1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.868 OF 2009 Manoj s/o Prabhakar Lohar, Age 36 years, Occu.Government Service, at present awaiting posting as Superintendent of Police, R/o 5/1103, Accolade Society, Luis Wadi, Thane (West), Thane 400 604 .. PETITIONER VERSUS 1. The State of Maharashtra through State C.I.D.Nashik 2. Dr.Uttam s/o Dhanaji Mahajan, Age 55 years, Occu.Service, Wroking as Principal, Ayurvedic College, Chalisgaon, R/o “Shivkrupa”, Plot No.1, Dhule-Chalisgaon Road, Chalisgaon, Dist.Jalgaon. .. RESPONDENTS Shri B.Shekhar, Senior Counsel with Shri Sameer A.Vaidya with Shri R.S.Dave with Shri R.S.Deshmukh, Advocates for petitioner Shri V.D.Godbharle, Asstt.Public Prosecutor for respondent No.1-State Shri V.J.Dixit, Senior Counsel with Shri P.D.Bachate, Advocate for respondent No.2 CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. Date of reserving the order : 21.11.2009 Date of pronouncing the order : 10.12.2009 2 ORDER (Per P.V.Hardas, J.) 1. This is a petition under Article 226 of the Constitution of India by which the petitioner prays for quashing and setting aside the first information report dated 16.7.2009 registered at Crime No.145/2009 under Section 347, 364-A, 385 read with 34 of the Indian Penal Code and presently being investigated by the State C.I.D., Nashik. An incidental relief of restraining the Police Officers from further investigating Crime No. 145/2009 is also sought for. 2. Facts giving rise to the filing of the present petition may briefly be stated thus. The petitioner claims to have been selected as the Deputy Superintendent of Police by the Maharashtra Public Service Commission and was appointed as the Sub Divisional Police Officer (Dy.S.P.) at District Jalgaon during 2003-2005. The petitioner claims to have been instrumental in curving several illegal and nefarious activities and was also instrumental in preventing riots at the instance of political parties in Jalgaon district. The petitioner came to be promoted as the Additional Superintendent of Police and was directed to accept charge at Chalisgaon, District Jalgaon. According to the petitioner, the petitioner upon resuming charge was instrumental in transferring the investigation of a Bank scam from Police Inspector Akhre (in charge of Chalisgaon 3 Police Station) by invoking the powers as supervisory Police Officer. The petitioner states that the Superintendent of Police, Jalgaon had expressed his displeasure at the transfer of the investigation by the petitioner. The petitioner contends that the then Police Inspector from Chalisgaon, from whom the investigation was transferred, had left no stone unturned in casting aspersions on the petitioner and it appeared to the petitioner that the said Police Inspector from Chalisgaon had an axe to grind against the petitioner. According to the petitioner, therefore, all the Officers were “hell-bent” on implicating the petitioner in some false and frivolous case. According to the petitioner he had received several complaints against the then Police Inspector from Chalisgaon Police Station. The aforesaid details of the complaint are highlighted by the petitioner at paragraph 10 of the petition. According to the petitioner, the aforesaid facts had impelled the petitioner to transfer the investigation in the Banks scam concerning the Peoples Co-operative Bank. The petitioner refers to the other complaints at paragraph 12 and 13, especially concerning the respondent-complainant. The other details of the complaints are reflected in the further paragraphs of the petition. 3. As pointed out by us above, on 16.7.2009 a report came to be lodged by the respondent Dr.Mahajan on the basis of which offence punishable under Section 347, 364-A, 385 read with 34 of the Indian Penal Code came to be registered against the accused which included the present petitioner. We may briefly refer to the report of Dr.Mahajan 4 and reproduce at verbatim the relevant paragraphs from the translated copy made available to us by the petitioner. “ When asked personally, I state that I am residing at above address with my wife Mrs.Kalpanabai & son Manoj and I am working on the post of Professor with Ayurvedik Medical College, Chalisgaon. I am the worker of Congress party and I am the Member of Zilla Parishad, Jalgaon. A meeting was arranged on 30.6.2009 of our party of Malegaon, District Nashik of Smt.Sonia Gandhi, President of All India National Congress. I was responsible to take main workers of Chalisgaon Taluka for the said meeting. On 30.06.2009 at 11.00 hours when I myself was at Dhanvantary Hospital of my college of Bajaj Complex, Old Nehru Statue, Chalisgaon, workers of my party (1) Shri Kedarsingh Dhasrma Patil, President of Chalisgaon Taluka Congress Committee, (2) Ishwar Jadhav, Ex M.L.A., (3) Ramesh Shimpi, District Vice President of Jalgaon District Congress Commitee (4) Shri Sajan Kantik Pastil were ready to go for the above programme, one officer in brown/khakhi uniform along with two persons in civil dress came to me. On the name plate of uniform, name was mentioned as P.S.I. Nimbalkar. P.S.I. Nimbalkar informed me that you have been 5 called by Additional S.P.Shri Lohar and we have come to take you. I asked him what the work is and why I have been called. On that they informed that we do not know anything. We have been asked to take you only. At this said occasion, I requested him that we all the workers are going for the programme of Hon’ble Mrs.Sonia Gandhi and when the Programme will over I will come to Chalisgaon, immediately and I will contact Shri Lohar. However, he did not hear me, he made me to sit on his Motor Cycle in front of above workers of my party and brought me to Shri Lohar. The vehicle of my workers followed the Motor Cycle on which I was sitting and came to the office of Shri Lohar Saheb. Our responsible party workers requested Shri Lohar Saheb that Dr.Mahajan is the Member of Zilla Parishad of our party. We take the responsibility to bring him to you. However, as the Lohar Saheb did not hear anything, I asked my colleague workers to go to Malegaon for the meeting and also told them to give the V.I.P. passes which were with me to the respective persons and accordingly the workers went for the meeting. Shri Manoj Lohar called me in his cabin and made efforts to pressurize me in higher speech of tone and in filthy language and tried to frighten me. He informed me that I have received the complaint in writing against you from the 6 person of Surat. He provided me the complaint for reading. After reading the said complaint, I informed that its contents are totally wrong. I have given the work to the contractor on labour basis. It was orally decided to give them work with materials. Accordingly, construction work was entrusted to the contractor-3 Partners, Shri Purushottambhai Vallabhbhai Patel @ Das, Manubhai and one more person (I do not recollect his name) they came to me for work and after coming they started demanding advance money for materials. On that I told him the work of construction of Hostel, Staff Quarters has been provided with the material and payment has to be made to you in three installments. They told me that they don’t have money, we are ready to do the work on labour basis and you provide all construction materials. At this said occasion I told him that Shri Shankar Kumavat, Artisn of Chalisgaon is carrying out the work of the construction work of Hospital in the same campus on labour basis. If the same is acceptable to you, then carry on the construction and they accepted the same. Accordingly, they started the construction. They carried out the work during the period from the year 2004-05, 2005-06. I was giving them money every week towards labour charges and I have supplied the construction materials at the cost of the institution. I was making efforts to the maximum extent to 7 inform the same to Shri Manoj Lohar, however, he was not in a mood to hear me. He said Madarchod, Bhenchod, you are not paying money to the persons for two years, now you will have to pay interest also at the rate of Rs.2/- per month for two years. Now I will implicate you, I will check all the records of your institution, there are many complaints against you with me, and there is star question in the Assembly of Mantralaya in your connection. I will put your complete Board of Directors and yourself in the jail. Whether you are aware that is the condition of all directors of the Peoples Bank now at my instance. I will take the possession of the record of all branches of your institution, what will be the position if I will intervene and by saying this he started threatening and he called Shri Nimbalkar and informed him to verify the documents and I was made to sit in the outside room. He used to call me in the mean time and threatened me and used to send me out side again and in this manner he started to harass me mentally. At the said occasion Shri Dhiraj Yevale came there to meet Shri Lohar and I was asked to sit out side the room. I do not know what discussions they had made inside. After their discussions, I was again called inside and he started harassing me mentally again as stated above. Shri Lohar called Shri Nimbalkar and asked him to register the crime against me and to impose the sections 420, 407 & 8 other 10 to 12 sections and put me behind the bar. When the said discussions were being made, Shri Dhiraj Yevale asked me whether I should intervened between the Saheb and you, whether you will give something to Saheb, you cannot escape from this and such discussion was going on upto 8.30 p.m. Thereafter Shri Lohar Saheb threatened me in the presence of Dhiraj Yevale in very rude language. I informed him that I am a heart patient and I had two attacks and Angio Plasti Surgery has been carried out on me at Ruby Hospital, Pune. I was very much afraid and I was sweating. At the said occasion Dhiraj Yevale asked me to give money to Saheb and also pay money to the contractor also then I will relieve you from this, otherwise you cannot escape. At the said occasion as I was afraid, I told him to ask Saheb as to how much money he wants. At this said occasion he asked in my presence to Lohar Saheb as to what is your demand. On that Lohar Saheb said I want Rs.60 lakhs then only I will relieve him. I requested them that I have no money and I can pay maximum Rs.2 lakh. At the said occasion Dhiraj Yevale said Saheb Rs.60 lakh is too much then he demanded Rs.50 lakhs. Then I again requested him there is no admission even 50 per cent of Ayurvedik college from last 3 years. Our above college is unaided. It does not become possible for me to make payment to my staff every month. I cannot pay you 9 so much money. On that he told that he will settle the case if you will pay Rs.30 lakh otherwise you will be put in the jail. At the said occasion Dhiraj Yevale said, Saheb take Rs.25 lakhs and settle the case. Dhiraj Yevale asked me to pay Rs.25 lakhs to Saheb and Rs.21 lakhs to the complainant and to keep cash of Rs.46 lakhs on table. Lohar Saheb has asked to pay Rs.50 thousand to P.S.I. Nimbalkar. I told, Saheb I have no money. On that Lohar Saheb told you contact your concerned persons and arrange for the money till 12 midnight and give cheque just now to this complainant. On that I informed him that I have no money and I requested him to allow to give post-dated cheque of 15 days so that I can make arrangement of money. However, he did not hear me, I was helpless. I phoned Neetin Jadhav, Clerk of the College and asked for the cheque book and Lohar Saheb has directed P.S.I. Nimbalkar to obtain the cheques from me and accordingly, cheque for the amount of Rs.8 lakhs dated 1.7.2009 bearing No.245756 & Cheque Nos.245757, 245758 for the amount of Rs.7 lakhs and Rs.6 lakhs respectively dated 2.7.2009 were taken after putting the name in the name of contractor (Shiva Constructions) after putting the date by application of force. Shri Lohar Saheb threatened me that if cheque will not be honored, then crime will be registered against you again. Thereafter for taking the amount of Rs.25 10 lakh in cash, Shri Lohar Saheb detained me in the office till 11.00 to 11.30 p.m. I was not allowed to go anywhere. I was requesting him that there is nobody else except me in my house and my son Manoj has gone out of station to Nagpur. I requested him to allow me to go home, my wife is alone in the house. I also requested him to allow me to talk with her on mobile. However, my Mobile was taken from me then I was brought in the office in the morning and I was allowed to make use of my Mobile only for demanding money. Shri Lohar told me that he will not relieve me before obtaining the money. He asked me to arrange for the money from the relatives on phone. I contacted my father in law Shri Digambar Pandu Mali, residing at Shirpur, District Dhulia on phone and asked him to make arrangement of Rs.25 lakh. However, he informed that arrangement of the money cannot be made in the night and arrangement will be made in the morning when the Bank will open. My father in law came between 11.30 to 12 p.m. at the office of Addl.S.P. At the said occasion Lohar Saheb, Dhiraj Yevale & Nimbalkar were bring me down from the office. Lohar Saheb asked me to make arrangement of money during night and when arrangement of money is made, give the said money to Dhiraj Yevale and thereafter he will relieve you. He gave my custody to Nimbalkar (Holding the Revolver) so that I should 11 not run away and Lohar Saheb went away. I came to know that police who was with Shri Nimbalkar was Anil Deshmukh (During the investigation) and at 12 midnight Dhiraj Yevale took me to the house of his uncle situated in front of the office of Shri Lohar Saheb. My Mobile was in the custody of P.S.I. Nimbalkar. On 1.7.2009 at 2.00 a.m. Dhiraj Yevale told me that you have to change the spot, most of the persons knowing that you have been kept at this place and hence I am changing the spot and after saying this at 2.00 a.m. he with the application of force, made me to sit in the vehicle having black color. P.S.I. Nimbalkar holding the revolver was sitting next to me and I was taken to another house which was at the distance of about one to one and half kms and I was kept at the open space on the terrace of that house. In this manner I was kidnapped and I was detained on the terrace. Dhiraj Yevale and P.S.I. Nimbalkar were with me during night. I was awake through out the night. (During the investigation, it was learnt that the said house was of Dhiraj Yevale). I could take even my regular medicine. At 8.30 a.m. I asked my Mobile from P.S.I. Nimbalkar, he refused to give the Mobile. I informed to Shri Dhiraj Yevale that it is necessary to give phone calls to concerned persons for making arrangement of 12 money. At the said occasion and also at the instance of Dhiraj Yevale, P.S.I. Nimbalkar gave me the Mobile. Thereafter I was contacting my relatives on phone for arrangement of money. At the said occasion and also in the instance of Dhiraj Yevale, P.S.I. Nimbalkar gave me the Mobile. Thereafter I was contacting my relatives on phone for arranging the money. When all such incident was going on at about 10.00 to 10.30 hours, senior workers of my party and my son were searching me in the village. They came to the place directly to the terrace of that house where I was kept. At the said occasion I was in the custody of P.S.I. Nimbalkar. P.S.I. Nimbalkar was not allowing me to meet my son & workers. As the said occasions when the workers and my son shouted, P.S.I. Nimbalkar made 2-3 phone calls. I could not know with whom he talked. Nimbalkar told that he has talked with Lohar Saheb and Lohar Saheb asked me to take you to the office and when this was informed, workers went away. At about 11.00 hours the boy who was relative of Dhiraj Yevale came with Motor Cycle and I myself and Nimbalkar sat on the Motor cycle along with that boy, I was made to sit in the middle. I was brought to the office of Lohar Saheb. Lohar Saheb came after some time. When Lohar 13 Saheb came, he threatened me by saying that not to phone anybody and you should not inform anybody as to where you are kept during night hours, then how these workers reached this place. He threatened by saying that I will put you in Police custody 7/7 days then you will come to know as to what will happen in the police station. I requested him and informed him that I am not aware of anything. I am in the custody of Nimbalkar, My mobile is also in the possession of Nimbalkar through out the night. You can ask him and confirm. I have not phoned to anybody. Thereafter he started using bad languages and said you should have been put in the lock-up in the night, he asked whether money has been brought. On that I informed that my father in law is making arrangement of money when Bank will open at 11.00 hours. At the said occasion he gave me time limit upto 1.00 p.m. He gave order to Nimbalkar to register the crime if money will not be received upto 1.00 p.m. I was requesting him but he was not in a mood to hear me. At the said occasion my son Manoj came to meet me. Manoj wanted to meet Lohar Saheb, but employees of the office and P.S.I. Nimbalkar did not allow him to meet. I was continously in touch with my father in law on phone in connection with money. He could not reach upto 1 p.m. at 1.p.m. Lohar Saheb called me and told me that your money has not come 14 till now even though it is 1 p.m. and he asked to register the crime against me. Accordingly he gave oral instructions to P.S.I. Nimbalkar. I requested Lohar Saheb that my father in law has started with money and he will reach between 2 p.m. to 3 p.m. Shri Lohar Saheb had personally heard the said conversation on Mobile. At the said occasion Lohar Saheb informed that if money will not be received upto 3 p.m. then I will put you behind the bar and register the crime. I was waiting for my father in law. Then after some time Lohar Saheb again called me and informed me why your son had phoned S.P. You are of cunning, you are saying that you are giving money, but not giving. Persons have come to the place where you were kept. Now your son had phoned S.P., do you consider us mad? Call your son, contact him on phone and put him also in the lock-up. When he was threatening in this manner, my son Manoj entered in the cabin of Manoj Saheb. He was overwhelmed by emotion. He asked the Saheb what crime we have committed, we have paid the entire money to the concerned contractor, and you are making false allegations against you. You have obtained cheques from my father, you are demanding money, you are demanding money, you are threatening us to register the crime, put my all the Board of Directors in jail and put me also in the jail and he was crying while saying so. At the said 15 occasion I was convincing my son. However, there was no effect on Lohar Saheb. At the said occasion Lohar Saheb asking me and my son who had phoned S.P. and why phone call was given. At the said occasion I told that workers might have given the phone call. At the said occasion my son said I had made the phone call because we were not knowing the whereabouts of my father from 11 a.m. till night. My mother is alone at home, she is crying through out the night. When I came in the morning from Nagpur, my mother informed that Papa is not at home; accordingly I was searching for father. I called the workers on phone who were going for the meeting at Malegaon. Similarly I made enquiry with Clerk of my office as to who had taken my father. When we were searching my father in the village, I saw that my father was in the custody of P.S.I. Nimbalkar at the terrace of the house of Dhiraj Yevale situated at Pawar Wadi and even though I asked them to relieve my father, as they did not relieved my father, I phoned S.P. and this was informed to Lohar. When our discussion was going on, there was a phone of S.P. on the Mobile of P.S.I. Nimbalkar and I was asked to talk on it. Accordingly, I went to the adjacent room to talk with S.P. The said occasion Lohar Saheb and Nimbalkar were standing before me and they threatened me by saying that I should inform that no harassment of any nature was given to me. Due to that I 16 informed S.P. that from 11.00 hours of 30.6.2009 to 3.30 to 4 p.m. of 1.7.2009 I am in the custody of Lohar Saheb and Nimbalkar and at present I am in front of Lohar Saheb. Thereafter there was phone call from the office of S.P. on the Mobile of my son and message was given to contact S.P. to inform as to what you want to say in this connection. After hearing the same, Lohar Saheb asked my son as to who had phoned, on that my son informed that there was a phone call from the office of S.P. and Saheb had called me along with father to his office. At the said occasion Lohar Saheb convincing my son why you had not contacted me, do not proceed further in the matter, I will stop this matter here only and that do not contact Saheb and register the complaint and threatened by saying not to say anything as to what had happened. When my son asked Lohar Saheb whether he can take me (his father) to home and when Lohar Saheb granted permission I came home with my son. Thus Addl.Supdt.of Police Shri Lohar and Dhiraj Yevale in conspiracy with each other kidnapped me in illegal manner and detained me from 11.00 a.m. of 30.6.2009 to 4.00 to 4.30 p.m. of 1.7.2009 and detained me in various places. In the meantime they obtained cheques of Rs.21 lakhs of State Bank of India, Chalisgaon Branch by 17 application of force and after demanding extortion amount of Rs.21 lakhs, they used bad words to me and threatened me and hence I am having complaint against them and request to initiate the action. I have read my statement and it has been typed correctly on computer as stated by me. Given this in writing.” Sd/- 16.7.2009 Dr.Uttamrao Dhanaji Mahajan Before me Sd/- 16.7.2009 Jagdev Akhare, Inspector of Police Chalisgaon Police Station 4. In respect of the offence punishable under Section 364 of the Indian Penal Code, learned Counsel for the parties have stated before us that the