Bombay High Court
Santosh S/O. Madhu Bankar vs The State Of Mah. Thr Pso ... on 12 October, 2021
Bench: V.M. Deshpande, Pushpa V. Ganediwala
13apeal 332.2021.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 332 OF 2021
Santosh s/o Madhu Bankar,
aged about 34 years, Occ. Labour,
R/o Soundad, Tahsil Sadak Arjuni,
District Gondia.
...APPELLANT
Versus
1. State of Maharashtra,
through P.S.O. Dawniwada,
Tah. Sadak Arjuni, District Gondia.
2. Sevangan w/o Rajesh Kirsan,
aged about 30, Occ. Household,
R/o Lohara, District Gondia.
...RESPONDENTS
Shri Virat S. Mishra, Advocate for the appellant.
Shri T.A. Mirza, A.P.P. for respondent No.1.
Ku. Divya Joshi h/f Dr. Mrs. R.S. Sirpurkar, Advocate for respondent
No.2 (appointed).
.....
CORAM : V. M. DESHPANDE &
PUSHPA V. GANEDIWALA, JJ.
DATED : OCTOBER 12, 2021.
ORAL JUDGMENT : (PER : V. M. DESHPANDE, J.).
This is an Appeal under Section 14-A of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, challenging the order passed by the
::: Uploaded on - 12/10/2021 ::: Downloaded on - 13/10/2021 07:41:41 :::
13apeal 332.2021.odt 2
learned Additional Sessions Judge, Gondia dated 28/07/2021
in M.C.B.A. No. 167/2021. By the said order, the learned Judge
rejected the application filed on behalf of the appellant for pre-
arrest bail.
2] Admit. Taken up for final hearing forthwith.
3] Heard Shri Virat Mishra, learned counsel for the
appellant, Shri T.A. Mirza, learned Additional Public Prosecutor
for respondent No.1/ State and Ku. Divya Joshi h/f Dr. Mrs.
R.S. Sirpurkar, learned counsel for respondent No.2, who could
not remain present today because of her ill health, who was
appointed by this Court as an amicus in this matter.
4] We have also perused the reply filed on behalf of
the prosecution as well as by the respondent No.2.
5] The submission of the learned counsel for the
appellant is that the name of the appellant is not figuring in the
First Information Report. He further submitted that as per reply
::: Uploaded on - 12/10/2021 ::: Downloaded on - 13/10/2021 07:41:41 :::
13apeal 332.2021.odt 3
filed by the prosecuting agency before the learned Trial Court,
the prosecution wants custody of the present applicant for
recovery of hoe and other articles related to digging of pit. The
learned counsel submitted that he is a respectable person of the
Society, and therefore, he be released on Anticipatory Bail by
imposing conditions upon him.
6] Per contra, the learned Additional Public Prosecutor
Shri T.A. Mirza vehemently opposed the Appeal, which is in the
nature of pre-arrest bail. He pointed out from the reply filed on
behalf of the prosecuting agency that the appellant cannot be
rulled out, being the master mind in the crime, inasmuch as he
has pointed out from the CDR reports collected by the
prosecuting agency during the investigation and tower
location, which clearly shows that the present appellant was in
constant touch with the other co-accused, some of whom are in
jail. Along with the reply, the prosecuting agency has placed on
record the gist of the CDR reports and also the tower location.
He submitted that the appellant is an influential person of the
area, and if he is granted pre-arrest bail, the possibility of he
::: Uploaded on - 12/10/2021 ::: Downloaded on - 13/10/2021 07:41:41 :::
13apeal 332.2021.odt 4
pressurizing the prosecution witnesses cannot be rulled out.
7] Ku. Joshi, learned counsel, also read out the reply
filed on behalf of the complainant. From her reply, it is clear
that the appellant belongs to a very wealthy family.
8] This Appeal along with Appeal No. 347/2021 filed
by the co-accused Geeta were listed before this Court (Coram :
V.M. Deshpande & Amit B. Borkar, JJ.), notices were issued to
the prosecution as well as the complainant. The order dated
21/09/2021 would show that the complainant/ respondent
No.2 was required to be brought before this Court under the
Police escort from her residential place situated in the Gondia
District. The said fact was observed by this Court in order
dated 21/09/2021. Since respondent No.2 belongs to the
Scheduled Tribe and a very poor person and was not able to
engage the services of lawyer, therefore this Court appointed
Dr. Mrs. R.S. Sirpurkar to represent her and accordingly Dr.
Sirpurkar prepared the reply.
::: Uploaded on - 12/10/2021 ::: Downloaded on - 13/10/2021 07:41:41 :::
13apeal 332.2021.odt 5
9] The First Information Report is lodged by
respondent No.2, who is one of the eye-witnesses of the brutal
attack made on her husband by the accused persons. The
learned counsel for the appellant submitted that the name of
the appellant is not figuring the First Information Report.
Reading out of the First Information Report shows the same.
However, the First Information Report is not the last word of
the prosecution, rather it is the starting point of the
prosecution. The First Information Report puts wheels of
criminal law of justice into motion. By registration of the First
Information Report and crime, the Investigating Officer gets
authorization for investigating the crime if it is a cognizable
offence. During the Court of investigation, the role of the co-
accused persons may surfaces though they are not named in
the First Information Report. Complicity of the accused
persons, whose names are not figuring the First Information
Report, may surface lateron during the course of investigation.
Fullest opportunity has to be given to the Investigating Officer
to investigate the crime in question.
::: Uploaded on - 12/10/2021 ::: Downloaded on - 13/10/2021 07:41:41 :::
13apeal 332.2021.odt 6
10] In that view of the matter, merely because the name
of the appellant is not appearing in the First Information
Report pending the investigation it has no bearing, especially
when the prosecuting agency is successful in pointing out to
the Court by placing the gist of the CDR reports to show that
the appellant was in constant touch with the co-accused and
the tower location. The postmortem report shows that the
deceased Rajesh Kirsan was very brutally murdered. The
injuries are appearing on all parts of the body. As per the First
Information Report, some of the co-accused even deprived the
first informant to give water to her husband when he was
demanding and shouting, "water water". That shows the
brutality on part of the accused persons. The accused persons
thereafter tied the hands and legs of the deceased, who at the
relevant time was in a serious injured condition, puts him in a
dickey of four wheeler and took away 80 kilometers from the
place of the incident. He was buried at Village Bampaboli
(Soundad) jungle area, a nearby place of the resident of the
present appellant. It is to be mentioned here that the dead
body of Rajesh was discovered by the co-accused Rahul.
::: Uploaded on - 12/10/2021 ::: Downloaded on - 13/10/2021 07:41:41 :::
13apeal 332.2021.odt 7
11] The learned Additional Public Prosecutor has
submitted that after the investigation, chargesheet is filed
before the Competent Court. However, since the appellant was
not traceable, the chargesheet is filed against him under
Section 299 of the Code of Criminal Procedure.
12] In view of the aforesaid, we are of the view that the
custodial presence of the appellant is absolutely necessary not
only for the recovery but also for further investigation which
the Investigating Officer is entitled to conduct.
13] Conspectus of the aforesaid discussion leads us to
pass the following order :
ORDER
i] The Appeal is dismissed.
ii] The order passed by the learned Additional
Sessions Judge, Gondia dated 28/07/2021 in M.C.B.A. No.
167/2021 stands confirmed.
14] We place on record word of appreciation for Dr.
R.S. Sirpurkar.
JUDGE JUDGE
Sumit
