1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2786 OF 2009. Manoj Prabhakar Lohar, of District Thane, Indian Inhabitant and was posted as Addl. Superintendent of Police, Chalisgaon, Dist. Jalgaon. ... Applicant. Versus The State of Maharashtra ... Respondent. ... Mr.R.M.Agrawal, Mr.R.S.Deshmukh, and Mr.S.A.Vaidya, advocates for the applicant. Mr.N.B.Khandare, Public Prosecutor assisted by Mr.R.B.Raghuwanshi, counsel for the Respondent/State. ... WITH CRIMINAL APPLICATION NO.2766 OF 2009. Dhiraj Yashwant Yeole, Age 39 years, Occ.Business, R/o Chalisgaon,Dist.Jalgaon. ... Applicant. 2 Versus The State of Maharashtra ... Respondent. ... Mr.Nirmalkumar Suryawanshi, advocate holding for Mr.Vinod Patil, advocate for the applicant. Mr.N.B.Khandare, Public Prosecutor assisted by Mr.R.B.Raghuwanshi, counsel for the Respondent/State. ... CORAM : V.R.KINGAONKAR,J. Date : 05.09.2009. ORAL JUDGMENT 1. These are applications filed U/s 438 of the Cr.P.C. seeking directions that in the event of arrest, the applicants may be released on bail. 2. The incident giving rise to the applications is said to have occurred between 30.6.2009 and 1.7.2009. It appears that one Purshottam Patel, a contractor, had lodged a report against Dr.Uttam Dhana Mahajan, pertaining to alleged defrauding in respect of certain amounts which were payable to him. It was alleged by said complainant Purshottam that he was duped 3 and cheated by said Dr. Uttam Mahajan. In pursuance to the said complaint, applicant No.1 Manoj, who was then the Additional Superintendent of Police at Chalisgaon, called Dr. Uttam Mahajan, in his office around 10/10-30 a.m. on 30.6.2009. The applicant Manoj deputed PSI Nimbalkar to call said Dr. Uttam Mahajan. Allegedly, Dr. Uttam Mahajan is member of Congress Party and was about to proceed to attend some rally or function at Nasik along with some other co-workers. He was taken on motor cycle by PSI Nimbalkar to the office of applicant Manoj. The applicant Manoj confronted him with the complaint application of Purshottam Patel and told him that some inquiry was to be conducted. He asked Dr.Uttam Mahajan to request the political party co-workers, who lateron came there, to proceed to Nasik and accordingly they left for Nasik, whereas Dr. Uttam Mahajan remained behind. 3. The allegations would show that applicant Manoj threatened Dr.Uttam Mahajan to settle the matter regarding monetary dispute between himself and complainant Purshottam Patel. 4 Intermittently, he was asked to shell out the money for settlement of the said dispute. However, the victim (Dr.Uttam) expressed inability to pay. After some talks and interrogation, another applicant - Dhiraj Yeole, arrived at the office of the Additional Superintendent of Police. He asked the victim whether should he intervene. Thereafter, he urged applicant Manoj to release the victim. There was a demand of ransom of Rs. 60,00,000/- (Rupees sixty lacs) which ultimately was reduced due to intervention of applicant Dhiraj Yeole. Allegedly, the matter was settled when the victim agreed to issue cheques in respect of the amounts payable to complainant Purshottam Patel along with the demanded amount of Rs. 25,00,000/- (Rupees twenty five lacs) payable to applicant Manoj. The amount of Rs.25,00,000/- (Rupees twenty five lacs) was not available with the victim. The victim contacted his father-in- law on cell phone and thereafter it was assured that the amount would be paid in the next morning. The applicant - Dhiraj Yeole was the middleman and allegedly remained as surety for such payment. The victim was taken to house of a relative 5 applicant Dhiraj in the evening and in company of PSI Nimbalkar, who was deputed to keep vigil. At odd hours of the night, the victim was shifted from house of the relative of applicant Dhiraj to his own house. The victim was not allowed to go anywhere. In the next morning, the victim was found moving on terrace of that house. His son arrived at the place along with the father-in-law to whom the information was given on the earlier day. They had some talk. Since the victim was under custody of applicant Dhiraj and PSI Nimbalkar, who was armed with a revolver, the son of the victim sent a fax letter to the Superintendent of Police, Jalgaon about the whole episode alleging that amount of Rs.21,00,000/- (Rupees twenty one lacs) was demanded for payment to be made to said Purshottam Patel and the victim was put under duress to issue cheques for such amount. The victim was thereafter called at office of applicant-Manoj and was released around mid-day. 4. The Superintendent of Police proceeded to Chalisgaon along with his two superior Police 6 Officers and conducted an inquiry into the complaint about such high-handedness of applicant Manoj. He forwarded a report to the higher Police authority as regards his findings arrived at after the inquiry. Thereupon the further investigation was handed over to CID Nasik Region with a direction to register appropriate offence. The offence vide Crime No.145/2009 was registered at Chalisgaon Police Station for offences punishable U/ss, 347, 364-A, and 385 read with Section 34 of the I.P.Code. The applicants, however, eluded the arrest. They filed applications U/s 438 of the Cr.P.C. in the Court of Sessions at Jalgaon. The learned Sessions Judge, rejected their applications. Hence, they have filed these two separate applications seeking directions. 5. The applications are opposed by the State on several grounds. The affidavit-in-reply filed by Mr.Nitin Mitkar, S.P.(CID) would indicate that arrests of the applicants is sought for the purpose of custodial interrogation. It is stated that the information about probable conspiracy 7 with said Purshottam Patel and advocate Pravin Chavan and the applicants is required to be unearthed. 6. Heard learned counsel for the applicants and learned Public Prosecutor for the State. Main thrust of the argument advanced on behalf of the applicants is that there exists no prima facie case to infer commission of the offence U/s 364-A of the I.P.Code. 7. With the help of learned Public Prosecutor Mr.Khandare, I have gone through the investigation papers, including the information regarding bad antecedents of applicant Dhiraj. For, it is alleged that applicant Dhiraj is involved in several serious crimes and is a notorious person. 8. So far as legal position is concerned, the criteria which needs to be applied in such matters is well settled. The Apex Court in "Gajanand Agrawal Vs. State of Orissa and others" 2007 AIR SCW 2857, recapitulated the factors to be 8 taken into consideration. It is held that where bail was being granted, particularly, where the accused was charged of having a serious offence, it is necessary for the Courts dealing the with application for bail to consider among other circumstances, the following factors : "(i) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (iii) Prima facie satisfaction of the Court in support of the charge." (Emphasis supplied by me) 9. Considering the above legal position, it is amply clear that prima facie case ought to be made out to indicate that the applicants are involved in commission of an offence of cognizable nature. There must be prima facie supporting 9 evidence to reach the conclusion that the applicants are involved and reasonably could be accused of a serious crime of cognizable nature. In the present case, it is no doubt true that there is prima facie material to infer that applicant Manoj is a highly placed Police Officer and applicant Dhiraj has some past bad record and, therefore, they have potential to tamper the witnesses or to threaten the complainant. Thus, ordinarily the bail application of the applicants can not be considered if it is shown that they are involved in a serious crime of cognizable nature. 10. Clinching question is whether there is prima facie material to show that the applicants or either of them are involved in offence punishable U/s 364-A of the I.P.C. The other two offences registered against them viz; U/s 347 and U/s 385 of the I.P. Code are the bailable offences. Therefore, unless the material on record is found to be enough to prima facie infer complicity of the applicants or either of them in the commission of offence U/s 385-A of the I.P.Code, the discretionary bail can not be denied 10 to them. 11. Before I embark upon consideration analysis of the material available, it would be useful to mention here that Section 364-A was introduced by the Parliament on the Statute book in view of the incidents of kidnapping by the terrorists for ransom or by anti social elements so as to create panic among the people. The objects of the amendment as enunciated in the Amendment Act, 1993 (Act 42 of 1993) can be gathered from the following paragraph used while introducing such amendment. " Kidnappings by terrorists for ransom, for creating panic amongst the people and for securing release of arrested associates and cadres have assumed serious dimensions. The existing provisions of law have proved to be inadequate as deterrence. The Law Commission in its 42nd Report has also recommended a specific provision to deal with this menace. It was necessary to 11 amend the Indian Penal Code to provide for deterrent punishment to persons committing such acts and to make consequential amendments to the Code of Criminal Procedure, 1973." 12. On plain reading of the objects and reasons which propelled the amendment of Section 364-A in 1993, it would be amply clear that ordinarily the acts of terrorism or the acts of gangsters, wherein the kidnapping or abduction is committed with intention to fulfill demand for ransom are brought within the purview of this new penal provision. The allegations in the complaint will have to be considered prima facie without threadbare analysis of the evidence. 13. On perusal of the fax letter issued by son of the victim to Superintendent of Police, Jalgaon, immediatley in the morning of 1.7.2009, it may be gathered that there was no threat given to the victim to the effect that he would be done to death on his failure to pay the demanded amount. What transpires from the statement of the 12 victim, which was recorded lateron by the Superintendent of Police, is that he was threatened that he would be put behind the bars. In other words, applicant Manoj is said to have threatened the victim of his arrest in connection with the complaint lodged by said Purshottam Patel. It may be that applicant Manoj acted with high-handedness. It may be that he was harsh while dealing with the victim. It may be that he unnecessarily took help of the intermeddler probably to coerce or to say coax the victim to shell out the money. There are two possibilities. First, he wanted to detain the victim until the payment to said Purshottam was ensured due to some other considerations. Another possibility is that he wanted to extract some money from the victim by putting him under fear of arrest. Here it may be noticed that applicant Manoj had the legal authority to effect the arrest. 14. The most significant aspect of the matter is that the Superintendent of Police, Jalgaon (Mr.Rastogi) reported that the facts revealed from his inquiry indicated commission of 13 the offences U/s 347 and 385 of the I.P.Code. He did not say that offence U/s 364-A read with Section 34 of the I.P.Code could be registered against the applicants. It emerges from the record that applicant Manoj and the S.P. (Mr.Rastogi) were not pulling on well with each other. Thus, it does not prima facie appear that Mr.Rastogi could have intentionally tried to screen applicant Manoj. Needless to say, there is prima facie material to reach conclusion that the charge for offence U/s 364-A was lateron added when the investigation came in the hands of the C.I.D. Why the opinion of Mr.Rastogi (S.P.) should be brushed aside.? There appears no satisfactory explanation. On the other hand, probability of subsequent addition of the charge in aggravated form is prima facie borne out from the record. 15. The entire episode prima facie shows reprehensible attitude of applicants Manoj and Dhiraj. No doubt, there is prima facie material to infer that the other two charges may stick to them. Even so, the material placed on record does 14 not prima facie indicate that the victim was abducted or kidnapped at the inception, with a view to demand ransom by putting him under fear of death. For, the prosecution story is that the victim was called by PSI Nimbalkar and was taken to the office of applicant Manoj on the motor- cycle as a pillion rider. After a short while, other co-workers of his party went to the office of the Additional Superintendent of Police and met the victim. In other words, the public members and staff members of the office of the applicant Manoj were knowing that the victim was brought to that office. In the broad day light and in presence of several public members, it is difficult to say that there was "abduction with intention to force the victim to pay ransom" when he was taken to the office. The statement of the victim indicated that he was rashly dealt with. To put in his words appliant - Manoj talked "In Police language" and gave abuses while he was in that office. 16. Faced with this difficulty, learned Public Prosecutor Mr.Khandare, invited my 15 attention to certain observations in "Malleshi Vs. State of Karnataka" 2004 AIR SCW 5585. The Apex Court has observed that to attract provisions of Section 364-A of I.P.Code, what is required to be proved is : "(i) that the accused kidnapped or abducted the person; (ii) kept him under detention after such kidnapping and abduction; and (iii) that the kidnapping or abduction was for ransom." These observations can not be, however, read in isolation inasmuch as, the Apex Court in para 7 reproduced Section 364-A and moreover, the fact situation of the given case is not clear in order to examine whether the kidnapped victim by name Vijay Bhaskar was threatened to do away with his life on failure to pay ransom so demanded. The Apex Court in "Vishwanath Gupta Vs. State of Uttaranchal" in Special Leave Petition (Cri.) 4516/2006, analysing Section 364-A and in para 6 of the judgment observed : 16 "There are three stages in this Section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly when the demand is not made, then causing death, if the three ingredients are available, that will constitute the offence under Section 364-A of the I.P.Code." Mr.Khandare, would submit that in said case, the Apex Court was mainly concerned with the jurisdictional issue. The Apex Court held that any of the three ingredients can take place at one place or at different places. Still, however, the main ingredient at the second stage is "threat of death coupled with the demand of money" and that should be prima facie satisfied in the peculiar fact situation so as to attract Section 364-A of the I.P.Code. 17. In the context, a Division Bench of this Court in "Philips Fadrick D'souza and another Vs. State of Maharashtra and another" 2008 (4) 17 Mh.L.J. 380 observed : "The essential ingredients of the statutory provision, apart from the act of kidnapping, abduction or, as the case may be, keeping a person in detention thereafter, are a threat to cause hurt or a reasonable apprehension of such a consequence or causing death or hurt, in order to compel the payment of ransom or the doing or abstention from doing any act by government, a foreign state, an inter governmental body or by any person. The purpose of the unlawful act is to demand ransom or to compel the doing or abstention from doing of a particular act. Kidnapping or the abduction by itself does not lead to an inference of the underlying purpose with which it was carried out. The purpose must exist at the time when the act of kidnapping or abduction takes place." 18. The material on record would show that 18 the applicant-Manoj did not visit house of applicant Dhiraj or that of his relative during the night time or till next morning. What is alleged and is prima facie explicit from the material on record is that he was detained and wrongfully confined at residential house of a relative of applicant Dhiraj and subsequently at the house of said Dhiraj. The learned Public Prosecutor Mr.Khandare, would point out that PSI Nimbalkar was deputed to keep vigil and that it has been specifically alleged that PSI Nimbalkar was armed with revolver. Mere fact that an armed Police Officer was deputed to keep watch on the victim would not even prima facie indicate threat conveyed to the victim of putting him to the fear of death. In no express words such threat was communicated nor version of PSI Nimbalkar shows that he was asked to eliminate the victim if the ransom was not paid. 19. Mr.Khandare, would submit that custodial interrogation of both the applicants is necessary in order to effectively carry out the investigation and only a prima facie view has to 19 be taken. He referred to observations in "State Rep. by the C.B.I. Vs. Anil Sharma" (1997) 7 Supreme Court Cases 187. The Apex Court highlighted importance of custodial interrogation in an appropriate case. It is observed that success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Mr.Khandare, also invited my attention to certain other observations in "Adri Dharan Das Vs. State of W.B." (2005) 4 Supreme Court Cases 303, wherein the Apex Court analysed a catena of case law on the subject and held that interim order to the effect that the accused be not arrested can not be passed U/s 438 of the Cr.P.C. There are cases and cases. Ultimately, the Court is required to strike down balance between liberty of a person and the necessity of custodial interrogation in public interest. 20. The learned Public Prosecutor Mr.Khandare, would submit that the custodial interrogation of the applicants is likely to 20 reveal certain important facts like possibility of conspiracy between them and said Purshottam Patel as well one Asdvocate Mr.Pravin Chavan. He would submit that the information regarding vehicle and the ownership of the vehicle so used for shifting of the victim from place to place is also to be revealed. The applicants Manoj and Dhiraj were asked to appear before the I.O. during the period from earlier order till today. It is undisputed that they had appeared before the I.O. It also appears that they were interrogated by the I.O. The learned Public Prosecutor would submit that except denial, no much cooperation is given by the applicants. In my opinion, recovery of the vehicles used during the night time is not necessary and very important part of the investigation. Secondly, whether conspiracy was hatched out by the applicants and said Purshottam Patel along with advocate Pravin Chavan is also not germane to the constitution of the offence U/s 364-A of the I.P.Code. In my opinion, the significant omission regarding the threat to the life of the victim on his failure to pay the alleged ransom will be a material criteria to be 21 considered. 21. Reverting to the factors which are set out in case of "Gajanand Agrawal Vs. State of Orissa and others" (supra), when the nature of supporting evidence and prima facie satisfaction of the Court in support of the charge of abduction for the purpose of extracting ransom under threat of death is absent, the applicants are entitled to liberty. However, stringent conditions will have to be imposed in order to ensure that the investigation is not impaired. It may be mentioned that if substance is found in the allegations made against applicant Manoj, the Home Department is at liberty to take appropriate action so as to dispel any apprehension about tampering of the evidence. If such apprehension still exists, it is difficult to comprehend as to why he is not put under suspension. It is reported that he has been transferred but he has not joined the new posting. This allegation is, however, refuted on his behalf on the ground that he is not given any particular posting as such. I do not wish to enter into the thicket of the controversy which is alien to 22 the present matter. 22. Under the circumstances, both the applications are allowed on following terms : (i). The applicants be released on bail on furnishing of bail bonds in sum of Rs.50,000/- (Rupees fifty thousand) each, in the event of their arrest, before the concerned Police Officer; (ii) Both the applicants shall not enter limits of Jalgaon District during the period of investigation and shall not contact any of the witness or shall make no attempt to tamper with the prosecution evidence; (iii) Both the applicants shall attend office of the Investigating Officer at Nasik on each Tuesday and Saturday between 10-00 and 1-00 p.m. and shall cooperate with him. If so required, the I.O. is at liberty to record their interrogation on audio player. (iv) If after collecting due material, the Investigating Officer is satisfied that sufficient evidence is available to infer any prior conspiracy and commission of the offence U/s 364-A 23 of the I.P.Code, with the help of newly available material, then he would be at liberty to seek Narco Analysis Test and for such purpose may apply to the concerned Judicial Magistrate or Sessions Judge as the case may be. In case such a request is granted by the concerned Court, the applicants shall appear personally to undergo such a scientific test or any like test. (v) The applicants are put on notice that if any of the above mentioned conditions is breached then the bail order would be cancelled only for the reason of such breach and without considering any other matter. 23. The Criminal Applications are accordingly disposed of. (V.R.KINGAONKAR,J.) asp/office/Crapp278609