1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATIONS (BAIL) NO.151/2010 & 152/2010 CRIMINAL APPLICATION (BAIL) NO.151/2010 Mr. Francisco Xavier Pacheco alias Mickky Pacheco, s/o. Joao Francis Pacheco, Indian National, aged 46 years, married, business, r/o. Bresources House, Church Square, Betalbatim, Salcete, Goa. ...... Applicant. Versus The State of Goa, through CID, Crimes Branch Police Station, Dona Paula, Goa. ...... Respondent. Mr. S.G. Dessai, Senior Advocate with Mr. Pavitran A.V., Advocate for the applicant. Mr. C.A. Fereira, Public Prosecutor for the State/Respondent. CRIMINAL APPLICATION (BAIL) NO.152/2010 Mr. Lyndon Monteiro, son of Mario Monteiro, aged 37 years, r/o. House No.71, Opposite Verna P.S., Dignem, Verna, Salcete, Goa. ....... Applicant. Versus The State of Goa, through CID, Crimes Branch Police Station, Dona Paula, Goa. ...... Respondent. 2 Mr. S.G. Dessai, Senior Advocate with Mr. Amit Palekar, Advocate for the applicant. Mr. C.A. Fereira, Public Prosecutor for the State/Respondent. CORAM :- A.S. OKA, J. DATE :- 21st June, 2010. ORAL ORDER : These applications were placed before the learned Single Judge (N.A. Britto, J.) on 18th June, 2010. The learned Judge directed that the applications should not be placed before him. As per general directions issued by the Hon'ble the Chief Justice, the Registry has placed these applications before this Court. As I am sitting in a Division Bench, the applications were fixed at 4.30 p.m.. With the consent of the learned Senior Counsel appearing for the applicant in both the applications and the learned Public Prosecutor, the applications have been taken up for final hearing at 4.30 p.m. 2. These two applications for pre-arrest bail filed under Section 438 of the Code of Criminal Procedure, 1973 relate to Crime No.75/10 originally registered by Maina Curtorim Police Station which concerns the death of one Ms. Nadia Torrado. It is alleged that 3 said Nadia consumed entire ratol tube paste and that she was admitted in Appollo Victor Hospital, at Margao at about 3.55 p.m. on 15th May, 2010. On the same day, in the evening, by air the said Nadia was shifted to Bombay and she was admitted in Jupiter Hospital. On 26th May, 2010 from Jupiter Hospital, she was shifted to Appollo Hospital at Chennai. On 29th May, 2010 she died. Initially, an offence was registered under Section 309 of the Indian Penal Code. It transpires that during the course of investigation, Section 306 of the Indian Penal Code was applied on 1st June, 2010. Section 201 of the Indian Penal Code was applied on 3rd June, 2010. Section 304 of the Indian Penal Code was applied on 7th June, 2010. On 3rd June 2010, the investigation was transferred to crime branch. 3. As far as Criminal Application(Bail) No.151/2010 is concerned, it is stated that the applicant is a sitting Member of Goa Legislative Assembly and he was elected in June, 2007. It is stated that he was elected Member of Goa Legislative Assembly even in the year 2002. It is stated that he was a Cabinet Minister in the Government of Goa till 5th June, 2010 when he tendered his resignation. He was Minister in-charge of Tourism Department of the Government of Goa. 4 As far as applicant in Criminal Application (Bail) No.152/2010 is concerned, it is stated that in July, 2007 he was appointed as an Officer on Special Duty to the applicant in Cri. Application No.151/2010. The applicants in these applications are allegedly avoiding to remain present for interrogation and their present whereabouts are not known. 4. Both the applicants had filed applications for pre-arrest bail before the Sessions Court, Margao. The application made by the applicant in Cri. Application No.152/2010 was rejected by the learned Addl. Sessions Judge, Margao by an order dated 9th June, 2010. An application made by the applicant in Cri. Application No.151/2010 was rejected by the said Court on the next day. It must be stated here that Cri. Application (Bail) No.147/2010 was filed in this Court in which the applicant Lyndon Monteiro was shown as the applicant. The said Application was filed on 10th June, 2010 and it is stated in the said application that the said applicant Lyndon had filed the said application through his mother. In the said application, this Court passed an order on 14th June, 2010 directing the applicant to remain present in this Court on the next date of hearing fixed on the 17th June, 2010. Criminal Misc. Application No. 149/2010 was thereafter filed on the 5 very day. In the said application, a prayer was made for grant of leave to withdraw the main application for anticipatory bail. By an order dated 15th June, 2010, the applicant was permitted to withdraw the earlier Cri. Application (Bail) No. 147/2010. 5. The learned Senior Counsel appearing on behalf of the applicants has taken me through the annexures to the applications. He invited attention of the Court to the communication dated 2nd June, 2010 sent by the applicant Mr.Mickky alias Francisco Pacheco to the Chief Minister of Goa. On the day, the said applicant was a Minister in the government of Goa. He pointed out that by the said communication the applicant Mr. Pacheco pointed out the manner in which the police force in Goa was functioning. In fact he sought judicial inquiry through a retired Judge of this Court to investigate into the death of Nadia, as well as excise scam, and drugs racket in which cases kith and kin of political bigwigs in the Government were involved. He pointed out that on 4th June, 2010, Mr. Pacheco appeared before the Police Authorities and co-operated for investigation. He pointed out the fact that the applicant Mr. Pacheco was present for a period of 9 hours and his statement has been recorded. He submitted 6 that the applicant has shown willingness to co-operate with the investigation which fact is clear from his appearance before the police on 4th June, 2010. He submitted that when he found that out of the political motive, there was a threat of his arrest, he did not appear before the police on 5th June, 2010. He pointed out that initially offence was registered only under Section 309 of the Indian Penal Code. He pointed out that this is a case where the deceased had a pending matrimonial suit for divorce against her husband. He pointed out that the deceased consumed poison on 15th May, 2010. He pointed out that the deceased was admitted in Jupitar Hospital, on the same day evening and on 16th May, 2010, at the instance of the local police, a dying declaration of the deceased was recorded by a Special Judicial Magistrate. He pointed out that there is no allegation made against the applicant in the said dying declaration and all that the deceased has stated is that she consumed poison. He pointed out that apart from the deceased, her mother and the brother along with two maid servants were residing in her house. He submitted that neither the mother, nor the brother of the deceased have made any allegations against the applicant about the applicant's involvement in the offence. He submitted that even according to the police, the husband of the 7 deceased had made a vague allegation that somebody informed him that the deceased had been murdered. He pointed out that it is the case of the prosecution that the applicant Mr. Pacheco has spent a sum of Rs.40,00,000/- and more on hospitalization and medical treatment of the deceased. He pointed out that if there was any intention on the part of the applicant to cause any harm to the deceased, he would not have spent such huge amount. He pointed out that simple injuries are allegedly found on the person of the deceased on 29th May, 2010 in the post-mortem report which the police have obtained from Chennai. He submitted that the said injuries are stated to be more than 12 days old. He submitted that in any case, assuming without admitting that there were injuries on the person of the deceased, the same are simple injuries and even according to the case of the police, the same are only contusions, which are not at all serious injuries. He submitted that the theory of the injuries appears to have been invented in order to falsely implicate the applicant. He submitted that from the fact that on 4th June, 2010 the applicant appeared before the police and co-operated for investigation, clearly shows that the applicant is willing to co-operate with the investigating agency. He pointed out that even on 2nd June, 2010, the applicant had made a grievance to the Chief Minister about 8 the manner in which the police machinery was functioning and, in fact, he sought independent probe into the death of the deceased. He submitted that right from 2002, the applicant is a Member of the Legislative Assembly and he had been a Minister for last many years and therefore it is impossible that the applicant will abscond. He submitted that the applicant had made himself available for investigation and this is not a case where custodial interrogation is necessary. It is pointed out that even according to the material placed on the record, the applicant has not played any role in the offence alleged to have been committed under Section 201 of the Indian Penal Code. He submitted that in any case said offence is bailable. He submitted that as per the long standing custom, after the funeral, the house of the deceased was cleaned up. If there was any intention on the part of any one to destroy any evidence, the articles would not have been burnt on the rear side of the house of the deceased. He pointed out that on 16th May, 2010 there is a dying declaration of the deceased recorded in the presence of a Magistrate which shows that the applicant has played no role. He submitted that there is nothing on record to show that the applicant was present when the dying declaration was recorded. He invited attention of the Court to the text of the SMS 9 allegedly sent by the deceased to her husband on 14th May 2010 which is set out in the affidavit-in-reply tendered today. He pointed out that taking the SMS as it is, which is allegedly sent by the deceased to her husband, it shows the state of mind of the deceased. It shows that she wanted to commit suicide. It is submitted that this is a case where none of the relatives of the deceased has made any allegation against the applicant. Lastly, he submitted that the reasons set out by the prosecution in the reply as to why custodial interrogation of the applicant was required, were totally extraneous. He submitted that the allegation is that the two cellphones held by the deceased, her passport, her laptop, as well as the empty Ratol tube were missing and therefore custodial interrogation was required for finding out the said articles. He pointed out that the police have gone to the extent of alleging that his custody is necessary for recovery of the missing weapons of assault. He submitted that even according to the police, there is no allegation that the applicant has used any weapon. He has placed reliance on a decision of the Apex Court in the case of Savitri Agarwal and ors., vs. State of Maharashtra and anr., ((2009) 8 SCC 325). He submitted that in an identical situation where a dying declaration of the deceased was recorded, the Sessions Court granted 10 pre-arrest bail which was cancelled by the High Court. The Apex Court has restored the order granting bail. He has placed reliance on other decisions, including a decision of the Apex Court in the case of Gurbaksh Singh Sibbia v. State of Punjab, ((1980) 2 SCC 565). He submitted that there is absolutely no apprehension that the applicant will run away and the applicant is willing to co-operate for investigation provided the applicant is protected by pre-arrest bail. 6. As far as the second applicant is concerned, he pointed out that in this case, even according to the police, at the highest, the involvement of the applicant is in connection with the offence under Section 201 of the Indian Penal Code. He submitted that the said offence is a bailable offence. He pointed out that on earlier occasion an application for anticipatory bail was filed on behalf of the applicant by his mother and as the maintainability of the application was questioned and as it was realised that the application was not maintainable, it was withdrawn with the leave of the Court. He submitted that in the circumstances, it is not necessary to make out a case of change in circumstances. He, therefore, submitted that this is a case where there is no material against the applicant and therefore he 11 deserves to be granted pre-arrest bail. 7. The learned Public Prosecutor produced before this Court for perusal of this Court relevant files of investigation. He has pointed out the cause of death set out in the post-mortem report received from Chennai. He submitted that this is a case where both the applicants were absconding and especially the applicant in Cr. Application (Bail) No.151/2010( Mr.Mikkey Pacheo) has not at all co-operated with the police. Though he was called upon to remain present on 5th June, 2010, he did not appear. He pointed out that looking to the gravity of the offence, the custodial interrogation of the applicants is absolutely necessary. He pointed out various circumstances which point out involvement of the applicant in Cr. Application (Bail) No.151/2010 in the offence. He pointed out that an amount of Rs.40,00,000/- has been spent by the applicant on the medical treatment of the deceased for covering up his case and for saving himself. The said factor cannot be weighed in favour of the applicant. He invited attention of the Court to various statements made in the affidavit-in-reply filed in this Court as well as reply filed before the Sessions Court. He pointed out that there are 9 cases registered against him. He pointed out that the 12 applicant has criminal background and therefore, this is not a case where pre-arrest bail should be granted. He submitted that the second bail application by the applicant Lyndon was not maintainable inasmuch as his earlier application for the same relief was unconditionally withdrawn after this Court directed the said applicant to remain present in the Court. He submitted that custodial interrogation of the said applicant is also necessary. 8. I have given careful consideration to the submissions. Criminal Application (Bail) No. 152/2010 is filed by Lyndon Monteiro. In paragraph 20 of the application, the applicant has stated thus : “ 20. Applicant has not filed a similar application in this court or any other court including Supreme Court of India except the Anticipatory Bail Application No.160/2010 which was filed before the Additional Sessions Judge 1, Margao and the anticipatory bail application filed by his mother which has been withdrawn.” This Court called for the papers of the said earlier application for grant of anticipatory bail being Criminal Application (Bail) No.147/2010. It 13 must be recorded here that during the course of hearing of the present application, when a specific query was made by this Court to the learned Senior Advocate appearing for the applicant as to whether the said Criminal Application (Bail) No.147/2010 was filed as per instructions of the applicant and on behalf of the applicant, on instructions, he stated that the said application was filed as per the instructions of the applicant, but the same was filed on his behalf by his mother. Perusal of the order sheet of the said bail application shows that on 14th June, 2010 this Court directed the applicant to remain present before this Court on 17th June, 2010. It appears that on the same day, a Criminal Misc. Application was moved on behalf of the applicant. The only prayer made in the said application was to grant leave to withdraw the application for anticipatory bail. This Court, by an order dated 15th June, 2010, permitted simplicitor withdrawal of the earlier application. 9. In the new application being Criminal Application (Bail) No.152/2010, I find that there is no reference to the orders passed in the earlier bail application which was admittedly filed as per the instructions of the applicant. It is not disclosed in the present 14 application that on the earlier application a specific direction was issued by this Court to the applicant to remain personally present in this Court. Only after the said order was passed, an application for withdrawal of the said earlier application for bail was made. As stated earlier, it is an admitted position that the earlier application was filed as per the instructions of the applicant, but it was filed on his behalf by his mother. The applicant prayed for grant of permission to withdraw the said application only after this Court passed an order requiring personal presence of the applicant in this Court. The said application was made for grant of leave to withdraw the earlier bail application. The order passed by this Court on the said application for withdrawal shows that the earlier application for grant of pre-arrest bail was unconditionally withdrawn. In my view, it was the duty of the applicant to disclose in the present application the orders passed in the earlier application for grant of anticipatory bail and especially the direction issued by this Court to the applicant to personally remain present in this Court. In any event, in view of the law laid down by this Court in the case of Kamlesh vs. State of Maharashtra (2007(2)Mh.L.J. 850), the present subsequent application can be entertained only if there is a change in circumstances. This is a case where the application was 15 withdrawn after this Court ordered personal presence of the applicant. If the applicant was aggrieved by the said order directing his personal presence, the same could have been subjected to a challenge. Admittedly, there has been no change in the circumstances after unconditional withdrawal of the earlier application. In the circumstances, in the absence of any change in circumstances, the second application, at the instance of the applicant, cannot be entertained and the same deserves to be rejected. 10. Now coming to Criminal Application (Bail) No.151/2010, it has not been disputed that on 4th June, 2010 the applicant remained present before the concerned Investigating Officer and his statement was recorded and that on 5th June, 2010 he was called upon to appear. However, the applicant did not appear. Prima facie there is material on record to show a very close relationship between the applicant and the deceased. The deceased was already married. There is some material on record to show that the deceased travelled by air as a spouse of the Tourism Minister which was the post held by the applicant. 11. It must be noted here that there is material collected during 16 the investigation that on 13th May, 2010, 14th May, 2010, and 15th May, 2010 there was conversation made by the deceased with the applicant on the cellphones of the applicant by using the cellphone standing in her own name. The prosecution claims that the scientific analysis of the details of cellphone of the applicant shows that the applicant was present in the house of the deceased in the night of 14th May 2010. It is found that the applicant was all along present in Appollo-Victor Hospital at Margao, Jupiter Hospital, at Thane and Appollo Hospital at Chennai. The investigation reveals that though there is no specific material on record to show that on 16th May, 2010 when the alleged dying declaration of the deceased was recorded he was in the premises of Jupiter Hospital, but there is material to show that he was nearby the hospital. Thus, the material on record shows that the applicant was in touch with the deceased continuously from 13th May, 2010 to 15th May, 2010. 12. Perusal of certain documents handed over by the learned Public Prosecutor shows that when the deceased was admitted in Apollo Victor Hospital at Margao, the case history notes only the consumption of Ratol. However, the case history recorded by the 17 Jupiter Hospital at Thane on the same day also notes the consumption of 0.25 mg. tablets of Restyl. It was recorded that there was a consumption of 20 tablets by the deceased in the evening of 14th May, 2010. It is pertinent to note that the so-called dying declaration records that the deceased consumed ratol by mistake in the morning of 15th May 2010. Surprisingly the deceased was shifted to Apollo Victor Hospital in Goa in the afternoon after 3pm. At that time the applicant was present. Therefore, the case of accidental consumption of ratol in the so-called dying declaration of the deceased appears to be doubtful. At this stage, it will be significant to note that the first Post Mortem Report received from Chennai records the cause of death as "poisoning and its complications, with multiple contusions". There were 14 ante mortem injuries found on the body of the deceased during the course of post mortem examination. Only three injuries are stated to be surgical, but apart from the said three injuries, there were contusions on the right forearm, left forearm, wrist, right half of lower lip, right thigh, right leg, left thigh, left leg, back of left shoulder and chest. The opinion recorded by the doctor is that the injuries have been caused by a hard and blunt object. The finding recorded is that the death appears to have occurred not only due to poisoning and its 18 complications but also due to multiple contusions. The report records an opinion that certain contusion injuries might have been caused by blunt object like wooden log or similar hard object. It is in this context it appears that the prosecution has stated in the reply that the weapon of assault is yet to be recovered. It must be noted here that the applicant who was a Cabinet Minister appears to have been present all through out in the three hospitals. What is noted by the investigating agency is that when the house of the deceased was searched, her two cellphones, passport and the empty Ratol paste tube were not found. It is stated that even the laptop of the deceased was missing. 13. As stated earlier, on 4th June, 2010 the applicant who was a Cabinet Minister appeared for recording of his statement, but from 5th June, 2010 when he stepped down from the office of Minister, he did not remain present before the police for recording of his statement. It must be noted that the house of the deceased including the bedroom were cleaned and the allegation is that important evidence was deliberately made to disappear from the house. The case of the police is that apart from two cellphones, passport and laptop of the deceased, even the tube of ratol paste are missing. The apprehension expressed 19 by the prosecution is that looking to the political clout, there is every possibility that the applicant will try to tamper and destroy the evidence. It is noted in the reply that there were nine offences registered against the applicant in the State of Goa. It is pointed out that in two cases the applicant has been acquitted. 14. The gravity of the offence and the need of custodial interrogation are the only two factors to be considered when a Court considers an application for pre-arrest bail. Looking to the manner in which the entire incident has occurred, it cannot be denied that the offence appears to be of a very serious nature. It involves death of a young woman in mysterious circumstances. Looking to the sequence of the events it cannot be said that custodial interrogation of the applicant in Cri. Application(Bail) No.151/2010 is not required.