Bombay High Court
Lawrence Dorai Swamy vs The State Of Maharashtra And ... on 24 March, 2021
Bench: R.V. Ghuge, B. U. Debadwar
398.21WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 398 OF 2021
LAWRENCE S/O DORAI SWAMY
VERSUS
THE STATE OF HARASHTRA AND ANOTHER
...
Ms.Pradyna Talekar for Talekar and Associates
for the petitioner
Mr.R.V. Dasalkar, APP for the
respondent/State.
...
CORAM : RAVINDRA V.GHUGE
AND
B.U.DEBADWAR,JJ.
DATE : 24th March, 2021
PER COURT :-
1. The petitioner herein has put-forth
prayer clause "A", "B" and "C" as under :-
"A. The Record and Proceedings in
Application be called from the
report filed by SDPO dated
30.12.2020 in crime no.2827 of 2020
u/s 395, 397, 324, 323, 504, 506(2),
120B of IPC 4 and 25 of Arms Act and
3(1)(ii), 3(2) and 3(4) of MCOC Act;
B. To quash and set aside the
398.21WP.odt
impugned order dated 09.03.2021
passed below the report filed by
SDPO dated 21.01.2021 in Crime
No.2827 of 2020 u/s 395, 397, 324,
323, 504, 506(2), 12o-B of IPC and
section 4/25 of the Arms Act, and
under section 3(1)(ii), 3(2) and
3(4) of the MCOC Act, granting
permission to arrest the petitioner,
by issuing a writ of certiorari or
any other writ order or direction as
the case may be;
C. To quash and set aside the
impugned order dated 15.02.2021
passed by the Ld. Addl. Sessions
Judge, Ahmednagar below objection
petition filed by petitioner
challenging maintainability of the
report filed by SDPO dated
21.01.2021 in crime no.2827 of 2020
u/s 395, 397, 324, 323, 504, 506(2),
120B of IPC 4 and 25 of Arms Act and
3(1)(ii), 3(2) and 3(4) of MCOC Act
in respect of grant of permission to
arrest the accused Lawrence Durai
Swamy and for his custody, by
issuing a writ of certiorari or any
398.21WP.odt
other writ, order or direction as
the case may be;"
2. By the impugned order dated
09.03.2021, the learned trial Court has
accepted the report filed by the SDPO, dated
21.01.2021 and has granted permission to
arrest the petitioner - accused. An
application filed by the petitioner
challenging the maintainability of the report
filed by the SDPO, dated 21.01.2021, has been
rejected by the learned trial Court by an
earlier order dated 15.02.2021.
3. We have considered the streneous
submissions of the learned Advocate for the
petitioner Ms. Talekar and the learned
Prosecutor on behalf of the respondents. Ms.
Talekar requests that her notes of arguments
dated 24.03.2021, may be considered. With the
assistance of the learned Advocates, we have
gone through the voluminous record placed
before us.
4. The record indicates that the F.I.R.
was registered on 21.11.2020, at 2.00 a.m.
(early morning). Sections 395, 397, 324, 323,
504 and 506 (2) r/w section 120-B of the
398.21WP.odt
I.P.C. and sections 4 and 25 of the Arms Act,
were invoked. The informant is said to be an
injured person, who claimed that the driver
of the present petitioner was present when
the offence of dacoity had taken place. The
driver Arjun Thube was arrested on
24.11.2020. Since the Investigating Agency
noticed that Arjun Thube had spoken to the
petitioner herein prior to the dacoity, that
a large Police force reached the residence of
the petitioner around 6.00 a.m. on 09.12.2020
and arrested him.
5. We are not required to refer to the
long history of litigation initiated by the
petitioner in view of the Police Department
having registered several offences against
him. The provisions of the MCOC. Act were
applied to the case of the petitioner on
25.12.2020 after he was granted bail on
23.12.2020 in the F.I.R. No.2827/2020.
Despite the bail having been granted, the
petitioner was not released since the Police
registered another new case against him,
immediately and arrested him.
6. The issue before us in this Petition
is as to whether the trial Court has
398.21WP.odt
committed any error in granting leave to the
Investigating Officer to arrest the
petitioner.
7. The petitioner had been before this
Court in Criminal Appeal No.8/2021 for
challenging the permission to arrest granted
by the Special MCOC Court, when bail was
granted to the petitioner by the Additional
Sessions Court prior to the MCOC Act being
made applicable. Since both the parties had
relied upon the judgment delivered by the
Hon'ble Apex Court in the matter of Pradeep
Ram V/s State of Jharkhand and another (2009)
17 SCC 326, we had scrutinized the earlier
order of the Special Court impugned in the
said appeal while delivering our order dated
19.01.2021. We allowed the appeal and set
aside the order dated 31.12.2020 passed by
the Special Court and remitted the matter. We
noted in our order that as the petitioner was
under arrest and in police custody for 20
days and the maximum period for P.C.R. under
the provisions of the MCOC Act is 30 days,
that the petitioner would be entitled for a
set off. We are now informed that the
petitioner had actually spent 27 days in
P.C.R.
398.21WP.odt
8. The SDPO Shevgaon Division,
Ahmednagar had approached the Special Court
for seeking leave to arrest the petitioner.
As noted above, since the Special Court as
well as the Additional Sessions Judge's
Court, were presided over by the same learned
Judicial Officer, that we had quashed the
earlier order passed by the Special Court and
had directed that the report of the SDPO be
placed before the Additional Sessions Judge
who had granted bail to the petitioner. It is
in this background that the impugned order
dated 09.03.2021 was passed granting leave to
the SDPO to arrest the petitioner.
9. The learned Prosecutor has
vehemently opposed this petition and we
considered his submissions and those put-
forth by the petitioner, on 16.03.2021,
19.03.2021, 22.03.2021 and 23.03.2021. He
contends that the I.O. desires to take
recourse to Section 18 of the MCOC Act for
recording the confessional statement of the
petitioner. So also, 17 points have been
formulated by the I.O. owing to which the
custodial interrogation of the petitioner is
necessary.
398.21WP.odt
10. Section 18 of the MCOC Act reads
thus:-
"Section 18. Certain confessions made
to police officer to be taken into
consideration
(1) Notwithstanding anything in
the Code or in the Indian Evidence
Act, 1872, but subject to the
provisions of this section, a
confession made by a person before a
police officer not below the rank of
the Superintendent of Police and
recorded by such police officer either
in writing or on any mechanical
devices like cassettes, tapes or sound
tracks from which sounds or images can
be reproduced, shall be admissible in
the trial of such person or co-
accused, abettor or conspirator.
Provided that, the co-
accused, abettor or conspirator is
charged and tried in the same case
together with the accused.
(2) The confession shall be
recorded in a free atmosphere in the
same language in which the person is
examined and as narrated by him.
(3) The police officer shall,
before recording any confession under
sub-section (1), explain to the person
making it that he is not bound to make
a confession and that, if he does so,
it may be used as evidence against him
and such police officer shall not
record any such confession unless upon
questioning the person making it, he
is satisfied that it is being made
398.21WP.odt
voluntarily. The concerned police
officer shall, after recording such
voluntary confession, certify in
writing below the confession about his
personal satisfaction of the voluntary
character of such confession, putting
the date and time of the same.
(4) Every confession recorded
under sub-section (1) shall be sent
forthwith to the Chief Metropolitan
Magistrate or the Chief Judicial
Magistrate having jurisdiction over
the area in which such confession has
been recorded and such Magistrate
shall forward the recorded confession
so received to the Special Court which
may take cognizance of the offence.
(5) The person from whom a
confession has been recorded under
sub-section (1) shall also be produced
before the Chief Metropolitan
Magistrate or the Chief Judicial
Magistrate to whom the confession is
required to be sent under sub-section
(4) along with the original statement
of confession, written or recorded on
mechanical device without unreasonable
delay.
(6) The Chief Metropolitan
Magistrate or the Chief Judicial
Magistrate shall scrupulously record
the statement, if any, made by the
accused so produced and get his
signature and in case of any complaint
of torture, the person shall be
directed to be produced for medical
examination before a Medical Officer
not lower in rank than of an Assistant
Civil Surgeon."
11. By this petition, we are testing the
398.21WP.odt
legality and validity of the order passed by
the learned Additional Sessions Judge
permitting the SDPO to arrest the accused.
While doing so, we cannot ignore the fact
that the petitioner was attending the
concerned Police Station thrice a week from
20.01.2021 and was waiting in the Police
Station from 11.00 a.m. to 2.00 p.m. Such
attendance continued for six weeks. Prior
thereto, he was in Police Custody remand from
02.01.2021 till 20.01.2021 when he was
granted bail for the second time, the earlier
occasion being on 23.12.2021. Such attendance
continued for six weeks and the Court below
modified the order on 03.03.2021 mandating
the attendance of the petitioner on each
Monday, once a week.
12. The contention on behalf of the I.O.
before the learned Sessions Judge for seeking
permission to arrest, was based primarily on
a solitary ground as is noted in paragraph 11
of the impugned order, which is "only to
record the confessional statement of the
accused as per section 18 of MCOC Act, the
I.O. has filed this report for grant of
permission to re-arrest." In addition to this
ground, the I.O. has stated that, there are
398.21WP.odt
17 points prepared by him which require him
to interrogate the petitioner.
13. We find that these 17 points were
already formulated by the I.O. when the
permission to arrest the petitioner was
sought earlier and which was granted by the
Special Court, though without jurisdiction,
vide the order dated 31.12.2020 which we have
set aside earlier. Pursuant thereto, the
petitioner was in P.C.R. from 02.01.2021 till
20.01.2021 when the MCOC Act was already
made applicable to him on 25.12.2020.
14. Considering the contentions of the
petitioner that he is being persecuted under
the influence of influential politicians
since he was receiving contracts for
collecting Toll, that we have scrutinized the
contention of the learned Prosecutor as
regards the 17 points which have been
formulated as a part of investigation. For 19
days, the petitioner was in P.C.R. after the
provisions of the MCOC Act were made
applicable. It is informed that he was made
to sit in police station for hours.
15. The learned Prosecutor frankly
398.21WP.odt
submits that, the process of interrogation of
an accused does not mandate noting of the
minutes/details of the interrogation and the
case diary would not disclose as to how the
petitioner was interrogated by the I.O. We
are of the view that 19 days in P.C.R. were
sufficient for the I.O. to interrogate the
petitioner on his 17 points.
16. The impugned order indicates from
paragraph 24 and 25 that the learned
Additional Sessions Judge has granted leave
to re-arrest the petitioner so that the 17
grounds could be investigated and a
confessional statement under section 18 could
be recorded.
17. On 19.03.2021, the learned
Prosecutor had sought time to take
instructions from the I.O. as to whether a
confessional statement is sought to be
extracted from the petitioner. The petitioner
made a specific statement before us that he
does not desire to record any confessional
statement and he has not committed any
act/offence which he desires to confess.
18. On 22.03.2021, the I.O. Shri
398.21WP.odt
Annasaheb Jadhav, was present in the Court
and he instructed the learned Prosecutor to
make a statement that the Police will not
extract a confessional statement from the
petitioner since he has no desire to make
such statement. It requires no debate that a
confessional statement can be recorded under
section 18 (2) only in a free atmosphere.
Sub-Section 3 indicates that an accused is
not under an obligation to make a confession.
It is also provided that if such a
confessional statement is made, the same can
be used not only against the person making
the confession, but even against the co-
accused.
19. We find from the impugned order that
in more than 10 pages out of the 12 pages of
the order, the trial Court has exerted for
recording the lengthy details of the
submissions of the parties and for
considering the citations. The analysis of
the citations end with paragraph 25 of the
impugned order, on page 11. In the short
second last paragraph no.26 on page 12, the
trial Court has made an observation that
"however, in the present matter, the trial is
yet to be conducted. The present matter, is
398.21WP.odt
at the initial stage of investigation. So,
the above observations" (citations referred
to by the learned Judge) "are made on
decision of trial and therefore, cannot be
made applicable in the present case. So, the
case law is not applicable in the present
matter." As such, the trial Court then
proceeded to draw it's conclusion in a single
sentence in paragraph 27 which is, "in view
of the above discussion, the permission is
granted to Investigating Officer to arrest
the accused."
20. We cannot appreciate that the
learned Judge has drawn her conclusion in a
single sentence without taking into account
the fact that the petitioner was in P.C.R.
for 19 days after the MCOC Act was applied.
The learned Judge has failed to know that
these 19 days should have been utilized by
the I.O. for getting answers to the 17
points, from the accused. So also, if a
confessional statement was to be extracted
"in a free atmosphere", this could have been
done in the said 19 days period. It is also a
matter of record that the co-accused in the
crime were in P.C.R. and the I.O. has not
recorded any confessional statement from any
398.21WP.odt
of them.
21. Now that the petitioner has declared
before this Court that he does not desire to
record any confessional statement and keeping
in view the statement made by the learned
Prosecutor on instructions from the I.O. that
he does not intend to record a confessional
statement, we find that there is no reason to
detain the petitioner in P.C.R. for custodial
interrogation. So also, even if we permit
custodial interrogation, it would be only for
a period of three days as the petitioner was
already in P.C.R. for 27 days.
22. In view of the above, this Petition
is partly allowed. The impugned order dated
09.03.2021 granting permission to arrest the
petitioner in crime no.2827/2020, is quashed
and set aside.
23. Since we have earlier recorded the
statement of the petitioner that he is
willing to cooperate in the investigation and
is willing to attend the Police Station on
any number of days and for any duration as
the I.O. may deem appropriate, that we direct
the petitioner to attend the Bhingar Camp
398.21WP.odt
Police Station, Ahmednagar on every Monday
and Tuesday, which includes his attendance on
each Monday pursuant to the order of the
learned Sessions Judge. He shall make
himself available for interrogation from
11.00 a.m. till 3.00 p.m. on each of these
two days, until the trial before the Special
Court commences in Crime No.2827/2020.
24. The earlier condition that, he would
not leave the limits of the Ahmednagar
district without written intimation, with the
exception of leaving the district once a
week, will continue.
(B.U.DEBADWAR,J.) (RAVINDRA V. GHUGE,J.)
SGA
