Parshuram S/O. Bajirao Dongre vs The State Of Maharashtra Thr. The ...
2017 Latest Caselaw 6965 Bom

 revn126.17                                      1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

       CRIMINAL REVISION  APPLICATION  NO.  126 OF 2017

 Parshuram S/o Bajirao Dongre,
 aged about 40 years,Occ-Business,
 Ward No.3, Near Post Office, Allapali, 
 Tehsil-Aheri,District-Gadchiroli.                            ....APPLICANT

                                ...V E R S U S...
  
 The State of Maharashtra,
 Through the Sub-Divisional Police Officer,
 Aheri,Tahsil-Aheri,-District-Gadchiroli,           ...NON APPLICANT
 -------------------------------------------------------------------------------------------
 Shri S. G. Karmarkar,Advocate for the   applicant.
 Shri   T.   A.   Mirza,   A.P.P.   with   Shri   Indranil   Damle,   A.P.P.   for   non
 applicant-State
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- SEPTEMBER 11,2017

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard finally

by consent of the learned counsel for the parties.

2. The present revision is directed against the judgment

and order dated 16/8/2017, passed by Additional Sessions Judge,

Gadchiroli in Criminal Revision No.29/2017. By the impugned

judgment and order, the learned revisional Court allowed the

revision filed on behalf of the non applicant-State. By allowing the

revision filed by the State, the learned revisional Court set aside

the order passed by learned Magistrate and granted Police Custody

Remand (hereinafter referred to as the "P.C.R" for the sake of

brevity) of the applicant for 5 days to investigating officer.

3. According to learned counsel for the applicant, the

order passed in revision is unjust, inasmuch as according to the

the learned counsel, the learned revisional Court has exceeded its

jurisdiction and has substituted its view in place of the view of the

learned Magistrate. He submitted that the grounds those were put

forth before the learned Magistrate on 31/7/2017 for obtaining

P.C.R. are nothing but repetition of the reasons on which the

investigating officer was successful in obtaining the P.C.R till

31/7/2017 by remand application dated 28/7/2017. He also

submitted that the applicant was not produced before the learned

revisional Court while granting P.C.R. and therefore there is a

breach of the mandate of Section 167 of the Code of Criminal

Procedure. In support of his submissions, the learned counsel for

the applicant relied on following reported cases:

I) Satyajit Ballubhai Desai and others Vs. State of Gujrat, (2014)14SCC434.

II) Johar and others Vs. Mangal Prasad and another, 2008 Cri.L.J.1627.

(III) Pathumma and another Vs. Muhammad, AIR 1986 SC 1436.

(IV) Dilip S/o Ramchandra Umare Vs. State of Maharashtra, 1996 Cri.L.J.72,

(V) Master Leonard Mark Hillario Vs. Shri Seby Hillario, 2007 ALL MR(Cri)1649.

4. Per contra, it is the submission on behalf of the learned

A.P.P. that the learned revisional Court has correctly stepped

inasmuch as the learned revisional Court noticed that the order

passed by the learned Magistrate refusing the P.C.R. cannot stand

to the scrutiny of the law since learned Magistrate failed to

consider the ground for which P.C.R. was demanded. He also

submitted that none of the grounds were discussed by the learned

Magistrate while rejecting the prayer for P.C.R. It is also

submission of learned A.P.P. that the offence is serious in nature

and therefore the investigating officer has to be given ample

opportunity to investigate into the matter and the investigation

cannot be shunted at the primary stage by giving insufficient

reasons. He therefore, submitted that the revision is required to

be dismissed.

5. In order to appreciate the rival contentions, in my view

it would be useful to have a cursory glance to the facts giving rise

to the registration of the crime itself in which the applicant is

arrested.

6. An order was passed by the competent authority by

which bank account no.34067507476 standing in the name of

Ankit Traders and another account no.34048552783 standing in

the name of the present applicant with State Bank of India were

frozen immediately with prior notice to the concerned individual.

The said order was addressed to the Chief General Manager,

Department of Banking Regulation, RBI, Mumbai. In the said

order itself it is mentioned that the individual or the entity can

make representation and they may move an application by giving

requisite evidence in writing to the concerned branch of the bank.

The Reserve Bank of India has also communicated the said order

to the Chairman of State Bank of India.

It is not in dispute that applicant Parshuram S/o

Bajirao Dongre is the proprietor of Ankit Traders.

7. The applicant for himself and for entity as a proprietor

has filed a representation. The applicant thereafter has also given

representations to the various banks in which he was having bank

accounts. According to applicant, since representation was not

decided and his accounts were frozen, he approached before this

Court by filing Writ Petition No.552/2017 on 19/6/2017 praying

for the following reliefs.

i) Issue appropriate writ, order or direction thereby directing the respondent no.1 viz.Union of India, Ministry of Home Affairs, through its Secretary, Sansad Bhawan, North Block New Delhi to defreeze the accounts of the petitioner as mentioned in para 3 of the petition and the petitioner may be permitted to operate the said accounts; thereby quash and set aside the communication/order dated 8/2/2017 i.e. Annexure-A.

ii) Issue appropriate writ, order or direction interim thereby directing the respondents to defreeze the accounts of the petitioner as mentioned in para 3 of the petition so that the petitioner may be able to pay labour charges to the labourers as per notice of the Gram Panchayat and to carry out his business smoothly;

(iii) Grant any other suitable relief as maybe deemed fit and proper in the facts and circumstances of the case."

8. Thereafter, a crime was registered with Police Station,

Aheri vide Crime No.85/2017, for the offence punishable under

Sections 420,467,468,471 of the Indian Penal Code. The applicant

was arrested in connection with the said crime on 23/7/2017 at

22.24 hrs. The applicant was produced before the learned

Magistrate at Aheri, District-Gadchiroli on 24/7/2017. At the time

of his production before the learned Magistrate the investigating

officer prayed for grant of P.C.R. from 24/7/2017 till 31/7/2017.

The learned Magistrate considered the remand papers and passed

the order on the said day thereby remanding the applicant to

P.C.R. till 28/7/2017.

On 28/7/2017, the P.C.R. was to expire hence the

applicant was again produced before the learned Magistrate with a

renewed prayer for extension of the P.C.R. from 28/7/2017 till

7/8/2017. The learned Magistrate passed order on 28/7/2017and

extended P.C.R. of the applicant till 31/7/2017.

Again on 31/7/2017 when the applicant was produced

before the learned Magistrate and when there was a fresh prayer

from the investigating officer for granting further P.C.R., the

learned Magistrate by order dated 31/7/2017 disallowed the

prayer made by the investigating officer and took the applicant in

Magisterial Custody Remand.

9. The State feeling aggrieved by the said order

immediately moved before the learned revisional Court by filing

Criminal Revision No.29/2017. The notice of the said revision

was given to the applicant. A reply duly sworn by the wife of the

applicant was filed before the learned revisional Court opposing

the revision. The learned revisional Court after hearing learned

A.P.P. for the State and learned counsel for the present applicant

allowed the revision and granted P.C.R. for five days.

10. Section 57 of the Code of Criminal Procedure 1973

mandates that a person arrested not to be detained more than

twenty-four hours. As per the scheme of the Code no police officer

can detain in custody a person arrested without warrant for a

longer period in absence of order of a Magistrate. Thus, before

expiry of initial twenty-four hours the investigating officer is

required to produce a person detained by him without warrant

before the nearest Magistrate if the said investigating officer

wishes to have the custody of the person who is detained beyond

twenty four hours. While; calculating twenty four hours the period

of journey has to be excluded. If the investigating officer fails to

obtain necessary orders from the Magistrate after expiry of initial

twenty four hours then in that even custody of the person so

detained by the investigating officer shall be illegal detention at

the hands of the investigating officer.

11. From the scheme of the Section 57 of the Code of

Criminal Procedure the investigating officer has to complete his

investigation qua the person so detained in connection with a

cognizable offence within twenty four hours. However, if the

instigating officer is unable to complete the investigation within a

period of twenty four hours and if investigation reveals that for

further effective investigation the custody of the person so arrested

is necessary then it is open for the investigating officer to approach

to the Magistrate and the Code takes care of such a situation as

found in Section 167 of the Code of Criminal Procedure. At the

time of production of person so arrested before the learned

Magistrate by the investigating officer for seeking further

detention in the P.C.R. it is the duty on the part of the

investigating officer to point out to the learned Magistrate the

grounds for which the custody is required. At the same time, it is

a duty of the learned Magistrate that he should be satisfied that

adequate ground exists for granting further police custody remand

beyond initial period of 24 hours. If the said ground exists then

learned Magistrate can authorise further detention of the person

so arrested however, in any case, such a detention cannot exceed

15 days in whole. After expiry of 15 days if such period is granted

and if the charge-sheet is not filed then in that event the learned

Magistrate is empowered to take him in Magisterial Custody

Remand for a period of 60 days or 90 days as the case may. If the

final report is not filed within sixty or ninety days as the case may

be, the accused is entitled to be released on bail which is

commonly known as "default bail" if he is ready to furnish the bail.

12. In the present case, the F.I.R. was lodged on

23/7/2017. The F.I.R. was lodged by Shri Kiran Vitthal Bagate,

P.S.I., Police Station, Aheri. As per the F.I.R. he received a secret

information that the applicant who is resident of Mouza-Burgi,

Tahsil Etapalli, presently residing at Alapalli, District-Gadchiroli is

running a business in the name and style as 'Ankit Traders'.

According to F.I.R. since last 4-5 years he is active in Bhamragad,

Etapalli and Aheri areas and he collects extortion money from the

Tendupatta contractors, big shop owners, builders, etc. The same

is extorted for Naxalites and thereafter he hands over such

extortion money to the Naxalites. It is also stated in the F.I.R. that

on 8/11/2016, the Government of India formed a policy which is

commonly known as Demonetization Policy thereby circulation of

currency notes of Rs.500/- and Rs.1000/- was barred and

prohibited. It is stated in the F.I.R. that certain period was given

by the Reserve Bank of India to deposit the old currency notes and

taking advantage of the same, it was suspected that there is a

possibility of depositing of large amounts in the bank accounts by

persons and therefore the police officers were given instructions to

keep vigil eye on the same. The F.I.R. shows that an information

was received that in the bank accounts of the applicant and Ankit

Traders, about Rs.1,20,00,000/- were found to be deposited. The

information about the same was given to the Income Tax

Department and Income Tax Department conducted inquiry into

the same and recorded statements of various persons who flatly

denied that at any point of time they had any transaction either

with the applicant or with Ankit Traders. With this the offence was

registered.

13. Though initially, the applicant was charged under the

Indian Penal Code, on 27/7/2017 after custodial interrogation of

the applicant, it was found by the investigating officer that the

applicant is also guilty of committing the offence under Sections

17, 18, 21 and 40 of the Unlawful Activities(Prevention) Act, 1967

and accordingly, the concerned Magistrate was also informed.

14. During the course of hearing of the present revision

today, the learned counsel for the applicant submitted that the

writ petition filed by the applicant i.e. Writ Petition No.552/2017

is dismissed by Division Bench of this Court. Be that as it may,

the question before this Court is whether the revisional Court

exceeded its jurisdiction vested in it as canvassed by learned

counsel for applicant. The reported cases at serial nos. 2 to 4 as

cited (supra) in my view are hardly applicable and useful for the

applicant or for this Court for deciding the issue in question as all

those cases are concerned with the reappreciation of evidence at

the hands of the revisional Court. The facts in all those cases show

that the revisions were filed after the final decisions of the cases in

which either accused were acquitted or the maintenance amount

was granted.

15. According to learned counsel for the applicant, the

reasons for P.C.R. as put forth by the investigating officer before

the learned Magistrate on 31/7/2017 are identical to that of the

reasons for P.C.R. on 28/7/2017. Even the learned Magistrate in

the order dated 31/7/2017 has observed as under:

" Now, grounds put forth for extension of the P.C.R. are identical to earlier grounds for which sufficient P.C.R. is already granted."

The first ground for P.C.R. on 28/7/2017 reads as under:

" As per the statement of the accused dated 27/7/2017 the 17 chits which were kept in locker no.41 of Bank of India, Aalapalli containing the materials such as hardware, tools, nut bolts, tailoring materials, machinery, stationary goods , electronics, electrical medicines, drill machine, screw driver, nut-bolt, wire, generator, battery, bulb, cutter etc. are produced by the applicant and these articles are supplied to the naxalites."

Custody was further demanded on the said day on the

ground that the applicant is not giving any information as to from

where he has brought these articles and how those are supplied

and to whom and therefore the P.C.R. was sought to be extended.

These grounds were found favour with the investigating officer

and the P.C.R. was extended till 31/7/2017.

16. On 31/7/2017, the investigating officer amongst other

sought extension of P.C.R. on following grounds:

"(i) As per the statement given by accused on 27/7/2017 under which he produced 17 chits kept in locker no.41 mentioning the articles provided to the naxalites and therefore when the investigation was done in that behalf he had stated that he has procured some articles from Nagpur and from Chandrapur. The P.C.R. was demanded by the investigating officer since the accused agreed to show the places from where he has procured those articles and therefore the P.C.R. was demanded to visit the said places along with the applicant. It would be useful to mention the reasons as put forth on 28/7/2017 and 31/7/2017 in Marathi."

Date: 28/7/2017

"1½ fnukad [email protected]@2017 jksth vkjksihus fnysY;k fuosnukizek.ks R;kus cWad vkWQ bafM;k] vkykiYyh ;sFkhy ykWdj dzaekd 41 e/;s BsoysY;k 17 fpB;k T;koj u{kyokn;kauk iqjfo.;kr vkysY;k T;koj gkMZosvj] VqYl] uVcksYV] Vsyfjaxlkeku] ef'kujh] LVs'kujh lkeku] bysdV~fuDl]bysfDVzdy] vkS"k/k xksG;k T;kr fMzy e'khu] Ldzq Mzk;oj uV&ckasYV]ok;j tujsVj]cWVjh]lsy]cYc]dVj v'kk ?kkrkikrkdfjrk okij.;kr ;s.kkjs lkfgR; rlsp dkiM o f'kykbZ dj.;kdfjrk okij.;kr ;s.kkjs lqbZ] /kkxk] vkf.k vkf.k vkS"k/k lkB;kr lftZdy dkekdfjrk ykx.kkjs lkfgR;kaph ukos ueqn dsysY;k fpBBk dk<qu fnysY;k vkgsr lnj lkfgR; vkjksihus u{kyokn;kauk iqjfoys vkgs- ftYgkr ?kkrikrkps eksBs izdkj ?kMysys vlY;kus R;kr

lnj lkfgR;kpk okij >kY;kph nkV 'kD;rk vkgs-ijarq lnjps lkfgR; dksBqu vk.k.;kr vkys]dks.kkl o d'kkizdkjs iqjfo.;kr vkys ;kckcr vkjksih dkfggh lkaxrk ukgh-lnjps izdj.k xaHkhj Lo:ikps vlY;kus vkjksihdMs l[kksy rikl dj.ks vko';d vkgs-"

Date:31/7/2017

"1½ fnukad [email protected]@2017 jksth vkjksihus fnysY;k fuosnukizek.ks R;kus cWad vkWQ bafM;k vkykiYyh ;sFkhy ykWdj dza-41 e/;s BsoysY;k 17 fpBBk T;koj u{kyokn;kuk iqjfo.;kr vkysY;k lkfgR;kaph ukos ueqn dsysY;k fpBBk dk<qu fnysy;k vkgsr lnj lkfgR;k vkjksihus u{kyokn;kuk iqjfoys vkgs-lnjps lkfgR; dksBqu vk.k.;kr vkys]dks.kkl o d'kkizdkjs iqjfo.;kr vkys ;kckcr iksyhl dksBMh nje;ku vkjksihdMs fopkjiwl dsys vlrk dkgh lkeku ukxiwj o dkgh lkeku panziwj ;sFkqu vk.kr gksrs- rh tkxk eh vki.kkl nk[kforks vls lkaxr vkgs- R;keqGs lnj fBdk.kh tkoqu rikl dj.ks vkgs-"

17. Thus, from the aforesaid it is crystal clear that the first

grounds on which the P.C.R. was claimed by the investigating

officer on 28/7/2017 and on 31/7/2017 are altogether different.

So also, ground nos. 3, 4, 6 as submitted by the investigating

officer for claiming the P.C.R. were raised for the first time on

31/7/2017.

18. True it is, that the revisional Court not being a Court of

appeal, can not reappreciate and substitute its view in exercise of

the revisional jurisdiction. The revisional Court's jurisdiction is not

only limited in scope but discretionary. The Court interferes in

the revisional jurisdiction only in exceptional cases of flagrant

miscarriage of justice is the trait of law. In my view, the learned

Magistrate has not considered the grounds for claiming the P.C.R.

on its own. It was expected from the learned Magistrate at least to

record the cursory reason in respect of each and every grounds as

sought to be pressed into service by the State for claiming P.C.R.

By making general observations, in my view, the learned

Magistrate has committed not only a mistake but it has resulted in

to the miscarriage of justice. The learned Magistrate ought to have

gauged the gravity of the offence. Gadchiroli district is highly

infested with the outlawed organisations commonly known as

'Naxalite Movement'. These outlawed organisations frequently

indulge into the activities of violence resulting into not only the

death of civilians but also the personnel of the armed forces. It is

also noticed by the higher-ups of the bank and by the Income Tax

Department that an amount of Rs, 1,20,00,000/- were found to be

deposited in the account of the applicant and when the Income

Tax Department inquired into the same nothing satisfactory was

found infavour of the applicant. Not only that, even a writ petition

for defreezing of his account is also dismissed by Division Bench

of this Court. The another submission of the learned counsel for

the applicant that the applicant was not produced before the

learned revisional Court in my view hardly require any

deliberation. The applicant was produced before the learned

Magistrate on 31/7/2017 at the time for extension of P.C.R. The

said was rejected and on the very same day applicant was taken

into Magestrial Custody Remand and was sent to Jail. The revision

was filed before the revisional Court to test the correctness or

otherwise of the order passed by the learned Magistrate.

19. In the facts and circumstances as enumerated above in

my view, the learned revisional Court has not exceeded its

jurisdiction in setting aside the order passed by the learned

Magistrate. In my view, the learned revisional Court was right in

upsetting the cryptic order of the learned Magistrate and has

rightly granted P.C.R.

20. This Court on 18/8/2017 has granted interim order in

favour of the applicant and that is also required to be vacated.

Hence, following order.

ORDER

(i) Criminal Revision Application No.126/2017

is dismissed.

(ii) Judgment and order dated 16/8/2017,

passed by Additional Sessions Judge, Gadchiroli in

Criminal Revision No.29/2017 stands confirmed.

(iii) The interim order passed by this Court on

18.08.2017 stands vacated.

(iii) The investigating officer is directed to act

in accordance with law.

Rule is discharged.

JUDGE

kitey/kahale