( 1 ) cria4755.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4755 OF 2011 . Bhanudas s/o. Eknath Kotkar Age : 55 Years, Occu.: Business R/o Eknath Nagar, Kedgaon, Ahmednagar. .. Applicant Versus . The State of Maharashtra .. Respondents ... Mr. Shirish Gupte, Sr. Counsel i/b. Mr. N.V. Gaware, Advocate for the applicant. Mr. S.V. Kurundkar, Public Prosecutor with Mr.B.V.Wagh A.P.P.for respondent/ State. Mr.N.B.Narwade,Advocate for original complainant (Supporting to the prosecution) ... CORAM :R.Y. GANOO, J. DATE :25TH NOVEMBER, 2011. PER COURT :- 1. The applicant herein has been arrested on 16.09.2011 in connection with Crime No. I-302 of 2011 of Kotwali Police Station, Ahmednagar. As on today the charge-sheet ( 2 ) cria4755.11 has not been filed, hence this application is under the caption ”application for bail before filing of the charge-sheet” FEW FACTS NECESSARY FOR THE DISPOSAL OF THIS APPLICATION ARE AS UNDER: 2. The deceased Ashok Bhimrao Lande (herein after referred as ‘deceased’), at particular spot met with an incident, on 19.05.2008 at about 10.00 a.m. He was admitted to Anandrishi Hospital and he was declared as dead. Brother of the said deceased, namely, Umesh Bhimraj Lande filed FIR No. 150 of 2011 with Kotwali Police Station. On the basis of said FIR, initially Crime No. 150 of 2008 was registered under sections 279, 304-A of the Indian Penal Code read with sections 184, 134 and 177 of the Motor Vehicles Act. On the strength of said FIR, the Police authorities, after considering the investigation papers, submitted “A” Summary Report in Said Crime No. 150 of 2008 before the learned Judicial Magistrate First Class, Ahmednagar, on 14.09.2008. The ( 3 ) cria4755.11 said report came to be accepted by the Magistrate on 02.02.2009. 3. After this development, on 09.09.2009 one person by name Shankarrao Vitthalrao Raut lodged a private complaint in the Court of Chief Judicial Magistrate, Ahmednagar. In the said complaint, detailed information was provided. According to Mr. Raut,(Hereinafter referred to as “Complainant”) the incident took place in the morning on 19.05.2008 near Shivaji Co-operative Credit Society. At that time, the complainant and his wife met the deceased. After brief talk, the deceased started proceeding towards Patil Colony, at that time one vehicle with red lamp belonging to the Corporation came from Mhasoba Chowk side. According to the complainant, one person by name Sandeep Kotkar, son of the present applicant got down and after brief exchange of hot words, he started assaulting the deceased with cable wire. By this time, the present applicant and his two other sons ( 4 ) cria4755.11 came at the spot. They were armed with iron bar and tommy. One person who was accompanying the applicant was armed with sword. According to the complainant, these persons assaulted the deceased with the weapons, which they were carrying and thereafter the deceased was taken towards Bhairavnath Co-operative Credit Society. It is also case of the complainant that soon thereafter the deceased was kept in white Maruti van and taken away from the mob. The complainant went to the Government Hospital and there he came to know that Ashok has expired. The complainant narrates as to in what way he tried to bring these facts to the notice of the concerned police authorities. According to the complainant, concerned Police did not take it seriously and that is how ultimately the complainant thought it fit to file private complaint against the present applicant, his sons and some other persons. According to the complainant, present applicant, his sons and other assailants were responsible for the death of the said deceased and that is how he ( 5 ) cria4755.11 prayed that appropriate action be taken against them in accordance with law. 4. On the basis of complaint, which came to be filed before the learned Chief Judicial Magistrate, learned Judicial Magistrate F.C. was pleased to pass an order under section 156(3) of the Code of Criminal Procedure on 16.09.2009. He, accordingly, directed the Police Station to carry out the investigation and file a report. The complainant rendered statement to police and crime was registered vide FIR No. 302 of 2008 at Kotwali Policie Station Ahmednagar. Thereafter, the present applicant along with other persons filed Criminal Application No. 3720 of 2009 in this Court for anticipatory bail. On 29.10.2009 an order was passed thereby granting interim protection. That anticipatory bail application came to be decided on 30.11.2009 and this Court by the said order protected the present applicant and others and ordered that the said protection would be valid for a period of ( 6 ) cria4755.11 six weeks, during which period the applicant and others were directed to apply for regular bail. 5. The present applicant and others did not apply for bail, as stated in the order dated 30.11.2009, instead of it, Criminal Application No. 2201 of 2010 was filed by the present applicant and others praying for one week's time to surrender and apply for regular bail. That application was rejected on 16.06.2010. On the basis of the record it can be said that the present applicant as well as other applicants did not apply for the regular bail. Be that as it may, the present applicant came to be arrested on 16.09.2011. Thereafter, present applicant has filed this bail application on 24.10.2011. 6. Insofar as arguments in support of the bail application, the job was divided between two counsels. Learned Senior Counsel Mr. Gupte appearing on behalf of the applicant had addressed the Court on merits. Learned ( 7 ) cria4755.11 Senior Counsel Mr. Pradhan had placed before this Court certain legal aspects of the matter and that is how the matter was attended by two Senior Counsels. 7. Before I proceed to deal with merits of bail application, it would be convenient to deal with legal points raised in the present case, raised by learned Senior Counsel Mr. Pradhan. Learned Senior Counsel Mr. Pradhan had taken me through the record and submitted that if the complaint is perused, it would disclose that offences alleged to have taken place are exclusively triable by Court of Sessions. The learned Senior Counsel Mr. Pradhan took me through the provisions of sections 200 onwards of the Code of Criminal Procedure (Hereinafter referred to as “Cr.P.C.” for short) and had submitted that looking to the proviso to sub-section 2 to section 202 of Cr.P.C., it was necessary for the learned Judicial Magistrate, First Class to make a note of the fact that the offences alleged to have been committed in ( 8 ) cria4755.11 the complaint are exclusively triable by the Court of Sessions, and therefore, it was necessary for the learned Judicial Magistrate First Class to call upon the complainant to examine himself and also examine all witnesses and thereafter learned Magistrate should have proceeded in accordance with rest of the provisions of Cr.P.C. The learned Senior Counsel Mr. Pradhan has submitted that the learned Magistrate did not comply with this procedure and instead chose to pass an order under section 156(3) of the Cr.P.C. According to learned Senior Counsel Mr. Pradhan, on account of not complying with provisions of sections 200 onwards of the Cr.P.C. and on account of passing of order under section 156(3) of the Cr.P.C., the learned Magistrate has committed grave error and that order passed under section 156(3) of the Cr.P.C. on 16.09.2011, is illegal order. He, therefore, submitted that as the order dated 16.09.2011 is illegal order, any action taken by the Investigating Agency pursuant to the said order will have to be treated ( 9 ) cria4755.11 as illegal and action taken by the Police has resulted in violation of provisions of Articles 14 and 21 of the Constitution of India. According to the learned Senior Counsel Mr. Pradhan, on account of violation of Articles 14 and 21 of the Constitution of India, the action taken by the State in arresting the present applicant, is illegal and thus on that count the applicant is entitled to be released on bail. 8. The learned Senior Counsel Mr. Pradhan had submitted that when the complaint is filed, consisting allegations, that offences are exclusively triable by the Court of Sessions, the learned Magistrate has to take steps as per sections 200 onwards of the Cr.P.C., and in particular, proviso to sub-section 2 of section 202 of the Code of Criminal Procedure. He relied upon the following Judgments in support of this proposition : (A) Paranjothi Udyar and others Vs. State and others reported in 1976 Cri.L.J. 598. ( 10 ) cria4755.11 (B)Kamal Krishna De Vs. State reported in 1977 Cri.L.J. 1492(1). (C) Shyamkant Wamanrao Pawar Vs. State of Maharashtra reported in 1980 Cri.L.J. 1388(1) (D) Rosy and another Vs. State of Kerala reported in (2000)2 SCC 230. (E) Videocon International vs. Securities & Exchange Bord of India, reported in 2008(1) Bom.C.R.(Cri.) 724. 9. Learned Senior Counsel Mr. Pradhan took me through each and every judgment and had submitted that submission advanced by him is well supported by these judgments and therefore, this Court is obliged to act in terms of the said judgments. Learned Senior Counsel Mr. Pradhan had relied upon the Judgment in the case of “A.R.Antulay Vs. R.S. Nayak and another (1988)2 S.C.Cases 602” and had ( 11 ) cria4755.11 contended that if order passed by the learned Magistrate is in violation of the Articles 14 and 21 of the Constitution of India, the said order is required to be treated as bad-in-law. Learned Senior Counsel Mr. Pradhan had submitted that learned Magistrate failed to comply with mandatory provisions of law, and hence the order dated 16.09.2009, is illegal. 10. Mr. Kurundkar, learned Public Prosecutor appearing on behalf of the State had opposed the submissions advanced by the learned Senior Counsel Mr. Pradhan. Mr. Kurundkar, learned Public Prosecutor had submitted that law recognises distinction at the time of taking action on complaint viz action taken on the complaint at the pre-cognizance stage and post-cognizance stage. Mr. Kurundkar, learned Public Prosecutor submitted that looking to the scheme of sections 156(3), 190, 200 onwards of the Cr.P.C., if Magistrate receives complaint he may at the stage what is called as pre-congizance, ( 12 ) cria4755.11 pass an order under section 156(3) of the Cr.P.C., in that case there is no question of proceeding under section 200 onwards of the Cr.P.C.. Mr. Kurundkar, learned Public Prosecutor submitted that if Magistrate decides to pass an order under section 156(3) of the Cr.P.C. at pre-cognizance stage, same cannot be considered as illegal and the action taken thereafter will have to be considered as legal. Mr. Kurundkar, learned Public Prosecutor ultimately submitted that the order dated 16.09.2011 directing the investigation under section 156(3) of the Cr.P.C. was perfectly correct. In support of this submission he relied upon the following judgments : (I) Satish Dwarkaprasad Sharma Vs. State of Maharashtra and another reported in 2011 All MR (Cri.) 2809; and (II) Purna Chandra Sahoo Vs. Santi alias Sukanti and another reported in 2005 Cri L.J. 1350. ( 13 ) cria4755.11 11. Mr.Kurundkar, learned Public Prosecutor had also in support of aforesaid submissions, relied on the judgment in the case of Panchabhai Popatbhai Butani and others Vs. State of Maharashtra and others reported in 2010(1) Mh.L.J. 421. Mr. Kurundkar, learned Public Prosecutor had taken me through the said judgment and had submitted that the Full Bench of this Court considered the question which came to be referred to the Full Bench, and while answering those questions, the Full Bench of this Court has equally indicated the distinction between the pre cognizance stage and another stage which is called as post cognizance. Mr. Kurundkar, learned Public Prosecutor submitted that in the light of this judgment in the case of Panchabhai Popatbhai Butani, action taken by the learned Magistrate should be treated as legal and submissions advanced by learned Senior Counsel Mr. Pradhan should be rejected. 12. Mr. Narwade, learned counsel appearing for original ( 14 ) cria4755.11 complainant, who supported the prosecution had advanced submission in support of the proposition advanced by the learned Public Prosecutor. Mr. Narwade, learned counsel had relied upon the following judgments: (III) Devarapalli Lakhshminarayan Reddy and others Vs. Narayana Reddy and others reported in 1976 The Supreme Court Journal 497. (IV) Narayandas S/o Hirajalji Sarda and others Vs. State of Maharashtra and another reported in [2009(2) Mh.L.J.] 13. Mr. Narwade learned counsel had taken me through the judgment in the case Devarapalli Lakhshminarayan Reddy and others Vs. Narayana Reddy and others and had submitted that the Supreme Court had an occasion to deal with situation very similar to the facts concerned in the present case. The Supreme Court has indicated that powers to pass an order under section 156(3) of the ( 15 ) cria4755.11 Cr.P.C. are different from the powers to take steps under section 200 onwards of the Cr.P.C., He submitted power to pass order under section 156(3) of Cr.P.C. and power to proceed as per section 200 onwards of the C.P.C. are different. He submitted that it will be open for the learned Magistrate to pass an order under section 156(3) of the Cr.P.C. and if such order is passed no fault can be found. Mr. Narwade, learned counsel has submitted that Judgment in the case of Narayandas S/o Hirajalji Sarda and others Vs. State of Maharashtra and another also refers to the judgment in the case of Devarapalli Lakhshminarayan Reddy and others Vs. Narayana Reddy and others and that is how the Division Bench of this Court has also observed that power to pass an order under section 156(3) of the Cr.P.C. is distinct from power to take action under section 200 and onwards of Cr.P.C. and the order passed under section 156(3) of the Cr.P.C. cannot be faulted. Mr. Narwade, learned Counsel had therefore joined learned Public Prosecutor in opposing ( 16 ) cria4755.11 the submissions of the learned Senior Counsel Mr. Pradhan. 14. I have perused the judgments, which are cited on the aforesaid points and reading of these judgments would clearly show that the Legislature has recognized two stages, namely, a stage which is termed as pre-cognizance stage and another which is recognized as post cognizance stage. Reading of these judgments as aforesaid, would clearly show that if the complaint is presented to the Magistrate, he has power to pass an order under Section 156(3) of the Cr.P.C., if he decides as not to take cognizance as understood in the light of the provisions under sections 200 onwards of Cr.P.C. If Magistrate passes an order under section 156(3) of Cr.P.C. the said order will have to be termed as valid. In the present case, the learned Magistrate chose to pass an order under section 156(3) of the Cr.P.C. and he was of the view that action under sections 200 and onwards of Cr.P.C. should ( 17 ) cria4755.11 not be taken. 15. After having considered the judgments, which are mentioned above I am inclined to observe that the submissions advanced by the learned Public Prosecutor as well as Mr. Narwade, learned counsel appearing on behalf of the original complainant will have to be accepted. In my view the learned Magistrate having acted to pass an order under section 156(3) of the Cr.P.C. clearly indicated that he was at stage of “Pre-cognizance” and he felt that the investigation needs to be done at the hands of Police. In view of this observation the order dated 16.09.2009 will have to be treated as order passed in accordance with the provisions of law, consequently action taken on the strength of the said order dated 16.09.2009 cannot be termed as illegal as was argued by learned Senior Counsel Mr. Pradhan. Once it is observed that the order dated 16.09.2009 is passed in accordance with provisions of law, there is no question of violation ( 18 ) cria4755.11 of Articles 14 and 21 of the Constitution of India. To that extent argument advanced by learned Senior Counsel Mr. Pradhan is required to be rejected. Hence, I hold that the order dated 16.09.2009 is passed in accordance with provisions of law. 16. It is noted that after order dated 16.09.2009 was transmitted to Kotwali Police Station, the Officer attached to Kotwali Police station has recorded what may termed as “FIR” of the complaint and police have registered the Crime bearing No. 302 of 2009 of Kotwali Police Station. They have thereafter taken steps to carry out the investigation. With aforesaid discussion, I now proceed to deal with merits of the application for bail. 17. Mr.Gupte, learned Senior Counsel has advanced submission on the question of granting bail to the present applicant, who came to be arrested in the aforesaid crime No. 302 of 2009 on 16.09.2011. Mr. Gupte, ( 19 ) cria4755.11 learned Senior Counsel in the first place submitted that when brother of the deceased had filed a complaint with Kotwali Police station, the said complaint was investigated by the Police and it was numbered as Crime No. 150 of 2009. After carrying out investigation in the Crime No. 150 of 2009 the police were satisfied that it is case of accidental death and accordingly “A” Summary Report came to be filed before the concerned learned Judicial Magistrate F.C. Ahmednagar on 14.09.2008 and that report was accepted by the learned Magistrate on 02.02.2009. According to the learned Senior Counsel Mr. Gupte,thisorder dated 02.02.200 had effect of practically closing the chapter concerning the death of the deceased and the circumstances under which said deceased died. Learned Senior Counsel Mr. Gupte submitted that present complaint who is not at all related to the deceased, came forward only in the month of September 2009. That is practically after one year and three/four months and proceeded to lodge the complainant against the present ( 20 ) cria4755.11 applicant, his sons and other persons. According to learned Senior Counsel Mr. Gupte, if complainant had really witnessed the incident nothing prevented him to go to the concerned Police authorities and file FIR or nothing prevented him from filing any private complaint in the Court soon after the incident i.e. 19.05.2008. Learned Senior Counsel Mr. Gupte had submitted that allegations set out in the complainant should be termed as false allegations, particularly, because the complaint is filed at belated stage. According to him, if there was grain of truth in the allegations, complainant should have come forward at first avail the opportunity and that not having been done, the Court should consider the text of the complaint dated 16.09.2009, as false. According to him, if this submission is accepted this Court should release the applicant on bail without taking into consideration various submissions, which are placed before the Court on behalf of the State. ( 21 ) cria4755.11 18. Learned Senior Counsel Mr. Gupte had also submitted that parents of the deceased have not come forward to level the allegations against the present applicant and other persons. He also submitted that brother of the deceased also did not suspect any foul and the FIR filed as Crime No. 150 of 2008 with Kotwali Police Station indicates that the injuries suffered by the deceased were on account of accident and nothing beyond that. Learned Senior Counsel Mr. Gupte had submitted that this is also one point in favour of the applicant. 19. Learned Senior counsel Mr. Gupte had referred to postmortem report submitted by the Medical officer attached to the General Hospital at Ahmednagar and has submitted that very Medical Officer, who was attached to hospital gave an opinion to the concerned Police Station by letter dated 09.07.2008 stating therein that the injuries mentioned in the column No. 17 at serial Nos. 1 to 6 could be caused on account of car accident and that ( 22 ) cria4755.11 the said injuries must have been caused 24 hours prior to the death of the deceased. Learned Senior Counsel Mr. Gupte had submitted that at later point of time same doctor has given a final Cause of Death Certificate mentioning therein that death is due to haemorrhagic shock due to multiple vis serial injuries (Liver and Lungs). According to Senior counsel Mr. Gupte, this variation of the final cause of death should go in favour of the applicant. He submitted that Medical Officer was not firm in deciding the cause of death. Learned Senior Counsel Mr. Gupte submitted that entire case of the prosecution is required to be doubted. 20. Mr. Kurundkar, learned Public Prosecutor, in reply to the submissions advanced by learned Senior Counsel Mr. Gupte, had placed reliance on the opinion given by three Doctors, who were then attached to the Forensic Department, Government Medical College, Aurangabad, in reply to the queries raised by the Police being report ( 23 ) cria4755.11 dated 12.07.2011. The learned Public Prosecutor has submitted that the said panel of Doctor had opined that: (i) the death of the deceased had taken place 6 to 18 hours prior to carrying out postmortem, (ii) the injuries suffered by the deceased can be caused by cable, tommy and Sword; (iii) the injuries suffered by the deceased are not in consonance with the theory of death on account of Car accident. 21. Learned Senior Counsel Mr. Gupte submitted that if at all the police authorities wanted to seek the opinion of some expert on the question of cause of death the police authorities should have obtained permission of the concerned learned Magistrate and thereafter concerned medical authorities could have been requested to give view points on the queries raised by the police. He, therefore, submitted that this Court should not give any ( 24 ) cria4755.11 weightage to the report dated 12.07.2011 given by the Panel Doctors attached to Government Medical College, Aurangabad. 22. Learned senior Counsel Mr. Gupte had thereafter submitted that investigation is proceeding in very slow speed and the case of the complainant is totally bogus and therefore applicant is entitled to bail. 23. Learned Senior Counsel Mr. Gupte had submitted that looking to the facts and circumstances of the case there is no question of tampering the witnesses, if any, and prosecution should not have fear that the witnesses would be tampered. Learned Senior Counsel Mr. Gupte had submitted that just to say the witnesses are likely to be tampered is without any basis and therefore that cannot be point on which personal liberty of the present applicant can be curtailed. In support of this submission he had relied upon the judgment in the case of ( 25 ) cria4755.11 Menino Lopes Vs. State of Goa reported in 1995(1) Bom.C.R.334. 24. Learned senior Counsel Mr. Gupte had also submitted that the Supreme Court in the case of Bhagirathsingh Judeja Vs. State of Gujrat reported in AIR 1984 Supreme Court 372 has observed that once a person is arrested it should not mean that he is kept under detention and in any case his detention should not be termed as punishment particularly when the said applicant is available for trial and is not likely to abuse discretion granted in his favour by tampering with evidence. 25. Learned Senior Counsel Mr. Gupte had also relied upon the Judgment in the case of Jaywantrao G. Suryanvanshi and others Vs. The State of Maharashtra in Criminal, Bail Application No. 623 of 2011 and had submitted that this Court had on 30.11.2009 granted anticipatory bail to the said applicant and had directed ( 26 ) cria4755.11 the present applicant to make an application for regular bail. He submitted that after arrest when an application for bail was filed the said bail application was rejected by the learned Additional Sessions Judge and it was held by above order dated 30.11.2009 that the learned Additional Sessions Judge erred in passing the said order. 26. According to Mr.Gupte, in the light of observations of this Court in the case of Jaywantrao G Suryanvanshi and others Vs. The State of Maharashtra the learned Additional Sessions Judge should have granted bail to the present applicant.