1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (BAIL) NO. 203 OF 2009 Mr. Royston Gomes, son of Mr. Rui Gomes, Aged 20 years, Indian National, Resident of Flat No.2, 1st Floor, Ravindra-A, St. Inez, Panaji, Goa. (Presently in Judicial custody, Panaji). .. Applicant V e r s u s 1. S T A T E Through P.P. 2. Police Inspector, Porvorim Police Station. .. Respondents Shri Arun Bras De Sa, Advocate for the Applicant. Ms. Winnie Coutinho, Public Prosecutor for the Respondents. Coram:- N.A. BRITTO, J. Date: 30 th July, 2009. ORAL ORDER Heard. 2. The applicant herein is involved in Porvorim Police Station Crime 2 No.26/2009 under section 364-A and 392 read with 34 I.P.C. The applicant who was the driver of the maruti van bearing no. GA-01-S-1069 was arrested on 21.3.2009 and since then has been in custody. An application for bail filed by him came to be rejected by order dated 29.6.2009 of the Learned Sessions Judge, Panaji. 3. The said crime has been registered upon a complaint filed by one Abhishek Mishra with the allegation that the applicant herein alongwith other persons with common intention abducted his brother Pradeep Mishra in the said maruti van and thereafter demanded Rs.1,00,000/- failing which they would kill his said brother Pradeep. The said Abhishek Mishra is also involved in crime no.32/09 registered against him and five others later on 10.4.2009 under sections 3 to 7 of Immoral Traffic (Prevention) Act, 1956. 4. The charge sheet in this case has already been filed against one Vinod (A1), the applicant (A2) and one Ramesh (A3) who is said to be absconding. 5. The Learned Sessions Judge came to the conclusion that there was 3 strong prima facie evidence against the applicant and the offence under section 364-A I.P.C. was punishable with death or imprisonment imprisonment for life and the offences being serious, the Learned Sessions Judge proceeded to reject the application. 6. As per the complaint of the said Abhishek Mishra he runs a beauty parlour known as Ayur Jeevan Ayurvedic Treatment Centre and it appears that the crime registered against him is in connection with the offences committed by him and others under the garb of the said treatment centre. According to him on 20.3.09 he had left that place at about 17.00 hours to go to Mapusa and at that time his brother Pradeep Mishra was there. According to Pradeep Mishra at about 17.30 hours he was standing outside the said treatment centre alongwith one Karan and Gaurav and one person called him down and thinking that he was a customer he came down and he was told to sit in the van and when he sat in the van they immediately closed the door and in the said vehicle in all there were five persons including the driver, the applicant herein, and one of the said persons having long hair (Vinod) called someone from his mobile and 4 gave that mobile to him and on the other side of mobile the person identified himself as Ashpak Bhai who demanded a sum of Rs.1,00,000/- and when he refused, the said long haired person assaulted him. Thereafter the vehicle was taken towards St. Inez and again the said other person was phoned who told him that he should pay Rs.1,00,000/- and later another Rs. 1,00,000/- and when he refused they started to assault him again and then he told him that he would pay Rs.20,000/-, and Rs.80,000/- later and told him to phone his brother and tell him to come alone with cash at Panaji bus stop and therefore he phoned his brother Abhishek Mishra and told him to come alongwith cash of Rs.20,000/- near Hanuman Temple, Panaji. In his statement he has given the names of the persons as Vinod, Ramesh, Suresh, Royston and Chotu as they were using the said names. He stated that Ramesh got down at Campal and took the motorcycle and went towards Panaji and thereafter the applicant who was driving the vehicle came below the bridge and at that time Vinod received a phone call from Ramesh and told that the kidnapped person's brother came alongwith two more persons and, at that time, he was assaulted again and they proceeded towards Dona Paula and thereafter Ramesh was taken near Super market and then they 5 went towards Goa University and he was assaulted again and his mobile no.9923478570 was taken and then the vehicle proceeded towards Old Goa and was taken inside the road where one police Gipsy came and stopped the applicant's van and at that time three persons who were sitting on the rear seat ran away in the darkness and the police managed to catch the applicant and the said Vinod. Abhishek Mishra has stated that he was informed by Karan Singh his worker that a maruti van alongwith four to five persons had come and forcefully taken Pradeep Mishra towards Panaji side and immediately he came to Porvorim and then he phoned his brother from his mobile no.9326372119 and at that time he picked up the phone and told him that one Vinod, Ramesh and three other persons kidnapped him and they were taking him towards Inox Theatre. He further stated that thereafter because of low battery his mobile got switched off and that Karan Singh received another call from Ramesh and told him that they were demanding Rs.1,00,000/- and that in case that was not paid his brother would be killed. 7. There is no doubt that the offence under section 364-A has been 6 made punishable with death or imprisonment for life. Although more than four months have elapsed from the date of the incident very little appears to have been done in the investigations of the case and it is submitted by the Learned Public Prosecutor Ms. Coutinho that though provisional charge sheet has been filed, investigations are still in progress. Learned Public Prosecutor fairly concedes that no mobiles have been attached in the investigations of the case i.e. either mobile of Abhishek Mishra or Pradeep Mishra or for that matter the one used by Vinod (the person who according to Pradeep was having long hair). 8. It has been submitted by Learned Counsel on behalf of the applicant that the versions given by Abhishek Mishra and Pradeep Mishra are contradictory, a submission which has been readily accepted by Learned Public Prosecutor who has not been able to reconcile with the said two versions. Learned Counsel on behalf of the applicant submits that the complainant is a person who is himself caught in commission of offence under the Immoral Traffic (Prevention) Act and it is quite probable that a false complaint was filed by him. 7 9. The least the Investigating Officer was expected to do was, first try and attach the mobile of Vinod and try to find out in whose name it was and then confirm whether any call was at all made by vinod to a person known as Ashpak Bhaii. Similarly, it was also expected of the Investigating Officer to seize the mobile of Abhishek Mishra bearing No.9326372119 to find out whether any call was made from that mobile to the mobile of the said Pradeep bearing No.9923478570 for it is not the case of the said Pradeep that he ever contacted his said brother the said Abhishek Mishra on his phone or that of Vinod. It is submitted on behalf of the applicant that the complainant and his said brother indulge in commission of offences under Immoral Traffic (Prevention) Act, 1956, under the garb of running a massage parlour under the name of Ayur Jeevan Ayurvedic Treatment Centre. 10. A charge sheet is filed after investigations are completed and not before, as Sub section 2 of Section 173 of the Code indicates. True, Sub section 8 of Section 173 does not preclude further investigation but that is a 8 matter of exception. It appears that a charge sheet is filed in this case without proper investigations and the submission that investigations are in progress cannot be accepted. 11. Be that as it may, in the matter of granting of bail it is not only the gravity of a charge and the severity of punishment which are the relevant factors to be taken into consideration but also the evidence in support of the charge. As already said, the versions given by both the brothers simply do not meet and as conceded by the Learned Public Prosecutor cannot be reconciled and if that be the case, considering the nature of evidence available in support of the charge under section 364-A, in my view, the applicant would be entitled to bail. It may also be observed that there is no active role attributed to the present applicant except being driver of the said vehicle. 12. In view of above, the applicant is hereby ordered to be released on bail with conditions:- (a) the applicant shall not commit any offence similar to the offence alleged 9 against him as well as in crime no.63/09 of Mapusa Police Station, (b) shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the courts or tamper with evidence and (c) the applicant shall be released upon execution of a bond of Rs.10,000/- with one surety in the like amount to the satisfaction of the Learned Sessions Judge, Panaji, and subject to the aforesaid conditions. N.A. BRITTO oc. 10