1 aba-29-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 29 OF 2011. Mr Munir Jamal Shaikh .. Applicant. versus The State of Maharashtra .. Respondent. Mr. A.H.H.Ponda, Advocate for the Applicant. Ms P.H. Kantharia, A.P.P. for the State. CORAM : A.R.JOSHI, J. DATED :- 1st April, 2011. P.C. :- 1. Present application for anticipatory bail is preferred by the applicant, apprehending his arrest in the matter of C.R.No. 337 of 2010 registered with Malvani Police Station and now renumbered as C.R.No.2 of 2011 registered by D.C.B.,C.I.D. Unit -XI, Mumbai. 2. Heard rival arguments on previous dates. Perused the Annexures accompanying the present application. Also perused the detail affidavit filed by Inspector, D.C.B., C.I.D. Unit- XI, Kandivali 2 aba-29-11.doc Mumbai dated 18th March, 2011. Also perused the medical case papers and statement of one Dr Pranav Kabra attached to the affidavit. 3. At the threshold, it must be mentioned that the facts as revealed from the police investigation papers are rather startling and in fact throw light in the manner in which how the police machinery works when any cognizable offence is brought to the notice of the Investigating Officer for taking appropriate action. Certain facts which came to light in the present matter by way of initial investigation of Malvani Police Station under C.R.No.337 of 2010 and subsequently in the investigation of D.C.B., C.I.D. Unit-XI in renumbered C.R.No.2 of 2011 are rather disturbing in nature and which are detailed hereunder in order to appreciate the arguments advanced on behalf of the present applicant asking for the relief of pre-arrest bail. 4. Initially, somewhere on 9th December, 2010 an offence of theft took place at the house of one original complainant Ms Sawant residing at Malvani area. She approached Malvani Police Station on 14th December, 2010 along with her relatives and gave the name of one Smt Shinde as suspected thief. That time, present 3 aba-29-11.doc applicant was Duty Officer at Malvani Police Station. Apparently, he assured the complainant woman Ms Sawant, to look into the matter and get back the stolen articles by extraneous way without following the proper procedure as to registration of the F.I.R. and investigating the matter according to law. Present applicant arranged to get husband and daughter of said suspected accused Smt Kunda Shinde. Smt Kunda Shinde subsequently died on 31st December, 2010. (Hereinafter said Smt Shinde is referred to as the deceased woman). Without making any station diary entry or registering the F.I.R. husband and young daughter, aged about 14 years, of the deceased woman, were detained at Malvani Police Station from 14th December, 2010 till about 16th December, 2010 i.e. for about two days or so. Thereafter, husband of the deceased woman was set at liberty with directions to bring his wife i.e. the deceased woman, suspect of the offence of theft. Though said husband was allowed to go to bring his wife still the young daughter, aged about 14 years, was kept in the Police Station, again without there being any record and without there being any registration of F.I.R.for the offence of theft. On 16th December, 2010 itself the deceased woman was brought to the police station by the 4 aba-29-11.doc original complainant Smt Rupali Sawant and her relations and the deceased woman was given in the custody of present applicant, then working as P.S.I. at Malvani Police Station. Since 16th December, 2010 till 21st December, 2010 said deceased woman and her young daughter were kept in Malvani Police Station, again without making any record to that effect. At this juncture, it must be mentioned that if such type of keeping a middle aged woman and her adolescent daughter in Police confinement on alleged offence of theft, how such confinement did not come to the knowledge of the other police officials working in the said Police Station and also without coming to the knowledge of the Incharge of the Police Station, like Senior P.I. or any Higher Authority. In fact, this is a matter which is required to be dealt with by the Superior Police Officers in order to find out how such blatant violation of fundamental rights of the personal liberty of the common people is being practised. However, that is independent aspect to be dealt with by the Appropriate Investigating machinery and only reference to the above circumstances is made in the present order in order to ascertain the scope of the arguments advanced on behalf of the present applicant the Police Officer 5 aba-29-11.doc responsible for confinement of two women, so far as granting or otherwise of the discretionary relief of anticipatory bail to him, more particularly, when initial offence registered against him for wrongful confinement is not transformed into abetment to commit suicide. 5. It appears that keeping in custody the woman and her adolescent daughter, aged about 14 years, without there being any official record prepared, came to the knowledge, allegedly for the first time, on 21st December, 2010, when one lady Police Constable (L.P.C.), attached to Malvani Police Station, deployed for routine writer duty, found out that Smt Shinde was trying to strangulate herself in the Ladies Constables Block by means of a nylon rope. Said L.P.C. hurriedly rushed to the Station House Officer (S.H.O.)and narrated the incidence. Then the In-charge Station House Officer, one Shri Ghodke,P.S.I., rushed to the spot and with the help of other staff cut the rope and brought down Smt Shinde and she was taken to the nearest private hospital of one Dr Pranav Kabra. Said Hospital by name Raksha Hospital situate at Charkop Naka, Malvani, Mumbai. In the said hospital, Smt Shinde was under treatment and in Intensive Care Unit (I.C.U.) till 31st 6 aba-29-11.doc December, 2010. On the night of 31st December, 2010 Smt Shinde died, while all along, in unconscious condition and not able to give any statement. This is the story narrated in the affidavit filed by D.C.B., C.I.D. Unit-XI, when the matter was transferred to the D.C.B.,C.I.D. by order of the Commissioner of Police, Brihan Mumbai, dated 11th January, 2011. 6. From the above facts, it transpire that for the incident of apparent strangulation of Smt Shinde, when she was confined in the Police Station lockup, the matter came to light or otherwise probably the custody of the deceased Smt Shinde and her adolescent daughter would have gone unnoticed. 7. During the investigation by D.C.B., C.I.D. Unit – XI, statement of Dr Kabra was recorded on 24th January, 2011 and according to him, when Smt Shinde was admitted in his hospital, she was in unconscious condition, her blood pressure and pulse rate had collapsed and, therefore, she was not in condition to give statement and was removed to the I.C.U ward. 8. During the entire period from 21st December, 2010 to 31st December, 2010 all possible medical help was given to her and medical papers to that effect are produced before this Court which 7 aba-29-11.doc are accompanying the affidavit of P.I. of D.C.B.,C.I.D. Unit-XI, Mumbai. 9. During the investigation of D.C.B.,C.I.D. final cause of death certificate and postmortem report of Smt Shinde were collected. The cause of death is mentioned as “death due to complications following hanging (unnatural)”. 10. Now, at the Malvani Police Station level, when the confinement of Smt Shinde was noticed by the Station House Officer, he registered a C.R. against Smt Shinde for the offence punishable under Section 380 of the Indian Penal Code and also registered another C.R. against her for the offence punishable under Section 309 of I.P.C.for attempting to commit suicide. Separate offence was registered against the present applicant, P.S.I.attached to Malvani Police Station and who was instrumental in arranging the wrongful confinement of Smt Shinde and her adolescent daughter. As mentioned above, C.R.No.337 of 2010 was registered against the present applicant for the offence punishable under Sections 341,343, 348 of I.P.C. read with Section 147 (g) of the Bombay Police Act. It was so registered on 21st December, 2010. Again, as mentioned above, vide order of the Commissioner 8 aba-29-11.doc of Police, Brihan Mumbai dated 11th January, 2011, the investigation of the said matter was transferred from Malvani Police Station to D.C.B. C.I.D. Unit- XI, Kandviali, Mumbai and said Unit registered fresh C.R.No. 2 of 2011 under sections 306, 341, 343, 348 of I.P.C.and also under Section 147 (g) of the Bombay Police Act. 11. On initial registration of the F.I.R. bearing C.R. No.337 of 2010 on 21st December, 2010, present applicant was arrested and produced before the concerned Magistrate. As all the offences charged against the applicant were bailable in nature, immediately on the same day of the arrest, the applicant was released on bail and apparently continued with his duty at same Malvani Police Station. However, Smt Shinde died on the night of 31st December, 2010. Immediately, from the next day, the present applicant reported sick and gave intimation to that effect to Malvani Police Station and admittedly since then till 16th March, 2011, he went on medical leave on alleged ailment of hypertension, chest pain, giddiness and acute bronchitis. From the fitness certificate, copy of which is shown to this Court during the arguments by learned Advocate for the present applicant, he was declared as fit for 9 aba-29-11.doc resuming duty from 17th March, 2011 and was all along on leave, apparently on medical ground, from 1st January, 2011 till 16th March, 2011. This circumstance is very crucial and is required to be viewed in juxtaposition of the other circumstances and the developments in the case as to the death of Smt Shinde and subsequent proceedings taken before the Magistrate’s court for cancellation of earlier granted bail, rejection of anticipatory bail preferred by the present applicant in Sessions Court and filing of anticipatory bail application before this Court and obtaining interim relief. 12. As mentioned above, on the death of Smt Shinde in the hospital on 31st December, 2010, additional charge for the offence under Section 306 of the I.P.C. was added in the array of the offences earlier lodged against the applicant. Consequently, on 1st January, 2011 or somewhere thereafter an application was made before the concerned M.M.Court No.24, Borivali, Mumbai asking the permission of said Court for cancellation of earlier bail granted and for rearrest of the applicant-accused. Such prayer was asked presumably on account of addition of new Section 306 of I.P.C. against the applicant. On the same day, M.M. Court rejected the 10 aba-29-11.doc application with the observations that earlier bail was given as per the provisions of Section 436 of the Cr.P.C. as offences alleged against the applicant then were bailable. The M.M. Court further opined that if the earlier bail is granted under the provisions of Section 437 (1)(2) of Cr.P.C. then only under 437 (5) of Cr.P.C. such bail could be cancelled. That Court further held that there was no question of any permission from the said Court for arrest of the accused when new severe offence is disclosed and charged against him. It is further mentioned in the order that the newly added offence is triable by the Court of Sessions and as it is an independent offence, now spelt out from the police investigation papers, police machinery is at liberty to arrest the accused. It is further held that the bail earlier granted to the applicant was for the bailable offences and the custody of the accused required by the police for investigation as more severe offence was disclosed, which is exclusively triable by the Court of Sessions. It is further mentioned that as per the provisions of section 2(c) and 41 of Cr.P.C., there are ample powers for the police to arrest the accused for non-bailable and cognizable offence and to deal with the accused accordingly. 11 aba-29-11.doc 13. On the above circumstances, apprehending the arrest at the hands of police present applicant preferred an anticipatory bail application bearing No.4 of 2011 before the Sessions Court, Mumbai. Said application was preferred on 6th January, 2011. Said anticipatory bail application was rejected by the Sessions Court on 7th January, 2011 mentioning that there was prima facie case against the applicant-accused indicating his involvement in the commission of offence punishable under Section 306 of I.P.C. and custodial interrogation of the applicant was necessary. As such apprehending the arrest at the hands of the police, present applicant has approached this Court for anticipatory bail. 14. Four-fold arguments are advanced on behalf of the Applicant, as under :- (i) When the bail was earlier granted to the applicant by the Metropolitan Magistrate’s Court, the course open for the Investigating Agency is to apply for cancellation of bail first when more serious offence is registered against the applicant, without there being cancellation of the earlier granted bail, there cannot be any re- 12 aba-29-11.doc arrest of the applicant during continuation of the investigation. (ii) Provisions of Section 306 of the I.P.C. are not attracted considering the facts and circumstances of the case as there is no material for instigation, aiding or abetting the commission of such suicide. (iii) Whether the death of Smt Shinde is due to strangulation and whether the death is a direct consequence of strangulation. (iv) Whether the custody of the applicant is now required, when, admittedly, according to the Investigating Agency, statements of almost 39 witnesses are recorded and all the medical papers are also taken charge of. 15. Much is argued on the first point mentioned above and ratios of various cited decisions were taken shelter of. The said decisions are as under:- (1) Unreported decision in the case of Dhivan Vs.State dated 8th April, 2010 by Madras High Court. Paragraph Nos. 2 and 3 of the said decision read as under:- 1 “Originally, this case was registered under Sections 323, 506 (ii) and 201 of IPC. The 13 aba-29-11.doc petitioner, during investigation, was arrested and later on released on bail by the learned Judicial Magistrate. When final report was submitted, section 302 of IPC was also added. On the basis of the said final report, according to the petitioner, he is again sought to be arrested by the respondent police not withstanding the fact that he has already been granted bail by the learned Magistrate. It is in these circumstances, the petitioner is before this court with this petition seeking anticipatory bail. 2 The core question is, whether the respondent police has got power to re-arrest the petitioner at this stage though he is enjoying the benefit of order of bail granted by the learned Magistrate?” 3 16. In the said decision, following observations of the learned Single Judge of the Madras High Court were brought to the notice of this Court, appearing in paragraph No.7. 7. “No where I find any provision in the Code which make the bond or bail bond automatically cancelled, in the event, some more penal 14 aba-29-11.doc provisions denoting serious offences are added in the case. Thus, a plain reading of Chapter XXXIII of the Code would make it manifestly clear that simply because a penal provision denoting a serious offence is added to the case, neither the bail nor the bail bond shall stand automatically cancelled. As I have already stated, it needs an order of cancellation of bail passed by the appropriate Court. Therefore, after adding such penal provision in respect of a serious offence, the police cannot re-arrest the accused as the same would amount to arresting a person who is on bail on the orders of the Court. Of course, the police can approach the appropriate court seeking cancellation of bail and for sufficient grounds, if the court so cancels the order of bail granted earlier, it goes without saying that thereafter, the police can arrest the accused.” (2) 1992 (1) WLN 342 Girdhari s/o Amar Chand Gujar And... vs. The State of Rajasthan decided on 13th April, 1992. (3) [2006] RD-RJ 1731, Girraj Prasad Meena Vs. State decided on 22nd August, 2006. 15 aba-29-11.doc (4) 1988 WLN (UC) 128 Vijendra Kumar vs. State of Rajasthan decided on 8th September, 1988 (Mohini Kapoor,J) (5) 1988 WLN UC 457 – Gheesa And Ors vs. State of Rajasthan decided on 2nd August, 1988. (Mohini Kapoor,J) 17. By pointing out the ratios of the above authorities, it is submitted that there is no provision under the Code of Criminal Procedure for the police arresting the accused persons after being released on bail, merely because the facts, after investigation, disclose some other offences which were not made out at the time when accused was released on bail. In other words, it is argued that when a person is arrested on account of allegations made in the F.I.R. and released on bail, position will not change simply by adding a new section of non-bailable offence, nor the police can rearrest him. It is strongly submitted on behalf of the applicant that in view of the ratios of the above authorities the accused cannot be rearrested unless the bail earlier granted to him is cancelled by a competent Court. 18. Counter to the above arguments, learned A.P.P. Ms Kantharia placed reliance on the following authority. 16 aba-29-11.doc Pralhad Singh Bhati vs. NCT, Delhi and Anr (2001) 4 SCC 280. 19. The Head Note of the said authority reads as under:- “Criminal Procedure Code,1973 – Ss. 437, 438 and 439 – Magistrate’s power to grant bail in case of non-bailable offence – Magistrate can grant bail only when there is no reasonable ground to believe that the accused is guilty of offence punishable with sentence of death or life imprisonment, unless the accused is covered by the provisos to S. 437 (1) – Factors to be kept in mind while granting bail – Merely because accused was initially granted anticipatory bail under S. 438 for a lesser offence (under Ss. 306 and 498-A IPC), that would not entitle him to grant of a regular bail under S. 437 when later he was found to be involved in a graver offence like murder under S. 302 – Held, Magistrate erred in granting bail under S. 437 when accused was charged with offence under S. 302 –Words and Phrases -- “Reasonable ground for believing”. Some observations contained in paragraph No. 8 of the said authority are reproduced hereunder with advantage. 17 aba-29-11.doc “The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and other similar considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfiy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” 18 aba-29-11.doc 20. In the same authority of Pralhad Singh Bhati (cited supra) in paragraph No.9 there are certain observations of the Hon’ble Apex Court which can also be reproduced with advantage:- “With the change of the nature of the offence, the accused becomes disentitle to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime.” 21. Learned A.P.P. for the State placed much reliance on above observations contained in paragraph No.9 of the said Authority. 22. Counter to this argument of learned A.P.P. for the State, learned counsel Shri Ponda, for the applicant, submitted that the binding effect of the Precedence is to be construed by reading the entire observations and considering on which context such observations were made. For this purpose, reliance is placed on the observations in the following authority :- 2009 ALL MR (Cri) 1567 (S.C.) 19 aba-29-11.doc State of A.P. Vs. M.Radha Krishna Murthy Head Note of the said authority reads : (A) Precedents – Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases – Disposal of cases by blindly placing reliance on a decision is not proper. 23. Emphasis was placed on the following observations which are contained in paragraph No.9 of this authority. “Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.” 24. Learned Counsel for the applicant also relied on the following authority: 2004 SCC (Cri) 420. Prabha Shankar Dubey vs. State of M.P. 20 aba-29-11.doc Head Note “E” of the Authority reads as under: E. Precedents – Interpretation of judgments – Mode of – A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations – Constitution of India – Art. 141. 25. Placing reliance on the above observations, learned counsel for the applicant submitted that the reliance placed on the stray lines from paragraph No.9 in Pralhad Singh vs. NCT Delhi (Supra) is misplaced and cannot be taken shelter of in favour of the Investigating Agency. 26. On carefully going through the ratios propounded by the authorities cited by the rival parties, it must not be lost sight of the fact that when any bail is granted to an accused in a particular matter, when certain specific offences are alleged, the bail and consequent bond must be construed as related to such offences. In other words, in the opinion of this Court, if, at any time during the continuation of the investigation another offence is spelt either by way of change circumstances or by discovery of another material 21 aba-29-11.doc and if such offence is graver one than the earlier offence and if said later offence is cognizable and non-bailable then there cannot be any impediment for the Investigating Agency to again take the custody of the accused in connection with such changed circumstances. In the opinion of this Court that is what has been done in the present matter by the order of learned M.M.Court. Moreover, in the present case, there is non-bailable warrant issued against the present applicant on 13th January, 2011 by the learned Metropolitan Magistrate and specifically the offence punishable under Section 306 of the I.P.C. is mentioned in the said warrant. When such non bailable warrant was tried to be served against the applicant at his address either at Mumbai or at Nashik, he could not be traced. Hence, said non bailable warrant remained unexecuted. As such the factual position stands to the effect that there is non-bailable warrant pending against the present applicant and that there is no prayer either before the M.M.Court or before any other court for cancellation of such warrant. Only the present application under consideration for anticipatory bail is filed by the applicant. In the opinion of this Court, there is nothing to accept the arguments on the first point mentioned above. 22 aba-29-11.doc 27. So far as point No.(ii) is concerned as to non-bailable offence under Section 306 of I.P.C. in the instant matter various authorities are cited before the Court on behalf of the applicant, namely; 1) (2010) 1 Supreme Court Cases (Cri) 896 Amalendu Pal alias Jhantu Vs. State of