1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3841 OF 2009 Sunil Shankar Jadhav ........ Applicant versus The State of Maharashtra ........Respondent. Mr. A.P. Mundargi. Sr. counsel i/b Mr. Samir A.Vaidya adv. for the Applicant Mr. J.P. Yagnik APP. for the Respondent/State. Mr. S.A. Sawant Adv. For the ori. Complainant. CORAM: A. P DESHPANDE, J. DATED : 22nd September,2009. P. C.: 1. Heard. 2. The learned counsel for the complainant seeks oral permission to intervene. Permission granted. The learned counsel for the complainant is also heard. 3. The applicant is in employment of the Thane Municipal Corporation as Junior Engineer since last 17/18 years. The main assignment of the applicant is demolition of unauthorized and illegal constructions. An incident had taken place on 29-10-2005 when the applicant and the demolition squad of the Thane Municipal Corporation had undertaken the work of demolition of a building named Vikrant Towers as the same was unauthorized and 2 illegal construction. 4. According to the applicant the incident had occurred in the following facts and circumstances. The Assistant Municipal Commissioner had directed the applicant to demolish an unauthorized and illegal construction of the building named “Vikrant Towers”, constructed by a builder and developer Altaf Sayyed. Various suits and other proceedings were initiated by the residents/occupants of the said building with a view to save the structure and restrain the Corporation from demolition of the structure. The Corporation received a communication from it’s layer on 28-10-2005 that the status-quo granted in the pending suit which prevented the Corporation from demolition of the building has been vacated. Hence, the Corporation took a decision to demolish the building on 29-10-2005. With a view to facilitate the demolition work, the Corporation has sought and obtained the help of Police and the same was provided. Having regard to the nature of the work of the present Applicant who was incharge of the demolition squad, he was provided two bodyguards who were from the police department. The demolition squad in the company of police reached the building Vikrant Towers and moved in with a view to commence the demolition work. The occupants of the said building were urging the members of demolition squad not to go ahead with the demolition as Diwali festival was within few days. 3 As the members of the demolition squad did not pay any heed to the repeated requests made by the occupants, some of the occupants obstructed the demolition squad from going ahead with the demolition work. One Ganesh Gaikwad, Prasad Bankar, Ajit Mukadam, Santosh Shelke and Pappu Gulab Umap in the company of few others were on the forefront in causing the obstruction. The said occupants initially threatened to jump from the higher floors of the said building and as their threats were not heeded to, they threatened that they would set themselves on fire. Despite the threats, the work of demolition was taken up and the demolition squad moved up on 3 rd and 4 th floors. The members of the demolition squad were manhandled and obstructed. Suddenly one Prasad Bankar and Ganesh Gaikwad poured kerosene on their person and set themselves ablaze. Prasad Bankar tried to embrace the applicant whereupon the bodyguards of the applicant rescued the applicant and in the process the applicant so also two bodyguards suffered burn injuries. Thereafter, commotion took place followed by heavy stone pelting. The Deputy Municipal Commissioner was also present on the spot but he was asked to leave the place by the police having regard to the law and order problem. The Deputy Municipal Commissioner lodged the First Information Report vide Crime No.167/2005 with Naupada Police Station under sections 147, 148, 332 and 506(2) of the Indian Penal Code against the husband of present complainant and others. 4 The persons who are stated to have set themselves on fire by name Prasad Bankar is brother of the complainant whereas Ganesh Gaikwad is the nephew. Both of them having sustained burn injuries were taken to hospital. In the hospital, the statements/dying declarations of Prasad Bankar were recorded initially by one Mr. C,V. Mahagire, Deputy Superintendent of Police, Kalva Police Station and thereafter, by the Special Executive Magistrate, Thane. No statement of Ganesh Gaikwad could be ecorded as he was not in a position to make a statement and did expire within few hours. Prasad Bankar expired after two days. In the statements/dying declarations of Prasad Bankar, one of the deceased, it i stated that as the Thane Municipal Corporation was demolishing his building, he set himself on fire. The statement of various persons came to be recorded by the police on and after 29-10-2005. Based on investigation, two Accidental Death Reports came to be recorded and crime is registered against some persons as they obstructed the demolition squad from demolishing the building. It is relevant to note that the statements of two police personal who were deputed to guard the applicant were also recorded. The First Information Report dated 29-10-2005 lodged by the Deputy Municipal Commissioner of the Corporation records the incident as stated herein above. 5. After lapse of four years the present FIR is lodged by Mrs. 5 Vaishali Shivaji Adik and the same is registered as Crime No. 169/09 for the offences under sections 302, 307, 304, 143 and 147 of IPC. The applicant has been arrested and hence the present application for bail is filed. 6. With a view to explain the delay it is submitted by the prosecution, that the complainant had moved the Home Minister of State of Maharashtra by making a grievance and has been pursuing the matter by urging that the incident dated 29-10-2005 needs to be properly investigated and appropriate action should be taken against the erring persons. During the course of investigation initiated after 25-02-2009 statements of various persons are recorded of mainly those who are residents of the said building and according to the prosecution on the basis of the said investigation, prima facie case is made out against the present applicant and hence the applicant came to be arrested. 7. According to the prosecution after investigation of Crime No. 169/09 it has transpired that the relations of the applicant with the occupants of the unauthorized building were strained and were enimical. The learned APP has contended that there was a prior litigation between the residents of the building on one hand and the applicant and the Corporation authorities on the other hand which had strained the relations. It is then stated that a private complaint was also filed against the present applicant about extortion, however, as the complainant did not remain present the verification statement could not be recorded and the complaint came to be dismissed. It is submitted that according to 6 the First Information Report dated 25-02-2009 one Ajit Mukadam brought kerosene can from the room of Santosh Shelke and poured kerosene on Ganesh Gaikwad and Prasad Bankar and the present applicant set the two persons on fire with the help of gas cutter. It is further stated in the First Information Report that when the two persons caught fire, Pappu Gulab and Santosh Shelke tried to save them and in the process, clothes of Santosh caught fire. These are the allegations made against the applicant in the present First Information Report dated 25-02-2009. 8. The statement of Santosh Shelke was recorded in the year 2005 itself and in that statement he has not made any allegation whatsoever against the present applicant. However in his statement recorded after lodging of present FIR he has retracted from his earlier statement and has supported the prosecution case as it stands now. 9. The investigating officer, curiously enough has not recorded the statements of the two bodyguards who are the police personnel and who were deputed to guard the applicant and whose statements were recorded in the year 2005. Their statements run contrary to the present First Information Report. Strangely enough the investigating officer has not recorded the statements of the Assistant Superintendent of Police, Kalva police Station, so also the Special Executive Magistrate who recorded the statements/dying declarations of Prasad. In response to a query made by the court as to how come the statements of relevant witnesses are not recorded in the present crime, the learned APP 7 has candidly stated that as the investigating officer was apprehensive that their statements would support the case of the accused, their statements are not recorded. 10. In the above factual matrix, the learned counsel for the applicant has submitted that the incident was reported by the Assistant Municipal Commissioner on 29-10-2005 and thereafter, without there being any order in regard to the reinvestigation the present crime has been registered and only the statements of those persons who are supporting the prosecution are recorded. It is contended that the investigation is far from just and fair. The delay of about four years is also fatal. It is then submitted that the applicant is in employment of the Corporation since last 17/18 years as Junior Engineer and has permanent residence in Thane where he is staying with his family and hence, there is no chance of the applicant fleeing from justice. It is also submitted that the appropriate conditions could be imposed so that possibility of tampering or pressurizing the witnesses can be taken care of. 11. According to the learned APP, the applicant if released on bail would pressurize the witnesses. 12. Having regard to the nature and quality of investigation that is carried out in the present First Information Report, prima facie in my view there does not appear to be any justification to continue the detention of the applicant in custody by refusing bail. Without touching the merit of the matter, suffice it to say that the facts and circumstances, do not justify refusal of bail. Hence, in 8 the interest of justice, I proceed to allow the application. In the result, I pass the following order. a) The applicant shall be released on bail on executing a personal bond in the sum of Rs. 25,000/- with one or two sureties in the like amount. b) The applicant shall attend the concerned police station once a week i.e. on every Saturday in between 4.00 to 6.00 p.m. for a period of three months from the date of his release. c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the present case so as to dissuade him from disclosing such facts to the court or to any police officer. d) The application is allowed and disposed of accordingly. (A. P. Deshpande, J.)