1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 128 OF 2010 1. Suresh Mahadeo Sawant 2. Parag Sumanlal Balad 3. Ramakant Haribhau Mhatre 4. Raju Dharma Mali 5. Narayan Janu Gharat .. Applicants V/s State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO. 129 OF 2010 1. Laxman Pandurang Mhatre 2. Namdeo Balu Mhatre 3. Shashikant Ramchandra Mhatre 4. Shailendra Shankar Mhatre 5. Amar Shankar Mhatre 6. Roshan Kamlakar Mhatre 7. Balkrishna Pandurang Mhatre 8. Prashant Narayan Mhatre 9. Dinesh Balrishna Mhatre .. Applicants V/s State of Maharashtra .. Respondent 2 Mr. Shirish Gupte, Senior Advocate with Mr. Amit Desai and Mr. Prakash Naik for the applicants. Mr. J.P. Kharge, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 28TH JANUARY 2010 P.C. : 1. Heard. 2. By these applications, the applicants seek pre-arrest bail in connection with C.R. No. 187 of 2009 registered at New Panvel Police Station, District Raigad for an alleged offence punishable under sections 395, 336, 427 and 384 of the I.P.C. 3. Facts stated in brief are that one Baburao Tukaram Mhatre (hereinafter referred to as “the complainant”) started a beer bar at village Kon on 1st October 2009. Initially, for some time only male waiters were employed by him for rendering service at the beer bar, but after a few days female waitresses were also engaged. On 1st December 2009, four persons, namely Suresh Sawant, Ramakant Haribhau Mhatre, Nathuram Mhadu Mhatre and Parag Balad came to the beer bar, threatened the complainant and demanded protection money of 3 Rs.50,000/-, failing which they would not allow the running of the hotel and the beer bar. The complainant declined to part with any money whereupon the applicants left but after threatening the complainant Thereafter on 3rd December 2009 at about 4.00 p.m. the applicants along with few others came to the hotel/beer bar, pelted stones, pulled out the manager Dayanand Salian and threatened to kill him. They damaged the furniture and also took away Rs.8,500/- from the cash counter. Within 1 ½ hour, the F.I.R. was lodged by the complainant. 4. Learned counsel for the applicants submitted that prima facie the averments made in the F.I.R. are not believable. If the applicants had really gone to the beer bar on 1st December 2009 for making demand of extortion in the shape of protection money, the complainant would have lodged the complaint with the police immediately. The fact that the complainant did not lodge any complaint till the hotel/bar was ransacked on the 3rd shows that there was no demand for protection money. Counsel, drawing a distinction between punitive detention and detention pending investigation, submitted that the investigation can go on without the applicants being taken in custody. He submitted that the custody of the applicants was not required for the purpose of 4 investigation as all the applicants had been specifically named in the F.I.R. as the persons who had committed dacoity. 5. Per contra, learned A.P.P. appearing for the State submitted that the offence is a very serious. Firstly, there was an attempt of extortion by demanding Rs.50,000/- by way of protection money for carrying out bar business. As the protection money was not paid, the hotel was ransacked and not only the furniture and premises were damaged but a dacoity was committed by stealing away Rs.8,500/-. He further submitted the applicants were unsocial elements and there were previous antecedents against them. He submitted that previously some of the applicants had threatened the principal/vice principal of a public school at Panvel who had taken disciplinary action against one of the students. There also, they caused damage to the public property, damaged the school building, window panes as well as flower pots. C.R. No.483 of 2008 was registered against them. 6. Several persons were present on 3rd December 2009 when the hotel was ransacked and dacoity was committed. Most of the persons present have been named by the complainant in the F.I.R. He has also stated that since he was a resident of the same village, he knew their 5 names. He has also given the names of four of the persons who had gone to the hotel demanding the protection money on 1st December 2009. The case of the persons who had gone to the hotel/bar demanding protection money on 1st December 2009 can be distinguished from the others. May be, others had gathered in a protest by the villagers on employing of female waitresses in the bar. There is no material on record that they had demanded protection money or made any demand on the complainant. Their only grievance perhaps was engaging of female waitresses. However, as far as Suresh Sawant, Ramakant Haribhau Mhatre, Nathuram Mhadu Mhatre and Parag Balad are concerned, their motive was different. They had demanded the protection money and on failure to fulfill their demand, they had gone at the hotel, damaged and ransacked the premises and committed the theft of Rs.8,500/-. In my view, their custodial investigation appears to be necessary to find out whether the other applicants were also involved in the offence of dacoity and part of the gang of persons demanding protection money or whether they had merely gathered there for the purpose of protest against employment of female waitresses. In the circumstances, in my view, pre-arrest bail can be granted to the applicants save and except the four persons, namely Suresh Sawant, Ramakant Haribhau Mhatre, Nathuram Mhadu Mhatre 6 and Parag Balad, who had demanded the protection money. I am informed at the Bar that out of these four persons, Nathuram Mhadu Mhatre has been granted bail by the Sessions Court. I am not concerned with Nathuram Mhadu Mhatre as he has not applied to this Court for bail nor has the State so far applied for cancellation of his bail. Hence, I pass the following order:- ORDER (a) The Criminal Application No. 128 of 2010 of Suresh Sawant, Ramakant Haribhau Mhatre and Parag Balad for pre-arrest bail is rejected. (b) The rest of the applicants in Criminal Application No.128 of 2010 and all the applicants in Criminal Application No.129 of 2010 are granted pre-arrest bail. In the event of arrest of those applicants in connection with C.R. No.187 of 2009 registered at New Panvel Police Station, District Raigad, they shall be released on bail on each of them executing personal bond of Rs.20,000/- with one surety of the like amount. (c) At the request of the learned counsel for the applicants, the 3 7 applicants, viz. Suresh Sawant, Ramakant Haribhau Mhatre and Parag Balad are granted time upto 11.00 a.m. of 1st February 2010 to surrender. This order shall remain in force for a period of 2 months or till the charge-sheet is filed whereafter the applicants may, if they so desire, apply for regular bail before the court, which shall be considered on its own merits. It is clarified that all observations made above are only prima facie and the Sessions Court shall not in any way be influenced by them at the stage of trial. (D.G. KARNIK, J.)