Bombay High Court
Manoj S/O. Prabhakar Lohar vs The State Of Maharashtra on 21 April, 2023
Bench: R. G. Avachat, R. M. Joshi
Criminal Appeal No.104/2019 with
connected appeals.
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.104 OF 2019 WITH
CRIMINAL APPLICATION NO.3043 OF 2022
Manoj s/o Prabhakar Lohar,
Age 45 years, Occu. Service,
R/o Thane, Taluka and
District Thane ... APPELLANT
VERSUS
1. The State of Maharashtra
Copy to be served on the
Public Prosecutor, High Court of
Bombay, Bench at Aurangabad
2. Dr. Uttamrao Dhanaji Mahajan,
Age 56 years, Occu. Service,
R/o Chalisgaon, Tq. Chalisgaon
District Jalgaon ... RESPONDENTS
.......
Mr. N.S. Ghanekar, Advocate for appellant
Mr. R.V. Dasalkar, A.P.P. for respondent No.1
Mr. D.S. Bagul, Advocate for respondent No.2.
.......
WITH
CRIMINAL APPLICATION NO.1939 OF 2021 IN
CRIMINAL APPEAL NO.104 OF 2019
Dr. Uttamrao Dhanaji Mahajan,
Age 56 years, Occu. Service,
R/o Chalisgaon, Tq. Chalisgaon,
District Jalgaon ... APPLICANT
VERSUS
1. Manoj Prabhakar Lohar,
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Age Major, Occu. Nil
R/o 1701, Crystal Building,
Vasant Lawn, thane (W),
Tq. Thane, Dist. Thane
2. The State of Maharashtra
Police Station Officer,
Police Station, Chalisgaon,
Tq. Chalisgaon, Dist. Jalgaon ... RESPONDENT
.......
Mr. D.S. Bagul, Advocate for applicant
Mr. N.S. Ghanekar, Advocate for respondent No.1.
Mr. R.V. Dasalkar, A.P.P. for respondent No.2
.......
WITH
CRIMINAL APPEAL NO.212 OF 2019
Dhiraj s/o Yashwant Yeole
Age 54 years, Occu. Social
and Political Worker
R/o Sant Namdeo Nagar,
Pawarwadi, Chalisgaon,
Taluka Chalisgaon, Dist. Jalgaon
(At present the appellant is in
Yerwada Central Prison, Yerwada,
Pune, Taluka and Districrt Pune) ... APPELLANT
VERSUS
The State of Maharashtra
Through the Police Station Officer,
Chalisgaon Police Station, Chalisgaon,
Taluka Chalisgaon, Dist. Jalgaon
(Notice to the respondent to be served
through the Public Prosecutor,
High Court of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. Rajendrraa S. Deshmukkh, Senior Advocate with
Mr. Devang R. Deshmukh, Advocate for appellant
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Mr. R.V. Dasalkar, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.468 OF 2022
The State of Maharashtra
through Police Station Officer,
Chalisgaon Police Station ... APPELLANT
VERSUS
Vishwas Raosaheb Nimbalkar,
Age 59 years, Occu. Service,
R/o Chalisgaon, Tq. Chalisgaon,
District Jalgaon ... RESPONDENT
.......
Mr. R.V. Dasalkar, A.P.P. for appellant
Mr. S.J. Salunke, Advocate for respondent
.......
CORAM : R.G. AVACHAT AND
R.M. JOSHI, JJ.
Date of reserving judgment : 23rd December, 2022.
Date of pronouncing judgment : 21st April, 2023.
JUDGMENT :
Criminal Application No.1939/2021 is allowed. The
applicant Dr. Uttamrao Dhanaji Mahajan be added as
respondent No.2 in Criminal Appeal No.104/2019.
These three appeals are being decided by this
common judgment since they are interconnected. The
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challenge in these three appeals is to a judgment and order
dated 19/1/2019, passed by the Court of Additional Sessions
Judge, Jalgaon in Sessions Case No.131/2012, whereunder the
appellants Manoj and Dhiraj (in Criminal Appeal No.104/2019
and Criminal Appeal No.212/2019) have been convicted for the
offences punishable under Sections 342, 346, 348, 364-A, 385,
506 read with Section 34 of the Indian Penal Code. The
appellant Manoj has also been convicted for the offence
punishable under Section 504 of the Indian Penal Code while
the respondent in Criminal Appeal No.468/2022 has been
acquitted. The details of the order of conviction and acquittal
impugned herein are shown in the chart below :-
Sr. Name of the appellant/ Charge Order of conviction
No. accused
1. Manoj Prabhakar Lohar 166, 342, S.342 r/w S.34 IPC
and 346, 348, R.I. for one year and to pay
Dhiraj Yashwant Yeole 364-A, 385, fine of Rs.500/- each, in
166-A, 504, default S.I. for 15 days
506 read with
S.346 r/w S.34 I.P.C.
34 IPC
R.I. for one year and to pay
fine of Rs.500/- each, in
default S.I. for 15 days
S.348 r/w S.34 I.P.C.
R.I. for two years and to pay
fine of Rs.1000/- each, in
default S.I. for one month
S. 364-A r/w 34 I.P.C.
Imprisonment for life and
fine of Rs.5000/- each, in
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default S.I. for five months.
S.385 r/w S. 34 I.P.C.
R.I. for one year and to pay
fine of Rs.500/- each, in
default S.I. for 15 days
S.506 r/w S.34 I.P.C.
R.I. for one year and to pay
fine of Rs.500/- each, in
default S.I. for 15 days
2. Manoj Prabhakar Lohar S.504 I.P.C.
R.I. for one year and fine of
Rs.500/-, in default S.I. for
15 days.
All the substantive sentences have been directed to run concurrently.
3. Vishwas Raosaheb 166, 342, Acquitted
Nimbalkar 346, 348,
364-A, 385,
166-A, 504,
506 read with
34 IPC
2. The facts in brief giving rise to the present appeals
are as follows :
The appellant Manoj (Criminal Appeal No.104/2019)
was serving as Additional Superintendent of Police, Chalisgaon
during the relevant time. While the respondent Vishwas
(Criminal Appeal No.468/2022) was serving as Police Sub-
Inspector with Chalisgaon Police Station. The appellant Dhiraj
(Criminal Appeal No.212/2019) was resident of Chalisgaon. He
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was in politics and a social worker as well.
3. P.W.1 Uttamrao was the Principal of Ayurvedic
College, Chalisgaon. Kisan Dnyanoday Mandal is an educational
institute. Purushottam Patel and Mannubhai Patel were in the
business of building and construction. They were partners of
the firm - Shivam Construction. Work of construction of hostel
and staff quarters of the College run by Kisan Dnyanoday
Mandal was assigned by P.W.1 Dr. Uttamrao to Purushottam and
Mannubhai Patel in the year 2004-2005.
4. It is the case of the prosecution that, the
respondent Vishwas, in police uniform, accompanied by two
constables in civil dress, met P.W.1 Uttamrao near Dhanvantari
Hospital at 11.00 a.m. on 30/6/2009. The respondent informed
him to have been called by appellant Manoj to his office. There
was a public meeting of Smt. Sonia Gandhi scheduled at
Malegaon on 30/6/2009. P.W.1 Dr. Uttamrao being the leader of
Congress Party, Chalisgaon, was supposed to attend the said
meeting, taking along with him local members of the Congress
Party. He, therefore, requested the respondent to allow him to
visit appellant Manoj on his return from Malegaon. The
respondent did not listen. He made P.W.1 Uttamrao sit on
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motorbike and brought him to the office of Additional
Superintendent of Police (for short, Addl.S.P.), Chalisgaon. The
appellant Manoj scolded and abused P.W.1 Uttamrao. He told
Uttamrao to have received many complaints against him.
Uttamrao was given for reading a complaint made by
Purushottam Patel. Both Purushottam and Mannubhai were
present in the office of Addl.S.P. They claimed that a sum of
Rs.21 Lakhs was due from P.W.1 Uttamrao. It was their case
that the work of construction was given to them for
Rs.1,05,37,000/-. Dr. Uttamrao, in the official record of the
Trust, showed the entire amount to have been paid to Shivam
Construction. He had in fact paid Rs.85 Lakhs only and thus,
misappropriated a sum of Rs.21 Lakhs. Appellant Manoj
threatened Dr. Uttamrao of keeping him behind the bars and
register a cognizable case against him.
5. Appellant Dhiraj happened to visit the office of
Addl.S.P. He had acquaintance with both Dr. Uttamrao and
appellant Manoj. He obtained Dr. Uttamrao's nod to act as a
go-between. He had a talk with appellant Manoj alone and then
he informed Dr. Uttamrao that to settle the matter, he would
have to grease palm of Manoj. He informed Uttamrao that
Manoj was demanding Rs.60 Lakhs besides payment of Rs.21
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Lakhs to Patel Brothers. Uttamrao was compelled to send for
papers relating to the construction work and a cheque book as
well. He was forced to issue three cheques of Rs.21 Lakhs in
favour of Patel Brothers. Appellant Manoj ultimately reduced
the demand to Rs.25 Lakhs. He asked Dr. Uttamrao to make an
arrangement of that much amount by evening, failing which a
crime would be registered against him. Uttamrao, therefore,
contacted his father-in-law (P.W.10) Digambar. By that time, it
was evening. P.W.10 Digambar told Uttamrao his inability to
arrange that much amount with such a short notice and during
night time as well. Appellant Manoj, therefore, gave Uttamrao
time until next day morning to meet his demand. He asked the
respondent Vishwas and appellant Dhiraj to keep Uttamrao in
their custody overnight. He also asked Uttamrao if the amount
is arranged, the same be paid to the appellant Dhiraj. He also
instructed both of them to release Uttamrao once the amount
was received.
6. It is also the case of the prosecution that, all of
them left the office little past 11.00 p.m. Both the respondent
Vishwas and the appellant Dhiraj first took Uttamrao to the
house of one of the relations of the appellant Dhiraj. Uttamrao
was detained there until 2.00 a.m. Then Uttamrao was shifted
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to the house of appellant (Dhiraj). P.W.2 Manoj, son of
Uttamrao, returned Chalisgaon from Nagpur. He learnt his
father to have been detained. Uttamrao was again brought to
the office of the Addl.S.P. by little past 11.00 a.m. on 1 st June.
Appellant Manoj gave Uttamrao time up to 3.00 p.m. to meet
his demand of Rs.25 Lakhs. P.W.2 Manoj visited the office of
appellant Manoj and requested for release of his father
Uttamrao. P.W.2 Manoj had contacted Superintendent of Police,
Jalgaon (P.W.13 Rastogi). A written complaint was lodged with
the Superintendent of Police, Jalgaon. Shri Rastogi then made
a telephonic conversation with appellant Manoj, Uttamrao,
respondent Vishwas and P.W.11 Akhare. Appellant Manoj then
allowed Uttamrao to go home. He requested Uttamrao not to
aggravate the issue and asked him to see that everything was
Ok.
7. On the following day, P.W.11 Akhare, P.I. Chalisgaon
Police Station took both Uttamrao and P.W.2 Manoj to
Superintendent of Police, Jalgaon. P.W.13 Rastogi then visited
Chalisgaon to make enquiry into the matter. P.W.1 Uttamrao
lodged a written First Information Report. Since the crime was
not registered, he had to approach the High Court by filing a
Criminal Writ Petition. Ultimately, crime vide C.R. No.145/2009
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came to be registered initially for offences punishable under
Sections 347, 385 read with Section 34 of the Indian Penal
Code. Later on Section 364-A also came to be invoked. Since
the high ranking police officer was involved in the crime, the
investigation thereof was entrusted with C.I.D.
In short, the case of the prosecution is that, the
appellants and the respondent, in furtherance of their common
intention, abducted Dr. Uttamrao for ransom and wrongfully
detained/ confined him from 11.00 a.m. of 30 th June to 2.00
a.m. of 1st July, and thereby committed offence punishable
under Sections 342, 346, 348, 364-A, 385, 504 and 506 read
with Section 34 of the Indian Penal Code.
8. The concerned police officers did investigation of the
crime. All the papers of investigation were submitted to the
State Government in the Ministry of Home Affairs for obtaining
sanction for prosecution of the appellant Manoj and the
respondent. The competent authority granted sanction
(Exh.460) for prosecution. Again a proposal was moved for
sanction to prosecute these police officers for offence
punishable under Section 364-A of the Indian Penal Code. A
revised sanction for prosecution was thus accorded. Both the
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appellants and the respondent came to be proceeded against by
filing a charge sheet. The case was committed to the Court of
Sessions for trial in accordance with law. Learned Additional
Sessions Judge framed the charge (Exh.350) for offences
punishable under Sections 166, 342, 346, 348, 364-A, 385, 504
and 506 read with Section 34 of the Indian Penal Code.
9. The prosecution examined 16 witnesses and
produced in evidence certain documents to establish the
charge. The appellant Manoj examined 2 witnesses in his
defence. On appreciation of the evidence in the case, the
learned Additional Sessions Judge passed the judgment
impugned herein. Hence these appeals.
10. The defence of appellant Manoj is that, P.W.11
Akhare and P.W.13 Rastogi had a reason to falsely implicate him
in the present crime. He had withdrawn investigation of the
crime registered against Peoples Co-operative Bank from Shri
Akhare and entrusted the same with Dy. Superintendent of
Police, Chalisgaon. The withdrawal of investigation from Shri
Akhare was neither informed to Shri Rastogi nor his prior
permission thereto was obtained. He had, therefore, grudge
against him.
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11. It is the defence of appellant Dhiraj that, on request
of Dr. Uttamrao, he intervened in the matter. He happened to
visit the office of Addl.S.P. to extend appellant Manoj marriage
invitation of his nephew. He was no way involved in the alleged
crime.
12. It is the defence of respondent Vishwas that, what
he did was in discharge of his official duty. He obeyed the
lawful directions of his officer - appellant Manoj.
13. Mr. Ghanekar, the learned counsel for the appellant
Manoj first took us through the definition of offence of
kidnapping for ransom, Section 364-A of the IPC. According to
him, there is no evidence to indicate P.W.1 Uttamrao was taken
to Addl.S.P.'s office either by deceitful means or force.
According to him, if any one of the ingredients of offence
punishable under Section 364-A of the Indian Penal Code is
missing, the prosecution has to be said to have failed to make
out the said offence. The learned counsel took us through the
evidence of P.W.1 Uttamrao to submit that this witness thought
it proper of having been called by police as Shivam Construction
had filed complaint. He felt the that he shall co-operate with
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the investigation. He convinced his party workers that he would
stay put for investigation. They may leave for Malegaon for
attending the public meeting.
14. Evidence of P.W.2 Manoj was also adverted to, to
suggest that he was informed by his father P.W.1 Uttamrao that
he had been called to the office of appellant Manoj in relation to
construction contract of Purushottam Patel. He asked him
about the documents relating to the said contract. Evidence of
P.W.6 Gokul was also adverted to submit that, respondent
Vishwas had requested P.W.1 Purushottam to accompany him to
the office of Addl.S.P. since he was called.
15. The learned counsel then relied on Section 349 of
the IPC to submit that the evidence of the prosecution did not
make out a case of use of force to take P.W.1 Uttamrao to the
office of Addl.S.P. Relying on the judgment of Apex Court in
case of Philips Fadrick D'Souza & anr. Vs. State of Maharashtra
[ (2008) 4 Mh.L.J. (Cri) 380 ], he would submit that, it was
necessary for the prosecution to prove the accused abducted
P.W.1 Uttamrao in order to meet the demand of ransom. If the
object of demanding ransom is not at the time of abduction,
Section 364-A of the Indian Penal Code has no application. The
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appellant Manoj had recently joined as Addl. S.P., Chalisgaon
and, therefore, had no acquaintance with the people of
Chalisgaon.
16. A complaint had been received from Shivam
Construction. In spite of having carried out construction, P.W.1
Uttamrao did not pay Shivam Construction entire cost of
construction. It was P.W.1 Uttamrao who had committed the
offence of cheating, misappropriation and breach of trust. He
would further submit that, P.W.4 Nitin had brought the papers
relating to the construction work. Discussion between P.W.1
Uttamrao on one hand and partners of Shivam Construction on
the other took place in the office itself. A settlement was
worked out. Even a writing to that effect was made. P.W.1
Uttamrao issued three cheques towards repayment of the dues
to Shivam Construction. If the object was to demand ransom,
there would not have been an enquiry into the matter. The
prosecution witnesses namely P.W.11 Akhare, P.W.13 Rastogi
and P.W.16 Mitkar were in the know of these facts. Still the
documents relating to the construction work of the settlement
arrived at have been suppressed from the Court only with an
ulterior motive. Both, P.W.11 Akhare and P.W.13 Rastogi were
unhappy with the appellant Manoj. They did get a ground to
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implicate him in the offence in question.
17. According to learned counsel, there is nothing in
evidence to indicate P.W.1 Uttamrao was assaulted or
threatened to cause him hurt or death. The threat of putting
him in jail and carrying investigation of all branches of his
institute and register crime against him does not come under
the purview of Section 364-A of the Indian Penal Code. For this,
the learned counsel relies on Section 319 of the Indian Penal
Code. There is material omission in the evidence to suggest
that the respondent had threatened P.W.1 Uttamrao with a
revolver if he tried to run away. According to learned counsel,
evidence of demand of Rs.25 Lakhs by appellant Manoj was also
an afterthought theory brought in only with a view to implicate
him in serious offence.
18. Case of P.W.1 Uttamrao that he was relieved of his
cell phone was falsified by the CDRs on record. According to
learned counsel, there is a delay in lodging of the F.I.R. The
F.I.R. has been lodged after deliberations and on a legal advice.
The F.I.R. in fact was drafted by an Advocate in Aurangabad. It
was faxed from a shop "Mauli Xerox" (Exh.451). P.W.2 Manoj
had faxed one complaint to the Superintendent of Police P.W.13
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Rastogi on 1st July (Exh.450). In this complaint, there is
reference only to a demand of Rs.21 Lakhs made by the
partners of Shivam Construction. The said complaint is silent
about the demand of Rs.25 Lakhs.
19. According to learned counsel, there is evidence of
P.W.4 Anil to indicate that, appellant Manoj had left his office by
10.30 p.m. This falsifies the prosecution theory that he
(appellant Manoj) had brought P.W.1 Uttamrao down the stairs
of his office and gave him in custody of appellant Dhiraj and
respondent Vishwas for detaining him until the demand of Rs.25
Lakhs was met. Number of inconsistencies in the evidence of
the prosecution witnesses were brought to the notice of this
Court to submit the prosecution to have failed to make out the
offence/s. According to him, Patel Brothers or any one of the
staff members in the office of Addl.S.P. were material witnesses.
None of them has been examined. Those who have been
examined were all interested witnesses. There is no evidence
that P.W.10 Digambar had in fact arranged Rs.25 Lakhs for
being paid to appellant Manoj. No witness has been examined
to show that he was called to lend some amount to make up
Rs.25 Lakhs. According to learned counsel, what appellant
Manoj did was in exercise of his authority under Section 36 of
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the Code of Criminal Procedure.
20. On the question of sanction for prosecution of the
appellant, learned counsel would submit that, original file of the
sanction was not produced before the Court. It was stated to
have been gutted in fire, that broke out at Mantralaya. Nothing
is, however, placed on record in proof thereof. Appellant Manoj
in his defence, placed on record documents showing his pay-
scale to be more than Rs.10,650/-. The sanction for his
prosecution, therefore, ought to have been granted by the Chief
Minister. The same has not happened in the present case. For
granting revised sanction after invocation of Section 364-A of
the Indian Penal Code, statements of very same witnesses were
re-recorded without any change.
21. On the question of daily diary of the respondent
(Exh.472), he would submit that, the same has not been duly
proved. The said document was got up by the respondent
Vishwas as an evidence in his defence. A weekly diary
maintained by a police officer is his private document. It is
neither a station diary entry nor a case diary in terms of Section
172 of the Code of Criminal Procedure. Relevant provisions of
Police Manual were also adverted to in this regard. According to
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learned counsel, the contents of the weekly diary have not been
proved, leave apart its probative value. Section 63 of the
Evidence Act was also relied on.
22. The learned counsel would further submit that,
there is quite a distinction between admission and confession of
a co-accused. The weekly diary would not be admissible in
evidence against co-accused under Section 30 of the Evidence
Act. The learned counsel would further submit that, in view of
Section 161 of the Maharashtra Police Act, the prosecution has
not been launched within prescribed period of limitation. The
act committed by the appellant Manoj could be said to be under
the colour of his office and discharge of his official duty. The
sanction for prosecution on record suggests non application of
mind. According to learned counsel, when there is evidence
suggesting the appellant Manoj to have left his office by 10.30
p.m., he is no way concerned about the happenings that took
place thereafter until P.W.1 Manoj came to his office by little
past 11.00 a.m. on the next day. According to learned counsel,
the trial Court, based on such quality of evidence, ought not to
have convicted the appellant Manoj. He, therefore, urged for
allowing the appeal.
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23. Learned Senior Counsel Mr. R.S. Deshmukh
appearing for appellant Dhiraj adopted the submissions made
by learned counsel appearing for the appellant Manoj. He
would submit that the prosecution did not adduce any
documentary evidence to prove the house allegedly used for
confinement of P.W.1 Uttamrao was of the relative of appellant
Dhiraj or owned by him. P.W.1 Uttamrao did not know this
appellant before the offence in question. P.W.2 Manoj testified
to have got knowledge of ownership of the houses from one
Kedarsing Patil, who has not been examined. The investigating
officer did not take pains to collect documentary evidence in
proof of ownership of this appellant to the house wherein P.W.1
Uttamrao was allegedly confined.
P.W.13 Rastogi categorically deposed that this
appellant tried to act as a Mediator with the consent of P.W.1
Uttamrao. According to learned Senior Counsel, there is delay
in lodging of the F.I.R. It has been drafted by a legal eagle.
Possibility of exaggeration and concoction, therefore, could not
be ruled out. He would further submit that, the respondent
Vishwas, who had played major role in the alleged crime, has
been acquitted. This appellant is, therefore, entitled for
acquittal on the ground of parity as well. The learned Senior
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Counsel relied on the judgment of the Apex Court in Jasdeep
Singh @ Jassu Vs. State of Punjab (Criminal Appeal
No.1584/2021 (arising out of SLP (Crl) No.11816/2019), which
pertains to constructive criminal liability in terms of Section 34
of the Indian Penal Code.
24. Learned counsel for respondent Vishwas would
submit that, in view of judgment of acquittal of the respondent,
the presumption of his innocence got reinforced. The learned
counsel adverted Court's attention to the evidence of P.W.1
Uttamrao and the F.I.R. (Exh.359) to submit that the
respondent's name does not figure therein as a culprit. To be
specific, F.I.R. was against appellants Manoj and Dhiraj only.
P.W.1 Uttamrao admitted in his evidence that, this respondent
being an officer of the lower rank, did follow the orders of
appellant Manoj. Then he adverted to the evidence of P.W.6
Gokul, who testified that, P.W.1 Uttamrao was summoned by
appellant Manoj in his office. P.W.11 Akhare also did not state
anything incriminating against the respondent Vishwas.
25. P.W.13 Rastogi also admitted that the respondent
Vishwas followed the orders of appellant Manoj and, therefore,
he could not draw final conclusion as to whether the respondent
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committed the crime in question. The enquiry report (Exh.452)
submitted by P.W.13 Rastogi concludes that the respondent did
nothing more than following orders of appellant Manoj.
Attention of the Court was also adverted to evidence of P.W.4
Anil to show that this respondent joined Chalisgaon Police
Station just 10-15 days before the alleged incident.
Immediately thereafter he went on leave for few days.
According to learned counsel, the trial Court, relying on Section
64 of the relevant provisions of the Maharashtra Police Act,
1951 (the Police Act), has rightly acquitted the respondent. He,
therefore, urged for dismissal of the appeal against acquittal.
26. The learned A.P.P. placed on record notes of his
arguments. He gave a summary of evidence of the prosecution
witnesses namely P.W.1 Uttamrao, P.W.2 Manoj, P.W.3 Nitin,
P.W.4 Anil, P.W.6 Gokul, P.W.10 Digambar, P.W.11 Jagdev and
P.W.12 Masaji, P.W.13 Rastogi, P.W.14 Sunil Gaikwad, P.W.15
R.N. Deshmukh, Sanctioning Authority and P.W.16 Mitkar, Dy.
S.P. He also relied on the judgment of the Apex Court in case of
Malleshi Vs. State of Karnataka [AIR 2004 SC 4865] and few
more authorities. According to him, the offence committed by
appellant Manoj had no connection with his official duty.
Sanction for his prosecution was, therefore, in fact not required.
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Still, the investigating officer, to be on safer side, obtained
sanction for prosecution of appellant Manoj and respondent
Vishwas. The sanction has been duly proved.
27. The investigating officer has testified that, all the
police papers (charge sheet) were submitted to the competent
authority for obtaining sanction. He would further submit that,
Section 161 of the Police Act has no application in the given
facts and circumstances of the case. The learned A.P.P.
reiterated the reasons given by the trial Court for convicting
appellants Manoj and Dhiraj. According to him, the respondent
Vishwas was only expected to follow the lawful orders of his
officer. The orders given by the appellant Manoj, by no stretch
of imagination could be termed to be in performance of his
official duties. The respondent ought to have ignored or should
not have followed illegal orders. Post 10.30 p.m. of 30 th June,
P.W.1 Uttamrao was in unauthorised custody of this respondent.
The evidence on record undoubtedly suggests involvement of
respondent Vishwas in the offence. When based on same
evidence the appellants have been convicted, the respondent
ought not to have been acquitted taking recourse to Section 64
of the Police Act. Learned A.P.P. ultimately urged for allowing
the State's appeal against acquittal of respondent Vishwas.
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28. Mr. R.N. Dhorde, learned Senior counsel and Mr.
D.S. Bagul, learned counsel appearing for P.W.1 Uttamrao would
submit that, even a call by police officer should be taken to be
compulsion. P.W.1 Uttamrao had requested to allow him to
attend a public meeting at Malegaon. He had assured to come
to the office of Addl.S.P. on his return from Malegaon. Still he
was made to sit on a motorbike and taken to the office. This is
nothing short of an abduction. When there was independent
police station for Chalisgaon city and it being not the
prosecution case that Patel Brothers had first approached the
said police station and cognizance of their complaint was not
taken, appellant Manoj showed extra interest in the matter. The
same speaks in volumes of his criminal activity. Even when
P.W.1 Uttamrao issued three cheques under duress, the matter
had come to an end then and there. Still he was detained
overnight for no legitimate reason. The same reinforces the
prosecution case that appellant Manoj wanted his demand of
Rs.25 Lakhs satisfied as a condition for release of P.W.1
Uttamrao. Thus, ingredients of Section 364-A do get
established.
29. P.W.13 Rastogi, a high ranking officer had no axe to
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grind against the appellant Manoj. Had he any such reason,
there would not have been a delay in registration of F.I.R. that
too on directions of the High Court. The enquiry report
submitted by P.W.13 Rastogi undoubtedly indicts appellant
Manoj. According to learned Senior Counsel, the offences
committed by the appellant Manoj were not in discharge of his
official duties nor under the colour of his office and, therefore,
there was no question of grant of sanction for prosecution or
question of limitation in launching the prosecution. The learned
counsel placed reliance on the following authorities to ultimately
urge for dismissal of the appeals :
1) State of Maharashtra Vs. Narhar Rao
AIR 1966 SC 1783
2) State of Maharashtra Vs. Atma Ram & ors.
AIR 1966 SC 1786
3) D. Devaraja Vs. Owais Sabeer Hussain
(2020) 7 SCC 695
4) Prithipal Singh & ors. Vs. State of Punjab & ors.
(2012) 1 SCC 10
5) Birabal Choudhary Alias Mukhiya Jee Vs. State of Bihar
(2018) 12 SCC 440
30. Considered the submissions advanced. Let us
reappreciate the evidence on record to conclude whether the
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charge/s has duly been proved.
31. Offence under Section 364-A of the Indian Penal
Code: Sections 362 and 364-A of the Indian Penal Code read :
"362. Abduction.--Whoever by force compels, or
by any deceitful means induces, any person to go
from any place, is said to abduct that person.
364-A. Kidnapping for ransom, etc.-- Whoever
kidnaps or abducts any person or keeps a person in
detention after such kidnapping or abduction, and
threatens to cause death or hurt to such person, or
by his conduct gives rise to a reasonable
apprehension that such person may be put to death
or hurt, or causes hurt or death to such person in
order to compel the Government or any foreign
State or international inter-governmental
organisation or any other person to do or abstain
from doing any act or to pay a ransom, shall be
punishable with death, or imprisonment for life,
and shall also be liable to fine."
32. The dissection of Section 364-A indicate the
prosecution to bring home the charge is required to prove the
following ingredients :
(1) that the accused kidnapped or abducted the person;
(2) kept him under detention after such kidnapping and
abduction; and
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(3) that the kidnapping or abduction was for ransom.
33. The Division Bench of this Court, in case of Philips
Fadrick D'Souza and Ravindra @ Balu Pandurang Kambre Vs.
The State of Maharashtra & anr. (supra), has observed :
18. The offence under Section 364A is not made
out only upon the commission of the unlawful act
of kidnapping or abduction. The essential
ingredients of the statutory provision, apart from
the act of kidnapping, abduction or, as the case
may be, keeping a person in detention thereafter,
are a threat to cause hurt or a reasonable
apprehension of such a consequence or causing
death or hurt, in order to compel the payment of
ransom or the doing or abstention from doing any
act by the government, a foreign state, an inter
governmental body or by any person. The purpose
of the unlawful act is to demand ransom or to
compel the doing or abstention from doing of a
particular act. Kidnapping or the abduction by
itself does not lead to an inference of the
underlying purpose with which it was carried out.
The purpose must exist at the time when the act of
kidnapping or abduction takes place. Whether
such a purpose existed at that time will have to be
deduced from all the attendant circumstances.
Events which take place prior to, at the time of
and subsequent to the commission of the offence
would weigh in the balance. In interpreting
Section 364A the Court must be cognizant of the
fact that the provision was introduced in order to
deal with the serious menace posed by terrorism to
the stability of civil society. Hence, while the
underlying purpose, which is an ingredient of
Section 364A, must demonstrably be found to
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exist as the foundation of the unlawful act, the
Court would not be justified in abridging the
parameters of the statutory provision with
reference to requirements which have not been
imposed by Parliament. Situations involving
kidnapping or abduction for ransom are fluid.
Demands which are raised by abductors may in
the very nature of things evolve as the situation
progresses. The law does not prescribe that the
nature of the demand for ransom be precisely spelt
out when the kidnapping or abduction is carried
out. So long as the unlawful act of kidnapping or
abduction is carried out for the purpose of making
a demand for ransom, the requirement of the
section would be met. Moreover, as the Supreme
Court noted, it may well happen that after the
demand is made known to the victim, but before it
is communicated to a third person, the accused
may be arrested. That again would not detract
from the circumstance that when act of kidnapping
or abduction was carried out with the object and
purpose of demanding ransom. A statutory
provision like Section 364A must undoubtedly,
like penal legislation, be construed strictly. But
while construing a provision such as Section 364A
the Court must be careful not to interpret it in a
manner which would denude it of its legislative
efficacy.
34. Let us turn to the evidence on record. There is
Kisan Dnyanoday Mandal, a charitable trust. It runs educational
institutions including Medical College. P.W.1 Uttamrao was the
principal of Ayurvedic College, Chalisgaon. The evidence
undoubtedly indicate that the said educational trust was
controlled by him and his family members. His wife, at the
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relevant time was the President. It is also not in dispute that in
2004-2005, the work of construction of hostel and staff quarters
of the Medical College was assigned to Surat (Gujarat) based
Shivam Constructions. Purushottam Patel and Mannubhai Patel
were partners of the said firm.
35. There is also evidence to indicate that an agreement
was entered into between Shivam Constructions on one hand
and P.W.1 Dr. Uttamrao's educational institute on the other. The
said agreement and the related papers have not been produced
in evidence. Admittedly, Patel brothers had lodged a complaint
with appellant Manoj (Exh.362) against P.W.1 Uttamrao.
Perusal of the said complaint indicates that it was a claim of
Patel Brothers that the cost of construction was
Rs.1,05,37,880/-. They had only been paid a sum of
Rs.84,56,703/-. P.W.1 Uttamrao, in the accounts of his Trust,
however, shown the entire amount to have been paid to Patel
Brothers.
36. It has also been alleged in the complaint that P.W.1
Uttamrao thus misappropriated a sum of Rs.21 Lakhs. It has
further been averred in the said complaint that Patel Brothers
had all along been making demand of the amount due to them.
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P.W.1 Uttamrao had, therefore, called them to receive the
amount on 15/6/2009. He, however, avoided to pay the
amount for one or the other reason. Admittedly, this complaint
(Exh.362) was given to P.W.1 Uttamrao for his reading while he
was brought to the office of Addl.S.P. It is reiterated that, no
papers relating to construction contract were produced on
record although were available.
37. Section 36 of the Code of Criminal Procedure speaks
of powers of superior officers of police. It provides that, police
officers superior in rank to an officer in charge of a police
station may exercise the same powers, throughout the local
area to which they are appointed, as may be exercised by such
officer within the limits of his station.
38. As such, the Statute authorises police officers
superior in rank like appellant Manoj to have powers of the
officer in-charge of a police station. True, appellant Manoj
appears to have shown extra interest in the matter. Being an
officer in the rank of Superintendent of Police, he ought to have
forwarded the said complaint to the Chalisgaon Police Station
with an endorsement directing the officer in-charge of the Police
Station to look into the matter and take it to logical conclusion.
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It was not the case of Patel Brothers that they had first
approached the Chalisgaon Police Station and officer in-charge
had refused to take cognizance of their report and therefore
they had no option but to file complaint (Exh.362) in the office
of appellant Manoj.
39. Be that as it may.Since the appellant Manoj had
received the complaint (Exh.362), he had directed respondent
Vishwas to call/ bring P.W.1 Uttamrao to his office. Respondent
Vishwas accompanied by P.W.6 Gokul and one more Constable,
therefore, went together. They met P.W.1 Uttamrao at
Ayurvedic College. It was about 11.00 in the morning of 30 th
June. Respondent Vishwas told P.W.1 Uttamrao to have been
called by appellant Manoj. He (P.W.1 Uttamrao) informed the
respondent Vishwas that there was a public meeting of Smt.
Sonia Gandhi at Malegaon. He along with Congress Party
members were leaving Chalisgaon for the meeting. He was
assigned the job to take party workers from Chalisgaon to
Malegaon for attending the public meeting. V.I.P. Passes of the
meeting were with him. He also assured Vishwas that on his
return from Malegaon, he would come to the office to meet
appellant Manoj. Respondent Vishwas was in police uniform.
Two others in his company were in civil dress.
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40. It is in evidence of P.W.1 Uttamrao that, respondent
Vishwas did not listen to his request and told him to have come
to take him to the office. It is further in his evidence that,
respondent Vishwas made him sit on the back seat of the
motorbike. Then he was taken to the office of the Addl.S.P.
(appellant Manoj). It is further in his evidence that, the
appellant Manoj shouted at him angrily and in police style. He
was informed about the complaint made by Patels. After having
gone through the complaint, P.W.1 Uttamrao informed appellant
Manoj that contents therein were untrue. It was his case that,
the construction work was assigned on the basis of labour
charges. All the construction material was supplied by the
institute of P.W.1 Uttamrao. It is further in his evidence that,
appellant Manoj did not pay any heed to his say. The appellant
abused him in filthy language " Behnchod, Madarchod". The
appellant Manoj threatened him of making enquiry into the
affairs of his institution. He also threatened of putting him
behind the bars. The appellant Manoj also threatened P.W.1
Uttamrao that he would make him pay interest @ 2% per
month on the amount due to Patel Brothers. Appellant Manoj
even told respondent Vishwas to register crime against P.W.1
Uttamrao for various offences under I.P.C.
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41. It is further in his evidence that, in the meanwhile,
appellant Dhiraj happened to visit the said office. He told him
to have acquaintance with appellant Manoj. He asked him as to
whether he shall act as a Mediator. It is further in his evidence
that, he was made to sit in and out of the chamber of appellant
Manoj. The appellant initially made a demand of Rs.60 Lakhs.
Then he reduced it to Rs.50 Lakhs and ultimately brought it
down to Rs.25 Lakhs. It is further in his evidence that he was
relieved of his cell phone. He was given the cell phone only to
contact his staff and father-in-law so as to make arrangement
of money to be paid to appellant Manoj. Admittedly, on the call
of P.W.1 Uttamrao, Nitin (P.W.3), a Clerk in Ayurvedic Medical
College, Chalisgaon, came with a cheque book. P.W.1 Uttamrao
issued three cheques amounting to Rs.21 Lakhs in favour of
Patel Brothers. True, on the following day Stop Payment
instructions were issued to the concerned Bank.
42. There is evidence of P.W.4 Anil that he was the
Writer Constable of respondent Vishwas. He was attached to
Chalisgaon Police Station. The respondent had called him to do
the paper work. Settlement between P.W.1 Uttamrao, Manoj
and Patel Brothers was inked. He scribed the same. It was
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about 8.30 p.m. by which Patel Brothers left with the cheques
issued by P.W.1 Uttamrao. The evidence in regard to the
happenings post 8.30 p.m. would be adverted later on.
43. P.W.2 Manoj, son of P.W.1 Uttamrao testified that,
he was away in Nagpur. His grandfather P.W.10 Digambar
informed him of his father to have been detained. It is further
in his evidence that, he was scheduled to visit Mumbai directly
from Nagpur. He had, however, to get down at Chalisgaon.
When he went home in the early morning of 1 st July, he found
his father (P.W.1 Uttamrao) nowhere to be seen. The mother
told him the father to have not returned home. She was
worried and panic as well. It is further in his evidence that, he
had asked one of the employees of the College to draft a
complaint and send it to Superintendent of Police, Jalgaon.
In cross-examination, he admitted that at the time
of making of the said complaint, he was not knowing that
appellant Manoj had demanded Rs.25 Lakhs. In the faxed
complaint, there is, therefore, no reference of demand of Rs.25
Lakhs. It is further in his evidence that, on 30 th June itself he
had talk with his father (P.W.1 Uttamrao) and Clerk Nitin Jadhav
(P.W.3) on phone.
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44. P.W.10 Digambar, the father-in-law of P.W.1
Uttamrao testified that, he was asked to arrange for Rs.25
Lakhs to be paid to appellant Manoj. Since he received the call
in that regard somewhat late in the evening, he asked P.W.1
Uttamrao to buy some time to pay the amount. He assured to
collect the money by following morning. It is in his evidence
that he was to withdraw some amount from the Bank Accounts.
He collected some cash from petrol Pump, also borrowed some
money from his friends. There is, however, no evidence to
reinforce his claim. It is further in his evidence that, on receipt
of a call from P.W.1 Uttamrao, he rushed to Chalisgaon from his
native - Shirpur. It was by 11.00 p.m., he saw respondent
Vishwas and both the appellants brought down P.W.1 Uttamrao
from the office of Addl.S.P. He did not recognize that one of
them was appellant Manoj. He, however, learnt the same later
on.
45. Since the Court is addressing on the offence
punishable under Section 364-A of the Indian Penal Code, it
proposes to refer to the further evidence at a later stage while
appreciating evidence in relation to the other offences. Suffice
it to say that there is evidence to indicate that P.W.2 Manoj had
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made a telephone call to Superintendent of Police, P.W.13
Rastogi, informing his father to have been detained. P.W.13
Rastogi, in turn, contacted respondent Vishwas. He even talked
to appellant Manoj and P.W.11 Akhare. P.W.13 Rastogi, a high
ranking police officer, testified that, he talked with P.W.1
Uttamrao while he was in the office of appellant Manoj. He
realised P.W.1 Uttamrao to have not been coherent and unable
to speak his mind freely.
46. There is evidence of P.W.1 Uttamrao that while he
was responding to the call of P.W.13 Rastogi, appellant Manoj
and respondent Vishwas had asked him to tell Superintendent
of Police that he was Ok. P.W.13 Rastogi's evidence is also
there to indicate that appellant Manoj told him that the matter
was settled the previous day. Respondent Vishwas told P.W.13-
Rastogi that P.W.1 Uttamrao was not in the office of Addl.S.P.
while he (P.W.13 Rastogi) made a call by 1.00 p.m. on 1 st July.
He further told P.W.13 Rastogi that P.W.1 Uttamrao was just
arriving to the office. The evidence undoubtedly indicate that
P.W.1 Uttamrao was very much in the office of Addl.S.P. The
respondent lied that he (P.W.1 Uttamrao) was just arriving in
the office. P.W.2 Manoj had already contacted P.W.13 Rastogi,
informing his father to have still been in the office of Addl.S.P.
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It was only on the intervention of the Superintendent of Police,
P.W.1 Uttamrao was allowed to go home on 1 st July. P.W.13
Rastogi testified that, he had asked P.W.1 Uttamrao and his son
P.W.2 Manoj to visit his office if they have any grievance. It is
further in his evidence that, he had asked P.W.11 Akhare to tell
appellant Manoj not to make any further enquiry in the matter
without his permission.
47. P.W.11 Akhare testified to have conveyed P.W.13
Rastogi's message to the appellant Manoj. It is further in his
evidence that, it was he who took P.W.1 Uttamrao and his son
P.W.2 Manoj to the office of Superintendent of Police on the
following day. There is further evidence to indicate that, in the
office of Superintendent of Police both, P.W.1 Uttamrao and his
son P.W.2 Manoj put up their grievance. It is also in his
evidence that, P.W.13 Rastogi, therefore, visited Chalisgaon. He
initiated enquiry into the matter. He made a station diary entry
(Exh.401) about his visit in that regard. It has to be stated
here itself that, had really P.W.13 Rastogi wanted to teach
appellant Manoj a lesson, he would have immediately directed
P.W.11 Akhare to register crime against appellant Manoj. The
station diary has been in the handwriting of P.W.13 Rastogi
(Superintendent of Police) himself. It has been mentioned
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therein that, he had received a phone call of P.W.2 Manoj (son
of P.W.1 Uttamrao) in the afternoon on the previous day (1 st of
July), both P.W.1 Uttamrao and P.W.2 Manoj met him (P.W.13
Rastogi) in his office at Jalgaon by 4.30 p.m. P.W.1 Uttamrao
complained that he was wrongfully confined and threatened of
registration of a criminal case against him by Manoj Lohar
(appellant) on the pretext of some enquiry into the complaint of
Purushottambhai Patel. This he says was done for extracting
money from him. Before leaving Jalgaon for Chalisgaon, he
discussed the matter with his senior officers viz. D.I.G. (Law &
Order), I.G.P., Nashik and Addl.D.G.
48. It is true that, there is evidence to indicate that
appellant Manoj had withdrawn from P.W.11 Akhare
investigation of Peoples Bank, Chalisgaon and entrusted the
same with local Dy. S.P. P.W.11 Akhare had, therefore, reason
to be unhappy thereby. P.W.13 Rastogi also admitted that, he
was not pleased by act of appellant Manoj withdrawing
investigation from P.W.11 Akhare since according to him it was
a practice that either a nod of Superintendent of Police is
obtained before transferring investigation from one officer to
the other or at least an intimation thereof is given to the
Superintendent of Police. Nothing of that sort happened in that
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case. On appreciation of the entire evidence on record, this
Court finds that, both P.W.11 Akhare and P.W.13 Rastogi did
nothing adverse to the interest of the appellant Manoj in the
investigation of the present crime, except discharging their
duties. It is reiterated that, P.W.13 Rastogi could have
registered a crime against appellant Manoj no sooner a
complaint (Exh.362) was received by him. The F.I.R. in the
case came to be registered only after order in that regard was
passed by the High Court.
49. P.W.4 Anil was the Writer Constable. He attended
the office of Addl.S.P. on call by the respondent. It is he who
drafted the settlement arrived at between Patels and P.W.1
Uttamrao. True, the contents thereof are said to have been
dictated by the respondent.
50. It was P.W.6 Gokul who had accompanied
respondent Vishwas to take P.W.1 Uttamrao to the office of
Addl.S.P. It is in his evidence that they met P.W.1 Uttamrao
just outside Dhanvantari Hospital. The respondent Vishwas told
him to have been called by appellant Manoj. When P.W.1
Uttamrao told him that he was scheduled to visit Malegaon and
on his return he would come to the office, respondent Vishwas
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requested P.W.1 Uttamrao that he should first meet appellant
Manoj and then he may go to Malegaon. It is in his evidence
that, P.W.1 Uttamrao then came with them to the office of
Addl.S.P. This witness was not cross-examined on behalf of the
prosecution. As such, the evidence indicates that, Patel
Brothers had lodged a complaint (Exh.362) with the appellant
Manoj. He (appellant Manoj), therefore, asked respondent
Vishwas to bring P.W.1 Uttamrao to his office. Learned counsel
for the appellant Manoj relied on the judgment of the Apex
Court in case of Lalita Kumari Vs. Govt. of U.P. [LAWS (SC)-
2013-11-15] to submit that, before registration of a particular
crime, to say relating to commercial transaction a preliminary
enquiry was permissible. A transaction between the two was
commercial one. The appellant Manoj was, therefore, justified
in making enquiry into the matter before directing registration
of the crime against P.W.1 Uttamrao. It is reiterated that,
appellant Manoj had authority to do so.
51. P.W.3 Nitin was a person in confidence of P.W.1
Uttamrao. On Uttamrao's call, he rushed to the office of Addl.
S.P. He gave him the cheque book. He had also brought
papers relating to construction contract, to the office of
Addl.S.P.
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52. The crime in the case has been registered on 16 th
July. Admittedly a legal advice was taken before lodging of the
F.I.R. The F.I.R. runs into 8 pages. It has been drafted on the
basis of a draft prepared by a legal practitioner at Aurangabad
and faxed from shop "Mauli Xerox", Aurangabad. The appellant
Manoj has, therefore, every reason to contend that the things
which in fact did not take place have been incorporated in the
F.I.R. He has also reason to contend that, had there been a
demand of Rs.25 Lakhs, the same would have been reflected in
the complaint that was faxed by Manoj on 1 st July to the
Superintendent of Police P.W.13 Rastogi.
53. There is also no evidence to indicate P.W.10
Digambar to have really arranged for Rs.25 Lakhs for being paid
to appellant Manoj. From this, the inference at the most can be
drawn that the figure of Rs.25 Lakhs might have been swelled
or inflated. There is evidence to indicate that, since P.W.1
Uttamrao was brought (came) to the office of Addl.S.P., he
could return his own house only little past 3.30 p.m. on the
following day. He was in the custody of appellant Dhiraj and
respondent Vishwas on the intervening night of 30 th June and 1st
July until he was brought to the office of Addl. S.P. by 11.30 on
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the following day i.e. on 1st July. The learned Senior Counsel
was, therefore, justified in contending that, when Patel Brothers
had left the office of Addl.S.P. taking three cheques with them,
and settlement was inked, there was no reason for the
appellant and the respondent to detain/ confine P.W.1 Uttamrao
in their custody. The same suggests that, appellant Manoj
wanted money to be paid to him in consideration of non-
registration of crime against P.W.1 Uttamrao.
54. It is true that, there is evidence to indicate that
more than two crimes were registered against P.W.1 Uttamrao,
the crimes related to cheating and misappropriation in relation
to the running of educational institution. There is also evidence
to indicate that permission to run Medical College was
cancelled. He had approached the Courts of law up to the
Hon'ble Supreme Court, but was unsuccessful. A defence
witness was also examined to prove that P.W.1 Uttamrao had
received Rs.1 Lakh underhand to grant the concerned admission
to B.A.M.S. Course. He did not return the said money. The
cross-examination of the said witness, however, indicates that
he was paid back his money. A case of the witness was that,
some amount was paid in cash. The same was not returned. It
is only to be stated here, it is not that a criminal cannot be a
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victim of a crime.
55. There is further evidence to indicate that appellant
Manoj had left his office by 4.30 for lunch on 30 th June. He
came back after a while. P.W.4 Anil (Constable) testified that,
appellant Manoj left his office by 10.30 p.m. on 30 th June. It is
also the case of the appellant Manoj that, after he left the
office, he was not aware where did P.W.1 Uttamrao go or what
had happened with him until he came to his office on the
following day. There is some evidence in the nature of log book
of appellant Manoj's vehicle to indicate that, he reached his
home by 11.00 p.m. on 30th June. Whatever has been deposed
to by the prosecution witnesses as regards time cannot be
taken to be at a stroke of a clock.
56. P.W.1 Uttamrao was categorical to state that, by
11.00 p.m., both the appellants and the respondent brought
him downstairs the office of Addl.S.P. It is further in his
evidence that, appellant Manoj asked him to pay the money to
appellant Dhiraj. He asked the respondent Vishwas not to let
him go home unless the money was paid. It is further in the
evidence of P.W.1 Uttamrao that, both the appellant Dhiraj and
respondent Vishwas first took him to one house situated just
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opposite the office of Addl.S.P. He realised it to be the house of
relative of appellant Dhiraj. He was kept in the said house until
2.00 a.m. Before that, respondent Vishwas left for a change of
dress. He came back soon. The fact that he was taken to the
house of one of the relations of appellant Dhiraj is reinforced by
the evidence of P.W.10 Digambar. It is in his evidence that,
P.W.1 Uttamrao was taken to a nearby house in his presence. It
is true that, there is evidence to indicate the friends of
Uttamrao met him there and he had interaction with them.
P.W.4 Anil, Constable, testified that, P.W.1 Uttamrao,
respondent and appellant Dhiraj and relative of Uttamrao went
to a bungalow across the road. He too followed them. On
respondent's return, he (P.W.4 Anil) went to his house.
57. It is further in the evidence of P.W.1 Uttamrao that,
at 2.00 midnight, the respondent Vishwas shifted him to the
house of appellant Dhiraj. He was kept on the terrace of the
said house. He was taken to the said house in a black car. He
was made to sit in between both of them. The respondent
Vishwas had a revolver tucked at his waist. It is in his evidence
that, respondent told him that he had a revolver with him and
the responsibility was given to him to keep it in his custody.
The respondent being a police officer, is bound to be armed with
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a revolver. There is nothing unusual therein. It is not the case
of P.W.1 Uttamrao that the respondent had threatened him at a
revolver point. This evidence has been introduced in the
examination-in-chief for the first time. Statement of P.W.1
Uttamrao is silent in this regard. This Court finds this piece of
evidence to have been introduced so as to aggravate nature of
crime so as to cover or invoke one of the ingredients of Section
364-A of the Indian Penal Code.
58. The witness to the scene of offence panchanamas
did stand by the prosecution. The panchanamas have also been
duly proved by the evidence of P.W.1 Uttamrao who showed the
spots. The evidence of investigating officer (P.W.16 Mitkar)
reinforces the same. It was therefore, not necessary to place
on record documentary evidence in proof of ownership of the
places whereat Uttamrao was detained/ confined overnight.
59. Admittedly, P.W.1 Uttamrao was a political figure.
He was a President of Zilla Parishad. After having realised him
to have been detained, his followers took search for him. Even
they could make it to the house of appellant Dhiraj. It was
11.00 a.m. in the morning of 1 st July. Till then, arrangement of
money was not made. Appellant Manoj was informed that
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persons had started gathering. P.W.1 Uttamrao was, therefore,
sent to the office of appellant Manoj on a motorbike. Even he
was given extended time up to 3.30 p.m. to pay the money. As
has been stated hereinabove, on intervention of P.W.13 Rastogi,
he was allowed to go/ leave the office.
60. It is reiterated that, Patel Brothers had made a
complaint to appellant Manoj. The complaint was in relation to
a sum of Rs.21 Lakhs to have not been paid to them by P.W.1
Uttamrao. The said amount was due to them towards the
construction work of the hostel and staff quarters. Appellant
Manoj, therefore, under the colour of exercise of jurisdiction
under Section 36 of Cr.P.C., asked his subordinate - respondent
Vishwas to call/ bring P.W.1 Uttamrao to his office. It has to be
assumed that, it was necessarily in connection with an enquiry
into the complaint made by Patel Brothers. P.W.1 Uttamrao did
not dispute Shivam Construction to have been engaged for
construction work. It was his case that the work was given on
labour charges basis.
61. Admittedly, no document such as construction
agreement or related documents were placed on record. The
construction work was completed in 2006-2007. P.W.2 Manoj,
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son of Uttamrao testified that, he realised from his father that
Patel Brothers were demanding Rs.21 Lakhs. It has been
mentioned in his complaint to the Superintendent of Police, for
about a month before the incident, Patel Brothers had made a
demand of Rs.21 Lakhs. When he lodged the complaint to the
Superintendent on 1st of August by 8.00 - 9.00 p.m., he did not
know appellant Manoj to have made a demand of Rs.25 Lakhs.
The said complaint was, therefore, silent to make mention
about the demand of alleged ransom. Here P.W.2 Manoj
appears to have lied, since it is in the evidence of P.W.1
Uttamrao that he had made number of calls to his son and
informed about the demand of money.
62. As such, the evidence on record do not make out a
case that P.W.1 Uttamrao was abducted and brought to the
office of Addl.S.P. only with a view to compel him to pay
ransom. There is also no evidence to indicate that P.W.1
Uttamrao was put in fear of his death or hurt.
63. It is true that, P.W.10 Digambar testified in his
evidence that P.W.2 Manoj had made a call to the officer and
then informed him that if the demand was not met, there would
be encounter of P.W.1 Uttamrao. Here, the identity of the said
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officer has neither been disclosed nor proved. This piece of
evidence has also been introduced to aggravate seriousness of
the incident.
64. As such, the prosecution evidence fell short to make
out a case that P.W.1 Uttamrao was either compelled or with
deceitful means brought to the office of Addl.S.P. His own
evidence indicates that he was called to the office of Addl.S.P. in
connection with the complaint lodged by Patel Brothers.
65. It is already observed that, evidence regarding
threat of encounter was afterthought and evidence regarding
thereto was introduced with a view to make the offence serious.
The fact, however, remains that, after the Patel Brothers were
issued the cheques by 8.30 p.m. on 30/6/2009, there was no
reason for appellant Manoj, Dhiraj to detain/ confine P.W.1
Uttamrao at the office of Addl.S.P. first and then at the house of
a relation of appellant Dhiraj and thereafter at his own
(Dhiraj's) house. As such, the offence of wrongful confinement
has been made out against both the appellants and respondent
Vishwas as well. The said confinement was necessarily with a
view to meet some unlawful demand of money by appellant
Manoj, may not be Rs.25 Lakhs exactly. Both, the appellant
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Dhiraj and respondent Vishwas have been proved to have
assisted appellant Manoj with a view to compel P.W.1 Uttamrao
to meet his (appellant Manoj's) unlawful demand. He even
asked his colleagues and Congress Party members to leave for
Malegaon. He would stay behind in connection with the enquiry
into the matter. There is nothing in evidence to indicate that
from the beginning itself appellant Manoj had an intention to
make a demand for ransom. It is only during the enquiry into
the matter, he made a demand for money as a consideration for
non-registration of a crime against P.W.1 Uttamrao on the basis
of the complaint made by Patel Brothers. There is also nothing
to suggest that the conduct of the appellant Manoj was such as
to give P.W.1 Uttamrao a reasonable apprehension that he may
be put to death or hurt. Admittedly, no physical hurt was
caused to him. As such, ingredients of offence of kidnapping for
ransom, punishable under Section 364-A are not made out on
the basis of evidence on record. We are, therefore, not in
agreement with the trial Court recording finding of conviction of
both the appellants for offence punishable under Section 364-A
of the Indian Penal Code.
66. True, on intervention of the Superintendent of
Police, money did not change hands from Uttamrao to appellant
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Manoj through Dhiraj. The fact, however, remains that, after
Patel Brothers were issued the cheque by 8.30 p.m., on
30/6/2009, there was no reason for appellants Manoj and Dhiraj
and respondent Vishwas to detain P.W.1 Uttamrao overnight and
then until he was let to on intervention of Superintendent of
Police.
67. True, the respondent was a lower rank police officer.
The appellant Manoj was in the rank of Addl.S.P. It is the case
of the respondent that he did nothing intentionally. He had no
option but to obey directions of his boss (appellant Manoj). A
certified copy of the weekly diary (Exh.472) of the respondent
was produced in evidence. He denied it to be his diary. The
said extract of the weekly diary was obtained by the
investigating officer (P.W.16 Mitkar) from the Dy. S.P. Latkar.
Shri Latkar has not been examined. As such, the weekly diary
allegedly submitted by the respondent to his higher-ups has not
been duly proved in accordance with law. The trial Court has
strongly relied on the said diary. For want of proof of the diary
and probative value of the contents therein, the trial Court
ought not to have relied on it. The appellants (co-accused)
have every reason to contend that entries therein, if true, are
self serving for the respondent. The said diary might have been
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written afterthought to make out a defence since the crime in
the case came to be registered on 16 th July i.e. about 15 days
after it did take place.
68. The fact, however, remains that the respondent
Vishwas kept P.W.1 Uttamrao in his custody post 8.30 p.m. and
confined him at two places until brought him back to the office
of Addl.S.P. by 11.30 on the following morning. The respondent
was expected to follow only lawful orders of his higher-ups. The
fact that P.W.1 Uttamrao was detained during those two days
i.e. 30th June and 1st July gets reinforced by documentary
evidence in the nature of Call Data Record (CDR) of his cell
phone. The trial Court rightly observed that during the period
of these two days, the calls to and fro the cell phone of P.W.1
Uttamrao were in multiples than compared to those on other
days. Although according to us this falsifies the case of P.W.1
Uttamrao that he was relieved of his cell phone but provided
with the same occasionally to make calls for arranging money
and cheque book.
69. True, the F.I.R. has been lodged belatedly. An
advice of a legal expert had been obtained for lodging of the
F.I.R. There is also evidence to indicate that the F.I.R. was
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drafted on the basis of a draft prepared by a legal practitioner
at Aurangabad and faxed from shop "Mauli Xerox", Aurangabad
for being lodged. It needs no mention that, the principle
"Falsus in Uno Falsus in Omnibus" is not applicable in India.
The averments in the F.I.R. might have been exaggerated so as
to make out a serious offence of Section 364-A. It is, however,
reiterated that the evidence on record undoubtedly makes out a
case of P.W.1 Uttamrao to have been wrongfully confined post
8.30 p.m. on 30th June until 1.30 p.m. of the following day when
he was allowed to leave the office of Addl.S.P. on the
intervention of P.W.13 Rastogi, Superintendent of Police,
Jalgaon. The trial Court ought not to have acquitted the
respondent on the same evidence on which the appellants have
been convicted for the aggravated form of offence of wrongful
confinement. The trial Court referred to certain provisions of
Maharashtra Police Act, 1951. It refers to Section 64 of the
Police Act, whereunder, the duties of a police officer have been
enumerated. Clause (a) of Section 64 speaks about the duty of
every police officer promptly to seve every summons and obey
and execute every warrant or other order lawfully issued to him
by competent authority, and to endeavour by all lawful means
to give effect to the lawful commands of his superior. In our
view, the trial Court misread Section 64 of the Police Act. It
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could never be a duty of the subordinate police officer to assist
his higher-ups in doing illegal activities. True, his position vis-a-
vis the position of appellant Manoj might have put him under
compulsion or he could not have dared to say 'No'. We are
concious of this position. This would be taken as a mitigating
factor while imposing sentence, but in no way an excuse or
defence for acquittal.
SANCTION FOR PROSECUTION :
70. Section 197 of the Code of Criminal reads as under :
"197. Prosecution of Judges and public servants:
(1) When any person who is or was a Judge or
Magistrate or a public servant not removable from
his office save by or with the sanction of the
Government is accused of any offence alleged to
have been committed by him while acting or
purporting to act in the discharge of his official
duty, no Court shall take cognizance of such
offence except with the previous sanction save as
otherwise provided in the Lokpal and Lokayuktas
Act, 2013.
(a) ............
(b) in the case of a person who is employed or,
as the case may be, was at the time of commission
of the alleged offence employed, in connection
with the affairs of a State, of the State
Government:
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71. Both, the appellant Manoj and the respondent
Vishwas were in the rank of Addl.S.P. and Police Sub-Inspector
respectively. Sanction (Exh.460) for their prosecution has been
accorded by the State Government. P.W.15 Ruprao was working
as a Joint Secretary in the Department of Home, State of
Maharashtra. It is in his evidence that, all the papers of
investigation were received by his office. An opinion of Joint
Secretary, Law & Judiciary Department had also been obtained.
All the papers of investigation were then placed before the
Additional Secretary, Home. The file again was moved to the
Joint Secretary (Law). A draft sanction was prepared. The said
sanction was approved by the concerned Minister. A revised
sanction was accorded after proposal for according sanction for
prosecution for offence punishable under Section 364-A was
received. It has also come in the evidence that the original file
relating to the sanction has been gutted in Mantralaya fire.
72. Admittedly, P.W.15 has not accorded sanction. He
has signed the sanction order (Exh.460) in authentication of the
sanction. Perusal of the sanction order indicates the same to
have been issued/ granted by the Government of Maharashtra,
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the authority competent to remove the appellant and the
respondent from duty. There is also evidence of the
investigating officer (P.W.16) that all the papers of investigation
were forwarded for obtaining sanction. It is also in the evidence
that, statements of the very witnesses were re-recorded while
Section 364-A was invoked. It needs no mention that sanction
can be proved either on examination of the sanctioning
authority or perusal of the same would even suggest that the
same has been accorded on application of mind. It is reiterated
that, the sanction order herein has been accorded by the State
Government and not by the Minister concerned. P.W.15 Ruprao
has signed the sanction order in authentication thereof as per
the rules of business.
73. In case of D. Devaraja Vs. Owais Sabeer Hussain
(supra), it has been observed that, the object of sanction for
prosecution is to protect the public servant/ police officer
discharging official duties and functions from harassment by
initiation of frivolous retaliatory criminal proceedings. In
paragraph No.32 of the judgment, it has been observed :-
"32. In Amrik Singh v. State of Pepsu [AIR 1955
SC 309 : 1955 CriLJ 865], this Court referred to
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the judgments of the Federal Court in Hori Ram
Singh v. Crown [AIR 1939 FC 43], H.H.B. Gill v.
King Emperor [AIR 1949 FC 9] and the judgment
of the Privy Council in Gill v. R. [AIR 1948 PC
128] and held : (Amrik Singh case), AIR p. 312,
para 8 :-
"8. The result of the authorities may thus
be summed up: It is not every offence
committed by a public servant that requires
sanction for prosecution under Section
197(1) of the Code of Criminal Procedure;
nor even every act done by him while he is
actually engaged in the performance of his
official duties; but if the act complained of is
directly concerned with his official duties so
that, if questioned, it could be claimed to
have been done by virtue of the office, then
sanction would be necessary; and that would
be so, irrespective of whether it was, in fact,
a proper discharge of his duties, because that
would really be a matter of defence on the
merits, which would have to be investigated
at the trial, and could not arise at the stage of
the grant of sanction, which must precede
the institution of the prosecution."
74. The facts of the present case indicate that the so
called discharge of duty by the appellant and the respondent
came to an end post 8.30 p.m. when Patel Brothers left the
office of Addl.S.P. with cheque. Further detention of P.W.1
Uttamrao overnight and until he was brought back to the office
of appellant Manoj and was allowed to go home only on
intervention of Superintendent of Police P.W.13 Rastogi was an
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offence of wrongful confinement with a view to meet an
unlawful demand of money, in our view, for such act, no
sanction for prosecution was required.
75. The judgment of this Court in case of Atmaram s/o
Laxman & ors. Vs. The State of Maharashtra [AIR 1965 Bombay
131] relied on by learned counsel for appellant is quite
distinguishable on facts. Same is the case about other
authorities pressed into service by him in connection with grant
of sanction under Section 197 of the Code of Criminal
Procedure. Needless to mention, each case has to be decided
on its peculiar facts and circumstances. The broad proposition
of law enunciated by Apex Court and even this Court as well
could be considered and in light thereof matter in hand is being
decided. It is reiterated that, detention of P.W.1 Uttamrao post
8.30 p.m. on 30th June until his release on the following day by
3.30 p.m. was not in discharge of official duty of appellant and
the respondent.
76. Section 161 of the Maharashtra Police Act :- The
second objection of the learned counsel for the appellants is
that, the prosecution has not been instituted within a time
frame prescribed by Section 161. It is, therefore, necessary to
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first reproduced the said section hereinbelow :-
"161. Suits or prosecutions in respect of acts done
under colour of duty as aforesaid not to be
entertained, or to be dismissed if not instituted
within the prescribed period.
(1) In any case of alleged offence by the
Revenue Commissioner, the Commissioner, a
Magistrate, Police Officer or other person, or of a
wrong alleged to have been done by such Revenue
Commissioner, Commissioner, Magistrate, Police
Officer or other person, by any act done under
colour or in excess of any such, duty or authority
as aforesaid, or wherein it shall appear to the
Court that the offence or wrong if committed or
done was of the character aforesaid, the
prosecution or suit shall not be entertained, or
shall be dismissed, if instituted, more than six
months after the date of the act complained of:
Provided that, any such prosecution against a
Police Officer may be entertained by the Court, if
instituted with the previous sanction of the State
Government within two years from the date of the
offence.
77. Learned counsel for the appellant Manoj relied on
the judgment of Apex Court in case of Virupaxappa Veerappa
Kadampur Vs. State of Mysore [ AIR 1963 SC 849 ]. Section
161 of the Bombay (now Maharashtra) Police Act has been
interpreted in the said judgment. The observations in
paragraph Nos.9 and 10 of the said judgment read thus :
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9. The expression "under colour of something"
or "under colour of duty", or "'under colour of
office", is not infrequently used in law as well as
in common parlance. Thus in common parlance
when a person is entrusted with the duty of
collecting funds for, say, some charity and he uses
that opportunity to get money for himself, we say
of him that he is collecting money for himself
under colour of making collections or a charity.
Whether or not when the act bears the true colour
of the office or duty or right, the act may be said to
be done under colour of that right, office or duty, it
is clear that when the colour of the office or duty
or right, the act may be said to be done under
colour of that right, office or duty it is clear that
when the colour is assumed as a cover or a cloak
for something which cannot properly be done in
performance of the duty or in exercise of the right
or office, the act is said to be done under colour of
the office or duty or right. It is reasonable to think
that the legislature used the words "under colour"
in S.161(1) to include this sense. It is helpful to
remember in this connection that the words
"colour of office" has been stated in many law
lexicons- to have the meaning just indicated
above. Thus in Wharton's Law Lexicon, 14th
Edition, we find at p. 214 the following
"Colour of office"
"'When an act is unjustly done by the countenance
of an office, being grounded upon corruption, to
which the office is as a shadow and colour." In
Stroud's judicial Dictionary, 3rd Edition, we find
the following at p. 521 :- Colour : "Colour of
office" is always taken in the worst part, and
signifies an act evil done by the countenance of an
office, and it bears a dissembling face of the right
of the office, whereas the office is but a veil to the
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falsehood, and the thing is grounded upon Vice,
and the Office is as a shadow to it. But 'by reason
of the office' and 'by virtue of the office' are taken
always in the best part."
10. It appears to us that the words "under colour
of duty" have been used in S. 161(1) to include
acts done under the cloak of duty, even though not
by virtue of the duty. When he (the police-officer)
prepares a false Panchnama or a false report he is
clearly using the existence of his legal duty as a
cloak for his corrupt action or to use the words in
Stroud's Dictionary "'as a veil to his falsehood."
The acts thus done in dereliction of his duty must
be held to have been done "under colour of the
duty."
78. While in case of Atmaram & ors. (supra), it has been
observed that, the alleged beating and confinement done by
police officer has no connection between such acts and duty
imposed on officer. Police officer is not entitled to protection
under Section 161(1) of the Act. It has been held in the said
judgment that :
"Held that the acts of wrongful detention and
assault were committed by the accused persons in
the course of their official duty of investigation
and, though these impugned acts were not by
virtue of their duty and even though they
amounted to dereliction of their duty, they were
clearly under the cloak of duty within the meaning
of S.161."
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79. Again coming back to the facts of the present case,
it is reiterated that, keeping P.W.1 Uttamrao in detention/
confinement only with a view to meet an unlawful demand of
money would in no way be termed to be an act done under
colour or in excess of any duty or authority. In our view,
therefore, the appellant and the respondent could not have
cover of Section 161 of the Police Act.
80. For all the aforesaid reasons, we are not in
agreement with the trial Court's order convicting the appellants
for the offence punishable under Section 364-A of the Indian
Penal code. To that extent, we are inclined to set aside the
impugned order.
81. Since the offence under Section 385 of the Indian
Penal Code was not complete as the money did not change
hands, it is taken as an offence of attempt to commit extortion,
being punishable under Section 385 read with Section 511 of
the Indian Penal Code to have been committed by appellant
Manoj. The appellant Dhiraj has assisted appellant Manoj for
that crime and he being personally present there as an abetor,
he is liable to be convicted as if he has committed the said
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offence. We, however, do not propose to alter the sentence of
imprisonment imposed by the trial Court in that regard. The
said sentence of imprisonment and fine be treated as imposed
for offence punishable under Section 385 read with Section 511
of the Indian Penal Code.
82. Since the State's Appeal against acquittal is being
allowed, we need to hear the respondent on the quantum of
sentence. He is not present before the Court. Mr. Ashwini
Lomte, learned counsel holding for Mr. S.J. Salunke, learned
counsel for the respondent would submit that, the respondent
be viewed leniently. He has retired from service and is not
keeping good health.
Learned A.P.P. would submit to impose sentence
proportionate to the offences proved.
83. In view of the above, the appeals are disposed of in
terms of the following order :
ORDER
(i) Criminal Appeal No.104/2019 and Criminal Appeal
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No.212/2019 are partly allowed.
(ii) The order of conviction and consequential sentences
imposed against both the appellants Manoj Prabhakar Lohar and
Dhiraj s/o Yashwant Yeole for offence punishable under Section
364-A of the Indian Penal Code is hereby set aside. The the
appellants Manoj Prabhakar Lohar and Dhiraj s/o Yashwant
Yeole are acquitted of Section 364-A of the Indian Penal Code.
Amount of fine, if any, paid by the appellants in connection with
this crime, be paid back to them immediately.
(iii) Rest of the terms of the impugned order and
consequential sentences imposed against the appellants to
stand unaltered.
(iv) The appellants shall surrender to serve out remainder of
the sentence, if any.
(v) Criminal Appeal No.468/2022 is partly allowed. The
respondent Vishwas Raosaheb Nimbalkar is hereby convicted for
the offences punishable under Sections 342, 346, 348 and
Section 385 read with Section 511 of the Indian Penal Code
and, therefore, sentenced to suffer a consolidated sentence of
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rigorous imprisonment for one month and to pay fine of
Rs.1000/-, in default to suffer simple imprisonment for one
month. The respondent Vishwas Raosaheb Nimbalkar shall
surrender to serve out the sentence.
(vi) Pending Criminal Application No.3043/2022 is disposed of.
( R.M. JOSHI, J. ) (R.G. AVACHAT, J.)
After pronouncement of the judgment, Ms. Ashwini
Lomte, learned counsel holding for Mr. S.J. Salunke, learned
counsel for the respondent in Criminal Appeal No.468/2022
sought time for surrender of the respondent. According to her,
the respondent has undergone a by-pass surgery and has been
advised rest. Some papers in that regard were offered in that
regard. In view of the same, the respondent is granted six
weeks time to surrender.
( R.M. JOSHI, J. ) (R.G. AVACHAT, J.)
fmp/-
