 2007 CRIMINAL APPLICATION NO. 2733 OF 2007 CRIMINAL APPLICATION NO. 2733 OF 2007 Manisha Santosh Suryawanshi. ... Applicant. V/s. 1. State of Maharashtra, 2. Bajarang Shamrao Virkar, 3. Manoj Shrirang Virkar, 4. Bhagratsingh Pandurang Virkar ... Respondent. J.S.Kini with Suresh Dubey for the applicant. K.V.Saste, A.P.P. for respondent No.1- State. R.D.Soni i/b. Ram & Co for respondent Nos.2 to 4. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 29th January 2008. DATED: 29th January 2008. DATED: 29th January 2008. P.C. : P.C. : P.C. : ---- ---- ---- . Heard learned counsel for the applicant, learned A.P.P. for respondent No.1- State and learned counsel for respondent Nos.2 to 4- accused. Perused record. 2. The applicant has moved this application under section 439(2) of Code of Criminal Procedure, for cancellation of anticipatory bail so as to seek arrest the respondent Nos.2 to 4- accused ("the accused" for short). Factual Matrix : Factual Matrix : Factual Matrix : -------------- -------------- -------------- 3. The factual matrix giving rise to the present application, in short, is as under: 4. The applicant is the widow of one Late Santosh Ramchandra Suryawanshi. Respondent Nos.2 to 4 are the accused who have been released on anticipatory bail by this Court on pre-arrest bail vide order 20th July, 2007. 5. That the brother of the applicant i.e. Mr.Jitendra having developed love affair with one Ashwini, the daughter of accused No.1- Shankar Nana Sule, wanted to marry each other. The said relations were not acceptable to Shankar Nana Sule and his brother-in-laws, as such he denied permission to their marriage. 6. On 12th April, 2007, Jitendra and Ashwini ran away and got married. On the next day, i.e. 13th April, 2007, one Chandrakant Shamrao Virkar (accused No.2); Bajrang Shamrao Virkar (respondent No.2 herein); Hanumant Sahebrao Zarakh; Santosh Jagdale alias Fighter; and 4-5 other persons belonging to the locality of the applicant’s mother came to the house of the applicant. They informed her that her brother - 3 - has eloped with Ashwini and asked her whether they had come to her house. Thereafter Balu Virkar (respondent No.3 herein); Santosh Jagdale were repeatedly threatened the applicant and her husband on the phone. 7. On 14th April, 2007 at about 1.00 a.m. in the night Vikas Virkar; Balu Virkar; Santosh Jagdale; Navnath Nanavare; Manoj Virkar; Ravindra Gorakh; Santosh Jadhav and others came to applicant’s house. All of them abused and threatened the applicant and her deceased husband to kill, if whereabouts of the girl were not revealed. On the same day i.e. on 14th April, 2007, at about 10.00 a.m. applicant and her husband went to Uran Police Station and narrated the entire incident. On 16th April, 2007, respondent No.2 and others kidnapped one Mr.Ravindra Krishna Katkar and Mr.Pravin Shinde and kept them at a unknown destination. 8. In view of the above, applicant, her deceased husband and Surekha Krishna Katkar went to Kurla Nehru Nagar Police Station to lodge a written complaint. The said written complaint was not taken by the police since respondent No.2 came along with Mr.Ravindra Katkar and Pravin Shinde to the said police station - 4 - and persuaded police officer not to accept report. The said written complaint incriminating respondent No.2 was found on the person i.e. the dead body of the deceased. 9. On 20th April, 2007, in pursuance of the complaint filed by accused No.1- Shankar Nana Sule with the Kurla Nehru Nagar Police Station, deceased was taken to the police station. On the same day Jitendra and Ashwini returned to Mumbai and attended the Nehru Nagar Police Station where statement of Ashwini was recorded who told that she is in love with Jitendra. Considering the statement of Ashwini police did not take any action and informed the relatives of both to settle their dispute by mutual understanding as they both are ready and willing to marry and stay together. It appears that again accused No.1- Shankar Sule threatened Jitendra on his mobile phone to get marry with some other girl within one month’s period or to face dire consequences. 10. On 22nd May, 2007, the deceased had left the home informing that he was going to Phalton to collect some amount. On 26th May, 2007, the applicant has received a phone call from Panvel Railway Police - 5 - Station that her husband met with an accident. 11. On 27th May, 2007, when the applicant reported to Panvel Railway Police Station, she came to know that some unknown person had murdered her husband. Accordingly, F.I.R. was lodged and inquest panchanama was drawn. 12. The respondent Nos.2 to 4 moved anticipatory bail application before the Sessions Court, Kalyan which came to be rejected. They then moved this Court by way of Criminal Application No.2255/2007. Vide order dated 20th July, 2007, on the statement of learned A.P.P. that there was no incriminating material against the respondent Nos.2 to 4- accused, the application for grant of pre-arrest bail was allowed and anticipatory bail was granted by this Court in their favour. 13. The applicant has now moved the present application for cancellation of anticipatory bail granted in favour of respondent Nos.2 to 4- accused. Rival Submissions : Rival Submissions : Rival Submissions : ----------------- ----------------- ----------------- - 6 - 14. The learned counsel for the applicant submits that the murder of the deceased is crystal clear from the post-mortem report. He submits that when the order of pre-arrest bail was passed, it was not pointed to this Court that the brutal murder of the husband of the applicant had been committed after they having threatened deceased to eliminate him. The N.C. Complaint given on 14th April, 2007 by the deceased implicating respondent Nos.3 and 4 was not even pointed out to the Court. A shocking statement was made by the prosecution that there was no incriminating material against respondent Nos.2 to 4 when, in fact, the record of the police diary showed otherwise. According to him, the prosecution failed to point out the incriminating statements of the applicant, the mother of the deceased, and the brother-in-law of the applicant etc. which were enough for casting a grave doubt on the case of the accused not having any complicity with the offence alleged. He submits that respondents- accused had filed anticipatory bail application at Raigad Court. There was no order restraining their arrest, yet they were not arrested. The said anticipatory bail application moved before the Kalyan Court was rejected even then police did not arrest them and when the - 7 - anticipatory bail application was moved before this Court a statement was made by learned A.P.P. that no incriminating material was available against the accused. He submits that the motive for the offence was clear and explicit, the proofs go to show that the police had got the records to show the truthfulness of the same and yet statement was made about no incriminating material against the respondents- accused. Threats to kill were given and were pointed out to the concern police station. 15. The learned counsel for the applicant further submits that release of the respondents- accused on anticipatory bail has resulted in encouraging their illegal activities in as much as the brother of the applicant Jitendra, immediately, after four days of the order, when he had gone to collect the post-mortem report, was threatened by the respondents of being killed. 16. The respondents- accused are again free to prowl on the applicant and her family members and the threats are being given to Jitendra and the family members of the applicant. The police has not arrested other accused. Even the statement of Ashwini, who is - 8 - involved in the entire matter, has not been recorded. He submits that the respondents- accused have committed breach of the order of this Court by threatening prosecution witnesses. The learned counsel for the applicant, in support of his submission, relied upon the judgments of the Supreme Court in the case of Kiran Devi v. State of Kiran Devi v. State of Kiran Devi v. State of Rajasthan Rajasthan Rajasthan, 1987 SCC Supp. 549; Mehboob Dawood Shaikh Mehboob Dawood Shaikh Mehboob Dawood Shaikh v. State of Maharashtra v. State of Maharashtra v. State of Maharashtra, 204 2 SCC 3621; Aslam Aslam Aslam Babalal Desai v. State of Maharashtra Babalal Desai v. State of Maharashtra Babalal Desai v. State of Maharashtra, 1992 4 SCC 272 and the judgment of this Court in the case of State of State of State of Maharashtra v. Santosh H. Urankar Maharashtra v. Santosh H. Urankar Maharashtra v. Santosh H. Urankar, 2005 All MR (Cri) 244. 17. Learned counsel for the applicant submits that strangely the public prosecutor of Kalyan Railway Court remained absent at the time of remand. He submits that the other co-accused have not been arrested. Even the statements of Mr.Ravindra Krishna Katkar and Mr.Pravin Shinde, who were kidnapped, have not been recorded. The weapons and vehicles used in the crime have not been recovered and no statements have been recorded in regard thereto by the investigating agency. He submits that the applicant had no reasons to falsely implicate the present - 9 - accused. He, therefore, prays that the anticipatory bail granted in favour of respondent Nos.2 to 4 be cancelled and they may be committed to custody. 18. Per contra, Mr.Soni, learned counsel appearing for respondent Nos.2 to 4- accused submits that the applicant has not approached this Court with clean hands. He submits that the investigation is complete and custodial interrogation of the present accused is not necessary and that there is no chance of absconding of the present accused. He, thus, submits that this Court has rightly granted pre-arrest bail in favour of the present accused. 19. He placed reliance on the judgment of the Apex Court in the case of Bhagirat Singh v. State of Bhagirat Singh v. State of Bhagirat Singh v. State of Gujarat, Gujarat, Gujarat, 1984 (1) SCC 284; wherein the Apex Court has laid down the principles reading as under (H.N.): " Very cogent and overwhelming circumstance are necessary for an order seeking cancellation of the bail. Even where a prima facie case is established, the approach of the court is the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with - 10 - evidence. 20. With the aforesaid factual and legal contentions, learned counsel for the respondents- accused went on to urge that the order granting anticipatory bail can be set aside or recalled only on the ground of lack of jurisdiction or breach of condition or misuse of opportunity. According to him, none of these grounds are available in the present case for which the bail can be cancelled. He further submitted that the order has been passed by the court of competent jurisdiction. He also stated that respondent Nos.2 to 4- accused are ready to co-operate with the investigating officer without any reservation. He, thus, urged that no case is made out by the applicant for cancellation of anticipatory bail granted by this Court in favour of the accused as such the present application is liable to be dismissed. CONSIDERATION: CONSIDERATION: CONSIDERATION: ------------- ------------- ------------- 21. Let me first consider the parameters for grant of pre-arrest bail. - 11 - PARAMETERS: PARAMETERS: PARAMETERS: ---------- ---------- ---------- 22. The Apex Court in the case of Bharat Chaudhary Bharat Chaudhary Bharat Chaudhary v. State of Bihar v. State of Bihar v. State of Bihar, (2003) 8 SCC 77, observed that the object of Section 438 of the Code is to prevent undue harassment of the accused persons by pretrial arrest and detention. The gravity of the offence is an important factor to be taken into consideration while granting anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail. 23. In the case of Adri Dharan Das v. State of Adri Dharan Das v. State of Adri Dharan Das v. State of West Benga West Benga West Bengal, (2005) 4 SCC 303, the Apex Court said that the power exercisable under Section 438 of the Cr.P.C. is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty, then power is to be exercised under Section 438 of the Code. The power being of important nature it is entrusted only to the higher echelons of judicial forums i.e. the Court of Session or the High - 12 - Court. It is the power exercisable in case of an anticipated accusation in non-bailable offences. 24. The Apex Court in the case of Gurbaksh Singh Gurbaksh Singh Gurbaksh Singh v. State of Punjab v. State of Punjab v. State of Punjab, AIR 1980 SC 1632, observed as follows:- "We would, therefore, prefer to leave the High Court and the Court of Sessions to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these Courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the Legislature has conferred upon them, by laying down inflexible rules of general application." 25. The Apex Court, in the case of C.B.I. v. Anil Sharma (supra), while emphasizing importance of custodial investigation observed as follows: "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disintering many useful information and also materials which would have been concealed. 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 - 13 - the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disintering offences would not conduct themselves as offenders." (Emphasis supplied) 26. In the case of K.K.Jerath v. Union Territory, K.K.Jerath v. Union Territory, K.K.Jerath v. Union Territory, Chandigarh Chandigarh Chandigarh, 1998 Cri.L.J. 2555 it is observed as under: "5. We do not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20 (2) and 21 of the Constitution and Section 486 of the Code of Criminal Procedure and their inter-relationship. We may only State in considering a petition for grant of bail necessarily if public interest requires detention of citizen in custody for purpose of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence." (Emphasis supplied) 27. A three Judges Bench of the Apex Court in the - 14 - case of Pokar Ram v Pokar Ram v Pokar Ram v. State of Rajasthan State of Rajasthan State of Rajasthan, AIR 1985 SC 969 (para 5) observed as under:- "Relevant considerations governing the Court’s decision in granting anticipatory bail under S. 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal." 28. Similar observation have been made by the Apex Court in the case of Anil Sharma (supra) Anil Sharma (supra) Anil Sharma (supra) that the consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. ON MERITS: ON MERITS: ON MERITS: ---------- ---------- ---------- 29. Having heard rival parties, having examined the law laid down by the Apex Court, it is, no doubt, true that the Apex Court has repeatedly observed that for seeking cancellation of bail very cogent and overwhelming circumstances are necessary but essentially, these observations are to be found in the cases wherein the question of cancellation of regular - 15 - bail was involved. 30. The Apex Court in the case of State of Gujarat State of Gujarat State of Gujarat v. Narendra K. Amin v. Narendra K. Amin v. Narendra K. Amin, 2007 ALL MR (Cri) 2936 (SC) was pleased to observe that the Sessions Court while granting anticipatory bail must consider that whether the accused is in a position to influence, induce or coerce witnesses to desist from furnishing relevant information to the investigating agency. The Court should also take into account the need for custodial interrogation of the accused. 31. In the case of Puran v. Rambilas Puran v. Rambilas Puran v. Rambilas, (2001) 6 SCC 338, the Apex Court ruled that one of the ground for cancellation of bail could be where ignoring material and evidence on record and perverse order granting bail in a heinous crime and that too without giving any reasons is passed. Such an order would be against the principles of law. Interest of Justice would also require that such a perverse order be set aside and bail be cancelled. 32. While considering this application on merits, I must place it on record that while granting pre-arrest bail, case papers were not perused by this - 16 - Court since they were not produced by the learned A.P.P. Pre-arrest bail was granted on the basis of statement made by learned A.P.P. that no incriminating material exists against the accused i.e. present respondent Nos.2 to 4. 33. Bearing in mind the law laid down by the Apex Court and the circumstances in which pre-arrest was granted, let me turn to another contention that pre-arrest protection ought not to have been granted looking to the nature of serious crime alleged against the respondents- accused persons. In my considered view, there is substance in the submission of learned counsel for the applicant. This Court, as stated above, had granted pre-arrest bail on the statement made by the learned A.P.P. that there was no incriminating material against the respondents- accused. In view of grant of pre-arrest bail the investigation could not take proper shape. There cannot be permanent pre-arrest bail. 34. It is needless to mention that the facility, which section 438 gives, is generally referred to as "anticipatory bail". Any order of bail can be effective only from the time of arrest of the accused. - 17 - Manifestly, there is no question of release on bail unless the accused is arrested and, therefore, it is only after the arrest is effected the order becomes operative. The power exercisable under section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under section 438. 35. Number of judgments have highlighted that sections 438 and 439 of Cr.P.C. operate in different fields. It is clear from the bear reading of the provisions that for making an application in terms of section 439 a person has to be in custody. Section 438 deals with "Direction for grant of bail to person apprehending arrest." 36. Keeping the aforesaid legal provisions in mind and Law leading to cancellation of bail, one more deep routed settled principle of law flowing from the judgment of the Apex Court in the case of Sallauddin Sallauddin Sallauddin (supra); needs to be taken note of; wherein the Apex Court has observed as under: - 18 - "Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted." 37. It is, no doubt, true that as per the judgment in Bhagirathsingh Bhagirathsingh Bhagirathsingh (supra), as laid down by the Apex Court, the Court is not powerless to grant bail for the entire period of trial but the recent development of law leans in favour of granting limited bail, especially, when the investigation is at the premature stage. The very same aspect has been highlighted in Adri Dharan Das Adri Dharan Das Adri Dharan Das (supra). 38. In the above view of the principles of law as - 19 - set out and the peculiar factual scenario involved, I direct that within the period of four weeks from today, the respondent No.2 to 4- accused shall surrender before the regular Court and shall seek regular bail which the Court below shall be free to consider and decide it on its own merits in accordance with law, in the light of various judgments referred herein. 39. I make it clear that I have not expressed any opinion on the merits of the case. When the bail application would be moved in terms of section 439 of Cr.P.C. before the concerned Court, the same shall be considered in its proper perspective in accordance with the law laid down by the Apex Court in the matter of grant of bail and considering the importance of custodial interrogation. If the application for bail is moved, the concerned Court shall do well to dispose it of with expeditious despatch provided sufficient advance notice is given to the State. 40. In the result, application is partly allowed in terms of this order. - 20 - JUDGE JUDGE JUDGE