( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4104 OF 2009 Dr. Padamsinha Bajirao Patil .. Applicant Age. 70 years, Occ. Agriculture, Presently Member of Parliament, R/o. Ter, Tal. & Dist. Osmanabad. Versus 1. The State of Maharashtra .. Respondents 2. The Inspector in-charge, Latur M.I.D.C. Police Station, Latur. 3. The Dy. Superintendent of Police, Crime Branch, C.I.D., Latur. Shri V.R. Manohar, Sr. Advocate with Shri Bhushan Mahadik i/b. Shri V.D. Salunke, Advocate for the applicant. Shri N.H. Borade, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 16.12.2009 P.C. :- 1. This is an application for bail filed by original accused No. 1 – Dr. Padamsinha Bajirao Patil, who is arrested ( 2 ) in C.R. No. 156 of 2009, registered with Latur M.I.D.C. Police Station, District – Latur. Earlier offence was registered for offence punishable under sections 120-B, 302, 511, 34 of the Indian Penal Code. However, by report dated 24.11.2009 (copy of which is produced on record during arguments of this application, it is taken on record and marked “X” for identification) the Investigating Officer, Dy. Superintendent of Police, State C.I.D., Latur, requested the Court for deleting the offences punishable under Sections 302 and 511 of the Indian Penal Code and to add offence punishable under section 115 of the Indian Penal Code. Thus, the prosecution now wants to proceed against the present applicant along with other two accused for the offences punishable only under Sections 120-B, 115 & 34 of the Indian Penal Code. 2. Heard Sr. Advocate Shri V.R. Manohar i/b. Adv. Shri V.D. Salunke for the applicant and A.P.P. Shri N.H. Borade for respondent/State. 3. Before I go to the facts of the present case, some previous factual matrix is necessary to be stated. ( 3 ) . On 03.06.2006 two persons, namely, Pawanraje Nimbalkar and his driver Wahid were killed within the jurisdiction of Kalamboli Police Station. On same day C.R. No. 220 of 2006 came to be registered for murder of said two persons. Navi Mumbai Police made investigation, but there was no progress and therefore widow of Pawanraje moved High Court and thus the investigation was transferred to C.B.I. on 23.10.2008. In February, 2009, Parasmal Jain was arrested by Police of Byculla Police Station, in connection with house breaking cases. During interrogation, Parasmal Jain is said to have confessed his involvement in the murder of Pawanraje Nimbalkar and therefore C.B.I. arrested Parasmal Jain on 25.05.2009 in C.R. No. 220 of 2006 registered with Kalamboli Police Station. On 29.05.2009 Parasmal Jain made confessional statement and therein he disclosed that he was also offered contract of killing social worker Shri Anna Hajare. Second confession of Parasmal Jain came to be recorded on 18.08.2009. On 03.06.2009 present applicant was arrested in Crime No. 220 of 2006. He was released on bail by order dated 25.09.2009 by the Additional Sessions Judge, Alibaug. On 26.09.2009 Shri Anna Hajare filed complaint and same came ( 4 ) to be transferred to Latur Police Station and it is the present C.R. No. 156 of 2009 of which investigation is being carried out by the State C.I.D. 3. In the F.I.R. Shri Anna Hajare has stated that he is a social worker and has started a crusade against the corruption. He exposed corrupt practices of some ministers and one of them was the present applicant. There was Inquiry Commission headed by Justice P.B. Sawant to look into corruption charges. As a result of the inquiry, the applicant had to resign from the State Ministry and therefore the applicant was aggrieved against Shri Anna Hajare. It is further stated in the complaint that during investigation of Crime No. 220 of 2006, registered at Kalamboli Police Station, Parasmal Tarachand Badala (Jain) had given confession in which he stated that he had accepted contract of killing Pawanraje Nimbalkar at the instance of Mohan Anant Shukla and Satish Mandade, who are also co-accused in the present case. Satish Mandade had even offered to give contract to Parasmal Jain of killing Anna Hajare, but that was to be done after murder of Pawanraje Nimbalkar. However, Parasmal Jain refused to accept the contract to kill Shri ( 5 ) Anna Hajare but he committed murder of Pawanraje Nimbalkar. With these allegations the complaint was filed against the present applicant, Satish Mandade and Mohan Shukla for conspiracy to kill the complainant and offering contract of killing to Parasmal Jain, and crime came to be registered as stated above. 4. It is also no more disputed that after registration of present crime present applicant sought anticipatory bail, but said bail application came to be rejected by this Court. Special Leave Petition was filed in the Supreme Court. The Supreme Court directed the applicant to surrender before the Trial Court and make regular bail application. Accordingly, the applicant surrendered before the Trial Court. He was taken into judicial custody and thereafter Criminal M.A. No. 347 of 2009 was filed in the Sessions Court, Latur for bail. Said application came to be rejected by the Adhoc Additional Sessions Judge-III, Latur, on 18.11.2009 and thereafter present application for bail is filed. 5. Shri V.R. Manohar, Sr. Advocate and A.P.P. Shri N.H. Borade have taken me through the relevant record. The ( 6 ) learned senior advocate for the applicant has also cited several authorities to explain as to what is required for proving commission of offence of criminal conspiracy. 6. It may be noted at this stage is that the police custody of present applicant was sought and police custody for one day i.e. on 07.12.2009 was granted. It does not appear from the record or submissions before this Court that any more police custody was demanded by the investigating agency. 7. One of the major arguments advanced before this Court is that the entire evidence speaks about intention, desire or discussion but it falls short of agreement which is major ingredient of offence punishable under section 120-B of the I.P.C. i.e. of criminal conspiracy. It is necessary for us to refer to the two confessional statements. It is stated in the confessional statement dated 29.05.2009 by Parasmal Jain that he was suffering from H.I.V. and his financial condition was not good and therefore he went to meet Mohan Shukla and told him about his difficulties. This was in January, 2005. Parasmal Jain demanded Rs. 50,000/- as ( 7 ) financial aid to Mohan Shukla. Mohan Shukla replied that he would have to do one work; if he wants money, he should go and meet Satish Mandade at Latur. Mohan Shukla said that present applicant was harassed by Pawanraje Nimbalkar and if work of killing Pawanraje Nimbalkar was entrusted to Parasmal Jain, he would get good money, which would be sufficient for his own treatment so also marriage of his daughter and further he would be taken care of for rest of his life. On next day Parasmal Jain went to Latur and met Satish Mandade. At that time Satish Mandade told Parasmal Jain that the applicant was worried about sugar scam and (first) murder of Pawanraje Nimbalkar was to be committed and thereafter the work of killing Anna Hajare would be entrusted. At that time Parasmal Jain said that he would do work of killing Pawanraje Nimbalkar but he would not kill Anna Hajare. 8. As per second statement of Parasmal Jain which was recorded on 18.08.2009, it is said that in 2006, Parasmal Jain was called by Mohan Shukla near a travel agency office at Sion, Mumbai. Mohan Shukla took Parasmal Jain to a place at Sion, where Satish Mandade was present. Satish Mandade said that no work was done and what he would tell the present ( 8 ) applicant. Satish Mandade asked Parasmal Jain to accompany him to the bungalow of present applicant. Thereafter, they both went to bungalow of present applicant and Parasmal Jain was asked to sit in a room. Satish Mandade went to meet the applicant in another room. One hour thereafter, the applicant came where Parasmal Jain was sitting and asked who was he. Parasmal Jain introduced himself by his name and said that he had come with Mandade Saheb. Accused only stared at Parasmal Jain and went away. Parasmal Jain does not know what talk had taken place between Satish Mandade and the present applicant. Thereafter, Satish Mandade came and said that he had talked the applicant and then they left the premises. Statement of Parasmal Jain was recorded in present crime under Section 161 of the Cr.P.C. on 01.11.2009 and portion of his statement was reproduced by the Sessions Court in para 13 of its order. 9. At the time of arguments, the applicant has produced one letter dated 14.12.2009 issued by the Senior Divisional Accounts Officer, Grade-I, in the office of Executive Engineer (P.W.D.) Mumbai. By said letter given under the Right to Information Act, in reply to letter dated ( 9 ) 14.12.2009, it is stated that the present applicant who was Ex-Minister and present M.P. had vacated the Government bungalow - “Royal Stone” after he ceased to be Minister on 06.03.2005. This letter along with affidavit is taken on record and marked “Y” for identification. 10. A.P.P. Shri Borade fairly conceded at this stage that Parasmal Jain led the Investigating Officers of present crime and pointed out “Royal Stone” - Government bungalow as the place where he had met the applicant in January/February, 2006. It is argued before this Court by the learned senior advocate for the applicant that this letter dated 14.12.2009 obtained under the Right to Information Act, clearly indicates that Parasmal Jain was not telling truth and he could not have met the applicant in January/February, 2006, in the “Royal Stone” Government bungalow. 11. It is also argued before this court that there were two more instances which are given by the complainant Anna Hajare in his statement dated 10.11.2009. The first instance occurred during of hearing by Justice Sawant Commission. During recess the present applicant had threatened Shri Anna ( 10 ) Hajare and his advocate Shri Arjun Patil. We find reference to said incident in para 11 of the order of the Adhoc Additional Sessions Judge, Latur. Second incident is that three persons alleged to be workers of present applicant had met one Dagadu Mapare, who was working as Secretary of Shri Anna Hajare and offered him cash to stop agitation against the present applicant and when cash was refused, a blank cheque was offered as hush money. According to the statements of Shri Anna Hajare and Dagadu Mapare, Dagadu Mapare refused the offer of money or blank cheque. The learned A.P.P. submitted that there is prima facie case and therefore the bail application may be rejected. 12. On the other hand Shri V.R. Manohar, Sr. Advocate stated that if we consider entire evidence collected, it is clear that the the statements of Parasmal Jain made against the applicant are not prima facie trustworthy. He also argued argued that though this Court cannot enter into detail discussion, it can very well be prima facie consider credibility of evidence. 13. The learned senior advocate for the applicant cited ( 11 ) several authorities on offence of criminal conspiracy. I may reproduce the position of law as described in paras 271, 274 and 276 of the case of Kehar Singh and Others V/s. State (Delhi Administration), 1988 S.C.C. (Cri.) 711. “271. Before considering the other matters against Balbir Singh, it will be useful to consider the concept of criminal conspiracy under secs. 120-A and 120-B of IPC. These provisions have brought the Law of Conspiracy in India in line with the English law by making the overtact unessential when the conspiracy is to commit any punishable offence. The English Law on this matter is well- settled. The following passage from Russell on Crime (12 Ed. Vol. I, 202) may be usefully noted: ‘The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.’ 274. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to secs-120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal ( 12 ) act or legal act by illegal means is the very quintessence of the offence of conspiracy. 276. I share this opinion, but hasten to add that the relative acts of conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard.” 14. I may also refer to the case of Baldev Singh V/s. State of Punjab, (2009) 6 S.C.C.564. In para 17 of the said judgment it is laid down that it is now well settled that a conspiracy ordinarily is hatched in secrecy. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While, however, doing so, it must be borne in mind meeting of the mind is essential; mere knowledge or discussion would not be sufficient. 15. One of the main reasons given by the Sessions Court while rejecting bail application is that the present applicant has served as Minister in the State and is now ( 13 ) sitting Member of Parliament and as such he is an influential person and allowing him bail would be hampering the investigation. However, present applicant has surrendered on 11.11.2009. It is stated that statements of Shri Anna Hajare and Parasmal Jain have been recorded in this crime. It is argued by Shri V.R. Manohar, Sr. Advocate for the applicant that the applicant would not be able to influence the person like Shri Anna Hajare, moreover Parasmal Jain is in jail and therefore there is no possibility of any tampering with the evidence. The learned Sr. Advocate for the applicant further stated that pending investigation and until charge-sheet is filed, the applicant shall stay at Mumbai and would only go to Delhi during Parliamentary sessions and will not leave Mumbai without permission of the Court. 16. Having given anxious thought to the nature of evidence collected against the applicant, in my considered opinion, on certain conditions, this application for bail can be allowed. 17. In the result, the following order is passed :- ( 14 ) (I) the application for bail is allowed. (II) Applicant – Dr. Padamsinha Bajirao Patil, may be released on bail of Rs. 1,00,000/- (Rupees One Lakh only) with two solvent sureties each of Rs. 50,000/- (Rupees Fifty Thousand Only) on conditions :- (i) Until charge-sheet is filed in the Court in present crime bearing C.R. No. 156 of 2009, registered at M.I.D.C. Police Station, Latur, the applicant shall not leave Bombay, without previous intimation to the Investigating Officer, except when he has to attend Delhi for Parliamentary sessions. (ii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. . At this stage Shri V.R. Manohar, Sr. Advocate for the applicant submits that obtaining Solvency Certificate ( 15 ) requires at least 8 to 10 days and the sureties which the present applicant proposes to furnish, would deposit cash amount of Rs. 50,000/-, instead of Solvency Certificate and would produce Solvency Certificate within a period of two weeks and this Court should give permission for such arrangement. . A.P.P. Shri N.H. Borade has no objection for such arrangement. . So, it is directed that sureties be accepted on each surety depositing Rs. 50,000/- (Rupees Fifty Thousand only) in cash in lieu of Solvency Certificates, provided they undertake to produce & produce Solvency Certificates within two weeks therefrom. On production of Solvency Certificates, cash deposits be refunded to concerned sureties. [P.R. BORKAR,J.] snk/2009/DEC09/cra4104.09