Raju S/O. Vitthalrao Bhadre vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 1427 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



Criminal  Application (BA) No. 896  of 2016

Applicant               :          Raju son of Vitthalrao Bhadre, aged about

                                   46 years, Occ: Business, resident of 

                                   Bhande Plot, Nagpur

                                   versus

Respondents             :          1) State of Maharashtra, through  Assistant

                                   Commissioner of Police (Crime), Nagpur

                                   2) The Police Station Officer, Ranapratap

                                   Nagar, Nagpur



Shri S. P. Dharmadhikari, Senior Advocate and  Shri Prafulla 
Mohgaonkar and Shri Uday Dable, Advocates with him for applicants

Shri S. S. Doifode, Addl. Public Prosecutor for respondents

                                   ---------

Criminal Application (BA) No. 903 of 2016

Applicant : Rahul son of Sushil Dubey, aged abut

20 years, Occ: Student, resident of Motibagh,

Bhosalewadi, Nagpur

versus

Respondent : The State of Maharashtra, through

Assistant Commissioner of Police,

Police Station Pratapnagar, Nagpur

Shri S. V. Sirpurkar, Advocate for applicant

Shri S. S. Doifode, Addl. Public Prosecutor for respondent-State

Coram : S. B. Shukre, J

Dated : 4th April 2017

P. S.

1. Both these applications are being disposed of by this

common order as they arise out of the same crime being Crime No.

468/2015 registered at Police Station, Pratap Nagar, Nagpur against these

applicants and others. They have been arraigned in this crime for

commission of such offences as are punishable under Sections 143 147,

149, 341, 342, 364-A, 365, 384, 385, 386, 120B, 504 and 506-B read with

Section 149 of the Indian Penal Code and Section 3 of the Maharashtra

Control of Organized Crime Act, 1999 (for short, "the MCOC Act").

2. Heard Shri S. P. Dharmadhikari, learned Senior Advocate for

applicant in Criminal Application No. 896 of 2016; Shri S. V. Sirpurkar,

learned counsel for applicant in Criminal Application No. 903 of 2016 and

Shri S. S. Doifode, learned Additional Public Prosecutor for respondent-

State in both the applications.

3. The main allegation against these applicants and others is

that in order to extort astronomical sum from the victim of the crime who

has lodged the complaint on 28.12.2015, the applicants and others

kidnapped him or the complainant at about 12.00 pm of 13.12.2015 from

the spot situated near the complainant's house and putting him under fear

of death or injury, took the ransom of Rs. 1.75 crores by tricking him

into believing that the person who lent him a part of ransom money of

Rs. 1 crore was his saviour coming to his rescue in his dire straits, though

actually he was his master kidnapper standing behind the curtain. The

conspiracy to kidnap the complainant for ransom of Rs. 2 to Rs. 5 crores,

it is alleged, has been hatched by Raju Bhadre, applicant in Criminal

Application No. 896 of 2016 and another accused, not an applicant in

these applications and executed by their cohorts, one of them being Rahul

Dubey, an applicant in Criminal Application No. 903 of 2016.

4. Soon after the complainant was picked up by use of force

from spot situated near his house and was dumped into a 4-wheeler, he

was blindfolded and then for several hours together, the complainant was

taken from one place to the another in the city of Nagpur while being

intermittently subjected to beating by fist blows. During such journey, the

complainant was asked to pay ransom of Rs. 5 crores which amount, after

much pleading on the part of the complainant, was reduced to Rs. 2

crores. The complainant did not have with him even this amount and,

therefore, the complainant was suggested by the kidnappers to borrow the

amount from his good friends. He was directed to make phone calls to try

his luck with his friends. The complainant succeeded in raising a sum of

Rs. 75 lacs from two of his friends. At that point of time, the complainant

was further coerced to make his all out efforts to organize the funds

somehow or the other. Then, suddenly the complainant remembered the

name of Raju Bhadre as he knew him well and considered him to be a

man to count on in case of need. He took name of Raju Bhadre before the

kidnappers, but told them that although Raju Bhadre could help him

come out of the situation by lending him requisite amount, he was unable

to contact him as he did not have his telephone number. One of the

kidnappers suggested that the complainant could get the telephone

number from his other friends. The complainant tried and did get the

telephone number and then he called up Raju Bhadre. Initially, Raju

Bhadre showed his unwillingness, but later on he said, he would organize

cash amount of Rs. 1 crore to be given to the complainant.

5. It was the promise given by Raju Bhadre to the complainant

to lend him amount of Rs. 1 crore which made the complainant believe

that Raju Bhadre was the friend and not the foe. But, that was not to be

as it turned out later on. Raju Bhadre informed the complainant that he

could collect this amount from his acquaintance, Gaurav Mendhe and

believing in it, the complainant told the kidnappers that the amount was

ready and it could be collected from Gaurav Mendhe. The kidnappers

made a show of sending one of their associates to Gaurav Mendhe, while

still holding in their custody the complainant, to Gaurav Mendhe and then

Gaurav Mendhe confirmed to the complainant that the cash of Rs. 1 crore

was delivered to the man sent at the request of the complainant.

6. After this operation was over, the complainant was released.

The complainant stated that he could not immediately lodge report as he

was very much frightened for his own life as well as lives of his wife and

child. The complainant had even returned the amount of Rs. 1 crore to

Raju Bhadre two days later.

7. After the complaint was lodged by the complainant, police

started investigation. The investigation revealed some startling facts, one

of which was the involvement of Raju Bhadre. The investigation disclosed

that the whole plan was conceived by Raju Bhadre and the main accused,

not an applicant in either of these applications and was executed by the

main accused and the co-accused in this crime to the perfection. The plan

was to create a show of helping to the complainant by lending him some

amount by Raju Bhadre and then make him return this amount a few days

later together with the feeling of obligation and enhanced respect for

Raju Bhadre. The fact was that as the investigation revealed, Gaurav

Mendhe was the trusted aide of Raju Bhadre and no amount was ever

handed over to Gaurav Mendhe. Gaurav Mendhe was only instructed by

Raju Bhadre to confirm to the complainant that the amount of Rs. 1 crore

was ready in cash with him and could be delivered by him to a person on

the instructions of the complainant. Gaurav Mendhe acted as per these

instructions and also confirmed to the complainant that the amount was

delivered to a man sent by him. However, according to the investigating

agency, no cash exchanged hands between Gaurav Mendhe and the

kidnappers though the complainant felt it to be so and reeling under

feeling of gratefulness that he returned the amount of Rs. 1 crore to Raju

Bhadre in two instalments of Rs. 50 lacs each.

8. This is all about the allegations made against both the

applicants which according to Shri S. P. Dharmadhikari, learned Senior

Advocate and Shri S. V. Sirpurkar, learned counsel, are hard to believe on

their face value for the reason that there is a material discrepancy in the

date of incident mentioned in the complaint dated 28.12.2015 and in the

supplementary statement dated 4.1.2016 of the complainant. In the

complaint, the date of incident has been stated to be 13.12.2015 and in

the supplementary statement, it is changed to 11.12.2015 and, therefore,

learned counsel submit that the possibility of concoction of the story by

the complainant is not ruled out and this is coupled with the fact that the

complaint itself has been lodged after delay of about fifteen days giving

some lame excuse.

9. Shri S. S. Doifode, learned Additional Public Prosecutor,

however, submits that even though the complaint has been lodged after a

delay of about fifteen days, some explanation has been given by the

complainant for belated lodging of the First Information Report which will

have to be considered on its own merit during trial and not at this stage.

He also submits that the difference regarding date of incident would have

to be considered in the light of the entire evidence and at this juncture,

the available evidence discloses that the incident has occurred on

11.12.2015 and as such, at this stage, this difference in dates cannot be

considered as rendering the allegations against the applicants as of

doubtful nature.

10. On going through the complaint, supplementary statement of

the complainant and confessional statements which are placed before me

for perusal, I find that there is substance in the argument of learned

Additional Public Prosecutor. This material prima facie indicates that the

difference in the dates of incident arising from two statements of the

complainant is not of such a nature as to give rise to any prima facie

doubt about occurrence of incident of kidnapping for ransom itself.

Therefore, at this stage, no significance could be attached to the said

discrepancy pointed out by learned counsel for the applicants. Then there

is also some explanation about the delay given in the complaint. The

trial of the applicants is already underway. There are also confessional

statements of some of the accused which are available on record and

which throw light on circumstances having a bearing upon material

aspects of the case. So, the delay in lodging of the FIR and explanation

given for it all would have to be considered for its impact on the

prosecution case in the light of the entire evidence, and that would be

possible, not at this stage, but on conclusion of trial.

11. Shri Dharmadhikari, learned Senior Advocate for applicant

Raju Bhadre has submitted that even when there exists a prima facie

substance in the allegations made against the accused involved in an

offence punishable under Section 3 of the MCOC Act, still the other

criteria i.e. the criteria of the applicant committing similar offence, must

be shown to be satisfied by the prosecution and if it is not, the applicant is

entitled to be released on bail. He points out from the order dated 7 th July

2016 passed in Criminal Application No. 424 of 2016 (Dinesh v. State

of Maharashtra) by this Court that this is the view taken by this Court.

He further submits that the Special Leave Petition being SLP No. 8523/16

filed by the State against the said order dated 7 th July 2016 has been

dismissed by the Hon'ble Apex Court on 15.11.2016. According to him, in

the instant case, there is no material available on record to show that if

released on bail, the applicant is likely to commit similar offence. He

submits that although there were 13 crimes registered in the past against

applicant Raju Bhadre, in most of those crimes, either he was acquitted

or granted bail or was given relief by the Division Bench of this Court in

the nature of stay of First Information Report in Crime No. 85/2014. He

further submits that in all these crimes, none of the co-accused of

applicant Raju Bhadre in the present crime, was the co-accused.

Therefore, he further submits, as held in the case of Dinesh (supra) by

this Court, it could not be said that there is any possibility of applicant

Raju Bhadre committing a similar offence. Shri S. V. Sirpurkar, learned

counsel for accused Rahul Dubey has also argued on similar lines. Shri

Doifode, learned APP, however, disagrees. He submits that although

factually it is correct to say that in most of the previous crimes, accused

Raju Bhadre has been acquitted or released on bail or has been granted

some respite, it could not be the criteria for satisfying oneself that the

accused would not indulge in similar offence. According to him, even

registration of previous crimes is enough to come to the conclusion that

the applicants are likely to commit similar offence. He has placed reliance

upon the State of Maharashtra v. Vishwanath Maranna Shetty reported

in (2012) 10 SCC 561.

12. Before dealing with the arguments relating to second criteria

of Section 21 (4) of the MCOC Act, the criteria of possibility of

commission of offence, it would be appropriate to consider whether

there is any prima facie substance in the allegations made against both

these applicants as, it is the main criteria not only under Section 21 (4)

of the MCOC Act, but also under Section 439 read with Section 437 Cr. P.

C. for granting or refusing bail.

13. On going through the complaint, supplementary statement of

the complainant, confessional statements recorded under Sectin 18 of the

MCOC Act and also statements of hidden witnesses, I find that at this

stage, there is available sufficient material to hold that there is prima facie

substance in the allegations made against both these applicants. The

version of the complainant prima facie shows that he had borrowed

amount of Rs. 1 crore from applicant Raju Bhadre and after he was told

by the kidnappers that this amount was received by them, that he was set

free by the kidnappers. Complainant could not see who the kidnappers

were and where he was being taken as all the while during kidnappers'

custody, he was under blindfold. The confessional statements of

applicant Raju Bhadre and co-accused Diwakar, Sunil Bhatiya and Aashish

Naidu, all disclose in sufficient detail, of course in a prima facie way, as to

how the conspiracy was hatched by the main accused and applicant Raju

Bhadre; as to how applicant Raju Bhadre remained behind the curtain

while pulling the necessary strings; as to how co-accused Diwakar and

other applicant, Rahul Dubey and others executed to the core the criminal

plan and as to how ultimately, the complainant was made to believe that

he was helped by applicant Raju Bhadre, though it was not the fact. The

statements of hidden witnesses no. 7, 55, 45, 44 and 19 at this stage

indicate that the confessional statements of the applicant Raju Bhadre

and other co-accused cannot be left out of consideration, rather they

would show that they need to be kept in mind even at this stage to

ascertain the prima facie worth of the allegations against these applicants

and doing so, I find that there is prima facie substance in those

allegations. Therefore, in my view, there is sufficient material available on

record from which one can see that prima facie case for all the offences

alleged against the applicant Raju Bhadre and other applicant Rahul

Dubey is made out at this stage.

14. Learned Senior Advocate for the applicant Raju Bhadre and

learned counsel for the other applicant Rahul Dubey have submitted that

the confessional statements have been retracted by accused persons in

accordance with the provisions of Section 18 of the MCOC Act and,

therefore, at this stage, a serious doubt has arisen about the facts said to

be stated in the confessional statements. Thus, they urge that the

confessional statements should not be considered at all. Learned

Additional Public Prosecutor submits that even retracted confessions can

be considered appropriately and if they are to be disbelieved, that can be

done only on merits of the case when the trial is concluded and not at

this stage. He submits that now it is well-settled law that confessional

statements constitute substantive piece of evidence. He places reliance

on Gulab Jethanand Khemnani v. State of Maharashtra reported in

2007 (2) Mh. L. (Cri) 538; State of T.N. v. Kutty alias Lakshmi

Narasimhan reported in (2001) 6 SCC 550 and Mohd. Farooq Abdul

Gaful & anr v. State of Maharashtra reported in (2010) 14 SCC 641.

15. Sofar as the law that a confessional statement recorded under

Section 18 of the MCOC Act forms a substantive piece of evidence is

concerned, there can be no two opinions about it. This has been well-

settled by the Hon'ble Supreme Court in the case of Mohd. Farooq

(supra). Equally is the settled position of law about the treatment to be

given to a retracted confessional statement. In case of State of T. N. v.

V. Kutty (supra), the Hon'ble Supreme Court has held that once a

confession is retracted, it is not necessary that the court must presume

that it is tainted. The Hon'ble Apex Court held that there is a duty

imposed upon the Court to evaluate the evidence concerning the

confession by looking at all aspects and find out whether the confession

was voluntary and true, which could be possible only on merits of the case

and not at the stage when the confessional statements are considered for

the purpose of grant of bail or otherwise. This law has been followed by

the learned single Judge of this Hon'ble Court (as the Hon'ble Judge then

was) in the case of Gulab (supra).

16. In the present case, it is not in dispute that applicant Raju

Bhadre retracted his confession made under Section 18 of the MCOC at

the first available opportunity when he was produced before the learned

Chief Judicial Magistrate in compliance with the requirement of sub-

section (4) of Section 18 of the MCOC Act. But, the law being that even a

retracted confessional statement can be relied upon in a given set of facts

and circumstances, as held by the Hon'ble Supreme Court in the State of

T. N. v. Kutty, at this stage, merely because the confession has been

retracted by the accused Raju Bhadre, it would not be permissible for this

Court to straightaway ignore these statements as it would be something to

be determined on merits of the case. Till that happens, this Court would

like to accept these statements as they are, which I have already done.

Same would be applicable to other confessional statements. As such, I

find no substance in the argument of learned Senior Advocate Shri

Dharmadhikari and learned counsel Shri Sirpurkar that the confessional

statements need to be left out of consideration.

17. Now, the question would be, whether the applicants against

whom a prima facie case for alleged offences has been found to be made

out, could be released on bail or not. Section 21 (4) of the MCOC Act

lays down that apart from the criteria of prima facie substance in the

allegations, there is also another criteria which must be found to be

satisfied before refusing to grant bail to the applicant involved in an

offence punishable under Section 3 of the MCOC Act. In the present case,

the offences alleged against applicant Raju Bhadre in thirteen crimes

previously registered against him were such as in which none of the co-

accused in the present crime was made as an accused therein. Then, in

those crimes, in many of them, applicant Raju Bhadre was acquitted and

in remaining of them, was either granted bail or relieved by giving of stay

of the First Information Report. As is the view of this Court expressed in

the case of Dinesh (supra) which is supported by the law down by the

Hon'ble Apex Court in the case of State of Maharashtra v. Bharat

Shantilal Shah & ors reported in (2008) 13 SCC 5, the offences

previously registered against an accused in which the accused is acquitted

or granted some relief in the nature of bail or stay of the FIR, which is so

in case of the applicants here, could be said to be hardly any

consideration for recording the satisfaction that if released on bail,

applicant Raju Bhadre is likely to commit an offence, for the purpose of

denying bail to him. In fact, in order to ascertain as to whether or not an

accused is likely to commit an offence, as required under Section 21 (4) of

the MCOC Act, the Court must consider various factors such as

antecedents of the accused, his propensity and the nature and manner in

which he is alleged to have committed the offence, as held in the case of

Vishwanath (supra). Considering the fact that in most of the previously

registered crimes applicant Raju Bhadre has been acquitted and in

remaining of those has been granted some relief or the other, as

discussed earlier, I do not think that those previous crimes could provide

any reasonable basis for the Court to hold that if released on bail,

applicant Raju Bhadre is likely to commit an offence. When this is

observed qua applicant Raju Bhadre, the same would also be applicable

to the case of the other applicant Rahul Dubey.

18. The matter, however, does not end here. The question of bail

in the present crime is more complex than what it seems to be on the face

of it. The question is not only of whether the applicants are likely to

commit similar offences if released on bail, it is also of the nature which

touches the most basic issue of the primary consideration for exercise of

discretion of bail in favour of the applicants by the Court under Section

439 read with Section 437 Cr. P. C. By considering the parameters

governing discretion of the Court under these Sections, I am of the

considered view, both the applicants would not be entitled to be released

on bail. One of the offences registered against them is for kidnapping for

ransom punishable under Section 364-A of the Indian Penal Code which

offence, as I have said earlier, is prima facie made out against the

applicants in the instant case. This offence is punishable with death or

life imprisonment. This offence, I must say, was not registered against

applicant Dinesh (supra) who was granted bail in his Criminal

Application (BA) No. 424 of 2016 decided on 7.7.2016. The most serious

offence in that case was an attempt to commit murder, punishable under

Section 307 of the Indian Penal Code and in the facts peculiar to that case

it was punishable with maximum imprisonment of ten years. Such is not

the case in the crime registered against both the applicants. The offence

punishable under Section 364-A of the Indian Penal Code, I would say at

the cost of repetition, is punishable with death or life imprisonment which

is what makes it very serious and it is such nature of offence which, in

my view, at this stage disentitles both the applicants from securing their

release on bail. Therefore, I further find that both the applications are

liable to be rejected.

19. Of course, Shri S. V. Sirpurkar, learned counsel for the other

applicant Rahul Dubey has submitted that the trial of the case against

both these applicants is half way through and now it has emerged that the

complainant has turned hostile which fact would stand in support of the

case of applicant Rahul Dubey seeking his release on bail. If such is the

case, it would at the most provide a new ground, a ground of change of

circumstances to the applicants for filing fresh bail applications before

the trial Court and unless this aspect is appropriately considered by the

trial Court, inspite of the fact that this Court has concurrent jurisdiction in

the matter, it would be difficult for this Court to consider it here, it being

not aware of all the details of the trial and how it has gone by uptill now.

Then, as rightly submitted by learned Additional Public Prosecutor, it is

also a matter of judicial propriety and if I may say, there is an advantage

in availing of the jurisdiction of the Sessions Court first in such cases, for,

the trial is conducted by the Sessions Court and it possesses first-hand

information of all relevant facts and circumstances including the

demenour of witnesses, which may not be enjoyed by this Court.

15. In the result, I am not inclined to grant these applications.

Applications stand rejected. However, it is made clear that the trial Court

shall not be influenced by any of the observations made in this order

while deciding the case against the applicants on its own merits. The

applicants shall have liberty to file fresh bail applications before the trial

Court on the ground of change of circumstances. Applications are

disposed of accordingly.

S. B. SHUKRE, J

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