..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2234 OF 2008 1. Rajendra Wamanrao Nagarkar, 2. Balasaheb alias Tatya Vithal Wagh, 3. Kailash Lahanu Thete, & 4. Vithal Kisan Mali. ..APPLICANTS. Versus Versus Versus State of Maharashtra ..Respondent. .... Mr.A.P.Mundargi, Senior Counsel, for the applicants. Mr.S.S.Pednekar, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 12th August, 2008. DATED : 12th August, 2008. DATED : 12th August, 2008. P.C.: 1. Heard the learned Counsel for the applicant and the learned APP for the State. 2. The applicants are seeking anticipatory bail in C.R.No.291 of 2008 of Ambad police station, Nashik. The said case is under Sections 217, 218, 414, 167 of IPC. 3. One Sundarlal Shah was a courier. He used to send various items including jewellery by ..(2).. truck. On the relevant day the truck was proceeding to Nashik. At Nashik they found that the driver and the cleaner of the truck had disappeared and the jewellery had also disappeared. Hence Sundarlal came to Ambad police station and lodged his FIR. The applicants, who were police officers, were attached to Ambad police station at the relevant time and co-accused Mr.Budhwant was working as Sr.P.I. of Ambad Police Station. Thereafter Sunderlal Shah went to Ambad police station to find out the progress of the case. After few days when he went to the police station, co-accused Budhwant got applicant No.2 Balasaheb @ Tatya Vithal Wagh to write out an application and obtained the signatures of Sundarlal Shah on the said document. In the said document, it was stated that Sundarlal did not wish to proceed with the complaint and he wished to withdraw the complaint. 4. At this stage, it may be stated that the complaint by Sundarlal Shah was not registered. Despite the fact that the offence was not registered, Sr.P.I. Budhwant with the help of ..(3).. applicants conducted the investigation wherein various items of jewellery and gold ingot were recovered. During the course of the investigation, it is revealed that applicant Nos.1 to 5 being Police Officers misused their position and assisted in procuring some property not involved in offence and in concealment and disposal of stolen property knowing it to be stolen. The applicants and co-accused forged record and avoided to maintain necessary record at the police station with criminal intention. Accused Nos.1 to 5 without authority and without registering the offence investigated the matter at Nashik & Sangamner, illegally recovered stolen property by using force and kept said stolen property illegally in their custody. Further co-accused Budhwant in collusion with applicants has handed over said stolen property to Shri.Kirtikumar Shah. 5. Meanwhile during the repeated visits of Mr.Sundarlal Mohanlal Shah, Mr.Kirtikumar Shah and other co-accused Budhwant gave evasive answers in respect of investigation of said offence, hence ..(4).. the complainant met Police Commissioner, Nashik and informed him about the acts of the accused who immediately ordered inquiry in the said matter. Said inquiry has been conducted by Dy.Commissioner of Police (Crime). During inquiry all accused persons, including the applicants, were found guilty of committing grave illegalities while dealing with aforesaid incident. Hence, they came to be suspended. 6. As far as applicant No.1 Rajendra Nagarkar is concerned, witnesses have specifically stated that they know applicant No.1. Applicant No.1 has taken private vehicle i.e. Scorpio bearing registration No.MH-15-BD-665, for illegal investigation and visited many places at Sangamner District : Nagar during the period between 19.5.2008 to 22.5.2008. It is further revealed that applicant No.1 illegally investigated the matter alongwith his other colleagues. It is further revealed that the applicant No.1 visited Room No.211 of Laxmi Lodge at Sangamner and illegally interrogated witnesses over there. It was further revealed during the course of ..(5).. investigation that this applicant illegally hand cuffed witness Azhar Rahim Khan and forcibly detained him in Ambad police station without any authority for 2/3 days. One of the witnesses has stated that 200 grams ingot of gold was handed over by the witness to applicant No.1. This witness has been assaulted by applicant No.1 at Ambad police station, Nashik. The personal ornaments i.e. 6 gold bangles, 2 ear rings, Zube etc. weighing 90 to 100 grams. from the person of wife of Ankush i.e. Mrs.Shobha were also handed over to applicant No.1. 7. As far as applicant No.2 Balasaheb alias Tatya Vithal Wagh, Police Naik is concerned, he has played key role in commission of offence. Witnesses specifically stated that they know said applicant. Applicant has written one application in his own handwriting on 16.5.2008 and obtained the signature of witness Sundarlal Shah. The applicant had written one more application in his own handwriting and obtained the signature of Sundarlal Shah without reading over the contents therein to witness Sundarlal Shah. The second ..(6).. application was for withdrawal of complaint. Applicant has taken private vehicle i.e. Scorpio bearing registration No.MH-15-BD-665, for illegal investigation and visited many places at Sangamner District : Nagar during the period from 19.5.2008 to 22.5.2008 along with other accused. It is further revealed that applicant No.2 illegally investigated the matter alongwith his other colleagues. Further it is revealed that applicant No.2 handed over 200 grams ingot of gold, gold chain to witness Kirtikumar Shah in presence of co-accused Budhwant at Ambad police station. It is further revealed that the present applicant No.2 visited Room No.211 of Laxmi Lodge at Sangamner and illegally interrogated a witness over there. Applicant No.2 brought one Tahir Sayyed Azhar Khan to Ambad police station and illegally interrogated him for the period from 16.5.2008 to 24.5.2008. Applicant No.2 has illegally taken amount of Rs.1,03,000/- from the uncle of Amjad in presence of witness Sayyed Ansar Makbul. Some of the witnesses attached to Ambad police station stated that applicant No.2 has brought Tahir Sayyed, Azhar Khan to Ambad police ..(7).. station and interrogated them during the period between 16.5.2008 to 24.5.2008 and forcibly detained them in police station illegally. 8. As far as applicant No.3- Kailash Lahanu Thete, Police Naik, is concerned he has visited various places at Sangamner including Room No.211 of Laxmi Lodge Sangamner. It has been stated by witnesses that applicant No.3 was accompanying applicant Nos.1 & 2 and recovered Muddemal illegally from witnesses by assaulting and pressurizing the witnesses. Applicant No.3 has illegally taken witness Tahir Sayyed to Sangamner for investigation by illegally putting handcuff on him. 9. As far as applicant No.4 - Vithal Kisan Mali, Police Constable, is concerned, he has helped applicant Nos.1 & 2 in illegal investigation during the period 19.5.2008 to 22.5.2008. Applicant No.4 along with other accused visited various places at Sangamner including Room No.211 of Laxmi Lodge Sangamner. It has been stated by witnesses that applicant ..(8).. No.4 was accompanying applicant Nos.1 & 2 and recovered Muddemal illegally from witnesses by assaulting and pressurizing the witnesses. Applicant No.4 brought Tahir Sayyed, Azhar Khan to Ambad police station for illegal investigation during the period of 16.5.2008 to 24.5.2008. Applicant No.4 had illegally taken witness Tahir Sayyed to Sangamner for investigation by illegally putting handcuff on him. 10. The learned APP has submitted that the custody of the applicant is necessary so as to hold TIP. However, in my view, that is not the only reason why the custody of the applicant is necessary. It is seen that though Sundarlal Shah has given intimation of cognizable offence yet the co-accused who was Senior PI did not register the FIR and started investigation. Without registering the FIR. He conducted the investigation with the help of present applicants and forcibly collected gold from various persons. This gold was then handed over to one Mr.Kirti Kumar. The material on record shows how goldsmiths who had purchased the gold articles ..(9).. involved in the crime have been forced to hand over not only the articles which were stolen property but also jewellery belonging to their family members. Many witnesses have stated their ability to identify applicant Nos.1 to 4 if shown to them. Moreover, the custodial interrogation of applicant Nos.1 to 4 would also be necessary to verify their role in commission of offence and to hold Test Identification Parade. In my view the custody of the applicants would be necessary to find out the exact role of each applicant in this case as well as to find out if any other person is involved in this matter. Hence,I do not think that this is a fit case to grant anticipatory bail. Application for anticipatory bail is rejected. 11. On request of the learned Counsel for the applicants, applicants are granted time to surrender upto 28th August, 2008. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)