( 1 ) Cri.Appln4800-4974-10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4800 OF 2010 Deepak s/o Rajaram Mehetre, R/o Near Mahatma Gandhi Vidya Mandir, Salsinge Road, Yashwantnagar, At and Po. Vita, Tq. Khanapur, District Sangli. APPLICANT VERSUS The State of Maharashtra & another RESPONDENTS .... Mr. S.K. Kulkarni, advocate holding for Mr. C.R. Deshpande, advocate for the applicant. Mr. D.V. Tele, APP for the respondents. .... WITH CRIMINAL APPLICATION NO. 4974 OF 2010 Prakash Sakharam Mahajan, R/o Police Quarters, Dondaicha, Taluka & District Dhule. APPLICANT VERSUS The State of Maharashtra RESPONDENT .... Mr. Shirish Gupte, Senior Counsel, instructed by Mr. Joydeep Chatterji, advocate for the applicant. Mr. D.V. Tele, APP for the respondent/State, assisted by Mr. P.S. Paranjape, advocate for the complainant. .... ( 2 ) Cri.Appln4800-4974-10 [CORAM : V.R. KINGAONKAR, J.] [DATE : 23rd December, 2010] PER COURT : 1. These are applications for anticipatory bail filed under section 438 of the Criminal Procedure Code. 2. Both the applicants apprehend their arrests in connection with Crime No. 138/2010, registered at Dondaicha Police Station for the offence punishable under section 302 read with section 34 of the I.P. Code. 3. The applicants are probationary P.S.I. and A.P.I., respectively, who were attached to Dondaicha Police Station, at the relevant time when the alleged incident is said to have occurred. 4. The alleged incident seems to have occurred during the night of 26th October, 2010 and in succession of three (3) different stages. There is no dispute about the fact that deceased Yogesh Dhangar was abusing one Shailesh Sonar in the Azad Chowk (square) at Dondaicha in the odd hours of the night ( 3 ) Cri.Appln4800-4974-10 and, therefore, some part of the incident occurred at that place. Said Yogesh was abusing Shailesh Sonar and his brother. It appears that Yogesh was heavily drunk and was accusing Shailesh Sonar and his brother of beating him. Since deceased Yogesh was creating scene in the public place, he was picked up by deputing a police jeep vehicle and was brought to the Police Station. Though the police officials attempted to silence said Yogesh Dhangar, while he was in the lockup, yet, he was not at all controllable. He had become unruly. On basis of complaint lodged by Shailesh Sonar, applicant API Shri Mahajan sent Yogesh Dhangar to the Rural Hospital for medical examination in as much as the latter was saying that he was assaulted by said Shailesh Sonar and his brother. The Medical Officer noticed that there were no injuries on his person though Yogesh Dhangar was in a highly inebriated condition. In the Rural Hospital, applicant Shri Deepak Mehetre had accompanied said Yogesh Dhangar alongwith the other police constables. After a short-while, the staff members of the Rural Hospital noticed that Yogesh Dhangar was beaten up in the corridor or outside of the Rural Hospital and thereafter, he had fallen down. He did not rise alive thereafter. The Medical Officer found that Yogesh Dhangar was no more. ( 4 ) Cri.Appln4800-4974-10 5. The FIR was filed by father of deceased Yogesh Dhangar on basis of the information which he had received about the incidents which had occurred in the earlier night. 6. The applicants would submit that they are likely to be arrested without there being any substantial reason to infer their complicity in relation to the death of said Yogesh Dhangar. The applicants would further submit that they are not at all criminally liable in view of the fact that there was no visible injury found on person of the deceased and the death was attributable to certain internal injury which resulted into the cardio-respiratory arrest. It is the contention of the applicants that their arrest is likely to humiliate them. The applicants further indicate that they are ready to cooperate with the Investigating Officer during the course of investigation and may be put to certain terms. It is vehemently argued on behalf of the applicants that custodial interrogation of both the applicants is uncalled for. The learned Senior Counsel, appearing for applicant API Shri Mahajan, would submit that the alleged overtact attributed to API Shri Mahajan has no nexus with the death of Yogesh Dhangar. It is argued that erroneous picture is being ( 5 ) Cri.Appln4800-4974-10 projected in order to falsely implicate both the applicants in a serious crime. As against this, learned A.P.P. invited my attention to certain overtacts attributable to the applicants and particularly to the police constables who were present in the Police Station at the relevant time. The learned APP would submit that the involvement of both the applicants is prima facie explicit from the investigation papers and this is a case of custodial death and as such, the extraordinary relief available under section 438 of the Criminal Procedure Code may not be granted to the applicants. 7. There cannot be any duality of opinion that the relief under section 438 of the Criminal Procedure Code is of extraordinary nature. The applicant/s may be entitled to seek such relief if there is reason to believe that the arrest is without any foundation and that the applicant/s is/are likely to be humiliated due to such arrest. The anticipatory bail cannot be granted, however, when there is some prima facie material which goes to show involvement of the applicant/s in the alleged crime. For, the matter is to be unravelled after due investigation. At a peremptory stage, it is not necessary to minutely examine the evidence and to render any finding on the issue regarding the culpability. The object of Section ( 6 ) Cri.Appln4800-4974-10 438 of the Criminal Procedure Code is to protect an innocent person from being falsely arrested. The object of section 438 of the Criminal Procedure Code is not to create stumbling block in the process of investigation. 8. Keeping at back the above settled legal principles, which are at the bottom of legal provision pertaining to the directions that can be sought under section 438 of the Criminal Procedure Code, I shall now advert to the prima facie material which is revealed during course of the investigation. It is true, no doubt, that deceased Yogesh Dhangar was heavily drunk and was accusing Shailesh Sonar and his brother of assaulting him in the Azad Chowk locality. The first part of the incident involving deceased Yogesh Dhangar and his alleged assailants i.e. Shailesh Sonar and his brother appears to have taken place in the odd hours of the night, somewhere between 2.00 a.m. and 3 a.m. There is no reason to disbelieve the prosecution story that deceased Yogesh Dhangar was picked up from the locality of Azad Chowk by deputing a police jeep vehicle and was brought to the Police Station in the wee hours. It transpires from the investigation papers that when the Medical Officer examined deceased Yogesh Dhangar at the first available opportunity, there were no external injuries ( 7 ) Cri.Appln4800-4974-10 found on his person. In fact, the death is not attributable to any external injury but is attributable to the trauma caused due to the assault on his abdomen or chest. The post- mortem notes prima facie show that the cause of death is due to cardio-respiratory arrest caused as a result of blunt trauma over the chest wall leading to traumatic haemo- pericardium. It appears that the Medical Officers found abrasion injuries on the right arm, left knee, right cheek and other parts of the body of the deceased. It appears from the post-mortem notes that there was contusion over intra-scapular region of 5 x 4 cm and another contusion of 4 x 4 cm. Obviously, these injuries noticed during the course of post- mortem examination were not taken note of when he was initially examined by the Medical Officer. It appears prima facie that the Medical Officer hoodwinked such injuries, may be on the assumption that they were not of serious nature and need not be referred in the Medico-Legal Certificate because Yogesh Dhangar was referred for the opinion regarding his drunken condition. The Medical Officer gave medical certificate to the effect that Yogesh Dhangar was under influence of alcoholic preparation and was not former himself. 9. The investigation papers prima facie show that at ( 8 ) Cri.Appln4800-4974-10 the Police Station, applicant API Shri Mahajan assaulted Yogesh Dhangar by slapping him on the face and lateron, he was tied to a window. Inspite of the efforts to silence him, Yogesh Dhangar was uncontrollable and was loudly shouting. The statements of the police constables including P.C. Kalu Borse and P.C. Pandit More go to show that API Shri Mahajan thereafter directed application of third degree method by the police constables and, therefore, he was beaten up. It is not necessary to locate whether the electric shocks given to the private part of deceased Yogesh Dhangar could be the reason to accelerate the death. The fact remains that there is prima facie evidence to show that Yogesh Dhangar was subjected to torture in the premises of the Police Station and involvement of applicant API Shri Mahajan is also borne out in this context. 10. So far as applicant Shri Deepak Mehetre, the then probationary PSI, is concerned, it appears that he was deputed to pick up Yogesh Dhangar from the Azad Chowk and was also deputed to take him to the hospital for the purpose of medical examination and opinion. The police statements of Anita Vaidya and Dinesh Khairnar, who are the auxiliary midwife and watchman of the Rural Hospital, respectively, prima facie, ( 9 ) Cri.Appln4800-4974-10 show that applicant Shri Deepak Mehetre assaulted deceased Yogesh Dhangar in the campus of the hospital. What transpires from the record is that since Yogesh Dhangar was absolutely uncontrollable, the police officers were rather tempted to show him the might of the muscle power, may be with good intention to control him and teach him a lesson. There may not be intention to cause his death, but the fact remains that the death did follow after the successive assaults by Shailesh Sonar and his brother, at the first instance, then by the police staff members in the Police Station and lateron at the Rural Hospital. It is not necessary to give any fact finding about the cause and causation leading to the death of Yogesh Dhangar. 11. Considering the foregoing reasons, I am of the opinion that both the applicants have some role to play in the alleged incident and may be that they have acted bonafidely to control the unruly and inebriated person i.e. Yogesh Dhangar. It may be that their intention was not to eliminate deceased Yogesh Dhangar and the offence may be of lesser degree. At this juncture, such aspect need not be elaborated and considered in view of the nature of the application and the prima facie material brought on surface of the record. ( 10 ) Cri.Appln4800-4974-10 12. Taking overall view of the matter, both the applications are dismissed. Ad-interim relief granted in both the applications stands declamped. [V.R. KINGAONKAR] JUDGE NPJ/criapln4800-4974-10