1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (BAIL) NO. 1 OF 2009. Jayesh Anant Dhuri, H.No.110, Near Old Syndicate Bank, Palolem, Canacona, Goa. .... Applicant. Versus State (CBI, Altinho,) Panaji, Goa. ..... Respondent. Mr. S. K. Kakodkar, Senior Advocate with Mr. R. Rivonkar, Advocate for the Applicant. Mr. C. A. Ferreira, Public Prosecutor for the respondent. CORAM :- C. L. PANGARKAR, J. DATE :- 5 th January, 2009. ORAL ORDER : 1. This is an application under Section 438 of the Code of Criminal Procedure. 2. The facts in brief are as follows : One Rajesh Dhuri, who is the brother of the present applicant, was arrested by the Central Excise Department on 27.11.2008. It is alleged that he was found in possession of 1 K.G. 2 Hashish and he was arrested and remanded to judicial custody by the Judicial Magistrate, First Class,Canacona. After the arrest of Rajesh, it is alleged that present applicant / accused made a phone call to Shri Cruz, Superintendent, Central Excise Department and offered him bribe of Rs.5 Lacs. It is further alleged that pursuance to this talk of the present applicant with Shri Cruz offering him bribe of Rs.5 Lacs on telephone, certain persons were sent to said Officer along with the money. It is also alleged that a trap was arranged and pursuant to the trap, it is alleged that one Diwakar Paji and Ravi Paji were arrested red handed by the Investigating Officer. It is further alleged that the said sum of Rs. 3 Lacs was seized from Diwakar and Ravi by the Investigating Officer. 3. Since the bribe was offered to Shri Cruz by the present applicant, an offence was registered by the said Officer with Anti Corruption Bureau and since the complaint has been lodged against the present applicant, the applicant apprehends the arrest. The applicant moved the Session Judge for grant of anticipatory bail. The said application was opposed by the State. The learned Session Judge rejected the application holding that there was enough evidence available against the accused / applicant and there was no reason to grant anticipatory bail. 3 4. The applicant now seeks anticipatory bail. The learned Counsel for the applicant submits before me that liberty of an individual is more important and custodial interrogation of accused / applicant, is not necessary in this case. He submits that since the custodial interrogation is not at all necessary, there is no difficulty to release the accused/ applicant on anticipatory bail. The learned Counsel for the State, on the other hand, submits that the statement of the learned Counsel that custodial interrogation is not at all necessary, is not correct and unless and until proper investigation is made and the accused is interrogated in police custody, it would be difficult for the prosecution agency to make out the case and submit chargesheet against the accused / applicant. The main thrust of the argument of the learned Counsel, was certainly on the question as to whether the custodial interrogation of the accused, is at all necessary and if it is, whether the accused is entitled to anticipatory bail. The custodial interrogation of the accused could not be the only factor that needs to be considered. To my mind, what also needs to be considered at this stage, is whether the charge against the accused is totally groundless. If it is found prima facie that the charge sought to be made out against the accused, could not be said to be groundless, then, certainly this circumstance needs to be taken into consideration while dealing with an application for anticipatory bail. The reason for making a provision of anticipatory bail in the Criminal Procedure Code, was to give protection to the innocent persons. It is 4 only those innocent persons, who would be entitled to be released on anticipatory bail and take benefit of such provision. If it can be shown by the prosecution that the charge sought to be made out against the applicant, is not groundless, then, I find that in such cases, the accused is not at all entitled to anticipatory bail. 4. The contention that the custodial interrogation of the accused is not necessary, cannot be accepted after having gone through the order passed by the learned Session Judge. It is apparent that the conversation of the present applicant/ accused with Shri Cruz, has been recorded. Therefore, the accused/ applicant needs to be taken into custody. It would be absolutely impossible for the police to properly connect the present accused / applicant with that conversation, which has been recorded by the police, if he is not arrested and interrogated. In the circumstances, it cannot be said that the custodial interrogation of the accused / applicant, is not at all necessary and he is liable to get anticipatory bail. Each case has to be dealt with on its own merit and strait jacket formula cannot be applied in every application under Section 438 of Criminal Procedure Code. 5. The learned Public Prosecutor for the State has relied upon the decision of Supreme Court in the case of State Rep. By the CBI Versus Anil Sharma reported in (1997) 7 SCC 187, wherein Their 5 Lordship of Supreme Court have held that the custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 of the Code. It is further observed that in a case like at hand, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. 6. It has to be borne in mind that the story put up is that present applicant/ accused had made a phone call offering bribe to Shri Cruz and that conversation has been recorded by the police and pursuant to that conversation, bribe money was actually being offered through some other persons. This clearly goes to show that this a clear conspiracy and such conspiracy, therefore, needs to be investigated, which cannot be done without the accused being arrested and interrogated in police custody. 7. The learned Counsel for the accused / applicant contends that the statements of co-accused alone, could not be a piece of evidence against the present accused/ applicant. As pointed out earlier, there is no doubt that the statements of the accused alone, would not be enough, but the statements were, it seems, given by the other accused pursuant to the conversation that took place between the present applicant/ accused and 6 the officer Shri Cruz. It is, therefore, not a case merely based on the statements said to have made by the co-accused alone. The learned Counsel for the accused next contended before me that the other accused, who had actually offered bribe, have been released on bail and, therefore, the present accused should be released on bail. The other accused were not released on anticipatory bail but they have been released on regular bail under Section 439 of the Code. The distinction, therefore, has to be made between the regular bail granted by the Court under Section 439 of the Code and bail being sought under Section 438 of the Code. This application is under Section 438 of the Code and, therefore, that circumstances on which the other accused having been released on bail, would be of no help to the present accused / applicant. 8. The learned Counsel for the applicant/ accused had placed before me the decision in the case of Vinod Phadke Versus State reported in 2001(2) Goa L.T. 329, wherein the Court had considered the question as to whether in that case custodial interrogation was at all necessary and holding that it was not necessary the Court had granted anticipatory bail. In the instant case, I find on merits that custodial interrogation of the present applicant / accused would be absolutely necessary. Seriousness of the charges, has to be taken into consideration. First thing that is required to be seen is that brother of the present accused / applicant was apprehended with one K.G. Hashish 7 which is large quantity. The second thing that is required to be seen is that the bribe that was offered by the present applicant/ accused, was Rs.5 Lacs, which was being offered for the purpose of release of the accused, arrested under N.D.P.S. Act, assumes importance. In the circumstances, the decision in Vinod Phadke's case (supra,) has no bearing on the case at hand. 9. Another decision in the case of M.C.Abraham Versus State of Maharashtra reported in (2003) 2 SCC 649, was also placed before me. The facts of the reported case, are entirely different and in that case, the Supreme Court has held that it is the discretion of the Investigating Officer as to whether he should or not arrest a particular person and judicial interference in such cases, is not necessary at all. 10. The learned Counsel for the applicant/ accused had placed before me another decision in the case of Khemlo Sakharam Sawant Versus State reported in 2002(1) Bom. C.R. 689. This case is different from the case at hand. The Court was considering the question of releasing the accused, who was arrested under the Prevention of Corruption Act on the regular bail. It was found by the Court that the learned Session Judge was more swayed by morality than law, therefore, he had rejected the application. 8 11. It was brought to my notice by the learned Public Prosecutor for the State that this Court had passed an order directing the accused to remain present before this Court today. The learned Counsel for the applicant states that the applicant is not present in the Court at all. It was contended that the Court could not have, in fact, directed the accused to remain present in the Court for the purpose of hearing. It was also contended that there is no provision in the Act that the Court should direct the accused to remain present in the Court while granting anticipatory bail. There may or may not be the provision in the Act, but the fact remains that the Court has passed an order directing the accused to remain present in the Court. The accused disobeyed the order which shows his lack of bonafides and when the person tends to disobey the order of the Court, no discretion can be used in his favour. In the circumstances, I find that, there is no merit in the application. The application is rejected. C. L. PANGARKAR, J. SMA