( 1 ) cria4393.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4393 OF 2011 1. Sandeep Bhanudas Kotkar, Age 31 Years, Occup.:Agril./Business, 2. Sachin Bhanudas Kotkar, Age 29 Years, Occup.:Agril./Business, 3. Amol Bhanudas Kotkar, Age 26 Years, Occup.:Agril./Business, 4. Sachin @ Somnath Prakash Mehetre, Age : 35 Years, Occup: Labourer, (As per Hon’ble Courts order dated 19.10.2011 deleted the Petitioner No.4) All R/o Eknath Nagar, Kedgaon, Tq. & District Ahmednagar. .. Applicants Versus 1. The State of Maharashtra 2. The Superintendent of Police .. Respondents Ahmednagar. WITH CRIMINAL APPLICATION NO. 4394 OF 2011 Ajay s/o Santosh Gaikwad Age : 30 Years, Occup: Driver, R/o Shastri Nagar, Kedgaon, Tq.& District Ahmednagar. .. Applicant ( 2 ) cria4393.11 Versus 1. The State of Maharashtra 2. The Superintendent of Police Ahmednagar. .. Respondents ... Mr. Neetin Pradhan h/f. Mr. N.V. Gaware, Advocate for the applicant. Mr. S.V. Kurundkar, Public Prosecutor for respondent/State. Mr.N.B.Narwade,Advocate for original complainant. CORAM : R.Y. GANOO, J. DATED : 25TH NOVEMBER, 2011 PER COURT :- 1. These are two anticipatory bail applications. It was submitted by learned senior counsel Mr. Pradhan that on the basis of the submissions, which he addressed before this Court, this Court should modify the order dated 30.11.2009, passed by this Court, in Criminal Application No. 3720 of 2009, and particularly that part of the order by which, it was observed that “protection granted would be for a period of six weeks only and during which period the applicant may apply for ( 3 ) cria4393.11 regularly bail”. . The Circumstance under which these anticipatory bail applications came to be filed are as under. 2. The deceased Ashok Bhimrao Lande (herein after referred as ‘deceased’), at particular spot met with an accident, 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 said report came to be accepted by the ( 4 ) cria4393.11 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, ( applicant No.1) came down and after brief exchange of hot words, he started assaulting the deceased with cable wire. By this time, the present applicants and other came at the spot. They were armed with iron bar and ( 5 ) cria4393.11 tommy. One person who was accompanying the applicants 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 applicants, and some other persons. According to the complainant, present applicants, and other assailants were responsible for the death of the said deceased and that is how he prayed that appropriate action be taken ( 6 ) cria4393.11 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 and crime was registered vide FIR No. 302 of 2008 at Kotwali Police Station,Ahmednagar. Thereafter, the present applicants along with other 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 applicants and other and ordered that the said protection would be valid for a period of six weeks, during which period the applicant and others were ( 7 ) cria4393.11 directed to apply for regular bail. 5. The present applicants 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 filed by the present applicants 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 applicants as well as other applicant did not apply for the regular bail. Thereafter, present applicants have filed these applications for anticipatory bail on 04.10.2011. 6. Learned Senior Counsel Mr. Pradhan had argued in support of his anticipatory bail applications. 7. After the application seeking extension of time to surrender came to be rejected on 16.06.2010, the present ( 8 ) cria4393.11 applicants did not surrender. Mr. Bhanudas Eknath Kotkar came to be arrested on 16.09.2011. The present applicants filed proceedings in the Supreme Court in the nature of Special Leave to Appeal (Criminal) D-18953-2010 challenging the order dated 30.11.2009. The said petition came to be filed on 26.06.2011. Thereafter, these two applications came to be filed on 04.10.2011. Thereafter on 09.11.2011 the applicants covered by these applications sought permission to withdraw the proceedings filed in the Supreme Court and order to that effect was passed on 09.11.2011. 8. Before I proceed to deal with merits of bail application, it would be convenient to deal with legal points raised in the present case, 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 ( 9 ) cria4393.11 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 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 ( 10 ) cria4393.11 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 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 trying to arrest the present applicants, is illegal and thus on that count the applicants are entitled to reliefs asked herein. 9. The learned Senior Counsel Mr. Pradhan had submitted ( 11 ) cria4393.11 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. (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, ( 12 ) cria4393.11 reported in 2008(1) Bom.C.R.(Cri.) 724. 10. 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 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. 11. Mr. Kurundkar, learned Public Prosecutor appearing on behalf of the State had opposed the submissions ( 13 ) cria4393.11 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, 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 ( 14 ) cria4393.11 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. 12. 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 ( 15 ) cria4393.11 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. 13. Mr. Narwade, learned counsel appearing for original 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 ( 16 ) cria4393.11 another reported in [2009(2) Mh.L.J.] 14. 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 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 ( 17 ) cria4393.11 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 the submissions of the learned Senior Counsel Mr. Pradhan. 15. 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 ( 18 ) cria4393.11 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 not be taken. 16. 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 ( 19 ) cria4393.11 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 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. 17. Now I turn to arguments advanced by learned Senior Counsel Mr. Pradhan on other aspect of the matter. In these two anticipatory bail applications interim protection was granted by the order dated 13.10.2011. These two applications were placed before the concerned ( 20 ) cria4393.11 Court. Learned Judge declined to take these matters on account of order passed on 09.11.2011. The applications were placed before this Court as per the present assignment. The learned Counsels concerned have therefore argued these applications before this Court. 18. I have already held that order dated 16.09.2009 passed by the learned Magistrate on the private complaint was passed in accordance with the provisions of law, and that action initiated by the police on the strength of the said order will have to be treated as legal and proper. Insofar as merits of these two applications are concerned, learned Senior Counsel Mr.Pradhan drew my attention to the order dated 29.10.2009 by which each of the applicant was protected and order dated 30.11.2009, by which interim protection granted was confirmed. Learned senior counsel Mr. Pradhan further submitted that in the said order dated 30.11.2009 at the end it was mentioned as follows: ( 21 ) cria4393.11 “In the result, the application is allowed. The interim protection granted to the applicants on 29th October, 2009 is hereby confirmed. However, it is made clear that this protection is granted for a period of 6 weeks only, during which period the applicant may apply for regular bail. Application stands disposed of accordingly. (Underline supplied). 19. Learned Senior Counsel Mr. Pradhan submitted that the order dated 30.11.2009 consists two parts, Part-I is granting anticipatory bail and part -II is making it clear that the said order would be valid for six weeks, during which time the applicants will have to apply for regular bail. Learned Senior Counsel Mr. Pradhan principally relied upon the judgments in the case of (1) Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others reported in (2001)1 Supreme Court ( 22 ) cria4393.11 Cases 694. He also relied upon the following Judgments: (2) Shri Gurbaksh Singh Sibbia Vs. State of Punjab reported in (1980) 2 SCC 565. (3) Joginder Kumar Vs. state of U.P. reported in 1994 SC 1349(1) and (4) M.P. Lohia Vs. State of W.B. Reported in AIR 2005 SC 790. 20. Learned Senior Counsel Mr. Pradhan had taken me through the judgment in the case of Siddharam Satlingappa Mhetre and had pointed out that Supreme Court in the aforesaid case came to the conclusion that the anticipatory bail, if granted, it would ensure to the benefit of the applicant till such time further steps are taken by the police and it cannot be restricted to a particular number of days or up to a particular stage of investigation. Learned Senior Counsel Mr. Pradhan had submitted that the Judgment in the case of Siddharam Satlingappa Mhetre shall ensure to ( 23 ) cria4393.11 benefit of the present applicants and it would be necessary for this Court to modify the order dated 30.11.2009 and this Court now in the light of the judgment in the case of Siddharam Satlingappa Mhetre as well as other judgment cited by him modify the order and delete the portion viz. “This protection is granted for a period of six weeks, only during which period the applicant may apply for regular bail” from the order 30.11.2009. Learned Senior Counsel Mr. Pradhan had submitted that this Court now should offer benefit of the observations of the Siddharam Satlingappa Mhetre case to the applicants in present applications. 21. Learned Senior Counsel Mr. Pradhan submitted that on 29.10.2009 when this Court had granted interim protection this Court was satisfied that prima facie case is made out for the purpose of granting protection. He further submitted that when this Court passed an order on 30.11.2009 thereby confirming the order dated ( 24 ) cria4393.11 29.10.2009, this Court was convinced that present applicants should be protected by the order of anticipatory bail. Learned Senior Counsel Mr. Pradhan had submitted that once a Court has come to the conclusion that prima facie case is made out to protect the interest of the applicants by grant of anticipatory bail, in the light of the observations of Siddharam Satlingappa Mhetre’s case this Court now should revoke the restrictions imposed by the order dated 30.11.2009. 22. Learned Senior Counsel Mr. Pradhan had submitted that present applicants had requested this Court to grant extension of time to surrender by application No. 2201 of 2010, which application ofcourse came to be rejected on 16.06.2010. Learned Senior Counsel Mr. Pradhan submitted that it is a matter of record that applicants have not surrendered and despite that the police have not arrested the present applicants though they were available. According to him, no explanation ( 25 ) cria4393.11 is provided by the State and no affidavit in reply is filed by the State to show as to why the applicants have been not arrested though State contends that their custody is required. 23. Learned Senior Counsel Mr. Pradhan had submitted that no allegations are levelled against the applicants as regards tampering of witnesses. He also submitted that there are no allegations as regards misuse of liberty, and no incriminating material is placed before the Court so as to suggest that modification sought by the present applicant should not be granted. Learned Senior Counsel Mr. Pradhan therefore, submitted that present applicants have made out the case for modification of the order dated 30.11.2009 as submitted by him and that this court should pass the order accordingly. 24. Learned Public Prosecutor Mr. Kurundkar appearing ( 26 ) cria4393.11 on behalf of the State had submitted that order dated 30.11.2009 was passed on merits and this Court had at that time passed order on the basis of provisions of Cr.P.C. as well as Judgemade law and had come to the conclusion that order of anticipatory bail cannot remain for unlimited period and that concerned applicants must may make an application for regular bail within stipulated period. Learned Public Prosecutor Mr. Kurundkar had therefore submitted that the order dated 30.11.2009 was passed on merits and now it cannot be modified. 25. Learned public Prosecutor had submitted that the Supreme Court had an occasion to deal with the provisions of grant of anticipatory bail and as to how the application for anticipatory bail be attended to. Learned Public Prosecutor submitted that nodoubt the order passed by the Supreme Court in the case of Siddharam Satlingappa Mhetre indicates that if a person ( 27 ) cria4393.11 gets anticipatory bail it cannot be for a particular period. Learned Public Prosecutor further submitted that the judgment in the case Siddharam Satlingappa Mhetre was delivered on 2nd December 2010 and law which was expounded by the Supreme Court in the said Siddharam Satlingappa Mhetre case would operate from 2nd December, 2010 and therefore principle laid down in the case of