1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3972 OF 2009 1. Deepak S/o.Subhash Retewar @ Telang, Age-20 years, Occu-Labour, R/o.Barshi-Naka, Tq. And Dist. Beed 2. Mahesh S/o.Kachru Chavan, Age-19 years, Occu-Student, R/o.Laxmannagar, Beed, Tq. And Dist. Beed. 3. Satish S/o.Babanrao Kshirsagar, Age-19 years, Occu-Labour, R/o. As above APPLICANTS VERSUS The State of Maharashtra RESPONDENT Mrs.S.S.Jadhav, learned counsel for applicants. Mr.B.J.Sonwane, learned APP for respondent/State. (CORAM : A.V.POTDAR, J.) DATE : 27/11/2009 PER COURT : 1. By the present application, the applicants have prayed for their release on bail in connection with CR No.110/2009, registered in Shivaji Nagar Police Station of Dist. Beed in connection with an offence punishable u/s. 363, 364-A, r/w. 34 of IPC. 2 2. As now the investigation in this case is completed and charge sheet is filed in the Court of J.M.F.C. Beed on 26/09/2009 wherein these applicants accused were arrested in connection with this offence on 02/07/2009, and are still in custody. 3. Heard learned counsel appearing for the applicants followed by the submissions of learned APP appearing for State. Also perused the papers of investigation till carried out as the investigation in this case is over and charge sheet is already filed. 4. It appears from the papers of investigation that a complaint of missing was lodged on 01/07/2009 by one Dr.Ramchandra Giri, the father of the alleged abducted boy Umesh in Shivaji Nagar Police Station of Dist. Beed around 3.00 in the noon. It is alleged in the said complaint that as usual the son of the complainant had gone to school which school was over, but he was not returned back and his friends informed that Umesh was abducted by 3 persons while he was returning to the residence on his scooty and was taken on one Splendor Bike alongwith the scooty of the said Umesh. Papers of investigation further discloses that on next day afternoon i.e. on 02/07/2009, the said Umesh returned back to his parents i.e. applicant. 5. As to what happened during the said period, statement of this Umesh was recorded by the police. Apart from the facts which were disclosed in the said statement, in his entire statement, he had not at 3 all mentioned that either of the applicants have put him under threat of killing or he was put under the fear of killing by these applicants for any ransom as such. On clear perusal of his entire statement, it also do not whisper that in his presence either of the applicant gave call to his parents demanding the ransom. It appears from his statement that when applicant no.2 was bringing him back to Beed, on his cell phone, he gave call to his mother and his mother Umadevi was approaching to them in their vehicle for their search. It appears that the statement of this Umadevi was also recorded during the course of investigation, wherein she has disclosed the fact that from some unknown persons, she has received the call on her cell phone demanding 2 crores ransom to release Umesh, and this demand of ransom is the germane of section 364-A of IPC in this application. 6. By drawing my attention towards the facts disclosed in the complaint, the facts disclosed from the statement of the abducted Umesh and his mother Umadevi, it is tried to urge across the bar that from the disclosure of the facts from the statement of these 3 persons recorded during the investigation, no offence is made out attributing the role played by these applicants u/s. 363, 364-A, r/w. 34 of IPC. Apart from it, considering the age of these 3 applicants and particularly the applicant no.1 is under constant medical treatment, applicant no.2 who is a student and considering the poor financial condition of applicant no.3, they be released on bail as the investigation is over and there are no chances that these applicants may tamper with the prosecution witnesses. 4 7. The application is vehemently opposed by prosecution on the ground that the statement of mother of the allegedly abducted boy clearly establish the fact of ransom. 8. Observations of this Court in para no.11 in the matter of Manoj Lohar versus State of Maharashtra, in respect of application u/s. 364-A of IPC read as follows : Before I embark upon consideration analysis of the material available, it would be useful to mention here that Section 364-A was introduced by the Parliament on the Statute book in view of the incidents of kidnapping by the terrorists for ransom or by anti social elements so as to create panic among the people. The objects of the amendment as enunciated in the Amendment Act, 1993 (Act 42 of 1993) can be gathered from the following paragraph used while introducing such amendment. “Kidnappings by terrorists for ransom, for creating panic amongst the people and for securing release of arrested associates and cadres have assumed serious dimensions. The existing provisions of law have proved to be inadequate as deterrence. The Law Commission in its 42nd report has also recommended a specific provision to deal with this menace. It was necessary to amend the Indian Penal Code to provide for deterrent punishment to persons 5 committing such acts and to make consequential amendments to the Code of Criminal Procedure, 1973.” (Emphasize supplied as it is reported judgment in 2009 All M R (Cri.) 2887. 9. Considering these submissions across the bar, urged on behalf of applicants as well as on behalf of prosecution by learned APP, whether Section 364-A of IPC will apply or not, it clearly rests on the statement of the abducted boy Umesh which was recorded during the course of investigation. As this is not a stage whether that statement to be accepted or to be discarded but the fact remains that this statement is totally silent on the point that during the period of 3.00 p.m. before noon on 01/07/20009 till he was sent back to his parents, there are no allegations in his statement that he was put under fear or threat of killing at any point of time during the period he was in custody of these applicants. The fact further remain from his statement that in his presence it nowhere reflects that at any point of time, call was given to his parents for demanding ransom. The analysis of the statement of Umadevi discloses about the demand received on her cell phone. According to Umadevi, she has given cell phone number from which she had received the call but in her statement it do not find place. Now in these days of advanced electronic technology, when the call is received on the cell phone, with the assistance of service provider cell phone company, the time of the call, when the call was received, when the call was sent, this information can be easily collected as well as from the service 6 provider cell phone company, the information also can be collected that from which place, at what particular time, call was given from the simcard issued by that service provider cell phone company. Unfortunately for the best reasons known to the Investigation Officer, no such information was admitted to be collected before filing of the charge sheet and in absence of it, it is very hard to digest and accept that at the particular time, from particular place, from particular cell number, ransom was demanded as alleged by the Umadevi. In view of this lacuna, it is very difficult to understand that section 364-A of IPC will attract in the present case, and if it is so, considering the remaining part of investigation, which is complete, a case made out to enlarge the applicants on bail. In the premise, following is the order : O R D E R 1. Application is allowed. 2. All the applicants be released on bail, on furnishing surety in the sum of Rs.15,000/- each and on executing the PR bond in the like amount. 3. Application stands disposed of in terms of above order. (A.V.POTDAR, J.) khs/NOV 2009/cri.appl.3972-09