IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.94 OF 2009 IN CRIMINAL APPEAL NO.21 OF 2009 Ravi Babu Gawali .. Applicant Versus The State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO.124 OF 2009 IN CRIMINAL APPEAL NO.83 OF 2009 Shrikant Sitlaprasad Mishra .. Applicant Versus The State of Maharashtra & Anr. .. Respondents Ms. Shrikala Nair for the applicant in Cri. Application No.94 of 2009. Mr.M.P.Mishra for the applicant in Cri. Application No.124 of 2009. Mr. J.P.Yagnik, A.P.P for the State in both the applications. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 25th March 2009. : 25th March 2009. : 25th March 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . I have heard the submissions of the learned counsel appearing for the applicant and the learned A.P.P for the State. These two applications for bail (2) can be disposed of by a common order as the challenge in the appeals is to the same order of conviction and sentence. 2. The applicant in Criminal Application No.94 of 2009 is accused No.8. The applicant in Criminal Application No.124 of 2009 is accused No.7. 3. By a judgment and order dated 30th December 2008 the accused Nos.1, 7 and 8 were convicted by the learned trial Judge for the offence punishable under section 120-B read with section 34 of the Indian Penal Code. The said accused have been convicted for the offence punishable under section 452 read with section 34 of the Indian Penal Code. The said accused have been convicted for the offence under section 458 read with section 34 of the Indian Penal Code. The accused No.8 has been also convicted for offences under section 341, 342 and section 506 of the Indian Penal Code. The impugned judgment and order records that the accused No.7 is in jail from 05th December 2006 till the date of the impugned order and accused No.8 is in jail from 06th December 2006 till the date of the impugned order. The maximum substantive sentence is rigorous imprisonment for five years. Thus, the said accused have already (3) undergone sentence for a period of two years and approximately three months. 4. The learned counsel appearing for the applicant in these applications have taken me through the notes of evidence and the material on record. Their submission is that the evidence of identification of these accused in the test identification parade will have to be completely discarded. The submission is that as the sentence is of a limited duration and as the appellants have already undergone substantive part of the sentence, they are entitled to be enlarged on bail. 5. When the applications were heard on the earlier date i.e on 19th March 2009, the learned A.P.P submitted a report signed by the Senior Inspector of Police of Malad Police Station pointing out that there were two cases pending against the accused No.8 and there were eight cases pending against the accused No.7. As far as accused No.8 is concerned, the one case referred to in the report is the present case where order of conviction has been passed. The second case is for offence under section 324 read with section 34 of the Indian Penal Code. The learned counsel appearing for the accused No.7 submitted that the report is misleading. He (4) submitted that in the case at item No.3 listed in the report, the applicant has been discharged by the learned Magistrate. He pointed out that even in the case at item No.5 there is an order passed by the learned Magistrate under section 169 of the Code of Criminal Procedure, 1973. He pointed out that as far as offence at item No.6 is concerned, the applicant is not the accused and probably another person having the same name is the accused. As far as item No.7 in the list is concerned, he pointed out that on 24th September 2001 the Sessions Court has already passed an order of acquittal. As far as item Nos.1 and 8 in the report are concerned, he pointed out that the applicant has been ordered to be enlarged on bail. When a query was made to the learned A.P.P as to why these aspects have not been mentioned in report dated 19th March 2009, the learned Public Prosecutor Mr.Borulkar appeared before this Court. The learned Public Prosecutor has placed on record a circular dated 08th December 2006 issued by the Deputy Inspector General of Police (L and O) on behalf of the Director General of Police. In the said circular it is noted that sometimes incomplete or incorrect information is provided to the Public Prosecutors in the High Court which results in recording incorrect information. In the circular it is provided that in the (5) report which may be submitted by the Investigating Officer to the Public Prosecutors, following details must be incorporated: (i) C.R. number and sections; (ii) Date of arrest; (iii) Date of discharge; (iv) date of conviction and (v) date of acquittal; 6. The learned Public Prosecutor Mr.Borulkar pointed out that infact the said circular has been issued on the basis of an order passed by this Court. He pointed out that in the present case the report submitted by the Officer is not in terms of the circular. He has tendered affidavit of Mr.Maruti Rathod, Senior Inspector of Police of Malad Police Station, Mumbai in which the said officer has tendered an unconditional apology. 7. The learned A.P.P opposed the application for (6) bail by pointing out that there is enough material on record to show complicity of accused Nos.7 and 8. 8. I have carefully considered the submissions. The case of the prosecution can be summarised as under: ". The complainant Babulal Dhanraj Kothari is engaged in the cloth business in the shop situated at Vithal Wadi, Kalbadevi, Tel.Galli. His nephew Dilip Kothari is helping him in said business. Both of them have purchased flat No.502 admeasuring 595 sq.ft., C-Wing, Midas Enclave, Malad (West), Mumbai for 9,00,000/-. The agreement was executed between late Reality and complainant and his nephew Dilip 5.6.2003. The possession of said flat and the key was handed over to the complainant on 10.06.2003. Since then, he put his own lock to said flat. The members of his family were not ready to reside there as it was coming in front of ‘burial ground’. He has paid maintenance to the builder since July 2003 to December 2005 because the society was not registered by that time. . It is alleged that in May 2005, accused (7) No.1 Hitendra Parmar broke open the lock and took illegal possession. He has also filed false NC against the builder alleging that the builder was insisting him to vacate the flat. He has also filed Civil Suit No.440 of 2005 in Balwant Doshi. In that suit, he has produced one tenancy agreement showing that accused No.1 and the builder executed one tenancy agreement in his favour and Rs.700/- per month was rent fixed and security deposit Rs.2100/- were paid. According to complainant said agreement was false and bogus. The complainant got the agreement examined by expert and confirmed that said agreement was false and bogus. Therefore, he has filed complaint on which basis C.R.No.78/2006, same to be registered under section 448, 454, 457, 462, 367, 371." 9. According to the case of the prosecution P.W.No.5 Jayantilal Dave is the eye-witness to the incident. The said P.W.No.5 stated in his evidence that one Yasin Patel was his employer and he was staying in the said flat No.502 alongwith Mr.Yasin Patel for a period of one month. He stated that on 18th April 2006 (8) the said Yasin Patel proceeded to his native place and he was alone occupying the flat. He stated that on 22nd April 2006 when he came back to the flat after attending to his job and opened the door, four persons entered the flat and two of them caught hold of him. They pushed him towards bedroom. They pushed him and he was thrown in the bedroom. The door of the bedroom was closed from outside. After five to six minutes all of them returned to the bedroom. Three of them started removing the files from the cupboards. After 5 to 10 minutes one of them came and sat by the side of the said witness. The said person warned the applicant not to shout. He stated that after sometime the person who was sitting next to him went out. He stated that the persons continued to remove the files from the cupboard and the cupboard was made empty. He stated that thereafter he was taken to the lift. He was made to sit in an autorickhsaw alongwith two persons. He stated that the autorickshaw was taken up to Borivali and stopped in front of National Park at a lonely place. He was forced to get down from the autorickshaw and he was told not to go to the flat. 10. The witness deposed that he had given description of all the accused. He stated that he (9) attended identification parade on 30th December 2006. He stated that there were 13 to 14 persons standing in a row. He identified one person in the row but he did not remember the name. He stated that he had stated the name of the person before the Special Executive Officer. He stated that he identified one more person. He stated that the said person was accused No.8 Ravi Gawali. He stated that accused No.8 had pushed him inside the bedroom. In the cross-examination made by the advocate for accused No.8, the witness admitted that apart from Special Executive Officer there were two policemen present at the time of test identification parade. He stated that the room where the identification parade was held was visible from the room in jail where he was made to sit before the identification. He stated that he came to know about accused persons as the he had an opportunity to see them. He stated that police had shown him the photograph at the police station. He stated that he had opportunity to see the accused persons when he had come to the Court. On this aspect, it will be necessary to refer to the evidence of S.E.O (P.W.No.6 Ismail Khan). He stated that P.W.No.5 identified accused No.8 as one of the four persons. However, the version of P.W.No.6 on the role ascribed to accused No.8 is altogether different from the role which (10) was ascribed by P.W.No.5 in his evidence. 11. P.W.No.5 Mr. Jayantilal Dave was not knowing the accused Nos.7 and 8 before the incident. To support the identification of the said accused by the P.W.No.5 in the Court, the prosecution relied upon the identification parade. Prima facie, the evidence of identification parade is required to be completely discarded as P.W.No.5 has disclosed that there were two policemen present at the time of the identification parade. Secondly, the place where the P.W.No.5 was made to sit before identification was a place from which the room in which identification parade was held was clearly visible and in fact P.W.No.5 stated that he had opportunity to see the accused. He admitted that photographs of the accused were shown to him. 12. Considering these facts and considering the fact that out of the sentence of limited duration the applicants have already undergone sentence for a period of more than two years, a case is made out for enlarging the applicants on bail subject to compliance with stringent conditions. 13. As far as the aspect of the report submitted by (11) the Investigating Officer is concerned, it must be noted that the said report is not in terms of the circular dated 08th December 2006 issued by the Deputy Inspector General of Police on behalf of the Director General of Police. The apology tendered by the Senior Inspector of Police is accepted. No action is called for in that behalf. However, it is necessary to ensure that the directions contained in the circular are scrupulously implemented. The prosecutors appearing in the Court have to rely upon the reports submitted by the police officers. In turn the Court relies upon such reports. When reports are filed to show antecedents of the applicant or accused, the reports have to be fair and accurate. Merely referring to the cases registered against the applicant accused does not give complete picture. Whether the case is pending or whether the person is convicted or whether he has been acquitted are certainly relevant factors when the Court considers the aspect of antecedents. The Public Prosecutor will forwards a copy of this order to the concerned officer in the office of the Director General of Police. It is necessary for the said concerned officer to issue directions to all concerned for implementation of the instructions contained in the said circular dated 08th December 2006. (12) 14. Hence, I pass the following order: (i) The applicant in Criminal Application No.94 of 2009 Ravi Babu Gawali shall be enlarged on bail in the sum of Rs.15,000/- with one or two local sureties in the like amount. (ii) The bail is granted subject to condition that the applicant will report to Malad Police Station on every first Saturday of every calendar month till the disposal of the appeal. (iii) The applicant in Criminal Application No.124 of 2009 Shrikant Sitlaprasad Mishra (accused No.7) shall be enlarged on bail in the sum of Rs.20,000/- with one or two local sureties in the like amount. (iv) The bail is granted subject to condition that the applicant will report to Malad Police Station on every first Saturday (13) of every calendar month till the disposal of the appeal. (v) Only for reporting compliance with the directions issued as regards the aforesaid circular, the application shall be placed before this Court on 08th April 2009. (A.S.Oka,J)