1 BA-1799-1872-11.sxw IN THE HIGH COURT OF JUDICATURTE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1799 OF 2011 WITH CRIMINAL APPLICATION NO. 1872 OF 2011 mhi CRIMINAL APPLICATION NO. 1799 OF 2011 Sanjay Kantilal Mutha ... Applicant (First Informant) vs. 1. Jitendra Kanwarlal Jain )..Orig.accused No.3 2. The State of Maharashtra ).. Respondents Complainant CRIMINAL APPLICATION NO. 1872 OF 2011 Sanjay Kantilal Mutha .. Applicant (First Informant) vs. 1. Vijaysinh Mansinh Pawar ).. Orig.accused No.2 2. The State of Maharashtra Respondents Complainant Shri Jayesh B. Kocheta, Advocate, for the applicant. Shri A.P.Vanarse, Advocate, for the respondent No.1 (in both the applications) Smt. P.P.Shinde, APP, for the respondent No.2 – State. CORAM: J.H.BHATIA, J. DATE : 19th December,2011. P.C. 1. Heard the learned Counsel for the parties. 2 BA-1799-1872-11.sxw 2. The original complainant in C.R.No.346 of 2011 registered with Swargate Police Station, Pune, for the offences punishable under Sections 363, 384, 392,506 read with Section 120B of IPC, has filed these two applications for cancellation of anticipatory bail granted to the respondent No.1 in both the applications i.e. Jitendra Jain and Police Inspector Vijaysinh Pawar of Kotwali Police Station, Ahmednagar. 3. To state in brief, the respondent Jitendra Jain is a director of Nakoda Machinery Pvt.Ltd. of Ahmednagar, while the applicant/complainant Sanjay Mutha is a director of M/s. Anand Machinery (India) Pvt.Ltd. at Ahmednagar. Respondent No.1 Jitendra Jain had filed a report alleging that his employee Sandip Mandlik, while leaving the services of Nakoda Machinery Pvt.Ltd. on 26.12.2009, had taken away certain designs, drawings of machinery and had supplied the same to M/s. Anand Machinery Pvt.Ltd. and those designs and drawings were used by the present applicant Sanjay Mutha. On that basis, Crime No.28 of 2010 was registered at Kotwali Police Station at Ahmednagar. The applicant Sanjay Mutha was one of the accused in that case. The Police Inspector Vijaysinh Pawar was the Investigating officer. The applicant Sanjay Mutha was granted anticipatory bail in that case. According to the applicant, on 5.5.2011, one 3 BA-1799-1872-11.sxw Head Constable Phonde along with two other constables approached the applicant and asked him to attend Kotwali Police Station. The applicant was asked to sit in an Indica car and then he was taken to Swargate Police Station, Pune. He was told that the anticipatory bail was cancelled, but he confirmed from the Advocate that the order of anticipatory bail was still intact. After going to Swargate Police Station, the said Head Constable Phonde spoke to some superior officer of police on mobile and thereafter he told the applicant that due to some misunderstanding he had brought the applicant to Swargate Police Station. He released the applicant, but before releasing, forcibly took an amount of Rs.2,000/- from him. It is contended that he had also made demand of Rs.50,000/- from him. About the said incident of 5.5.2011, the applicant lodged a report with the Commissioner of Police, Pune on 10.5.2011. On that report, Crime No.346 of 2011 was registered at Swargate Police Station. Apprehending arrest, the respondent Jitendra Jain and Police Inspector Vijaysinh Pawar sought anticipatory bail. After hearing the parties, the learned Addl. Sessions Judge, Pune, by common order, granted anticipatory bail to both the respondents on 10.10.2011. The learned Addl. Sessions Judge noted that there was nothing on record to show that Head Constable Phonde had acted as per the instructions or at the behest of the respondent Jitendra Jain. There was also nothing on record to show that Head Constable Phonde had taken instructions from Police Inspector Vijaysinh Pawar 4 BA-1799-1872-11.sxw or that he had spoken to him on mobile after taking the applicant to Swargate Police Station. The matter needed further investigation. 4. The applicant seeks cancellation of anticipatory bail on the ground that the Indica Car by which the applicant was taken from Ahmednagar to Swargate Police Station, Pune, was supplied by Jitendra Jain. He also contended that Head Constable Phonde could not have acted in this highhanded manner without instructions from his superior Police Inspector Vijaysinh Pawar, who was the Investigating Officer. He also contended that for proper investigation of this case, custodial interrogation of the respondent is necessary. 5. After hearing the learned Counsel for the parties and perusal of the material, it is difficult to find fault with the order passed by the learned Addl. Sessions Judge. There is no material on record to show that Head Constable Phonde had acted in a highhanded manner and demanded Rs.50,000/- or robbed Rs.2,000/- from the present applicant as per instructions from the respondent No.1 Jitendra Jain. No material was placed before the learned Addl. Sessions Judge to show that Head Constable Phonde was, in fact, instructed by P.I. Vijaysinh Pawar for the purpose of taking the applicant to Swargate Police Station nor there was any material to show that the said Head constable Phonde had spoken with 5 BA-1799-1872-11.sxw Vijaysinh Pawar in this respect before finally the applicant was released from Swargate Police Station. In such circumstances, it is difficult to find fault with the grant of anticipatory bail. 6. The learned Counsel for the applicant contended that the investigation of the case is being carried out by PSI from the Swargate Police Station, while one of the accused is a Police Inspector of Kotwali Police Station, Ahmednagar and, therefore, the PSI may not be in a position to investigate the case properly against a senior officer. That itself cannot be a ground for cancellation of anticipatory bail, though it would be advisable and it would be in the interest of justice that the investigation should be carried out by some senior officer because during the last about seven months no progress appears to have been made in the investigation of the case. 7. In view of the above, these two applications for cancellation of bail stand rejected. 8. However, it is made clear that as and when the charge sheet is filed, the respondent/accused Jitendra Jain and P.I. Vijaysinh Pawar will have to move the concerned Court for regular bail under Section 437/439 of Cr.P.C. and at that 6 BA-1799-1872-11.sxw time the concerned Judge shall consider their bail applications on the basis of the merits of the case after hearing the accused, the prosecution as well as the complainant Sanjay Mutha, without being influenced by the order of anticipatory bail granted to them. 9. In view of the fact that one of the accused in Crime No.346 of 2011 of Swargate Police Station is Police Inspector of Kotwali Police Station, Ahmednagar, the Police Commissioner, Pune, shall consider to assign the investigation of the case to some senior officer, may be of the rank of ACP or some other senior officer of Crime Branch as he deems fit. Both the Applications stand disposed of accordingly. (J.H.BHATIA,J.)