Shri Sureshkumar Ishwarlal ... vs The State Of Maharashtra
2005 Latest Caselaw 588 Bom

ORDER

A.M. Khanwilkar, J.

1. Heard Counsel for the parties. Perused the record.

2. The Applicant apprehends arrest in connection with offence registered with Thane Gramin Police Station, Kasa, being C.R.No.I-81 of 2004. The said F.I.R. has been registered in connection with incident, which took place within the jurisdiction of the said Police Station on the night of 30th and 31st August 2004.

3. The prosecution case is that deceased Lahanya was assaulted by accused No.1 Ladkya and three others. The deceased died due to strangulation, as it appears from the medical evidence. The F.I.R. makes no reference to the involvement of the Applicant, not even remote suggestion is found in that behalf in the F.I.R. The Applicant was, however, called to the Police Station on 5th December 2004, allegedly for the purpose of interrogation. The Applicant was detained in the Police Station from 6th December 2004 till the morning of 7th December 2004, when he was released at around 4.30 a.m.

4. The specific case of the Applicant is that he was released by the Investigating Officer only after being detained for almost 17 hours in the Police Station, only after the illegal demand made by the Investigating Officer Shri Irgonda S.Patil of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) was fulfilled by his wife through Roshanlal Chunilal Jain @ Babu Bobda. The Applicant had no information about the said transaction. It is only after he was released by the Investigating officer Shri Irgonda S.Patil and had reached his home that he was informed about the deal which was struck with the Investigating Officer, as condition for releasing the Applicant. This case has been specifically made out in the Anticipatory Bail Application filed before the lower Court and also reiterated before this Court on affidavit.

5. The other allegations made in the Application filed before this Court have been vaguely countered by the Investigating Officer vide his affidavit sworn on 3rd May 2005. Indeed, there is denial of having demanded or accepted any amount as alleged.

6. In this backdrop, learned A.P.P. was called upon to produce any material which would justify the action of the Investigating Officer Shri Irgonda S.Patil to summon the Applicant to the Police Station and detain him for almost 17 hours, to give rise to suspicion against the Applicant on the basis of such material collected by him or noted in any of the office record on or before 5th December 2004.

7. Mr.Saste, learned A.P.P. fairly accepts the position that the affidavit filed before this Court does not disclose any material in the possession of the Investigating Officer collected prior to December 5, 2004 to give rise to the suspicion about the involvement of the Applicant in the commission of the crime. Mr.Saste, on instructions, also concedes that the Investigating Officer did not record any statement of any witness on or before 5th December 2004 or made noting in his office record, much less, police case diary, to even remotely suggest that the material so collected, would give rise to the suspicion about the involvement of the Applicant in the commission of the crime. In other words, there was no material whatsoever before the Investigating Officer to suspect about the involvement of the Applicant, when the Applicant was called to the Police Station on 5th December 2004.

8. To get over this position, Mr.Saste, however, contends that the Investigating Officer acted on the talk going around in the vicinity about the involvement of the Applicant in the commission of the crime as the basis to suspect the involvement of the Applicant and for which reason, the Applicant was called to the Police Station on 5th December 2004. This is only the ipse dixit of the Investigating Officer, not substantiated by any record in his Office. Besides this stand, learned A.P.P. to justify the action of the Investigating Officer, submits that subsequently statements of witnesses have been recorded, including under Section 164 of the Criminal Procedure Code, which spells out the involvement of the Applicant.

9. Suffice it to observe that the evidence created subsequently by the Investigating Officer may possibly be for the purpose of framing the Applicant in the offence in question so as to cover his illegal act of demand and acceptance of amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) allegedly paid by the wife of the Applicant. That is the specific case made out by the Applicant, as can be discerned from the averments in Paragraph 4 of this Application. The details of the events unfolded in the Police Station are copiously mentioned in the Application, amongst other, that when Dy.Superintendent of Police had visited the Police Station, the Applicant was made to sit in such a way that he could not be noticed. Besides, the threats given to the Applicant while in custody in the Police Station is also averred.In Paragraph 5 of the Application, it is averred that neither in the remand reports filed by the Police before the Magistrate dated 9th December 2004 or 10th January 2004, the involvement of the Applicant is mentioned. However, it is only when the Applicant made complaint against the Investigating Officer on December 13, 2004, his name was revealed, for the first time, in the remand report dated December 13, 2004. In Paragraph 6 of the Application, it is averred that the contemporaneous evidence to expose the high-handed action of the Investigating Officer about the telephone calls made between the Police Officer and said Shri Roshanlal Chunilal Jain @ Babu Bobda during the relevant time were required to be produced by the Applicant under Court order, as the Police Officer did not deliberately bring those documents inspite of such direction by the Court.

10. If it is so, this is a serious matter. The case will not only be one of falsely implicating the Applicant, but also exposes the illegal and high-handed activity of the concerned Police Officers involved in the process. This being the position and the allegation made by the Applicant, prima facie, being probable cause for implicating the Applicant, the Applicant is not only entitled for anticipatory bail, but the entire investigation will have to be entrusted to some independent agency instead of allowing the present police force to continue with the same in view of the seriousness of the allegation.

11. The Competent Authority will have to examine these aspects and if satisfied, ought to assign the investigation of the case to an independent agency, such as Crime Branch, C.I.D., Thane, not only to proceed against the accused involved in the commission of the offence, but also to proceed against the concerned Police Officers after due enquiry, in accordance with law, if there is grain of truth in the allegations made by the Applicant against the Investigating Officer.

12. Copy of this order be placed forthwith before the concerned Secretary, Home Department for issuing appropriate directions in the matter.

13. The Application therefore succeeds, in addition to the above observations, on the following terms:

(a) The Applicant is granted anticipatory bail in connection with C.R.No.I-81 of 2004 registered with Thane Gramin Police Station, Kasa, on executing personal bond in the sum of Rs.15,000/- (Rupees Fifteen Thousand) with two local sureties in the like amount.

(b) The Applicant shall not influence the prosecution witnesses nor shall tamper with the prosecution evidence in any manner whatsoever.

(c) The Applicant shall co-operate for the purpose of investigation as and when called upon by the Investigating Agency in relation to the offence in question.

14. Application disposed of on the above terms.

15. Compliance report be submitted by the State in relation to the observations made hereinbefore within six weeks from today.

16. Matter be placed for direction to consider compliance report on 16th June 2005.