Bombay High Court
Radhika Vishal Phate vs State Of Maharashtra on 28 July, 2022
Bench: P. K. Chavan
901-ABA-2039-2022=.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 2039 OF 2022
Alaka Ambhadas Phate .. Applicant
Vs.
The State of Maharashtra .. Respondent
ALONG WITH
ANTICIPATORY BAIL APPLICATION NO. 2040 OF 2022
Radhika Vishal Phate .. Applicant
Vs.
The State of Maharashtra .. Respondent
.....
Dr. Yug Mohit Chaudhary for the applicant in both ABA
Mrs. S.S. Kaushik, APP for the respondent - State in ABA 2039/22
Mr. A.A. Palkar, APP for the respondent - State in ABA 2040/22
Mr. Amit Shivaji Shitole, API, EOW, Solapur Gramin present in Court
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
DATED : 28 th JULY, 2022.
P.C.
1. Heard Dr. Yug Choudhary, learned Counsel for the applicants.
Applicant - Radhika is the wife of the main accused while
applicant - Alaka is his mother. The main accused Vishal
Ambhadas Phate and his father - Ambhadas along with the
applicants have been booked by the Barshi city police station
for the offences punishable under Sections 404, 417, 420 r/w
34 of the Indian Penal Code and under Section 3 of the M.P.I.D.
Act, 1999 for allegedly committing offences of criminal beach
Digitally
signed by
of trust, cheating by dishonestly inducing a large number of
UDAY
UDAY SHIVAJI
SHIVAJI JAGTAP
Date:
JAGTAP 2022.07.29
14:52:26
+0530
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investors to invest amounts in the share market through their
financial institution namely Vishalka Consultancy Pvt. Ltd.
2. At the outset, Dr. Choudhary would urge to protect the liberty
of the applicants since neither they are Directors, Shareholders,
Office Bearers or signatories of the said Company nor they
shared any common intention with the prime accused in order
to commit the aforesaid offences. Some amount which appears
to have been credited in their accounts have already been
frozen. No witness names any of these applicants and,
therefore, ad-interim is sought.
3. Having gone through the allegations in the FIR, I do not find
names of the applicants figuring therein. Prima facie, the
applicants do not appear to be having any nexus with the
alleged offences.
4. Learned APP while opposing the prayer, submits that the
provisions of the M.P.I.D. Act are required to be invoked as the
investors have been defrauded by the applicants to the extent
of Rs.41 crores and odd. However, she is fair enough to
concede that prima facie complicity of the applicants do not
reveal from the FIR and the statements. It is also apparent
from the record that no specific role is attributed to the
applicants.
5. Learned APP, however, submits that since learned Special
Judge, MPID, Barshi by an order dated 14 th January, 2022 has
not only issued proclamation under Section 82 of the Cr.P.C. but
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also a non-bailable warrant under Section 73 on the basis of
which, the applicants cannot seek pre-arrest bail in the event of
their arrest. It appears that the learned Additional Sessions
Judge misread Sections 73 and 82 of the Cr.P.C. by
simultaneously issuing warrant and proclamation, which is not
in true spirit. The stage of proclamation would arise only after
the Court has reason to believe that a person against whom
warrant has been issued by it has absconded or has concealed
himself so that warrant cannot be executed...... Be that as it
may.
6. Learned APP seeks time till 2.30 p.m. to place on record the
judgment of the Supreme Court, which says that when
proclamation is issued, application under Section 438 is not
maintainable.
7. At her request, kept back at 2.30 p.m.
Called out at 2.30 p.m. :-
8. Learned APP invites my attention to a judgment of the
Supreme Court in the case of Lavesh Vs. State (NCT of Delhi),
2012(8) SCC 730. Para 12 of the judgment is extracted as
below :-
"12. From these materials and information, it is clear
that the present appellant was not available for
interrogation and investigation and was declared as
"absconder'. Normally, when the accused is
"absconding" and declared as a "proclaimed offender",
there is no question of granting anticipatory bail. We
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reiterate that when a person against whom a warrant
had been issued and is absconding or concealing
himself in order to avoid execution of warrant and
declared as a proclaimed offender in terms of Section
82 of the Code he is not entitled to the relief of
anticipatory bail."
9. Dr. Choudhary is fair enough to admit that in view of the said
observations by the Supreme Court he may be granted liberty
to approach the Special Court qua applicant - Radhika seeking
quashing of the proclamation issued under Section 82 of the
Cr.P.C. till then he prays for granting her interim protection.
10. As such, applicant - Radhika Vilas Phate (in ABA No. 2040 of
2022) would make an application before the Special Court
within two weeks from today by making appropriate prayers in
view of the impugned order passed on 14 th January, 2022.
Upon making such application, the Special Judge shall decide
and dispose of the said application within two weeks thereafter.
11. Insofar as applicants - Alaka Ambhadas Phate (in ABA No.
2039 of 2022) and Radhika Vilas Phate (in ABA No. 2040 of
2022) are concerned, having gone through the allegations in
the FIR, I do not find any overt act has been attributed to those
applicants. Prima facie, the applicants do not seem to be
having any nexus with the alleged offences. By imposing some
conditions and restrictions their liberty needs to be protected.
Consequently, following order is expedient :-
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(i) Applicants shall be released on interim bail in the event
of their arrests in FIR No.27/2022 registered with Barshi City
Police Station, Solapur under Sections 409, 417, 420 r/w 34 of
the IPC and Section 3 of the MPID Act, on furnishing a PR
bond in the sum of Rs.1,00,000/- (Rupees one lakhs only) with
two solvent sureties each in the like amount to the satisfaction
of the Special Judge.
(ii) The applicants shall attend and report the Dy.S.P.
Economic Offence Wing, S.P. Office, Solapur Gramin on
Monday and Friday for two weeks and thereafter as and when
summoned.
(iii) The applicants shall surrender their passports before the
Investigating Officer, if she has.
(iv) The applicants shall not leave the jurisdiction of the
Special Judge without seeking prior permission.
(v) Needless to say that there shall not be any influence,
tampering with the prosecution witnesses.
(vi) Breach of any of the conditions imposed hereinabove
would entitle the prosecution to seek cancellation of the bail.
(vii) Ad-interim protection will operate for a period of four
weeks.
12. Stand over to 26th August, 2022.
(PRITHVIRAJ K. CHAVAN, J.)
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