1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (ABA) No. 90/2011 ( Sheikh Ramzan s/o Sheikh Mehboob .vs. State of Mah. through its PSO PS Imambada, Nagpur. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. A.S. Mardikar, Advocate for applicant. Mr. D.P. Thakre, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : MARCH 25, 2011 Heard. By the present application, the applicant apprehending an arrest in connection with Crime No. 21/2011 registered with Police Station Imambada,Nagpur for commission of offence under Section 304 of IPC, has prayed for a direction under Section 438 of Cr.P.C. The said offence was registered upon the first information report lodged by one Naresh Dhoke – father of the deceased girl of aged about 1 ½ years who succumbed to death due to drowning after sustaining a fall from manhole of a drainage of which work was under construction by the applicant under a contract given to him by Municipal Corporation. The applicant was protected by interim order passed by Court of Session with certain conditions till his 2 main application for similar relief was rejected on 25.2.2011. Having regard to the matters stated in the application and having due regard to the peculiar facts and circumstances regarding the crime under investigation, the said interim protection was continued by order dated 16.3.2011. Needless to add that while continuing the said protection the conditions imposed and particularly the condition of attending the investigating officer was also continued to ensure that the investigation in such a crime is not hampered due to non-availability of the applicant. Notice of the said application was served upon the prosecution and in pursuance to the same, the prosecution has filed the reply. The learned counsel for the applicant urged that even accepting all the matters stated in the reply filed by the prosecution, the same fails to make out any prima facie case regarding the involvement of the applicant in commission of the offence under Section 304 of IPC for which the offence is under investigation or even under section 304-A of IPC as the prosecution say is blissfully silent regarding any tangible material being collected during the investigation so far effected prima facie showing of the manhole had remained opened due to any intentional act committed on part of the applicant or the same had remained opened due to the negligence of the applicant. It is urged that the say miserably fails to depict the date since which the applicant had failed to take due and reasonable care while constructing the drainage which had resulted in remaining the manhole open resulting into the fall of the 3 girl during the day time in the drainage. It is urged that same is wholly silent regarding the manner in which the applicant can be said to be guilty of negligence much a less criminal negligence making him liable for commission of an offence alleged against him. It is urged that the act of the applicant attending the investigating officer not only shows his bona fides for cooperating completion of investigation but also shows that it is unlikely that he is having any intent to flee away. It is urged that having regard to the aforesaid facets, the application has made out a case for granting him anticipatory bail as prosecution say fails to make out any case of custodial interrogation of the applicant being even today necessary for investigation of any particular aspect. It is urged that denial of the same would only serve the purpose of unnecessarily humiliation of the applicant due to the arrest for a charge hastily levelled against him probably due to the loss of a daughter. The learned APP urged that the investigation being still in progress, merely because the applicant attended the I.O. will not entitle him the direction as prayed for. It is urged that in the event the Court being inclined to accept his prayer, the same may be restricted for some specified period as the possibility of custodial interrogation of applicant being required in future, due to certain facets being revealed in the investigation in progress, is not completely ruled out. After giving thoughtful consideration to the submissions advanced by both the sides, conduct of the applicant, the period for which the investigation is in 4 progress and still the matters upon which the prosecution reply is blissfully silent regarding the vital aspect as rightly pointed out by learned counsel for the applicant and thus considering the case of the applicant on the basis of the guidelines given by the Apex Court in Siddharam Satlingappa Mhetre .vs. State of Maharashtra and ors. reported in 2010 (12) SCALE 691 in paragraphs 122 to 125, there appears substance in the submissions of the learned counsel for the applicant for protecting him. The same appears accordingly as hardly any matter is brought to the notice warranting custodial interrogation of the applicant. However, considering the circumstances peculiar to the crime under investigation and balancing the right of the applicant and so also of the investigating agency investigating such a matter, the prayer for bail presently deserves to be considered for some period for giving a fair chance to the investigating agency. Hence inform the Investigating Officer of said crime that in the event of arrest of the applicant in connection with the said crime, he shall be forthwith released on bail for a period of three months from today on furnishing a P.R. Bond in a sum of Rs.50,000/- with two sureties in like amount and subject to the conditions that applicant: (i) shall attend the investigating officer on every Monday of a week in between 11 & 1 p.m. in connection with the investigation of the said crime and as and when called by the I.O. until submission of the charge sheet or until the period is over whichever occurs earlier; 5 (ii) shall not , directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation levelled against him so as to dissuade him from disclosing such facts to the Police Officer and (iii) shall stay at the address mentioned in the application and shall not change the same without permission of the Court. Liberty to the prosecution to apply for modification including cancellation of the order. Liberty to the applicant to apply for extension of the order. Application stands disposed of. JUDGE halwai