1appln-1125-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 1125 of 2010 Manoj @ Manya Pandurang Kadam and others .. Applicants. versus The State of Maharashtra .. Respondent. Mr K.S. Patil i/by, for the Applicant. Mr Pratap Bhosale – Respondent No.2-Complainant. Mrs A. S. Pai, A.P.P.,for the State. CORAM:- A.R. JOSHI, J. DATE :- 16TH AUGUST, 2010. P.C.:- 1. Heard rival submissions at length on this anticipatory bail application preferred by the applicants, apprehending their arrest in M.E.C.R. No.17/2009, registered with Mangaon Police Station Raigad 2appln-1125-10 for the offence punishable under Section 302 read with section 34 of I.P.C. The complainant, father of the victim, has filed a private complaint before the Judicial Magistrate, F.C.,at Mangaon. 2. It is alleged in the private complaint that on the night of 23.11.2008 present applicants, being known to the deceased and rather friends of the deceased called him to the house of original accused No.1, i.e. present applicant No.1. Apparently, during that period the parents of the applicant No.1 were out of the house and had been to some pilgrimage at Alandi. Apparently, all the three applicants and the deceased consumed some alcohol and thereafter allegedly the applicants committed murder of said deceased and made it appear that it was a suicide committed by the deceased, by hanging himself in the said house of applicant-accused No.1. It is an admitted position from the contents of the inquest panchnama that both the hands of the deceased were tied at his back when the dead body was found and taken out from the rope during the panchnama. 3. On the next day morning at about 6:00 a.m. Police Patil from the said village came to the house of the complainant - father of the deceased and took him to the scene of offence i.e. to the house of present applicant No.1. In the said house the hanging dead body of 3appln-1125-10 the victim was identified by the complainant and it was also noticed that both the hands of the victim were tied by means of some towel, so also significantly enough both the knees of the dead body were smeared with mud. Such type of factual position is mentioned even in the inquest panchnama. 4. Noticing the death of his own son, the complainant - father approached the local police station at Mangaon. However, no heed was given by the local police. On various occasions, attempts were made by the complainant to initiate appropriate action against the present applicants for the offence of murder. However, such attempts were futile. Ultimately, on or about 24th January, 2009, the complainant approached the Home Minister of the State by a written statement. Said submission was directed to Dy.S.P. Raigad for looking into the matter. 5. Apparently, after noticing that the police machinery is not taking much interest to deal with the applicants for the offence of murder, complainant lodged the private complaint on or about 22.5.2009 and which is numbered as 45/2009. Initially, orders u/s 156 (3) of Cr.P.C. were passed by the concerned Magistrate and matter was sent for police investigation. It appears that the police did not file 4appln-1125-10 charge-sheet in the said matter when the matter was before the another Magistrate who passed an order u/s 202 of Cr.P.C. issuing process against the present applicants. This happened on 15.2.2010. After service of the process, the applicants remained absent before the concerned Magistrate. As such, on 20-2-2009 non-bailable warrants came to be issued. Against such action taken by the Magistrate, anticipatory bail application was preferred before the Additional Sessions Judge, Alibag-Raigad which came to be rejected by the said Court vide order dated 2.3.2010. Under these premise, apprehending arrest at the hands of local police station, present application for anticipatory bail is preferred by the applicants. 6. Certain admitted position is required to be mentioned, inasmuch as the contents of the inquest panchnama which was conducted on the next date of the incident when the investigation was for A.D.No. 66/2010. As mentioned above, both knees of the deceased were smeared with mud and his hands were tied at his back by means of some towel. During the arguments certain photographs are shown to the Court by learned Advocate on behalf of the original complainant- intervener. So also, as per the police record, photographs of the dead body were taken and it was made known to the Court by the learned 5appln-1125-10 A.P.P.for the State. After seeing the police investigation papers, a query is made with the learned A.P.P. as to which are the articles seized from the scene of offence to which it is told that the nylon rope, by which the body was found hanging, was seized. So also, towel by which the hands of the body were tied, was also taken charge of. 7. It is also brought to the notice of the Court, during the arguments of the learned Advocate for the applicants and also the learned A.P.P.for the State that a sort of suicidal note is found on the person of the deceased when the dead body was found and said suicidal note is already sent to handwriting expert, however, without keeping any office copy of the same. This is revealed by the Court when the copy of such suicidal note is asked to the learned A.P.P. for inspection of the Court. However, the learned A.P.P.,on instructions from the I.O. submitted that such copy is not retained and the original note is already sent to the handwriting expert. According to the investigation, the report of the hand-writing expert is still awaited, till this time of middle of August, 2010. 8. It is apparent that even after passing the orders under section 156 (3) of Cr.P.C. for police investigation, subsequently on 22.6.2009 another Judicial Magistrate, who was then seized of Criminal 6appln-1125-10 Complaint No. 45/2009 passed the order for issuing process under section 202 of Cr.P.C. On this aspect, learned Advocate for the applicants vehemently submitted that such order dated 22.6.2009 is per se illegal as in view of the provisions of Section 210 of Cr.P.C. such order should not have been passed and the learned Magistrate should have awaited till the report u/s 156 (3) of Cr.P.C. is received. It is apparent that after passing the order u/s 202 of Cr.P.C. mainly considering the proviso to the said Section, learned Magistrate Mangaon found it fit to record the statements of the complainant and other witnesses in examination-in-chief and then after satisfying himself as to the prima facie material of the offence punishable under Section 302 of I.P.C. against the applicants, issued the process by which the directions were given to the applicants to remain present before the said concerned Magistrate. As mentioned above, apprehending the arrest at the hands of the learned Magistrate since the offence being punishable u/s 302 of I.P.C., there could not have been bail granted by the Magistrate, anticipatory bail application was preferred before the learned Additional Sessions Judge and which came to be rejected as detailed above. 9. In the opinion of this Court, considering the proviso to 7appln-1125-10 Section 202 of Cr.P.C. hardly it can be said that there is a blatant illegality committed by the learned Magistrate in issuing process against the applicants directing them to remain present. Moreover, on the aspect of the merits of the case the laxity shown by the Investigating Agency is much crucial and only after the filing of the private complaint bearing No.45/2009 the police machinery moved that also at the behest of the Court. What is much weighing with this Court is the factual position as to finding of the dead body when its hands are tied by means of some towel at the back and in fact the finding of the said dead body in the house of accused, present applicant No.1. 10. In police papers, it is found out that Inspector of Mangaon Police Station had given directions to the P.S.I.of the concerned Police Station to look into the matter, considering the seriousness and there are allegations that allegedly the deceased had committed suicide out of some frustration in love affair. Said letter is dated 7.1.2009. 11. Needless to mention that the factual position speak something else as to prima facie it would not be acceptable to reason and logic that a person will hang himself in the house of another person that also in the night time when he along with other persons had spent few hours in the night and while killing himself and for committing 8appln-1125-10 suicide he may tie his hands at his back. In fact, the very factual position that the dead body was found with both the hands tied at the back and the dead body was definitely not in complete hanging position but its feet were touching the ground, would have prompted the police to sense something serious must have happened than the events of committing suicide by the deceased. 12. At the cost of repetition, it must be mentioned that even by this time the alleged theory of finding suicide note on the person of the deceased is yet to be authenticated by any material by producing the hand writing experts report still such steps have been taken about one year and three months back. 13. Considering all above circumstances it is not in the fitness of situation to allow the present application for anticipatory bail. In the result, the following order:- ORDER: (a) Anticipatory bail application is rejected. (b) Interim protection earlier granted from time to time is hereby withdrawn. Application is disposed of in above terms. (A.R.JOSHI,J) LRS-PA