1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 3390 OF 2009 Anil Mangilalji Jain .vs. State of Maharashtra _________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Court's or Judge's orders. Registrars orders. CORAM : J.N. PATEL, J. DATED : OCTOBER 23, 2009. CRIMINAL APPLICATION FOR EXEMPTION : Heard Mr. S.D. Dewani, learned Counsel for the applicant and Mr. D.B. Patel, learned A.P.P. for the respondent. Exemption granted. CRIMINAL APPLICATION NO. 3390 OF 2009 : Heard Mr. S.D. Dewani, learned Counsel for the applicant and Mr. D.B. Patel, learned A.P.P. for the respondent. Mr. K.E. Jadhav, the D.C.P. (Crimes), E.O.W. in Commissionerate of Police, Nagpur under whose supervision investigation is being conducted and Mr. D.M. Wadaskar, Police Sub-Inspector, investigating officer are personally present. The applicant has moved this Court seeking pre- arrest bail as he apprehends that he may be arrested in Crime No. 376/08 registered with Police Station Sitabuldi, Nagpur for offences punishable under Sections 420, 467, 2 468 & 471 read with Section 34 of the Indian Penal Code on the complaint lodged by one Shri Prakash Ikhankar, of Gokulpeth, Nagpur. The said investigation was handed over to the Economic Offences Wing of the Crime Branch, Police Commissionerate, Nagpur and is being investigated. It is the case of the respondent State that after the F.I.R. came to be lodged by the complainant Prakash Ikhankar, the police during the course of investigation found that the applicant and co-accused Rajesh have withdrawn huge amount from the account of partnership firm of which the complainant is a partner along with others and that they have shown to have entered into 15 to 16 transactions with agriculturists of village Mendhepathar to purchase 85 acres land and that they have entered into deal with the land owners at the rate of Rs.18,000/- to Rs.20,000/- per acre. In so far as the complicity of the applicant is concerned, it is revealed in the investigation that he agreed to purchase the entire land at the rate of Rs.25,000/- per acre as partner of “Map Infrastructure” and entered into an agreement to purchase the same land at the rate of Rs. 60,000/- per acre. This was in order to cause wrongful loss to the firm and wrongful gain to themselves and that the applicant along with other co-accused got executed sale- deed before the Sub-Registrar in respect of agricultural land belonging to Upasrao Hanwante, Prabhakar Gundewar, Rama Meshram, Leelabai Nikose, Wamanrao Nikose, Mohan Wasnik, Dhanpal Waghmare and Bhagwan Gaikwad. The investigation further revealed that fictitious persons were presented before the Sub-Registrar as the owners of the agricultural land and sale-deeds came to be executed. There is also a transaction entered between the applicant and one Milind Mahajan in the sum of Rs.2,50,00,000/- 3 which was also after withdrawing the same from accounts of the partnership firm. It is also suspected to be bogus. The applicant was called for interrogation. The applicant, therefore, moved an application before the Court of Sessions, i.e. Misc. Criminal Application No. 2354/08 which came to be rejected by the learned Ad- hoc District Judge-3 & Additional Sessions Judge, Nagpur vide order dated 23.8.2008. It may also be noted that as the complainant found police to be lacking in investigating the matter, moved this High Court by filing Writ Petition seeking a writ of mandamus against the respondent State to expedite investigation and take necessary steps in accordance with law. The Division Bench of this Court in Criminal Writ Petition No. 446/09 filed by M/s. Map Infrastructure, i.e. the partnership firm of which the applicant suspect is also one of the partners, passed an order on 1.10.2009 wherein it prima facie found that it is the duty of the prosecuting agency to conduct investigation in effective manner and catch hold of the culprits. It also observed that the accused Anil Jain is not a hard core criminal and as per the contention of the Counsel for the petitioner he is a businessman and, therefore, if serious and effective steps are taken, we do not see any reason why the arrest cannot be effected and granted two weeks’ time to the prosecuting agency to take further serious efforts and report to Court after two weeks in this regard. It is also the case of the investigating agency that considering the complicity of the applicant suspect, his custodial interrogation is necessary and since the time he moved the Court of Sessions for grant of pre-arrest bail and which came to be rejected, he is not available to the 4 investigating agency. Mr. S.D. Dewani, learned Counsel for the applicant, submitted that the applicant is innocent and he has nothing to do with the said transaction. There is an inter-se dispute between partners who are trying to unnecessarily implicate him and that he has cooperated with the police by attending the office of the Economic Offences Wing as and when called and that considering the nature of the offences registered and the allegations made against the applicant, his custodial interrogation is not required and, therefore, he deserves to be granted pre- arrest bail. It is contended by Mr. Dewani that it is not an absolute rule that a person needs to be arrested if any cognizable offence is registered against him unless his custody is required for the purpose of investigation and in the present case, the prosecution has not been able to make out any case for arrest of the applicant and, therefore, he deserves to be released on bail in the event of his arrest and that he will extend all possible cooperation in the matter of investigation. Mr. D.B. Patel, learned A.P.P. for the respondent, submitted that considering the progress made in the investigation and the complicity of the applicant, unless he is taken in custody and interrogated, the investigating agency would not be able to collect sufficient material as the transactions are exclusively within the personal knowledge of the applicant and but for custodial interrogation, the investigation will not make any further progress. Mr. D.B. Patel, learned A.P.P. for the respondent, submits that the application deserves to be rejected. In order to satisfy myself, I have gone through the case diary, the order passed by the learned Additional 5 Sessions Judge and I have perused the record and material placed before the Court by the parties, i.e. the applicant as well as the learned A.P.P. At this stage, the learned Counsel for the applicant informs the Court that the applicant has made a second application before the Court of Sessions for grant of pre-arrest bail and that has also been rejected but the copy of order is not available with him due to Diwali Vacation. Prima facie, this Court finds that the offences have been committed in a well-designed pre-planned manner. The victims are not only the partners of the firm but innocent farmers who never sold their lands and are ignorant about it. If the police does not investigate such offences with the required diligence, the victims particularly the poor agriculturists will lose their lands and these hapless victims can hardly have access to justice against persons who have sufficient resources to influence the investigation. Probably this led the complainant who is one of the partners of the firm to approach the High Court by filing a writ of mandamus. The Court cannot blame the investigating agency for shoddy investigation if it interferes with the investigation. It is a well-settled law that the Courts are not supposed to obstruct investigation of crime by interfering with the investigation of the case but rather facilitate investigation and if it comes to the notice of the Court that the investigating agency is failing to do their duty under the law, it is bound to direct them to conduct proper investigation. Therefore, this Court is of the view that the investigating agency has sufficient material with them to justify the arrest of the applicant for the purposes of custodial interrogation and the amount involved in the transaction runs in crores. Therefore, it will not be proper 6 for this Court to intercept the investigation by granting pre- arrest bail to the applicant. Therefore, this Court rejects the application for pre-arrest bail. Mr. D.B. Patel, learned A.P.P. for the respondent, assures the Court that the investigating agency would take all necessary steps as provided under the law to complete the investigation. The case diary is returned to the Investigating Officer. Copy of the order authenticated by P.S. may be supplied to parties, on payment of usual copying charges, for the authorities to act upon. JUDGE. J.