1 crap4042.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 4042 OF 2011 Shaikh Jakirhusain Imam, age 39 years,occ. Service, r/o “Reshma Manzil”, Near Ajantha Lodge, Behind Satara Masjid, Bhusawal, Tq. Bhusawal, District Jalgaon ...Applicant VERSUS The State of Maharashtra, through Investigation Officer, Bazar Peth Police Station at Bhusawal, District Jalgaon ...Respondent ..... Shri V.J.Dixit, Senior Advocate along with Shri G.V.Wani, advocate for applicant Shri D.R.Korde, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 19th October, 2011 PER COURT : 1 Perused the investigation papers which were made available for inspection purpose, as well as heard respective learned counsel for the parties finally. 2 crap4042.11 2 This is an application preferred by applicant for anticipatory bail, apprehending his arrest under CR No. 210 of 2011, registered at Bazar Peth police station, Bhusawal, District Jalgaon, for the offences punishable under Sections 385, 387, 323, 504, 506 r/w 34 of the Indian Penal Code. 3 It appears that the crime has been registered on the basis of complaint lodged by the complainant, namely Dattu Ramu Patil on 3.8.2011. It is alleged in the said complaint that he is the owner of ancestral land bearing Gat No. 6, admeasuring 86 gunthas, within the municipal area of Bhusawal. It is also recited in the said complaint that he had submitted the proposal in the Collector office for development permission of the said land, since the Collector office had given sanction for residential purpose for the said land. Thereafter, he submitted the proposal with the Municipal Corporation, Bhusawal to convert the said land for non-agricultural purpose on 17.9.2008. 4 Accordingly, the complainant with his son Hintendra accompanied by known person Lalit Nehete went to Bhusawal 3 crap4042.11 Municipal Corporation and met the applicant Jakirhussain, who was working there as Engineer and made inquiry about the progress of grant of N.A. permission to the complainant’s land. It is also alleged that thereupon the applicant stated to him that his file was there, but asked the complainant to meet the co- accused Santosh Chhabildas Choudhari, who is Ex-M.L.A. and further stated that unless the complainant meets him, his work would not be accomplished. It is further alleged in the said complaint that the said co-accused Santosh Choudhari has created terror at Bhusawal and operates through gundas. Hence, the complainant did not meet the said co-accused said Santosh Choudhari and he was even aware about his terrorizing nature. 5 It is further alleged that on the insistence of the complainant’s son, he subsequently met the co-accused Santosh Choudhari, who had demanded him ransom of Rs. 21,00,000/- or plot admeasuring 6,000 sq. ft. in lieu of the said amount. It is also alleged that applicant Jakirhussain had sent the file of first informant to the co-accused Santosh Choudhari. However, since the first informant refused to pay him money or plot, the co-accused 4 crap4042.11 threw his file in the dust bin. It is further alleged that after some days, when first informant went to the Municipal Corporation office to make the inquiry, he was driven out of the said office, putting him under the fear of death by two unknown persons at the instance of applicant Jakirhussain and co-accused Santosh Choudhari. Therefore, the complainant filed the complaint with Bazar Peth police station, Bhusawal on 3.8.2011, and on the basis of the said report, offence was registered against the applicant and other co-accused persons. 6 On the afore said background, learned Senior Counsel for the applicant submitted that there are no allegations regarding extortion or collusion against the applicant with the other co-accused Santosh Choudhari. Even there are no allegations against the applicant in respect of any threats or meeting of minds with the co-accused Santosh Choudhari. It is also canvassed that although the complainant preferred the application for N.A. permission on 17.9.2008, present complaint came to be filed after substantial delay of almost three years i.e. 3.8.2011. It is also submitted that all the documents are in the custody of Municipal Corporation and none of the documents are 5 crap4042.11 in possession of the applicant herein, and hence, it is canvassed that there is no necessity of custodial interrogation of the applicant, and therefore, learned Senior counsel for the applicant urged that pre-arrest bail, as prayed for, be granted to the applicant. 7 Learned A.P.P. and the learned counsel for the complainant countered the said argument and opposed the application vehemently and submitted that the present applicant is the master mind of the episode, and earlier C.R. No. 224 of 2011 was filed against him and the anticipatory bail application preferred therein by the applicant has been rejected by this court, but still the applicant has not surrendered in the said crime. It is also canvassed by the learned A.P.P. that supplementary statement of Dattu Ramu Patil was recorded on 7.8.2011, wherein he has clarified that he submitted the application with Bhusawal Municipal Corporation for development permission and not for N.A. and the averment made in the complaint in that respect is due to inadvertence. It is also argued by learned A.P.P. that the contents of the complaint disclose the involvement of the present applicant in 6 crap4042.11 the alleged crime and the statements of son of the complainant, namely Mahendra Dattu Patil, Umesh Atmaram Dhake, Hintendra Dattu Patil, Jagdish Ananda Patil and Kishor Ananda Patil disclose the complicity of the applicant in the crime. It is also pointed out by learned A.P.P. that the co-accused Santosh Choudhari had filed Writ Petition No. 702 of 2011 for quashing the first information report in the present matter, but same was withdrawn by him before this court. 8 Accordingly, it is submitted that the applicant herein, in collusion with the co-accused Santosh Choudhari, demanded ransom of Rs. 21,00,000/- or a plot admeasuring 6,000 sq. ft. in lieu of the said amount for granting development permission to the complainant, as applied by him. In the said context, learned A.P.P. relied upon the following judicial pronouncements : - Adri Dharan Das vs State of West Bengal [2005 AIR (SC) 1057] “ ................ .................. 7 crap4042.11 19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his dis-appearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well- defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. ................. .................. “ 8 crap4042.11 Murleedharan vs State of Kerala [2001 AIR (SC) 1699] “ .................. ................ 7. .................... ................. Custodial interrogation of such accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the persons which ultimately led to the capital tragedy. We express our reprobation at the supercilious manner in which the Sessions Judge decided to think that “no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the co-accused”. Such a wayward thinking emanating from a Sessions Judge deserves judicial condemnation. No court can afford to presume that the investigating agency would fail to trace out more materials to prove the accusation against an accused. We are at a loss to understand what would have prompted the Sessions Judge to conclude, at this early stage, that the investigating agency would not be able to collect any material to connect the appellant with the crime. The order of the Sessions Judge, blessing the appellant with a pre-arrest bail order, would have remained as a 9 crap4042.11 bugbear of how the discretion conferred on Sessions Judges under Section 438 of the Cr.P.C. would have been misused. It is heartening that the high Court of Kerala did not allow such an order to remain in force for long. By the impugned order passed by the learned Single Judge of High Court an unwholesome benefit wangled by the appellant was rightly reversed. ................ ............... “ State through Central Bureau of Investigation vs Anil Sharma [1977 AIR (SC) 3806] “ ................ ..................... 6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation orientated than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows hat he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a 10 crap4042.11 mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ............... .................... “ Enforcement Officer, Ted, Bombay vs Bher Chand Tikaji Bora [1999 AIR SCW 4951] “ .............. ................... 2. The Enforcement Directorate is an appeal before us against the order of the learned Single Judge of the Bombay High Court granting anticipatory bail to the respondent invoking jurisdiction under Section 438 of CRPC. From a bare reading of the impugned order it appears that the learned Single Judge is of the view that because the respondent was available for interrogation and the prosecution did not avail of that opportunity there should not be any justification for not granting the 11 crap4042.11 anticipatory bail sought for. We have no hesitation to hold that the learned Judge has misread the decision of this Court referred to in the impugned order. The criteria and questions to be considered for exercising power under Section 438 of CrPC has been recently dealt with in Dukhishyan Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajorial. The white-collar criminal like the respondent against whom the allegation is that he has violated the provisions of the Foreign Exchange Regulation Act is a menace to the society and therefore unless he alleges and establishes in the materials that he is being unnecessarily harassed by the investigating agency, the Court would not be justified in invoking jurisdiction under Section 438 CrPC and ranting anticipatory bail. In the facts and circumstances of the present case, in our considered opinion, the High Court was wholly unjustified in invoking jurisdiction under Section 438 and granting anticipatory bail to the respondent. We, therefore, set aside the impugned order of the High Court. The appeal is accordingly allowed. ............... ................ “ 9 Accordingly, learned A.P.P. urged that present application bears no substance and same is devoid of any merits and same be dismissed. 12 crap4042.11 10 Considering the rival submissions advanced by the learned counsel for the parties and also after considering the judicial pronouncements of the Hon’ble Supreme Court, admittedly the applicant was working as Engineer in Bhusawal Municipal Corporation and the file of the complainant was submitted to him for grant of development permission. In the said context, allegations are against the applicant that he asked the first informant to meet co-accused Santosh Choudhari, Ex- M.L.A., who was having terror in Bhusawal and who stated to the complainant that unless he meets the said co-accused Santosh Choudhari, his work would not be accomplished. After meeting the said co-accused Santosh Choudhari, it is alleged that he demanded ransom of Rs.21,00,000/- from the complainant and when the complainant expressed his inability to pay that much amount, the co-accused asked the complainant to assign plot admeasuring 6,000 sq. ft. in his name to accomplish the work of development permission of the complainant, as well as it appears that the first informant was put under the fear of death for the said ransom. 11 Moreover, it also appears that when the complainant 13 crap4042.11 went to the applicant to make the inquiry regarding progress in the grant of development permission, the applicant went to meet Santosh Choudhari and thereafter within short time, gundas arrived there and removed the complainant out of the office of Municipal Corporation forcibly giving threats to kill him, if he again enters into the said office, and the said averments in the complaint are of serious nature. 12 Moreover, the statements of the complainant’s son, namely Mahendra Dattu Patil, Umesh Atmaram Dhake, Hintendra Dattu Patil, Jagdish Ananda Patil and Kishor Ananda Patil, as well as statement of Lalit Nehete are in tune with the contents of the complaint and disclose the complicity of the applicant in the crime. Moreover, the fact cannot be ignored that earlier C.R. No. 224 of 2011 was registered at Zillah Peth police station, Jalgaon against the applicant and the anticipatory bail application preferred by the applicant therein was rejected, but still the applicant has not surrendered in the said crime. 13 In the circumstances, having the comprehensive view of the matter and considering the accusations made against the 14 crap4042.11 applicant and nature and gravity thereof, the custodial interrogation of the applicant is imperative to unearth the conspiracy between the applicant and the co-accused Santosh Choudhari, as well as to make the progress in the investigation in proper perspective, and hence, present application deserves to be rejected. 14 In the result, present application lacks merits, and therefore, same stands dismissed and is disposed of finally. (SHRIHARI P. DAVARE), JUDGE. dbm/crap4042.11