1 1 1 IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.882 OF 2006 The State of Maharashtra (Through State C.I.D., Alibag, Dist - Raigad .. Applicants. Vs. 1. Pratapsinha @ Sanjay Shankarrao Chavan Age: 40 yrs, Occ. Service Residing at: 15, West, 2nd Lane, Madhuban Society, Sangvi, Pune .. 2. Shankarrao Bapusaheb Balwantrao Chavan .. 3. Smt.Bhagirathibai Shankarrao Chavan .. Respondents. (Residing at same as above) WITH CRIMINAL WRIT PETITION NO.405 OF 2006 1. Shri Madhav J.Jamdar Residing at 601, Siddhi Vinayak Annex C.H.S. Ltd. Sitaram Jadhav Marg, Lower Parel (W), Mumbai - 13. .. 2. Shri Jayajirao D.Jamdar Judicial Officer, Residing at 601, Bldg.No.5A, Purva C.H.S.Ltd, Ashanagar, Borivli (E), Mumbai 400 066 .. 3. Shri Shriram J.Jamdar Residing at 82, Budhawar Peth, Pune - 2 .. Petitioners. Vs. 1. Pratap Singh @ Sanjay Shankarrao Chavan residing at: 15 West, 2nd Lane, Madhuban Society, Sangavi, Pune .. 2 2 2 2. State of Maharashtra at the instance of State C.I.D., Alibag, Dist.Raigad .. Respondents. Mr.Rajiv Patil with Mr.Shriram Kulkarni for the petitioners in WP No.405/2006. Mr.S.R.Borulkar P.P. with Mrs.M.M.Deshmukh A.P.P. for the State. Mr.S.R.Chitnis, senior counsel i/b Mr.Amol Patankar for respondent no.1 in WP No.405/2006 and for the respondents in Criminal Application No.882/2006. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 31ST AUGUST, 2006 DATED : 31ST AUGUST, 2006 DATED : 31ST AUGUST, 2006 JUDGMENT: JUDGMENT: JUDGMENT: . Heard Mr.Borulkar learned P.P. for the State. Mr.S.R.Chitnis, learned senior counsel for the respondent-accused and Mr.Rajiv Patil, learned counsel for the complainant. 2. Rule, returnable forthwith. By consent taken up for final hearing. Mr.Chitnis, learned senior counsel waives service for respondent-accused. 3. The facts and circumstances against which these petitions are filed are common, the prayers made therein are similar and hence they are being disposed of by common order. The State, in the first petition 3 3 3 though have invoked the provisions contained in section 439(2) and section 482 of the Code of Criminal Procedure, 1973 (for short "the Code") seeking cancellation of the anticipatory bail granted to the respondent-accused, their application basically challenges the order dated 13.12.2005 passed by the Sessions Court on Criminal Bail Application No.604 of 2005. In the second petition, filed by the original complainant, his father and brother, they have prayed for quashing and setting aside the aforesaid order dated 13.12.2005, insofar as accused - Pratapsinha @ Sanjay Chavan is concerned, whereby anticipatory bail has been granted to him and his parents. 4. Mr.Borulkar, learned P.P. fairly stated that he has instructions not to press their application seeking cancellation of bail against accused no.2 and 3, parents of accused no.1. In view of the statement made by Mr.Borulkar, their application against respondent nos.2 and 3 stands dismissed as not pressed. For the sake of brevity, hereinafter, the original complainant - Shri Madhav J.Jamdar and accused - Pratap Sinha Chavan will be referred to as "the complainant" and "the accused" respectively, whereas the petitioner - "The State of Maharashtra" will be referred to as the "State". 4 4 4 5. The impugned order dated 13.12.2005 was passed by the Sessions Court in Criminal Miscellaneous Application No.604 of 2005, after it was remanded by this Court vide order dated 17th November, 2005 in Criminal Application No.6726 of 2005. That application was filed against the common order dated 4.10.2005 passed in Criminal Miscellaneous Application No.566 of 2005 and in Criminal Application No.604 of 2005. . Criminal Miscellaneous Application No.566 of 2005 was filed by the State for cancellation of anticipatory bail granted to the accused on 29th June, 2000 when the offence was registered by Khopoli police station on the basis of the FIR lodged on 17.6.2000 by the complainant bearing C.R.No.57/2000 under section 498-A and 306 of Indian Penal Code (for short "IPC"). Whereas criminal miscellaneous application No.604 of 2005 was filed by the accused seeking anticipatory bail after the charge was altered and the offence was registered under section 302 IPC on 12.8.2005 by the learned Magistrate, Khalapur. Both these applications were disposed of by the Sessions Court vide order dated 4.10.2005 by which the application of the State for cancellation of anticipatory bail was allowed and the application seeking anticipatory bail filed by the accused was rejected. That order was challenged 5 5 5 before this Court in the aforesaid Criminal Application No.6726 of 2005. . This Court, vide order dated 17.11.2005 disposed of that application and restored criminal miscellaneous application No.604 of 2005 to file and the Sessions Court was directed to decide it afresh within time frame. The Sessions Court has thereafter considered and granted the prayer of anticipatory bail under section 438 of the Code afresh and it is this order which is impugned in the instant petitions. 6. This matter has a checkered history. However, I would like to make reference to factual matrix that would be relevant and necessary for deciding these petitions challenging the order passed by the Sessions Court granting anticipatory bail to all the accused. The accused at the relevant time was working with Wartsila Ltd. as the Production Manager and was staying with the deceased and their son in the residential quarters provided by the company within the campus of the factory at Khopoli. On the fateful day i.e. 14.6.2000 after his son left for school he claims that he also left at 8.00 a.m. and thereafter the deceased alone was at home. 6 6 6 . At about 12.15 p.m. he received a call from his neighbour Mrs.Ambulkar. In response thereto he immediately rushed to his house and opened the door with his keys, in the presence of Mrs.Ambulkar and their maid servant - Farjana and found, that his wife, deceased - Pooja was lying in the kitchen in a burnt condition. He immediately informed the police at Khopoli police station which recorded his statement and seem to have registered an accidental death report. . In the report, it was specifically mentioned by the accused that she committed suicide by pouring kerosene on her person and setting herself ablaze as she was fed up with her mental disorder which she was suffering from for several years and more particularly after she was operated three years prior to the incident. The mental disorder which the deceased was suffering is described as "maniac depressive disorder". The alleged incident was thereafter informed to the complainant, who rushed to Khopoli with his family members. On 17.6.2000, the FIR was lodged by the complainant, brother of the deceased, and pursuant thereto the crime bearing C.R.No.57/2000 under section 498-A and 306 of IPC was registered. . The accused, thereafter obtained anticipatory 7 7 7 bail on 29.6.2000. The Sessions Court while granting anticipatory bail to the accused, directed him to report to Khopoli police station between 6.30 pm to 8.30 pm until filing of the chargesheet and was also directed not to leave Khopoli without permission of the Court. 7. It appears that on 21.2.2001 after the investigation was completed the police submitted "A" summary report which learned Magistrate granted on the very same day. The complainant being aggrieved by the order "A" summary passed by the Court, filed Criminal Writ Petition No.971 of 2001 for seeking re-investigation in C.R.No.57/2000. This court vide the order dated 1.8.2001 set aside the order dated 21.2.2001 and directed the learned Magistrate to consider the report submitted by the police seeking "A" summary afresh after hearing the complainant. . The learned Magistrate by the order dated 6.10.2001 after hearing the complainant directed further investigation. On 2.3.2002 after re-investigating the offence, once again "A" summary was sought by the police. Before the Magistrate could pass any order thereon, the complainant once again approached this Court in criminal writ petition No.456 of 2002 seeking re-investigation of the crime. This 8 8 8 Court vide order dated 3.5.2002 allowed the prayers made in the writ petition and transferred the investigation from Khopoli police station to State - C.I.D, and further directed them to complete the investigation, as far as possible, within six months. . It appears that the State - C.I.D. after taking over the investigation recorded the statements of various witnesses. The complainant also took several steps in helping the investigating agency in the investigation of the crime. The fresh statement of the complainant was also recorded in June 2004 and on the basis of further investigation the C.I.D. approached the learned Magistrate for alteration of charge on 12.8.2005 and the offence under section 302 was registered against the accused persons on that date. 8. Against the backdrop of the facts aforestated, I heard Mr.Borulkar, learned P.P. for the State. Mr.Chitnis, learned senior counsel for the accused and Mr.Rajiv Patil, learned counsel for the complainant at great length. They took me through the entire record placed before me as also through several judgments of the Supreme Court in support of their contentions. 9 9 9 9. Mr.Borulkar, at the outset submitted that the court below ought not to have granted anticipatory bail to the accused who is charged of the offence under section 302 IPC, as a result of which no progress in the investigation could be made by the investigating agency. The offence in question took place in June, 2000 and since then the accused is enjoying freedom. The investigating officer did not get an opportunity to interrogate him in custody. He then submitted that even after the charge was altered on 12.8.2005 the C.I.D. made all efforts to get custody of the accused for interrogation. But their efforts were in vain. He took me through several documents in support of his contentions and in particular spot panchnama, inquest panchnama, post mortem notes, photographs and expert’s opinions which form part of the record, including the opinion expressed by two doctors of the Grant Medical College to contend that the deceased was first killed and then burnt and her burnt body was kept in the kitchen to make a show that she committed suicide in the kitchen. He invited my attention to the spot panchnama to contend that the situation of all the articles and the condition of the walls clearly demonstrate that alleged incident of burning did not take place in the kitchen as tried to be demonstrated by the accused. The investigating officer did not take prompt steps, 10 10 10 as he was expected, either by arresting the accused or recording the statements of neighbours or by drawing panchnama of the entire flat. The attitude of the investigating officer, as seen from the sequence of events, clearly demonstrates that the investigating officer was trying to save the accused. He also took me through the order of anticipatory bail granted by the Sessions Court and submitted that it is perverse and is based on erroneous considerations. He submitted that the learned Judge has misread the report of Grant Medical College to record the finding that merely because the tongue was protruding it cannot be positively said that the death of the deceased has occurred due to some other cause and not by burning. He next invited my attention to the observations in paragraphs 4 and 7 of the impugned order in particular to contend that the learned Judge committed grave error of law in applying the settled principles which could be relied upon at the stage of final judgment after trial. The principle that if two views are possible, the one in favour of the accused should be accepted and that the occular version should be accepted against the expert’s opinion were wrongly employed by the learned Judge while granting anticipatory bail to the accused. If such a view is accepted and endorsed by this Court every accused in every case will have to be enlarged on bail. Lastly, 11 11 11 he submitted that the accused may not be allowed to take advantage of the defective investigation or tainted investigation. The contaminated conduct of the investigating officer should not stand in way of further investigation otherwise the investigation would not make any progress and the real culprit would never be booked for the alleged offences. 10. Mr.Patil, learned counsel for the complainant also took me through several documents and in particular the opinions expressed by the Medicolegal experts, namely, Dr.Phatnani, Dr.Parikh as also the opinion expressed by the Grant Medical College and submitted that the learned Judge committed gross error in granting anticipatory bail to the prime accused in the offence of murder. He further submitted that besides the order being erroneous and perverse the learned Judge ought not to have discussed the merits and demerits of the evidence while giving reasons for grant of bail when the matter is still under investigation. Mr.Patil further submitted that the expert’s report amply shows and establish that there is every reason to believe that death occurred prior to burn injuries and therefore investigation with regards to said area is required. He then invited my attention to the sequence of events right from the date of incident till this date to contend that the 12 12 12 investigating agency initially tried to save the accused and as a result of which the complainant had to approach this court on two earlier occasions. Firstly, for getting "A" summary report set aside and secondly, for not accepting "A" summary report filed after re-investigation and also to seek transfer of investigation from the local investigating agency to C.I.D. On both these occasions this Court passed the orders in favour of the complainant which clearly demonstrates that the investigation was not only tainted but designed to save the accused from the charge under section 302 IPC. They did not draw panchnama of the entire flat which was necessary in this case and also to record the statements of the neighbours immediately after the occurrence. The defence of alibi propounded by the accused at this stage cannot be considered. The investigation is in progress and also in view of the fact that the place of occurrence and the place of work of the accused were within the radius of 500 sq. mtrs. Mr.Patil also invited my attention to the order of anticipatory bail dated 29.6.2000 when the offence was registered only under section 498-A and 306 of IPC and submitted that the applicant did not observe the conditions imposed on him by the Court while passing that order. He did not report to the police station at all. It was then submitted that the accused without permission 13 13 13 of the Court left India on several occasions for quite sometime which also hampered the investigation and, therefore, on these grounds also the bail deserves to be cancelled. Both Mr.Borulkar and Mr.Rajiv Patil in support of their contentions placed heavy reliance upon the following judgments of the Apex Court: R.Rathinam Vs. The State and Anr. AIR 2000 SC 1851; R.Rathinam Vs. The State and Anr. AIR 2000 SC 1851; R.Rathinam Vs. The State and Anr. AIR 2000 SC 1851; Puran Vs. Rambildas and Anr. AIR 2001 SC 2023; Puran Vs. Rambildas and Anr. AIR 2001 SC 2023; Puran Vs. Rambildas and Anr. AIR 2001 SC 2023; Pokar Ram Vs. State of Rajasthan and Others AIR 1985 Pokar Ram Vs. State of Rajasthan and Others AIR 1985 Pokar Ram Vs. State of Rajasthan and Others AIR 1985 SC 969; Gurcharan Singh and Others Vs. State (Delhi SC 969; Gurcharan Singh and Others Vs. State (Delhi SC 969; Gurcharan Singh and Others Vs. State (Delhi Administration) AIR 1978 SC 179; Anwari Begum Vs. Administration) AIR 1978 SC 179; Anwari Begum Vs. Administration) AIR 1978 SC 179; Anwari Begum Vs. Sher Mohammad and Anr. (2005) 7 SCC 326; Munshi Sher Mohammad and Anr. (2005) 7 SCC 326; Munshi Sher Mohammad and Anr. (2005) 7 SCC 326; Munshi Prasad and Others Vs. State of Bihar 2002 SCC (Cri.) Prasad and Others Vs. State of Bihar 2002 SCC (Cri.) Prasad and Others Vs. State of Bihar 2002 SCC (Cri.) 175 and Karnel Singh Vs. State of Madhya Pradesh 175 and Karnel Singh Vs. State of Madhya Pradesh 175 and Karnel Singh Vs. State of Madhya Pradesh (1995) 5 SCC 518 (1995) 5 SCC 518 (1995) 5 SCC 518. 11. Per contra, Mr.Chitnis, learned senior counsel for the accused at the outset, after inviting my attention to the order passed by the learned Sessions Judge dated 13.12.2005 granting anticipatory bail, submitted that by no stretch of imagination the said order could be termed as perverse or stated to have based on irrelevant considerations or it was passed ignoring material on record. He took me through paragraphs 4 to 7 of the order in particular and submitted that it demonstrates the application of mind to every piece of paper that was produced before him 14 14 14 and, therefore, such order in any case, cannot be interfered with in the absence of the allegations such as tampering of evidence or that the accused misconducted himself or that he has attempted to interfere with the investigation. Mr.Chitnis further submitted that since his release on bail in June, 2000 until the application for cancellation of bail was filed in 2005 the applicant-accused was never called by the Investigating Officer for interrogation which itself would show that the custody of the accused is not required for any purpose whatsoever. On the other hand the applicant was always ready to co-operate with the investigation and was available for interrogation since after the order of anticipatory bail was passed in June, 2000. He did not leave Khopoli for four years. No concrete instances of tampering of evidence were pointed out either by the prosecution or by the complainant and, therefore, under no circumstances the bail deserves to be cancelled. My attention was invited to the letter dated 21st February, 1989 written by the father of deceased - Pooja to contend that it clearly discloses that Pooja was sufferring from some mental disorder and as a matter of fact she was continuously treated by the Doctor, who are known to be renowned Psychiatrist. He then submitted that the fact of her mental illness was also mentioned by the complainant in the FIR dated 17.6.2000. The act 15 15 15 of committing suicide was the result of the illness, she was sufferring from. The accused has so stated in the accidental death report dated 14.6.2000. That report further shows that she was operated three years prior to the alleged incident and she was fed up with her illness and in that state of mind she committed suicide. Insofar as the submissions of Mr.Borulkar and Mr.Rajiv Patil based on the documents, namely, spot panchnama, inquest panchnama, post mortem notes and the opinions expressed by different medicolegal experts is concerned, Mr.Chitnis submitted that the learned Sessions Judge while granting anticipatory bail had taken all that into consideration and it is reflected in the order itself. He further submitted that merely because Dr.Phatnani and Dr.Parikh have opined that the death was homicidal and it was not suicide, that by itself cannot be a ground for cancellation of bail. The investigating agency had sufficient time and opportunity to investigate the offence or to interrogate the accused. As a matter of fact this court had directed the investigating agency to complete the investigation within six months vide order dated 3.5.2002. Despite that it was neither completed within the time stipulated nor the investigating agency approached this Court for extension of time. For more than three years they did not make any progress in the investigation. Even in 16 16 16 one of the petitions filed in this Court the affidavit was filed by the investigating officer that the investigation was almost over and they would file the chargesheet soon. That affidavit was filed by the investigating officer in criminal application No.79 of 2006 in February 2006 which further shows that the custody of the accused is not necessary. He then submitted that the investigating officer slept over the matter for three years and except recording some statements in 2004 has not done anything and in view of the order dated 3.5.2002, it was incumbent upon the officer to inform this court about progress of the investigation and specifically the reasons why the investigation could not be completed. He then submitted that the proviso to section 167 of the Code is akin to the order of this Court recorded on 3rd May, 2002 and, therefore, the observations of the Supreme Court regarding proviso to section 20, sub-section 4(bb) of TADA in the case of Hitendra Hitendra Hitendra Vishnu Thakur Vs. State of Maharashtra AIR 1999 SC Vishnu Thakur Vs. State of Maharashtra AIR 1999 SC Vishnu Thakur Vs. State of Maharashtra AIR 1999 SC 2623 2623 2623 clearly stand attracted. The reliance was also placed on the judgment of the Supreme Court on Aslam Babulal Desai Vs. State of Maharashtra AIR 1999 SC 1. The observations of the Supreme Court in State of State of State of Andhra Pradesh Vs. P.V.Pavithan 1990 (2) SCC 340 Andhra Pradesh Vs. P.V.Pavithan 1990 (2) SCC 340 Andhra Pradesh Vs. P.V.Pavithan 1990 (2) SCC 340, according to Mr.Chitnis, also stand attracted in view of the fact, after the order of the Division Bench 17 17 17 dated 3.5.2002 to complete the investigation within six months, no investigation has been carried out at all till obtaining medical opinion of the Doctors of J.J.Hospital and police surgeon. In this backdrop, according to Mr.Chitnis, it is clear that there was no investigation during this period and, therefore, the question of cancelling anticipatory bail granted by the Sessions Court based on sound reasons does not arise. My attention was specifically drawn to the opinion of the Doctors of Grant Medical College and J.J.Group of Hospitals as also to the finding recorded by the Sessions Court in the impugned order to contend that in any case it cannot be definitely said that Pooja died homicidal death and that murder is the only conclusion, which could be drawn at this stage. Then my attention was drawn to the observations of the Division Bench of this Court in State of Maharashtra State of Maharashtra State of Maharashtra Vs. Vishwas Shripati Patil and Others 1978 Vs. Vishwas Shripati Patil and Others 1978 Vs. Vishwas Shripati Patil and Others 1978 Cri.L.J.1403 Cri.L.J.1403 Cri.L.J.1403 to contend that the principles to be applied and borne in mind while dealing with an application for cancellation of bail interalia could be taken recourse to while considering the application for cancellation of anticipatory bail also. The reliance was also placed upon the following judgments of the Supreme Court wherein the Supreme Court has laid down the principles to be taken into consideration while considering the application for 18 18 18 cancellation of bail: State Vs. Sanjay Gandhi AIR State Vs. Sanjay Gandhi AIR State Vs. Sanjay Gandhi AIR 1978 SC 961; Gurbaksh Singh Sibbia etc. Vs. The 1978 SC 961; Gurbaksh Singh Sibbia etc. Vs. The 1978 SC 961; Gurbaksh Singh Sibbia etc. Vs. The State of Punjab AIR 1980 SC 1632; Bhagirathsinh s/o State of Punjab AIR 1980 SC 1632; Bhagirathsinh s/o State of Punjab AIR 1980 SC 1632; Bhagirathsinh s/o Mahipat Singh Judeja Vs. State of Gujarat (1984) 1 Mahipat Singh Judeja Vs. State of Gujarat (1984) 1 Mahipat Singh Judeja Vs. State of Gujarat (1984) 1 SCC 284; Mahant Chand Nath Yogi & Anr. Vs. State of SCC 284; Mahant Chand Nath Yogi & Anr. Vs. State of SCC 284; Mahant Chand Nath Yogi & Anr. Vs. State of Haryana (2003) 1 SCC 326; Satich Dhond Vs. State of Haryana (2003) 1 SCC 326; Satich Dhond Vs. State of Haryana (2003) 1 SCC 326; Satich Dhond Vs. State of Goa 2006 ALL MR (CRI.) 1412 and Shantaram Baburao More Goa 2006 ALL MR (CRI.) 1412 and Shantaram Baburao More Goa 2006 ALL MR