1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application [ABA] No. 405 of 2011 (Amol S/o. Shyamrao Dhomne Vs. The State of Maharashtra) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. P.C. Madkholkar, Advocate for the applicant. Mr. V.A. Thakre, APP for the State/non-applicant. CORAM : M.N. GILANI, J. DATE : 22 nd NOVEMBER, 2011. Heard both sides. This is an application under Section 438 of the Code of Criminal Procedure, for issuance of directions to release the applicant on bail in the event of his arrest in Crime No. 127/2011, registered with Police Station Hingna, District Nagpur, for the offence punishable under Sections 379, 411 read with Section 34 of the Indian Penal Code. One Prakash Nasre, who is working as Supervisor in Shri Mukundrao Pannase Polytechnic College at Bhamti, Nagpur, lodged F.I.R. alleging theft of iron bars weighing 11 to 12 tonnes worth about Rs.1,00,000/- in the night intervening 23/08/2011 and 24/08/2011. During the course of investigation, six accused persons came to be arrested including Raju Kshirsagar-accused no.6. It was revealed that Raju Kshirsagar was an employee of the 2 present applicant. It was further revealed that the present applicant was regularly receiving the iron bars from one Isrial Khan-accused no.1. The applicant used to arrange or provide a truck to transport the stolen iron bars. Ismile Khan and Raju Kshirsagar were arrested on 27/09/2011. Raju Kshirsagar gave disclosures statement, which resulted in the recovery of 272 iron bars from the premises of M/s. Amol Trading Company, Buti Bori, owned by the present applicant. From the possession of Raju Kshirsagar, a Bolero Jeep, bearing No. MH-40-N-2806, was seized. It is alleged that this vehicle belongs to the applicant and this was used in the commission of the theft and disposal of the stolen properties. Learned counsel for the applicant contended that the custodial interrogation of the applicant is not necessary and that being so, this Court may exercise its discretion of granting pre-arrest bail to him. He relied upon the judgment in case of Jagannath Ramchandra Biyani Vs. State of Maharashtra, 1981 Mh.L.J. 791. After enumerating the principles governing grant of anticipatory bail, this Court observed that anticipatory bail should not be refused merely because prosecution claims that the accused is wanted in police custody for the purpose of investigation. Reliance is also placed on the decision in case of Siddharam Satlingappa 3 Mhetre Vs. State of Maharashtra and others, (2011) 1 Supreme Court Cases 694, The Supreme laid down the following parameters, which can be taken into consideration while dealing with the anticipatory bail. They are : (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’s likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; 4 (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. After perusal of the case diary, it does not appear that the accusation levelled against the applicant are false and frivolous. Apart from this, the antecedents of the applicant i.e. he having had received stolen property in the past is relevant factor. Considering the nature of the offence and the allegations of accused providing logistical support to facilitate commission of the offence and in tern disposal of the stolen properties, I am of the view that this is not a fit case to exercise the discretion under Section 438 of the Code of Criminal Procedure. The application is rejected. At this stage, the learned counsel for the applicant prays for grant of interim protection for a period 5 of two weeks. It may be noted that after filing of this application, interim protection was never granted by this Court. In that view of the matter, prayer is rejected. JUDGE *Sdw