1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO.26 OF 2005 WITH CRIMINAL MISCELLANEOUS APPLICATION NO. 240 OF 2005 AND CRIMINAL REVISION APPLICATION NO. 27 OF 2005 WITH CRIMINAL MISCELLANEOUS APPLICATION NO.241 OF 2005 CRIMINAL REVISION APPLICATION NO.26 OF 2005 WITH CRIMINAL MISCELLANEOUS APPLICATION NO.240 OF 2005 Satish Dhond r/o Kelwada­Pirna, Bardez­Goa presently residing at Panaji­Goa ... Applicant versus The State of Goa (Special Public Prosecutor, appointed by order dated 30­08­2005 bearing No.3­1­2004­ LD­ESTT/2330) ... Respondent CRIMINAL REVISION APPLICATION NO.27 OF 2005 WITH CRIMINAL MISCELLANEOUS APPLICATION NO.241 OF 2005 Shri Sadanand Shet Son of Shri Mhalu Shet 2 major, married, r/o H.No.380, Tanavade wada­Pirna, Bardez­Goa ... Applicant versus The State of Goa (Special Public Prosecutor, appointed by order dated 30­08­2005 bearing No.3­1­2004­LD­ESTT/2330) ... Respondent Mr. A. N. S. Nadkarni with Mr. N. K. Sawaikar, Advocates for the Applicants in both the applications. Mr. S. G. Dessai, Special Public Prosecutor for the State in both the applications. CORAM : N. A. BRITTO, J. DATE : 13TH JANUARY, 2006. J U D G M E N T The applicants herein who are accused in Crime No.15/2005 which was initially registered under Sections 465, 468, 471 r/w 34 I.P.C. at Porvorim Police Station, have invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973(Code, for short) to challenge the common Order dated 15­10­2005 of the learned Additional Sessions Judge, Mapusa, cancelling the anticipatory bail granted to them by Order dated 7­3­2005. 3 2. The applicant Sadanand Shet Tanavade is a MLA from Tivim Constituency. The applicant Satish Dhond is the General Secretary (Organisation) of the Goa Unit of Bharatiya Janata Party(BJP). The said crime came to be registered upon a complaint filed by Filipe Neri Rodrigues, a MLA from Velim Constituency. The said crime was registered against the applicants herein and one Rajendra Ganu who works in the Office of BJP at Panaji. 3. It is necessary to refer briefly to the facts leading to the filing of the said complaint/first information report by the said Filipe Neri Rodrigues. 4. After the Assembly Elections of 1­6­2002, Government was formed by a coalition led by Shri Manohar Parrikar, and as on 28­1­2005 the position of parties in the Goa Legislative Assembly was as follows: BJP ­ 21, Congress ­ 15, UDGP ­ 1 who was supporting the BJP, MGP ­ 1 who was supporting the BJP, NCP ­ 1 and Independent ­ 1, namely the said Filipe Neri Rodrigues. On 29­1­2005 four MLA's of BJP tendered their resignations. The said Filipe Neri Rodrigues resigned from the Cabinet and withdrew support to BJP. So did Ramkrishna Dhavlikar of MGP and as a result the Ministry headed by Shri Parrikar was reduced to minority. The 4 said Filipe Neri Rodrigues declared his support to the Congress. The Ministry headed by Parrikar having been reduced to minority, His Excellency the Governor directed Shri Parrikar to take a vote of confidence on the floor of the House on 2­2­2005. 5. Two disqualification petitions dated 29­1­2005 came to be filed against the said Filipe Neri Rodrigues. The first was filed by Shri Rajesh Patnekar, a BJP MLA, on the allegation that the said Filipe Neri Rodrigues had joined Congress and the second was filed by the applicant/Sadanand Shet Tanavade on the allegation that the said Filipe Neri Rodrigues had joined the BJP in October, 2002. The second disqualification petition No.2/2005 dated 29­1­2005 was presented to the Speaker in the evening of 1­2­2005 and after a public notice was issued to the said Filipe Neri Rodrigues, the said Filipe Neri Rodrigues put up his appearance through his lawyer on 2­2­2005 and sought time but the Hon'ble Speaker was pleased to give him time till 12 noon of 2­2­2005. On the same day i.e. 2­2­2005 whilst the Assembly Session was in progress the said Filipe Neri Rodrigues was marshalled out of the House by the Speaker quoting Rule 289 in order to prevent him from voting. On 2­2­2005 the Government led by Shri Manohar Parrikar had the strength of 17 MLA's including 1 MLA from UDGP minus 1 being the Speaker as against the strength of Congress of 18 MLA's including 5 1 from MGP, 1 from NCP and 1 Independent. On the same day, the Government headed by Shri Parrikar was dismissed by His Excellency, the Governor who also swore in Shri Pratap Singh Rane as the Chief Minister and directed him to take a vote of confidence by 28­2­2005. 6. On 15­2­2005 the applicant/Sadanand Shet Tanavade filed an application in the said disqualification petition before the Speaker, for relying upon the Primary Membership Form­ being form No.21989 alleged to have been signed by the said Filipe Neri Rodrigues. 7. On 16­2­2005 the complainant/Filipe Neri Rodrigues lodged a complaint against the applicants, BJP Office Bearers and unknown persons complaining that the said Primary Membership Form was a forged document and pursuant to the said FIR that the said crime came to be registered against the applicants and the said Rajendra Ganu under Sections 465, 468, 471 r/w 34 I.P.C. On 18­2­2005 the Police Inspector sent a call letter to the applicant Sadanand Shet Tanavade but the applicant Tanavade did not attend the Police Station and his lawyer complained to the Hon'ble Speaker that there was a posse of Police waiting outside the Assembly Complex to arrest his client, whereupon the Speaker summoned the Director General of Police, the Chief Secretary and the concerned Dy.S.P. 6 and the Director General of Police assured the Speaker that no further investigations would be carried out whilst the disqualification proceedings were pending before him. 8. On 28­2­2005 the said second disqualification petition filed by the applicant Sadanand Shet against the said Filipe Neri Rodrigues was allowed by the Speaker by holding that the said Primary Membership Form was a genuine document. On the same day, the Deputy Speaker resigned followed by the Speaker himself and as a result Shri Rane was not in a position to take the vote of confidence. Consequently, His Excellency the Governor appointed Shri Francis Sardinha as Pro­tem Speaker and Shri Rane was directed to take vote of confidence on 4­3­2005 but on that day the Government led by Shri Rane was dismissed and President's Rule was imposed. Shri Rane was subsequently sworn in as the Chief Minister on or about 12­6­2005 after the results of Bye Elections. 9. By call letters sent on 28­2­2005 the applicant Tanavade and co­accused Rajendra Ganu were called to the Police Station on 1­3­2005 but they did not attend. The applicants and co­accused Rajendra Ganu instead sent separate written communications contending that no F.I.R. could be lodged or investigation started against them and calling upon the Police 7 Inspector to close the case, failing which the Investigation Officer would be held responsible. The applicants were sent call letters again on 1­3­2005 to remain present on the same day at 18.00 hrs. and though call letters were served, the applicants and co­accused Rajendra Ganu did not attend the Police Station. 10. On 2­3­2005 the applicants and co­accused Rajendra Ganu filed Anticipatory Bail Applications before the learned Sessions Judge, Panaji, who was pleased to pass an interim order of bail in their favour and pass on the Anticipatory Bail Applications to be decided by the learned Additional Sessions Judge, Mapusa(ASJ). In my view, it was improper on the part of the learned Sessions Judge to have passed interim orders which are unsustainable in law and then make over the cases to be decided by an Additional Sessions Judge. In case for any reason the learned Sessions Judge did not wish to decide the applications himself/herself then the same ought to have been made over to an Additional Sessions Judge, giving the latter the freedom to pass such orders, including interim, as deemed fit. 11. Armed with interim orders in the Anticipatory Bail Applications filed by the applicants and the co­accused Rajendra Ganu, all three attended the Police Station on the same day and their statements were recorded and 8 then Section 120­B I.P.C. was added to the said crime. On 7­3­2005 the learned ASJ granted Anticipatory Bail in favour of the applicants and the co­accused Rajendra Ganu. In granting their Bail Applications, the learned ASJ, inter alia, observed that the recovery of the document­Primary Membership Form which was allegedly forged could not be by itself a ground for custodial interrogation of the applicants and which could be otherwise traced or secured by calling the applicants for interrogation and that the arrest of the applicants could not be a means to procure the disputed document. The learned ASJ further observed that except Section 468 I.P.C., the other two Sections were bailable and were also triable by the Court of J.M.F.C. and that moreover looking at the nature of the offences conditions could be imposed so that the interrogation was not scuttled. The learned ASJ concluded that custodial interrogation of the applicants was not necessary and on that count the applicants deserved to be granted Anticipatory Bail with conditions, one of the conditions being that they would co­operate with the investigations and the other being that they would not tamper with the witnesses and would not leave the country without prior permission of the Court. 12. The Respondent/State chose not to challenge the said Order of the learned A.S.J. As already stated, after having obtained the interim 9 orders on 2­3­2005 all the three accused, namely Rajendra Ganu, Satish Dhond and Sadanand Shet Tanavade appeared at the Police Station and their statements were recorded. Later, on 18­3­2005 supplementary statement of accused Sadanand Shet Tanavade was recorded, and, again a further supplementary statement on 19­3­2005 was recorded. The recording of statement on 18­3­2005 has been disputed by the accused Sadanand Shet Tanavade. On 22­3­2005 supplementary statement of Sudhir Narvekar, the Secretary of the Goa Legislative Assembly was recorded and then on 23­3­2005 a search of BJP Office was conducted with a view to find out, in the words of the Speaker, the controversial document, allegedly signed by the complainant, namely the Primary Membership Form bearing No.21989 but it was not found. On 25­3­2005 the residence of accused Sadanand Shet Tanavade was searched but again nothing was found. It is stated that on 19­4­2005 the Scientific Assistant was requested to opine whether a handwriting expert could give his opinion based on a xerox copy of the said controversial document and since he opined in the affirmative, on 2­5­2005 the xerox copy of the said controversial document along with the specimen handwriting signature of the complainant Rodrigues were forwarded to the Examiner of Questioned Documents who on or about 19­4­2005 opined that the purported signature on the said controversial document was not that of complainant Filipe Neri Rodrigues. It is further stated that on 26­5­2005 10 opinion of the said expert was sought on the handwriting of accused Satish Dhond. On 3­6­2005 the controversial document, as found in the file of the disqualification petition(not the original but a copy), was obtained from the Secretary, Goa Legislative Assembly and forwarded to the handwriting expert for his opinion. It appears that on 7­6­2006 the supplementary statement of accused Satish Dhond was recorded and that of Rajendra Ganu on 8­6­2005. On 9­6­2005 the house of accused Satish Dhond was searched but the controversial document was not found and on 10­6­2005 the house of accused Rajendra Ganu was searched but again the said controversial document was not found. On 17­6­2005 the handwriting expert, is stated to have opined that the handwriting and the date below the signature of Filipe Neri Rodrigues were those of accused Satish Dhond and it is further stated that the handwriting expert opined that the controversial document which was produced before the Speaker and which was obtained on 3­6­2005 from the Secretary was a xerox copy of the original. On 6­7­2005 the Office in charge, B.J.P. Office, was issued a written Order to produce the controversial document. One does not know as to why the Investigating Agency chose to address the said Order to the Office in charge of the BJP Office at Panaji if accused Rajendra Ganu was the Office in charge and not to the President of that party. The statements of Mr. Thali, the Counsel appearing for the petitioner/accused Sadanand Shet Tanavade before the 11 Speaker was recorded on 2­9­2005 and likewise on 9­9­2005 the statement of Mr. Sonak, the Counsel appearing for the respondent/ complainant Filipe Neri Rodrigues was recorded. On 9­9­2005 the Examiner of documents/handwriting expert opined that the purported signature of Filipe Neri Rodrigues was not of Filipe Neri Rodrigues and that the accused Satish Dhond had filled up the relevant columns on the said controversial document. The said report was received on 15­9­2005. 13. The applications for cancellation of Anticipatory Bail granted to the applicants/accused were filed before the Sessions Court, Panaji on 12­9­2005 and were made over to the learned ASJ which were allowed by the impugned Order dated 15­10­2005. 14. Before dealing with the said applications, being Cri.M.A. No.41/2005 and Cri.M.A. No.42/2005 and the Order passed thereon dated 15­10­2005 of the learned ASJ, it is necessary to deal though briefly, with some of the contentions which were being raised on behalf of the applicants/accused. (a) It appears that the accused as well as the Speaker scared the Investigating Agency that they would be dealt with for breach of privilege of 12 the Goa Legislative Assembly. The accused/Sadanand Shet Tanavade in his reply dated 1­3­2005 to the notice issued to him on 28­2­2005 under Section 160 of the Code, referred to Article 194 of the Constitution dealing with powers, privileges, etc. of the Houses of Legislatures and of the Members and Committees thereof and stated that any investigation on the basis of a F.I.R. regarding a document produced before the Hon'ble Speaker would not only attract the breach of privilege of the House but will also amount to committing the contempt thereof. He further stated that in case he participated in the investigations he may also invite both the breach of privilege of the House as also the contempt thereto and further stated thus:­ "You are therefore informed that, in case you do not close the said case and proceed with the said investigation, you will be solely responsible, liable and accountable not only to the State Legislature but towards any loss either to my reputation, or otherwise, caused to me". Whilst the proceedings of disqualification petition filed against complainant/Filipe Neri Rodrigues by accused Sadanand Shet Tanavade were going on, it was represented to the Speaker on 18­2­2005 that accused Sadanand Shet Tanavade was sought to be arrested, and, the Hon'ble 13 Speaker in his roznama of the said proceedings dated 18­2­2005 stated that he had confirmed from the Secretary of the Legislature that the Police were present on the main gate since 2.30 p.m. and that he also found many Police were deployed outside the House and since the matter raised by the petitioner(accused Tanavade) was of serious nature which restrained the parties from participating in the hearing of disqualification petition which was under the Constitution he had to take a serious note of it and, therefore, he directed the Secretary, Legislature, to summon immediately the DGP of Goa State, the Chief Secretary and also the concerned Dy.S.P. to appear before him at 6 p.m. on that day, as interference in the matter like disqualification matter was highly unconstitutional by any of the State machinery for fair justice. The Hon'ble Speaker also noted that he was ordering an inquiry into the matter. However, one does not know what instructions the Hon'ble Speaker gave to the Director General of Police or for that matter to the Chief Secretary and all that is stated on behalf of the State is that no investigations were carried out between 18­2­2005 to 28­2­2005 in deference to the assurances given to the Speaker. Later, after stalling the investigation, by his Orders on 18­2­2005 the Speaker softened his stand on 28­2­2005 by stating that "if the exigencies of law so permit the petitioner(Shri Rodrigues) to file such a F.I.R. and further authorise police to investigate the same, then, so be it". Privileges are not a shield behind 14 which one can indulge in committing offences hoping that one would not get caught. One does not know whether any inquiry was at all ordered or for that matter carried out as noted by the Hon'ble Speaker for the fact remains that on 28­2­2005 after disqualifying the complainant/Filipe Neri Rodrigues from the Membership of the Goa Legislative Assembly, the Speaker himself had to resign and vacate his Office. The learned ASJ in her Order dated 7­3­2005 observed, and in my view rightly, that the pendency of disqualification petition could not have interfered with the course of investigations since the proceedings at large before the Speaker were distinct from the allegation of forgery and registered offences pending before the Investigating Officer on the complaint of Mr. Rodrigues. To repeat, one does not know as to what instructions the Speaker gave to the Director General of Police but it was certainly not expected of the Director General of Police to have succumbed to any instructions not to carry out the investigations during the pendency of the said disqualification petition. In fact, it was expected of the DGP to have politely but firmly told the Speaker that he should do his duty and that he(the DGP) would do his, by investigating into serious offences which were allegedly committed by the accused. If that was done, it would have been much easier then to locate the original of the controversial document. In this regard reference could be made to the Constitution Bench Judgment in the case of Kihoto Hollohan 15 v. Zachillhu and others(1992 SUPP (2) 651) wherein the Hon'ble Supreme Court has clearly stated (in para 97) that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority and the decision under para 6(1) of the Tenth Schedule is not the decision of the House, nor is it subject to the approval by the House and the decision operates independently of the House. That being the legal position there was no question of the Investigating Agency committing any breach of privilege of the House by carrying out the investigations or for that matter by the accused in joining the said investigations. The assurance given by the DGP was not at all required to be given. It was expected of the DGP to have stood by the law and not to have bowed down to the instructions of the Speaker, which instructions the Speaker had no authority to give. (b). It was also contended by the accused that Anticipatory Bail could not be cancelled because there was no formal arrest made and the accused were not released upon execution of bail bonds. This contention has been rightly answered against the accused by the learned ASJ by stating that the same does not stand the test of legal scrutiny mainly by placing reliance on a Division Bench Judgment of this Court in the case of State of Maharashtra v. Vishwas Shripati Patil and others 16 (1978 Cri.L.J. 1403). In this context, it may be stated that Section 439 of the Code which gives special powers to the High Court and to the Court of Sessions to grant bail, in terms of sub­section(2) also gives powers to cancel bail and it clearly provides that any person who has been released on bail under this Chapter(and that includes Section 438) be arrested and committed to custody. In this regard, the Division Bench held as follows:­ "The Chapter postulates two types of release on bail, viz., release after arrest and release from arrest; the first wherein the arrest is accomplished while in the second it is in anticipation. The words "released on bail" clearly cover both types of cases. Particularly under the provisions of Section 438 and orders made thereunder in favour of the person accused of an offence admitting him to anticipatory bail; nonetheless such a person equally answers the description of a person who had been released on bail in the sense admitted to bail by Court. The provisions of sub­sec.(2) of S.439 are intended clearly to recall, revoke or cancel the orders as to bail and those are operative upon the purposes of directing arrest of persons and committing them to custody. Therefore, in all cases, wherever the competent authority or Court makes an order admitting persons accused of offences to bail, the provisions of this sub­section are clearly attracted. Moreover, the phraseology available 17 in the sub­section using the words like "has been released on bail" will have to be understood in the context of orders that are liable to be made and are made under the provisions of the entire Chapter. Specifically these being the provisions of Ss.436 to 439 (1), S.439 being inclusive. It is obvious that the power conferred by sub­s.(2) is intended to be operative upon and over all types of orders of bail under the Chapter. In the matter of anticipatory bail and its contest stage of arrest will not necessarily precede and yet the person in whose favour such an order is made would be a person who has been released on bail in anticipation of his arrest or apprehended arrest. Sub­sec.(1) of S.438 confers powers to give directions that in the event of such person's arrest he shall be released on bail. Sub­s.(2) deals with the conditions that may form part of such directions. Sub­section (3) then states that if such person is thereafter arrested without warrant by an officer­in­charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that persons, he shall issue a bailable warrant in conformity with the direction of the Court under sub­sec. (1). The provisions are thus in two parts. First that are contained in sub­ 18 sec.(1), which is a power to give direction, and second that are contained in sub­sec.(3), which statutorily imposes an obligation on the authorities mentioned therein to release a person in accordance with the directions. Thus making of the order with regard to anticipatory bail ­ arms the person with the direction which has to be given effect to as provided by sub­sec. (3). It shows that direction given in anticipation of arrest with regard to bail is effective and has to be obeyed by the authorities mentioned in sub­sec.(3) in the manner indicated therein. Thus, the person who has been admitted to the anticipatory bail is really a person who answers the terminology in the sense that he has been released on bail under this Chapter". (c) On behalf of the accused, it was further contended that the complaint of Shri Filipe Neri Rodrigues was not maintainable in view of the statutory bar contained in S. 195(1)(b)(ii) of the Code and the learned ASJ in para 14 of the Order dated 15­10­2005 has rejected the contention that the Speaker is not a Court. It may also be stated here that the Speaker in the proceedings of disqualification has styled himself as a Court. No doubt the Speaker, in the words of late Pandit Nehru, as reflected in the Judgment of Kihoto Hollohan v. Zachillhu and others(supra), represents the House. He represents the dignity of the House, the freedom of the House and because 19 the House represents the Nation in a particular way the Speaker becomes the symbol of the nation's freedom and liberty. Therefore, it is right that that should be a honoured position, a free position and should be occupied always by men of outstanding ability