1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION(BAIL) NOS. 281, 282, 283 AND 284 OF 2009 CRIMINAL MISCELLANEOUS APPLICATION(BAIL) NO. 281 OF 2009 Mr. Mohammed Ibrahim ... Applicant versus State ... Respondent CRIMINAL APPLICATION(BAIL) NO. 282 OF 2009 Espirito Saverino Fernandes presently in Judicial Custody, Panaji through his next friend R. Fernandes. ... Applicant versus State through Police Inspector Ponda Police Station, Ponda, Goa and another. ... Respondents CRIMINAL APPLICATION(BAIL) NO. 283 OF 2009 Pushkal Fernandes ... Applicant versus State ... Respondent 2 CRIMINAL APPLICATION(BAIL) NO. 284 OF 2009 Faizal Khan ... Applicant versus State ... Respondent Shri Judas Chagas, Advocate for the Applicants. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 30TH SEPTEMBER, 2009. ORAL ORDER The applicants herein are accused involved in Crime No.152/2009 registered under Sections 365 and 364-A I.P.C. who having been denied bail by the learned Sessions Judge, Margao by Orders dated 28-8-2009, have approached this Court for the same. 2. The said crime came to be registered upon a complaint filed by the father of Terence Dias on 24-7-2009. 3. The said Terence Dias had earlier taken a car on hire belonging to applicant Pushkal Fernandes. The said car while it was in possession of the said Terence Dias met with an accident on 11-7-2008 at Panaji market in the middle of the night. Applicant Pushkal Fernandes 3 is stated to have come to know about the said accident on 12-7-2008 through the newspaper and thereafter he having contacted the mother of the said Terence Dias, he was promised to pay the amount of damage of the car. Subsequently, the said Pushkal Fernandes filed a complaint to the Police Inspector, Ponda Police Station on 6-1-2009 stating that the sister of the said Terence Dias had also promised to pay the amount of damage, when she came from Dubai but later she left for Dubai and also had taken the said Terence Dias to Dubai. 4. When the P.S.I. present in the Court along with the Public Prosecutor was asked as to what action was taken on the said complaint dated 6-1-2009, he stated that he did not know anything about it. 5. On 24-7-2009, the said Terence Dias was picked up from his residence in a car belonging to the said applicant Pushkal Fernandes and he was accompanied by applicant Faizal Khan and applicant Mohammad Ibrahim. Thereafter, the said Terence Dias was taken to the shop of the applicant Pushkal Fernandes where applicant Espirito Fernandes, his employee, prepared certain bills towards electrical goods purchased by the said Terence Dias from the shop of the said applicant Pushkal Fernandes. Thereafter, they proceeded to the Office of Advocate Shri Alvaro Faleiro where an acknowledgement of debt was prepared, acknowledging a debt of Rs.2,56,864/- as due and 4 payable by the said Terence to Pushkal Fernandes towards the electrical goods purchased by the said Terence Dias from the shop of Pushkal Fernandes situated at Borda, Margao against bills dated 10-7-2009 and 15-7-2009. Thereafter, along with the said Advocate Shri Alvaro Faleiro they proceeded to the Office of Advocate and Notary Prashant D. Rajadhyax which is situated in the same building as that of Advocate Shri Alvocate Faleiro, and that is near the Police Station at Margao. The said Terence Dias signed the said acknowledgement and according to Advocate Shri Alvaro Faleiro, without any pressure, in the presence of two witnesses, namely applicant Faizal Khan and Mohammad Chand Pasha. The said Terence Dias was identified by Advocate Shri Faleiro and the signature was attested by the Notary Shri Prashant Rajadyax, Thereafter, the said Terence Dias returned home, all by himself and after his return, his father Caetano Dias filed a complaint alleging that three unknown persons had kidnapped/abducted his son in Zen Car No. GA-08-A-5985. 6. Subsequently, statement of the said Terence Dias was recorded on the same date, and in his statement he stated, inter alia, that one person by name Pushkal along with two unknown persons came towards him and all of them assaulted him with slaps, caught hold of his T shirt and forcibly pushed him inside the said car and proceeded towards Margao at Pushkal's shop where he was assaulted again with 5 slaps and further the said Pushkal asked him to sign some bills and further threatened to kill him if he did not sign those bills, and out fear he signed some blank bills of purchase of electrical goods and some of Pushkal's Tours and Travels which were filled in applicant by Espirito Fernandes and thereafter he was taken to Margao Police Station where his signature was obtained on an affidavit/acknowledgement of debt stating that he owed Rs.2.50 lakhs to Pushkal Fernandes, etc. He also stated that thereafter they returned to the said shop of Pushkal where Pushkal asked him to bring Rs.3,00,000/- from his parents and thereafter he managed to jump from their custody and ran away from them, took a lift and returned back to his house. 7. The P.S.I. who is present states that the said Terence Dias was got examined on the same day by the Medical Officer who found no injuries on him. 8. The applicants herein were arrested on 27-7-2009, 25-7-2009, 27-7-2009 and 25-7-2009(in the serial order of the applications) and have been in custody since then, and as already stated, their applications for bail came to be rejected by the learned Sessions Judge by Orders dated 28-8-2009. 6 9. The learned Sessions Judge observed that the statement of the Notary nowhere indicated that there was anything untoward noticed by him when the applicant had come to his Office with another Advocate and the complainant's son had executed certain documents before him of his own free will. The learned Sessions Judge further observed that in those set of circumstances it would be rather premature to conclude that the ingredients of the offence i.e. kidnapping for ransom under Section 364-A had not been made out but nonetheless the modus operandi employed by the applicant was not too inspiring. At the same time, the learned Sessions Judge came to the conclusion that the gravity of the offence did not warrant their release on bail. 10. The learned Sessions Judge did not even try to find out whether Section 364-A I.P.C. was prima facie attracted to the facts of the case in order to deny bail, and now it has been conceded by the learned Public Prosecutor that Section 364-A is not attracted to the facts of the case. The learned Sessions Judge ought to have been inspired not by the conduct of the accused for there is never anything to be inspired by the conduct of the accused, and bail applications are not decided on the basis of the conduct of the accused, but what was stated by the Advocate who had identified the said Terence Dias and who had drafted the acknowledgment for him and by the Notary before whom the said 7 acknowledgment was executed, and considering that, the learned Sessions Judge ought to have admitted the applicants to bail. 11. The statement of the said Advocate Shri Faleiro shows that the said Terence Dias had admitted having purchased goods from the said shop of the applicant Pushkal Fernandes and at his instructions that he had prepared the acknowledgment of debt on a stamp paper at the request of the said Pushkal Fernandes, and thereafter all of them had proceeded to the Office of Notary Prashant D. Rajadyax, and on being questioned by the latter the said Terence Dias had stated that he knew about the contents written on the said acknowledgment of debt and had signed the same without any pressure. The said Prashant Rajadyax had also stated that four persons had come to his Office along with Advocate Shri Faleiro and had submitted an acknowledgment of debt of Terence Dias for execution of the said document and attestation of signature of the said Terrance Dias, and that he had explained to the said Terence Dias about the contents of the same and further he had expressed that he was signing the said document without any pressure, and accordingly he had attested the signature of the said Terence Dias. The learned Sessions Judge, accepted these versions and yet denied bail to the applicant. 12. Considering that the version of the complainant and/or his son were not supported either by medical evidence or by the versions of 8 the said Advocate Shri Faleiro and Notary Shri Rajadyax, the learned Sessions Judge ought to have admitted the present applicants to bail. It is not only the gravity of the charge but also nature of evidence which is available to support the charge which matters in the matter of granting of bail. Both these factors were clearly in favour of the applicants to be admitted to bail. 13. Considering the facts of the case, in my view, the applicants are entitled to bail and they shall so be released upon execution of a bond of Rs.15,000/- each to the satisfaction of the learned Sessions Judge, Panaji. 14. Applications granted on the above terms. Observations made herein are only for the purpose of deciding the bail applications. N. A. BRITTO, J. RD