1 CR.APL NOS.74/2011, 76/2011, 78/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.74/2011 1. Saheba s/o Gajanan Kale, Age: 25 years, Occu: Labourer, r/o: Tambe Mala, Burudgaon, Taluka and District: Ahmednagar. 2. Girish s/o Japkar Chavan, Age: 40 years, Occu: Private Service, r/o. "Sankalp Colony", Burha Nagar, Ahmednagar, Taluka and District: Ahmednagar. ...APPLICANTS versus 1. Tukaram s/o Kondiba Vahile, Age: 52 years, Occu: Government Service as P.I., r/o Parner Police Quarter, Parner, Taluka: Parner, District:Ahmednagar. (Notice to be served through S.P., A'nagar). 2. The State of Maharashtra, Through the Police Inspector, Bhingar Camp Police Station, Ahmednagar, Taluka and District: Ahmednagar. 3. The Deputy Superintendent of Police, State Crimes Investigation Division, Ahmednagar. ...NON APPLICANTS. ... 2 CR.APL NOS.74/2011, 76/2011, 78/2011 WITH CRIMINAL APPLICATION NO.76 OF 2011 1. Saheba s/o Gajanan Kale, Age: 25 years, Occu: Labourer, r/o Tambe Mala, Burudgaon, Taluka and District: Ahmednagar. 2. Girish s/o Japkar Chavan, Age: 40 years, Occu: Private Service, r/o. "Sankalp Colony" Burha Nagar, Ahmednagar, Taluka and District Ahmednagar. ...APPLICANTS versus 1. Devidas s/o Baburao Sonavane, Age: 54 years, Occu: Service, as P.I., R/o. Bhistbaug Naka, Ahmednagar, Taluka and District: Ahmednagar. (Notice to be served through S.P. A'nagar). 2. Shivaji s/o Baburao Sudrik, Age: 61 years, Occu: Retired A.S.I., r/o. Varad Colony, Bhutkar Wadi, Ahmednagar, Taluka and District: Ahmednagar. 3. Deepak s/o Nanasaheb Haral, Age: 36 years, Occu: Service as P.C., r/o Shahunagar, Kedgaon, Ahmednagar, Taluka and District: Ahmednagar. (Notice to be served through S.P., A'nagar.) 3 CR.APL NOS.74/2011, 76/2011, 78/2011 4. The State of Maharashtra through the Police Inspector, Bhingar Camp Police Station, Ahmednagar, Taluka and District: Ahmednagar. 5. The Deputy Superintendent of Police, State Crimes Investigation Division, Ahmednagar. ...NON APPLICANTS. ... WITH CRIMINAL APPLICATION NO.78 OF 2011 1. Saheba s/o Gajanan Kale, Age: 25 years, Occu: Labourer, r/o Tambe Mala, Burudgaon, Taluka and District Ahmednagar. 2. Girish s/o Japkar Chavan, Age: 40 years, Occu: Private service, r/o "Sankalp Colony", Burha Nagar, Ahmednagar, Taluka and District: Ahmednagar. ...APPLICANTS VERSUS 1. Arun s/o Ramchandra Deokar, Age: 41 years, Occu: Service, as P.S.I., R/o. Mhaswad, Taluka and Dist. Satara. (Notice to be served through S.P., Satara) 2. Balasaheb s/o Shankarrao Ahiwale, Age: 54 years, Occu: Service, as P.C., r/o Police Quarters, Wakad, Pune. (Notice to be served through S.P., Pune) 4 CR.APL NOS.74/2011, 76/2011, 78/2011 3. The State of Maharashtra, Through the Police Inspector, Bhingar Camp Police Station, Ahmednagar, Taluka and District: Ahmednagar. 4. The Deputy Superintendent of Police, State Crimes Investigation Division, Ahmednagar. ...NON APPLICANTS ... (Notices to the Non Applicant Nos. 3 and 4 to be served through the Public Prosecutor, High Court of Bombay, Bench at Aurangabad) ... Mr. Rajendra Deshmukh, Advocate, for the Applicants. Mr. V.H.Dighe, APP for respondent State. Smt. S.S.Jadhav, Adv., h/f Shri V.P.Latange, Adv., for R.No.1 in Criminal Application No.74/2011 and R.Nos. 1 to 3 in Cri.Appl. No.76/2011. Mr. S.R.Borulkar, Adv., h/f Mr V.P.Latange, Adv., for Respondent nos. 1 & 2 in Criminal Application No.78/2011. ... CORAM: K.U.CHANDIWAL, J. DATE: 3-5-2011 *** PER COURT : 1. By these applications, release of the respondents (accused) on bail by the learned 5 CR.APL NOS.74/2011, 76/2011, 78/2011 Additional Sessions Judge, Ahmednagar, is questioned. The facts essential for deciding the applications are : Smt. Sumanbai Kale, belonging to Pardhi community, was a catalyst for reforms in her community and coordinating with Police. She was allegedly, an informer of the Police, hence a regular visitor to the Police Station or the Police Officers. Her contribution in nabbing culprits in several decoities was appreciated and she was felicitated. She had allegedly approached Assistance Cell of Police on the ground of assault by her husband. 2. According to applicants, on 12.5.2007, at around 1 p.m. Tukaram Wahile, Police Inspector, with four Police barged at her house and took her in vehicle. Applicants claimed, she was arrested. While in custody, tortured, humiliated. On 13.5.2007, applicant sought permission to interact with Sumanbai. She informed, she was tortured by the Police. If she was arrested, it was incumbent upon investigator that she should be produced before the competent court for custody, within 24 hours. However, it was not done. On 14.5.2007 she was surreptiously taken to Deepak hospital of Dr. Sidhawaran. She succumbed to the injuries on 6 CR.APL NOS.74/2011, 76/2011, 78/2011 14.5.2007. On 15.7.2007, protest was lodged that Sumanbai was physically and mentally tortured, and it was custodial death. 3. As the grievance of the complainant was not attended to, a detailed report was furnished on 11.8.2007, naming the Police Officers involved in torturing Sumanbai Kale and her custodial death. On 18.5.2007, it was informed to the applicants by Additional Commissioner that two constables primarily found responsible were already suspended. 4. Mr.Deshmukh submits that the theory of Sumanbai consuming poison, as propagated by the Police, tried to be demonstrated through the analysis from three Doctors Board at Mumbai is itself diffused and deflated in the light of Chemical Analyzer's report concerning viscera, hair, nails, this rules out theory of poisoning ( Page Nos. 39 - 48 of the application). 5. The C.A. report indeed frustrate, Police claim that Sumanbai was gasping, frothing with cold extremities and death could have been due to consumption of poisonous substance. The apparels of Smt.Sumanbai Kale were stained with human blood, however, blood group is not detected. The report of Dr.Ghusale and his 7 CR.APL NOS.74/2011, 76/2011, 78/2011 Committee illustrated that out of 12, 8 injuries were prior to she was admitted to Deepak Hospital on 14.5.2007 at 16.45 hours. 6. The respondent Police Officers, after registration of crime, moved learned Sessions Judge, this Court and the Hon'ble Apex Court for pre-arrest bail. At all the places, they lost. Inspite of this, C.I.D., did not discharge the obligation, to arrest the culprits, hence this Court was again moved. Their bail application was entertained immediately by the learned Additional Sessions Judge, CID did not press for custody and latently nodded for bail and respondents were released on 14.12.2010, within a day of so called surrender. 7. Learned Counsel submits, the order of the learned Additional Sessions Judge was recorded in most hasty manner. The learned Judge should have considered that from Feb.,2010, the accused/respondent absconded inspite of a statement to surrender was made before the Hon'ble Apex Court, dt.15th Feb.,2010 ( Page Nos. 165,166). The learned Judge has recorded in paragraph nos. 9 and 10 of his order that the accused/respondents have cooperated with the 8 CR.APL NOS.74/2011, 76/2011, 78/2011 investigator and based on a statement made by the investigator, further custody of the respondent Police Officers not required, he did not find it essential and imperative to extend custody. This is hostile to the record. 8. Police recorded FIR vide Crime No. 78/2007 on 16.5.2007 for an offense punishable under Section 309 of IPC. The applicants were all throughout urging that Sumanbai Kale was called at the Police Office of Local Crime Branch under pretext of inquiry and she was brutally assaulted and suffered injuries and, on 14.5.2007, instead of taking her to Government hospital, she was deliberately shifted to Deepak Hospital where she died due to injuries sustained by assault of Police officers. It was alleged, shifting of Suman to private hospital was an attempt to shield the Police Officers to create evidence of suicidal death. The applicants reiterate that it was a custodial death of Sumanbai. Saheba s/o Gajanan Kale did not leave any hope and prosecuted the matter vigorously inspite of apathy, reluctance, casualness shown by the Police Officers at all possible levels. It was ultimately, Writ Petition No.363/2008 before this Court seeking directions to the Police Officer to take cognizance and to carry the investigation in the 9 CR.APL NOS.74/2011, 76/2011, 78/2011 matter through independent agency, an inquiry was contemplated, carried by Sub Divisional Officer who furnished his report. This gave rise to registration of Crime No.93/2009 with Bhingar Police Station, Ahmednagar, in which present respondents are arrayed as accused. 9. Even the learned A.P.P. while opposing pre-arrest bail application of the Police Officers ( Criminal Application No.3726/2009) was specific that it was a custodial death and not caused due to consumption of poison. 10. Injury marks were seen on the person of Sumanbai before she was admitted in Deepak Hospital. The post mortem notes, particularly, column no.17, demonstrated total 12 surface injuries, subtracting four injuries to be during treatment, remaining injuries were noted as ante mortem. The Committee of medical experts has also confirmed of Sumanbai suffering 12 injuries. The age of the injuries was opined by medical experts as 48 hours. The Medical Board has also opined that death was due to multiple injuries. However, it could not even be instantaneous in the normal course. Survey of above aspects primarily is indicative, to repeat, that theory of suicidal death is leaning negation and proceeding to homicidal. The voluminous record, 10 CR.APL NOS.74/2011, 76/2011, 78/2011 inquiry report placed for perusal indicts the Respondent Police Officials. The primary indications are, inspite of Sumanbai being with the Police Officers, she was illegally detained from 12.5.2007 till her death on 14.5.2007, ultimately she was taken to Deepak Hospital. 11. There cannot be a quarrel on the legal proposition that arrest should be effected only in cases where the offense is heinous and likelihood of the accused to remain present at the trial is dismal. Liberty of a citizen should not be curtailed and deprived if such curtailment is likely to cause humiliation to such citizen in the eyes of public. 12. Learned Counsel for the respective respondents submitted that under the direction of superior authorities a squad for detecting several Decoity cases in the area of Ahmednagar, Shrirampur, Sholapur, Pune was formed and the respondents were members of such squad. Smt. Jadhav has informed that the meticulous work carried by the officials has been appreciated by superiors by presenting gallantry awards to Shri D.B.Sonawane, respondent, A.R.Deokar, M.T.Jadhav, M.D.Sudrik by order dt.28.2.2008 and also constable S.C.Pawar, N.S.Shaikh, R.S.Arole and these officers were also felicitated. 11 CR.APL NOS.74/2011, 76/2011, 78/2011 13. I am alive to the fact that the State's policy is to afford adequate protection and encourage them while doing life risking adventures. This protection has certain limits, the alleged act should be reasonably connected with discharge of official duties and not a cloak for doing illegalities under guise of unbriddled power. It is informed, Police Officers wanted to know, where approximately 1 kg of gold has passed. 14. Statement of Sumanbai's son Saheba Gajanan Kale, her husband Gajanan Haribhau Kale, her daughter Koyana Deepak Bhosale Gavari w/o Saheba Kale, is available. This is also indicated primarily in the statement of Machindra Lahanu Zine, Driver, and shown even in the log book entries. Assault to said Sumanbai Kale was also by respondent Devidas Baburao Sonawane, another inspector in the afore mentioned period, indicated by the above referred witnesses and also Police staff, supported by statement of Smt. Sonali Prakash Nikam, Gade and others. Similar role is pointed to Shivaji Baburao Sudrik, Deepak Nanasaheb Haral, Sunil Sitaram Chavan. The injuries were due to assault by wire, hard, blunt instrument like Lathi or stick. She had suffered head injury also. 12 CR.APL NOS.74/2011, 76/2011, 78/2011 15. Mr.Deshmukh urged that when Suman Kale with goldsmith was taken to Government Rest House at Jamkhed on 13.5.2007, between 1800 hours to 20 hours, Police Officer Arun Ramchandra Deokar, his staff Balasaheb Ahilwale, brutally assaulted her. This is not initially substantiated by the jeweller. The practice of taking the suspect at Government Guest House, detaining her, particularly being a female by male police officers at night hours, is against the norms decency and rules. This is an humiliation to a female even if she was a suspect of crime. There was no licence to the Police Officers to intimidate her in the manner it was done. With all said and done, the evidence primarily does not illustrate that at Jamkhed Government Guest House, Sumanbai Kale was assaulted. 16. Mr.Borulkar, learned Counsel submitted that the Police Officer had a very limited role in making inquiry. Custodial interrogation is not required nor Police would be making any inquiry with their colleagues or the accused Police Officers. Sumanbai did not inform Jeweller Vilas Deolalikar of Police atrocities in Police custody Mr.Borulkar also adds, if the act of the Police Officer was bona fide then, the respondent officers need protection as the 13 CR.APL NOS.74/2011, 76/2011, 78/2011 allegations are over stretched and they lost truthfulness. 17. Learned Counsel for the respective respondents insisted that the parameters for cancellation of bail already granted and rejection of bail have different basis and needs to be considered on different aspects. Very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted. 18. In the matter of Dolat Ram Vs. State of Haryana ( 1995(1) SCC 349) the Hon'ble Lordships have referred in paragraph no.4 as under: "4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner 14 CR.APL NOS.74/2011, 76/2011, 78/2011 without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted." 19. In Aslam Babalal Desai Vs. State of Maharashtra ( AIR 1993 SC 1), in paragraph no.11, Their Lordships have referred to the grounds on which bail can be cancelled, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, etc. The Apex Court has also clarified that grounds are illustrative and not exhaustive. 20. Mere assertion of alleged threat to the witnesses should not be utilized as a ground for cancellation of bail routinely ( 2004(2) SCC 362 15 CR.APL NOS.74/2011, 76/2011, 78/2011 - Mehbood Dawood Shaikh Vs. State of Maharashtra). In Rizwan Akbar Hussain Syyed Vs. Mehmood Hussain and anr ( 2007 ALL MR ( Cri) 1764( S.C.) the Hon'ble Lordships have observed in paragraph No.8 as under: "8. Learned Single Judge seems to have taken exception for non-appearance of the appellant at the time of hearing of the application for cancellation of bail. The reason for non- appearance has been explained by the appellant. It is true that in the order granting bail, there was no specific stipulation of any condition. In fact, in the petition for cancellation of bail, the respondent No. 1 has stated that while granting bail, no conditions were imposed. In that sense, the appellant is right that the High Court has erroneously observed that the conditions for grant of bail were violated. There was no specific condition imposed and, that was one of the grievances of the respondent No.1. But learned counsel for the respondents rightly submitted that even if no condition is specifically stipulated, the accused, while on bail, is not supposed to tamper with evidence. There is no specific observation in this regard in the impugned order. Cancellation of bail should not be done in a routine manner. Where it appears to the superior Court that the Court granting bail acted on irrelevant materials or there was non-application of mind or where Court does not take note of any statutory bar to grant of bail, order for cancellation of bail can be made. These circumstances are illustrative and not exhaustive. The 16 CR.APL NOS.74/2011, 76/2011, 78/2011 Court considering the application for cancellation of bail has to take note of all relevant aspects." 21. It is, therefore, clear that when an accused to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with the evidence or the witnesses or threatens the witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. The learned Judge was swayed by investigator's apathy to insist for custody. At a crucial stage, the accused/respondents succeeded in bail and thereby frustrated direction of investigation. Primarily, homicidal death is coloured at suicide by poison. This change of course could have averted had the fetters continued for a reasonable time. The investigation at initial stage was apparently misdirected and was rather calculatedly showing that Sumanbai Kale has allegedly attempted to commit suicide. The manner in which the medical treatment was given to her, raises suspicion and eye brows. The three investigations and the report of Sub Divisional Magistrate reverberate needle of suspicion against the respondents/ accused. 17 CR.APL NOS.74/2011, 76/2011, 78/2011 22. The survey of above details illustrate that the order of learned Additional Sessions Judge dt.14.12.2010, granting regular bail to respondent Tukaram Wahile, Devidas Baburao Sonawane, Shivaji B.Sudrik, Deepak Nanasaheb Haral in Criminal Miscellaneous Application No. 1551/2010 was not based on the available material. The release of these accused/ respondents by simply one day's custody and no opposition from the investigator speaks volumes. 23. The learned Sessions Judge should have considered that from Feb.,2010, till 13.12.2010, the accused/respondents were not arrested only because they are influential Police personalities. The surrender for one day is apparently an eye wash, which was noticeable due to action contemplated in Criminal Writ Petition No.1020/2010. The learned Judge should have waited to defer the hearing on application, till hearing of Criminal Writ Petition No.1020/2010 on 22.12.2010. 24. The Applications Nos.74/2011 and 76/2011, seeking cancellation of bail of the respondents therein is allowed. The Application No.78/2011, against Respondent Nos.1 Arun s/o Ramchandra Deokar, No.2 Balasaheb s/o Shankarrao Ahiwale is rejected. The respondents Police 18 CR.APL NOS.74/2011, 76/2011, 78/2011 Officers (Accused) in Application Nos. 74/2011 and 76/2011 to surrender before the investigator at Ahmednagar on 16th May, 2011, during office hours. (K.U.CHANDIWAL) JUDGE agp74-11craplgr