1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 1518 of 2009 Harish v. PI, Local Crime Branch and Dr P.M. Shukla Criminal Application No. 1920 of 2009 State of Maharashtra v. Dr Parthasarthi Shukla -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr Shyam Dewani, Advocate for applicant in Cri. Application No. 1518 of 2009 Ms Sharda Wandile, APP for State Mr M.G. Bhangde, Sr. Advocate and Mr F.T. Mirza, Advocate with him for respondent Dr P. Shukla. Coram : A.P. Bhangale, J Dated : 24th August 2009 1. By Criminal Application No. 1518 of 2009 complainant Harish Chutlani and by Criminal Application No. 1920 of 2009 the State of Maharashtra seek cancellation of order of anticipatory bail dated 5.1.2009 granted by this Court to respondent Dr Parthasarthi Mukund Shukla in Criminal Application No. 39 of 2009 in connection with Crime No. 255/08 registered with Police Station, Ramdaspeth, Akola for offences punishable under Sections 363 and 417 of the Indian Penal Code. 2 2. Heard learned counsel for the parties at length. 3. On 31.8.2008 wife of complainant Harish had given birth to a male child at the Government Hospital, Akola. It appears from contents of criminal application no. 1518 of 09 that the child since its birth was not keeping normal health and on 11.11.2008 the baby was admitted in Shukla Children Hospital, run by respondent Dr P. Shukla at Akola. On recovery of the child, applicant Harish and his family members were asked to take discharge of the child on 15.11.2008. However, while taking discharge, applicant and his family members noticed that the child which was admitted in the hospital, was not being given in discharge and child sought to be given was different. Respondent Dr P. Shukla did not accede to the claim of applicant Harish and, therefore, applicant Harish lodged police report on 15.11.2008. Police registered Crime No. 255/08 on 16.12.2008 under Sections 363 and 417 of the Indian Penal Code against respondent Dr P. Shukla. 4. Respondent Dr Shukla had initially approached Sessions Court, Akola for grant of anticipatory bail. Prayer made by him for grant interim anticipatory bail was rejected on 26.12.2008. Respondent Dr Shukla then filed proceedings under Section 482 Cr.P.C. before this Court. In the said proceedings, respondent was granted interim protection. On 31.12.2008 the Sessions Court finally rejected application of the 3 respondent for grant of anticipatory bail. Respondent then filed Criminal Application No. 39 of 2009 before this Court on 5.1.2009. This Court (R.C. Chavan, J) on 5.1.2009 granted anticipatory bail in favour of the respondent and disposed of said Criminal Application No. 39 of 2009 on the same day. It is this order which is sought to be cancelled by these two applications – one filed by the original complainant and the other by the State of Maharashtra, as aforesaid. 5. It is borne out from record that child of one Daberao family, nine days old was admitted on 11th November 2008. On 15th November 2008 a child, said to be of Daberao, died. Daberao family buried the child. It was alleged by applicant Harish that child of Daberao family was given to them. However, DNA test report reveals that child which was given to applicant Harish was not his child and that the dead body of child that was buried by Daberao family and later on exhumed, is also not that of applicant Harish and his wife Laxmi. DNA test report received in respect of child given to applicant Harish matches with Daberao. It is stated in the applications that in view of the DNA test reports received, it is clear that child of applicant Harish is still alive and it is only respondent Dr Shukla who knows the whereabouts of the said child. For this purpose and for various unsolved questions, custodial interrogation of respondent Dr Shukla is very much necessary. 4 6. Earlier, during the course of hearing in Criminal Application No. 39 of 2009 it was urged on behalf of learned APP and counsel assisting the State that respondent Dr Shukla (applicant therein) had forged papers pertaining to child of Shri Daberao. That contention was raised on the statement of alleged confessional statement of co-accused and custodial interrogation was said to be necessary to secure the papers which the respondent Dr Shukla had replaced. This Court found that after the confessional statement, Investigating Officer had searched the premises of respondent Dr Shukla as was seen from case diary, but nothing incriminating was found. It was also urged that respondent Dr Shukla may influence prosecution witnesses and tamper with them and that respondent was trying to exert political pressure. This Court (R.C. Chavan, J) after taking into consideration the arguments advanced by learned Senior Advocate for applicant therein and learned APP assisted by Mr Lalwani, Advocate for first informant, granted anticipatory bail by observing in paragraph 14 thus - “There can be no doubt that any attempt on the part of any person, suspected of involvement in the crime, to bring political pressure or public pressure on the investigating machinery, is to be deprecated. However, this apprehension can be taken care of by imposing stringent conditions while admitting the applicant to bail. It is not that the applicant must 5 subject himself to custodial interrogation first, before he can apply for bail because some allegations are made against him if custodial interrogation is not necessary. From the account of investigation carried out thus far and the purpose stated for seeking custody of applicant, it does not appear that applicant’s custody would be required for carrying out investigation. Therefore, the application would have to be allowed by imposing some conditions.” The Court (R.C. Chavan, J) then ordered release of respondent Dr Shukla on bail in the event of his arrest on his furnishing PR Bond of Rs. 1 lakh with one or more solvent sureties in the like sum and imposed the following conditions: “i) The applicant shall appear before the Investigating Officer on 6th January 2009 from 11.00 a.m. to 2.00 p.m. and thereafter as and when, reasonably, required by the Investigating Officer. ii) The applicant shall keep himself away from all the witnesses. iii) The applicant shall furnish details of his telephone numbers, mobile numbers and all other equipments of communication, including computer/internet facility. iv) The applicant shall also agree to 6 surveillance of the police if police suspects that the applicant is involved in tampering the witnesses. v) The applicant shall surrender his passport, if any and shall not leave the municipal limits of Akola city without informing the Investigating Officer.” 7. Applicants State of Maharashtra and Harish Chutlani through Mr Shyam Dewani learned counsel submits that there is change in circumstances. Latest DNA test report in respect of dead child has taken serious turn of the matter and it is respondent Dr Shukla who is accountable and responsible to give information to Investigating Officer as to the whereabouts of Chutlani’s child. Learned Addl. Public Prosecutor submits that respondent Dr Shukla is not extending cooperation to investigating agency and he is exerting political pressure continuously. She further submits that till this Court granted anticipatory bail on 5.1.2009, respondent Dr Shukla was absconding and he is also trying to tamper with the prosecution evidence. Learned counsel for applicants placed reliance on State of Maharashtra v. Satyakumar and another reported in 2007 All MR (Cri) 3224 wherein this Court held thus - “The considerations for grant of or cancellation of anticipatory bail would be very different. Normally, in all the crimes the regular bail is granted by the court after 7 the accused is interrogated after arrest and he is remanded to magisterial custody. That enables the Investigating Agency to collect the information, which is otherwise not possible to collect, for want of direct evidence being available. In more serious crimes, the bail application is not considered until at least a charge-sheet is filed. The accused is normally released when major part of investigation/interrogation is over. It is for this reason that while considering the question of cancellation of regular bail the court has to only see if the accused has committed breach of the conditions imposed or the supervening circumstances. But in the case of anticipatory bail, the things are very different. Everything is almost hazy at that stage. It is for this reason that the courts have to be more circumspect while granting the anticipatory bail. In a serious crime like murder, the necessity is still more, particularly when no eye witness account is available. When no eye witness account is available, the custodial interrogation of the accused remains the most important source of information through which the facts could be placed as evidence before the court. When the charge is of conspirary, interrogation becomes still more important. It also becomes necessary, to discovery of weapons used or any article connected with the crime. If at proper stage, the accused are not arrested, it may be that the evidence may 8 be lost. It is contended that interrogation can be made by simply calling the accused in the Police Station. The state of mind of accused, while in police custody is totally different, than when he is not in the police custody and that makes all the difference. This should not even for a moment be taken, as subscribing to use of third degree method. Even an idea of being in police custody is enough for an accused to give up and spill the beans. It is not, therefore, that in every case the police Officer resort to third degree method. In serious crime, therefore, it is absolutely necessary that the Investigating officer gets an opportunity to properly investigate the matter.” Reliance is also placed on the judgment of this Court in Bhulabai v. Shankar and ors reported in 1999 (3) Mh.L.J. 227 to contend that anticipatory bail granted to respondent Dr Shukla is liable to be cancelled. In paragraph 10 of the said judgment, this Court has laid down thus - “10. As can be seen that grounds for cancellation of bail are not provided by section 437 (5) or 439 (2), but such grounds are time and again specified by the Courts by judicial pronouncements and can be summed up as under : (i) Where the person on bail, during the period of bail - (a) commits the very same offence for which he is 9 being tried or has been convicted, or (b) hampers the investigation; or (c) tampers with the evidence e.g. by intimidating, bribing or tampering with prosecution witnesses, or removing traces or proofs of crime; (d) runs away to a foreign country, or goes underground or beyond the control of sureties; or (e) commits act of violence, in revenge, against the police and the prosecution witnesses and those who have booked him or are trying to book him. (ii) where the order granting bail is found to be without Jurisdiction. But mere vague allegations are not sufficient grounds for cancellation of bail. (iii). Where the Court comes to the conclusion that the accused has committed non-bailable offence and that it is necessary that he should be arrested ad committed to custody.” 8. Learned Senior Advocate appearing for respondent Dr Shukla, on the other hand, strenuously contended that opportunity of hearing was given to the applicants State and Harish and that fact has been suppressed in the applications. He further states that samples for DNA tests were not supplied by respondent Dr Shukla or the same were not seized from his hospital and, therefore, strange report of DNA test indicating male and female sex in one sample cannot be a ground for 10 cancellation of anticipatory bail. He submits that grounds chosen for cancellation of bail are too fragile and insufficient to invoke powers of this Court in this regard. According to learned Senior Advocate, respondent Dr Shukla has not jumped any conditions of anticipatory bail and he has extended full cooperation to the investigating agency. He submits that this Court after considering all aspects involved in the matter, has held that there is no need of custodial interrogation and has consequently, granted anticipatory bail to respondent Dr Shukla. He, therefore, submits that applications are liable to be rejected. 9. It is no doubt well settled that ambit of power conferred by Section 438 Cr.P.C. is limited. The power of granting anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated or a frivolous case might be launched against him or there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail that such power may be exercised. DNA Test report received subsequently reveals that child whose dead body was exhumed neither belongs to applicant Harish and his wife Laxmi nor to Daberao. DNA test report further reveals that child which is alive matches with Daberao. DNA Test report reveals male and female sex from one sample. Contention of learned Senior Advocate that since samples were neither supplied by respondent Dr Shukla 11 nor seized from his hospital, strange report of DNA test cannot be used against respondent Dr Shukla, cannot be accepted at this initial stage of investigation. Question that arises is, why investigating agency would unearth different dead body of a child and would not exhume dead body of a child cremated by Daberao, to falsely implicate respondent Dr Shukla particularly when there is no complaint of animosity. It can, therefore, be prima facie observed that whereabouts of child of applicant Harish is shrouded in mystery. Applicant Harish’s child was admittedly let in the hospital of respondent Dr Shukla on 11.11.2008 and it remained there till 15.11.2008. It is nobody’s case that child was removed by Chutlanis for any time from hospital and thereafter it was brought back claiming that it was a different child. Objection was taken by applicant Harish then and there when the child was being given to him on discharge. It is apparent from the police report that when first informant Manoharlal disclaimed that child in the box in ICU at the hospital was that of Harish and Laxmi, respondent Dr Shukla was insisting upon him on 15.11.2008 at about 06.30 am that the said child was that of Harish and Laxmi only. It is also borne out from record that compounder on duty refused to open gate when Laxmi and her mother-in-law wanted to look and verify child in box (ICU) at hospital. Prima facie, it may be a case of heinous crime of murder or culpable homicide or fraudulant removal or disappearance of a a child. It appears to be a casewhich may be compared with case of custodial death or 12 disappearance for which custodians alone are answerable. The answers to mystery lie well within the special knowledge of the persons who were all along attending the child in hospital (in ICU, where even close relatives of the child were prohibited to enter) including respondent Dr Shukla. If it is a case of murder of child, the sentence if convicted, is death or life imprisonment. Even if it is less aggravated offence like culpable homicide or disappearance of child by fraudulent removal from hospital, the interest of society shall be served if full opportunity of investigation is granted. In view of the subsequent development, precisely enough, to know about exhumed child given to Daberao; whereabout of child of Harish and Laxmi and to unearth real culprits and to secure relevant records, in my opinion, custodial interrogation of respondent Dr Shukla is very much necessary and in that view of the matter, anticipatory bail granted on 5.1.2009 is liable to be cancelled to give free hand to investigating agency in the matter of investigation and to protect the fair trial and secure justice being done to society by preventing accused from tampering with evidence in heinous crime. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the investigation, custodial interrogation is needed to unearth the crime and to indict the real culprits or else the grant of bail in such case would have the frustrating 13 result amounting not only to denial of opportunity of custodial interrogation, but also to nip the investigation in the bud itself. The investigation shall ordinarily be allowed to progress unhampered in its usual course without there being chances of evidence being tampered. The individual freedom is myopic as compared with the larger interest of the society to book the real offenders so as to punish them. 10. In the result, applications are allowed. Anticipatory bail granted to respondent Dr Parthasarthi Mukund Shukla by order dated 5.1.2009 is hereby cancelled. Bail bonds, if any, shall stand cancelled. Judge. Learned senior counsel for the respondent/non- applicant prayed for suspension of operation of this order for a period of four weeks. Learned APP objected on behalf of the applicant. Since the non-applicant is intending to challenge this order before the Hon’ble Apex Court, operation of this order shall remain suspended for a period of fifteen days from the date of this order. Steno copy is allowed. Judge. hsj