IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4328 OF 2008 CRIMINAL APPLICATION NO. 4328 OF 2008 CRIMINAL APPLICATION NO. 4328 OF 2008 Shri Vivek Vilas Surve & Anr. ...Applicants/ Accused Nos.6 & 7 vs. The State of Maharashtra ...Respondent Mr.S.R. Chitnis, Senior Counsel with Kamal Patel for the Applicants. Mr.K.V. Saste for the Respondent. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : JANUARY 27, 2009 DATED : JANUARY 27, 2009 DATED : JANUARY 27, 2009 P.C. :- P.C. :- P.C. :- 1. Heard the learned Senior Counsel for the applicants and the learned PAP for the State. 2. The applicants have been arrested by Jaigad Police Station in connection with an alleged crime registered vide C.R.No.20/2008 for the offence punishable under Sections 436, 286, 287 read with 34 of the IPC and under Section 3 of the Explosive Substances Act. 3. Applicant no.1 was arrested on 27.6.2008 and applicant no.2 was arrested on 3.7.2008. Prosecution - 2 - case is that the work of erection and commission of the project was undertaken by M/s.J.S.W. Energy Limited who wanted to establish a thermal power station at village Jaigad. The company had recruited number of persons and contractors for carrying out the said activity. On 11.6.2008 at about 9.45 a.m., one blast of explosive substance had taken place near the servant quarters. A complaint was filed at the Jaigad Police Station against the unknown persons. During the investigation, the applicants were also arrested. 4. It is submitted by the learned Senior Counsel for the applicants that the only material against the present applicants is that they had taken part in the conspiracy to commit the said offence. No other role has been attributed to these applicants for the actual blast which had taken place on 11.6.2008. It was submitted that there was no material on record to indicate that the present applicants had acted in furtherance of the said conspiracy. He further submitted that the statements of the witnesses at the most indicated the wish of the present applicants to - 3 - commit the said blast. It was submitted that such wish which was expressed even if accepted without admitting it, did not amount to conspiracy as alleged by the prosecution. He invited my attention to the statements of Santosh Haldankar, Bashir Shaikh, Pankaj Surve. He submitted that all these witnesses had stated in their evidence that they wanted to extort some money from the company and for that purpose, they committed the bomb blast in the said company. He invited my attention to the judgement of the Apex Court in the case of State State State through Superintendent of Police, CBI/SIT vs. Nalii and through Superintendent of Police, CBI/SIT vs. Nalii and through Superintendent of Police, CBI/SIT vs. Nalii and others, reported in 1999 SCC Criminal Cases 691 others, reported in 1999 SCC Criminal Cases 691 others, reported in 1999 SCC Criminal Cases 691 and more particularly, para 583 of the said judgment in which the broad principles governing law of conspiracy have been laid down. He invited my attention to clause 1, clause 5, clause 8 and the other clauses of the said para. It was submitted that therefore, the ratio laid down by the Apex court to the said case was that apart from having intention, case was not sufficient to constitute a crime under Section 120. It was submitted that apart from intention, there had to be agreement to carry out the object of the intention. It was further submitted that - 4 - in para 5 of the application, it was stated that one Ibrahim Rode who was a prosecution witness himself was an accused in one case bearing 34/2007 and one of the accused in this case was a witness against the said Ibrahim Rode. It was further submitted that the writ petition filed by the witnesses in this court being Criminal Writ Petition No.208/2008 in which the allegations were made against the police officers that they had forcibly taken their signature on the statement which was recorded by the police. It was submitted that though this petition was allowed to be withdrawn, the petitioners were asked to take appropriate steps and accordingly, they have filed a case before the State Human Rights Commission, Mantralaya, in which notice was issued to the police. 5. Shri Saste, learned APP for the State invited my attention to the statements of the witnesses and pointed out that there was sufficient material on record apart from sharing intention of the main accused nos.1 and 2 had also taken active part in the said conspiracy. He submitted that one of the witnesses Bashir Shaikh - 5 - Mohammed Hodekar also has given further statement in which he had stated that the applicants had asked them to retract their statements. 6. In my view, the allegations made in the complaint are of very serious nature and explosion actually had taken place at the site where the thermal power station project was to come up. One of the main accused was caught red-handed while accepting the extortion money which was demanded from the company. The statements of Santosh Haldankar and Pankaj Surve which are recorded under Section 164 of the Cr.P.C. by the Executive Magistrate clearly implicates the present applicants. Santosh Haldankar has stated in his statement that both the applicants and others were not happy because they were not called. He was not invited for the ceremony which had taken place on 20.3.2008 and therefore, on the very next day, he had threatened the workers and told them not to work for the company. He also stated that the applicants alongwith other workers had gone to office of the company to blacken the face of Shri Varki who was the officer of the company and at - 6 - that time, this witness was present. He has also stated that the applicant no.1 had abused two other officers of the company viz. Mr.Shirke and one Kulkurni. He had also held the meeting with the company officers and asked them why certain workers were removed. He has further stated that the applicant had also assaulted certain workers near Undi Phata. He has thereafter stated that in order to teach the company a lesson, he intended to bring out explosion through workers of the company in the premises of the company and this fact was told by the applicant no.1 to the said witness. Apart from that, the other witness Pankaj Surve also has stated that after the bomb blast had taken place, there was a discussion between the applicant and others as to how money can be extorted from the company since the bomb blast had successfully taken place. This witness was a driver of one Nandu Kedari. In view of the evidence of these two witnesses, there is sufficient material to indicate that the applicants not only had expressed their intention to commit the said offence but actually taken further steps to ensure that the explosion took place and thereafter, monies were - 7 - demanded from the company. Therefore, the submissions made by the learned Senior Counsel, Shri Chitnis, for the applicants cannot be accepted. Apart from that, there has been a recovery of a Scorpio Jeep from applicant no.1 in which certain explosives were found which have matched with the explosives which were found at the site where explosion had taken place. This is an additional material against the present applicants which supports the prosecution case. 7. The writ petition which was filed by the witnesses in this court was allowed to be withdrawn and the following order has been passed by the Division Bench of Justices S.B. Mhase and A.A. Sayyed on 21st October, 2008 :- "Heard the learned Counsel for the petitioners. 2. The learned Counsel for the petitioners desires to withdraw this Petition. Leave granted. The Petition is allowed to be withdrawn and is disposed of as such." - 8 - The said writ petition, therefore, was allowed to be withdrawn. The complaint has been filed before the Maharashtra State Human Rights Commission. In the said complaint, notice has been issued to the respondents to appear before the commission. No other order has been passed. Mere filing of the complaint by itself will not result in the statement of these witnesses being discarded and therefore, at this stage, that will not be of any assistance to the applicants. Looking at the seriousness of the offence, no case is made out for grant of bail. Apart from that one of the witnesses has stated that attempts were made to ensure that the statement given by the said witness is withdrawn and this fact has been stated by him in the further statement which is recorded indicating that attempts are being made to threaten the witnesses. Under the circumstances, no case is made out for grant of bail. The application for bail is rejected. 8. Shri Chitnis, learned Senior Counsel for the applicants submits that the copies of the statements of - 9 - witnesses as recorded by the Magistreate under Section 164 of the Cr.P.C. have not been given to him alongwith charge-sheet. The Investigating Officer is directed to give all these statements which are recorded by the Magistrate under Section 164 of the Cr.P.C. within a period of one week from today. 9. The learned APP submits that he relies on all these statements and that these statements were not given apparently by the learned Magistrate. At this stage, the learned Counsel takes exception to the statements of these witnesses being relied on which are recorded under Section 164 of the Cr.P.C. because copies of the said statements not being supplied to the accused under sub-section 6 of section 173 of the Cr.P.C. The objection raised by the learned Senior Counsel cannot be accepted. Shri Chitnis, learned Senior Counsel appearing on behalf of the applicants submits that since these copies have not been given to the applicants, the court should not rely upon these statements. He, however, submitted that he had read copies of statements of these witnesses which are - 10 - recorded by the Magistrate under Section 164 as they were shown to him by the learned APP after he had read out from those statements on the last date. Since these statements were already shown to the learned Senior Counsel on the last date by the learned APP as submitted by him, no prejudice has been caused to the applicants, therefore, it cannot be said that this Court cannot rely on these statements for the purpose of deciding the application for bail. Shri Chitnis, learned Senior Counsel submitted that the prosecution was bound to supply all copies of the statements in view of the provisions of Section 173(5) of Cr.P.C. and under Section 206 of the Cr.P.C. and since these documents were not supplied, on that ground itself, the applicants deserve to be released on bail. In support of the said submission, he relied on the judgment of the Apex Court in the case of Satya Narain Musadi and others, Satya Narain Musadi and others, Satya Narain Musadi and others, Appellants v. State of Bihar, Respondent, reported in Appellants v. State of Bihar, Respondent, reported in Appellants v. State of Bihar, Respondent, reported in 1980 CRI.L.J. 227 1980 CRI.L.J. 227 1980 CRI.L.J. 227. 10. This submission of the learned Senior Counsel also cannot be accepted. The purpose behind the - 11 - provisions of Section 173 Sub-clause 5 and Section 206 is to ensure that there is a fair trial against the accused and before the trial begins, all these copies have to be supplied to him. The aforesaid provision has been incorporated in order to ensure that no prejudice is caused to accused when he is prosecuted before a Court and he knows well in advance the statements of witnesses recorded by the police and the learned Magistrate under Section 164 and also the other documents on which reliance is placed by the prosecution and he is not taken by surprise. We are, however, at the stage of grant of bail. In my view, no prejudice is caused to the applicants since on the last date, the learned Senior Counsel has already read the said statements which are recorded by the Magistrate under Section 164. The ratio of the judgment in Satya Narain Satya Narain Satya Narain Musaid’s Musaid’s Musaid’s case, in my view, is not applicable to the facts of the present case. The question which came up for consideration before the Apex Court in the said matter was "Whether in view of the provision contained in Section 11 of the Essential Commodities Act, 1955, a Court taking cognizance of any offence punishable - 12 - thereunder, upon a police report is precluded from looking into the complaint or first information report filed before the Court or that it must keep itself exclusively confined to the report submitted by the police." In the light of the said question, the Apex Court has examined the provisions of Section 173. The said ratio, therefore, would not be of any assistance to the application in this case. 11. The learned Counsel then submitted that there was variance between the statements made by the witnesses before the police and the statements made before the Magistrate when he recorded their statements under Section 164 and that supported the case of the applicants that there was pressure to give the said statements. This submission also cannot be accepted. On the contrary, when the statements are recorded by the Magistrate under Section 164, the Magistrate has to ensure that no pressure has been put on the witnesses. Viewed from any angle, therefore, no case is made out for grant of bail. - 13 - 12. The application is rejected. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)