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Bombay High Court
Ankush Singh And Anr. vs Administration Of Union Territory Of ... on 16 December, 2025
2025:BHC-AS:55439
Prasad Rajput
(P.A.) 902_BA_4499_2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.4499 OF 2025
1. Ankush Singh
2. Jatin Patel ...Applicants
Versus
Union Territory of Daman & Diu and Ors. ...Respondents
Mr. Vivek Pandey a/w Mr. Afsar Ansari, Advocate for
Applicants.
Mr. Ashwin Thool a/w Mr. Ayush Singh a/w Archishmati
Chandramore, Advocate for Respondent No.1 (U.T.)
Mr. Shreyas Uday Lalit a/w Mr. Varun Thokal a/w Mr.
Aditya Singh i/b. Mr. Varun Thokal, for Respondent No.4
/ Intervenor.
CORAM DR. NEELA GOKHALE, J.
RESERVED ON: 9TH DECEMBER 2025
PRONOUNCED ON: 16TH DECEMBER 2025
JUDGMENT:
-
1. The Applicants seek their release on bail in
connection with FIR No. 0039 of 2025 dated 26 th August
2025, registered with the Coastal Police Station, Kadaiya,
Daman, for offences punishable under Section 140(2), 308(7)
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and 3(5) of the Bharatiya Nyaya Sanhita, 2023 ('BNS'). The
Police filed the Final Report No. 37 of 2025, before the JMFC,
Daman, on 17th October 2025. Pertinent to note is that, while
filing the Final Report, the investigating agency has dropped
the non-bailable offences as initially applied in the FIR and
retained only offences punishable under Sections 308(7), 258,
238, 241, 3(5), 115(2) of the BNS, 2023. Thus, the offences
as alleged by the Police against the Applicants and Co-accused
in the charge sheet, as on date, are all bailable offences
2. The facts of the case in brief are as under:
2.1 On 25th August 2025, the Complainant namely,
Aajessh Patel and his friends, traveled to Daman from Surat,
in an Innova car. They purchased liquor from a wine shop and
intended to have a party in a farmhouse. 5 to 6 persons
intercepted them, searched their vehicle, and having spotted
the liquor, identified themselves to be police officials. They
directed the Complainant and his friends to accompany them
to the Police Station. The Complainant and his friends,
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intimidated by the Police, acted as per their instructions and
followed them to the Police Headquarters. These persons,
were none other than Police Constables, Head Constable and
a Police Officer from the Crime Branch, Daman, Union
Territory of Dadra & Nagar Haveli and Daman and Diu. Two
of the constables are the Applicants herein.
2.2 The Complainant and his friends were made to sit
in a room on the ground floor of the Police Headquarters,
their mobile phones were seized, they were taken to an
upstairs room, slapped a couple of times and interrogated.
Another Police Officer arrived whose presence was intended
to further intimidate them. The Complainant showed to the
Police the receipt of the purchase of liquor, however, the Police
deliberately declared it as a fake and threatened to implicate
them in offences punishable with 14 years of imprisonment.
The Complainant and his friends, getting a drift of the intent
of the Police personnel and, out of fear, offered to pay some
money for their release. The Applicants and others
immediately demanded an amount of Rs. 25,00,000/- as a
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price for releasing the Complainant and his friends.
2.3 Another Police Officer arrived to negotiate with
the Complainant since the Complainant conveyed his inability
to raise such a huge amount. Finally, the Complainant was
told to arrange an amount of Rs. 10,00,000/-. His mobile
phone was returned to him to enable him to call his
relatives/friends. The call was monitored by the Police on the
speaker mode. The Complainant first called his mother who
did not answer, hence, he called his friend, Vicky Patel and
requested him to inform his mother the requirement of Rs.
10,00,000/- for his release in a liquor case.
2.4 Another neighbor, Bhavin called Aajessh on Vicky's
phone and assured him that they were arranging the money
and later at around 8 pm, conveyed that they were leaving
with the money. The Police demanded the live location of
Vicky and Bhavin and were monitoring their location through
calls. When Vicky reached Daman, three Police personnel left
the Headquarters with the Complainant; two sat with the
Complainant in the Innova, while another followed on a
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Splendor bike. The Complainant was directed to tell Vicky to
hand over the money to persons following the Innova in a
Swift car. Bhavin refused to hand over the money to any
person other than the Complainant and mentioned that he
was able to manage only Rs. 5,00,000/-.
2.5 The Police were hearing the conversation on
speaker phone and expressed anger at the deficit amount and
reiterated their demand. Ultimately, Bhavin agreed to pay Rs.
7,00,000/- immediately and balance Rs. 3,00,000/- on the
next day. The Police accepted the overture, stopped the Innova
near the Splendor bike and thereafter, the Swift car arrived.
The Complainant was taken in the Swift car to a nearby
Hyundai showroom. The Complainant was then instructed to
get down, bring the money from Bhavin. He did as told, came
back with the money and handed it over to the Police. The
Complainant was then dropped off at a short distance. His
two friends were also released along with the Innova car. The
Complainant then learned that his friend, Bhim Singh Purohit,
also accompanying Vicky and Bhavin, had lodged a Complaint
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on the police helpline No. 112. The Police of the Coastal Police
Station, Kadaiya, Daman, came to their rescue and
accompanied them to their Police Station. The Complainant
was shown the photos of the Police personnel working in the
Crime Branch. He identified the Applicants, Ankush Singh and
Jatinkumar Patel, along with Co-accused, Ramdevsinh Jadeja,
Vishal Mir, Vikas Rajput, Chintan Desai, Dilip Gavit, all Police
Constables, Krishna Vijay Gohil, Head Constable and Dhanji
Dubriya, a PSI, working in the Police Department of the U.T.
Administration of Dadra and Nagar Haveli and Daman and
Diu, Government of India. He identified the Applicants,
Ankush Singh and Jatinkumar Patel, Co-accused-Vishal Mir,
Ramdevsinh Jadeja, Chintan Desai and Dilip Gavit as the
Police personnel who stopped their Innova car and forcibly
took them to the Police Headquarters; additionally, he
identified Vikas Rajput, who elbowed him on his chest;
Applicant-Ankush Singh, who also slapped his friend Pinakin
Patel, and Vishal Mir, who slapped his other friend Hardik
Patel. He also pointed to Krishna Vijay Gohil who did the
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negotiations regarding the amount to be paid and finally
Dhanji Dubriya, PSI, who was also involved in negotiating the
ransom amount. There were others, who the Complainant was
unable to identify at the time of registration of the FIR. The
FIR was registered under Sections 140(2), 308(7), and 3(5)
of BNS, 2023.
2.6 The Police personnel were arrested on 26 th August
2025 and were produced before the JMFC, Daman. The JMFC,
Daman remanded them to police custody till 3rd September
2025. Thereafter, by order dated 1st September 2025, they
were remanded to judicial custody. Sanction was accorded by
the Dy. Inspected General of Police ('DIG') to prosecute the
Applicants and the Co-accused except Dhanji Dubriya, PSI, for
the said offences.
2.7 On 17th October 2025, the Investigating Officer
applied to the JMFC, Daman to add Sections 241, 115(2) and
258 of the BNS to the FIR already registered in the aforesaid
sections. Sections 61(2), 305(c) and 238 of the BNS had
already been added to the FIR. On the same date, the
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Complainant was informed that the charge sheet No. 37/2025
was being filed in the Court, however, surprisingly the
offences charged were only those punishable under Sections
308(7), 258, 238, 241, 3(5) and 115(2) of the BNS, 2023.
Pointedly, the non-bailable offence of Section 140(2) was
dropped from the charge sheet.
2.8 By order dated 20th October 2025, the JMFC,
Daman observed that the offence punishable under Section
140(2) of the BNS dropped in the charge sheet, was made
out. The JMFC, Daman also observed that a further offence of
extortion punishable under Section 308(2) of the BNS is also
made out. Hence, the Magistrate issued notice to the
Prosecution, holding it necessary for the prosecution to be
given an opportunity of hearing. This order remains
unchallenged.
2.9 The Complainant filed a protest petition dated 25th
October 2025 before the JMFC, Daman. The same is pending.
2.10 The Complainant also filed a Writ Petition before
this Court, seeking transfer of investigation to CBI, amongst
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other prayers. By order dated 3rd November 2025, a Division
Bench of this Court (Coram: Shri. A.S Gadkari and Shri.
Ranjitsinha Bhonsale JJ.) issued notice to the Respondent No.
1- U.T. herein. The petition is yet pending.
2.11 The Applicants and Co-accused filed separate
applications seeking bail before the JMFC, Daman. However,
by order dated 28th October 2025, the JMFC, Daman rejected
the bail applications and hence, the Applicants are before this
Court seeking the relief as prayed.
3. Mr Vivek Pandey, Ld. Counsel appeared for the
Applicants, Mr. Ashwin Thool, Ld. Standing Counsel appeared
for the U.T. and Mr. Shreyas Lalit, Ld. Counsel, represented
the intervenor/Complainant. All the parties placed on record
their written submissions. Submissions were place on record
by Sonu Dubey, PSI, through the Standing Counsel, Mr. Thool
representing the Respondent Nos. 1 and 2.
4. SUBMISSIONS ON BEHALF OF THE APPLICANTS:
4.1 At the outset, it was submitted that the offences
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under which the Applicants and the Co-accused are charged
are all bailable offences and hence, as of right, the Applicants
deserve to be enlarged on bail.
4.2 The Complainant has filed a Writ Petition in this
Court seeking transfer of investigation of the case. Thus, the
question of applicability of Section 140(2) of the BNS is
pending adjudication.
4.3 The ingredients of Section 140(2) of the BNS do
not apply to the acts alleged to have been committed by the
Applicants and the Co-accused.
4.4 The Police have a legal authority to arrest
individuals under suspicion and with reasonable apprehension
of crime. If an officer detains someone for investigation, that
does not constitute abduction, even if the person detained, is
later found innocent.
4.5 In the present case, the Applicants and the Co-
accused are Police personnel from the Crime Branch, which is
notified as a Police Station, hence, it cannot be said that the
offence of abduction is committed. Furthermore, it is the
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Complainant and his friends who offered money to the Police
and no demand was made by the Police personnel. They were
not detained as they were allowed to move freely in the
Headquarters.
4.6 Upon investigation, Section 140(2) of the BNS was
appropriately dropped. There was no favoritism shown by the
Police and in fact, a SIT is formed, by orders of the
Superintendent of Police ('SP'), Daman, dated 27th August
2025. Furthermore, the investigation was conducted by high-
ranking officers.
4.7 Sanction was accorded after careful scrutiny of the
material on record and there is no question of bias or
prejudice in favor of the accused. This is demonstrated by the
fact that FIR was registered immediately, arrests were made
and Final Report was also filed.
4.8 Pendency of a protest petition before the
Magistrate for invocation of Section 140(2) of the BNS and a
Writ Petition before this Court does not lead to a conclusion
that the section is deliberately dropped and that there is bias
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in favor of the accused.
4.9 On merits, it is stated that there are large scale
bootleggers operating in Daman, who have a grudge against
the Crime Branch officials and the entire story of the
Complainant and his friends is orchestrated by the vengeful
bootleggers who have sinister designs against Crime Branch
officials. Neither the ransom amount nor the liquor from the
Complainant's car is recovered.
4.10 Delay in reporting theft of valuable articles by the
Complainant and his friends, negates their story. The Apple
Air Pods found in the drawer of the Crime Branch Police
Station does not indicate theft by the Police since there is no
proof that the Air Pods belonged to the Complainant as Air
Pods can pair with any iPhone.
4.11 The role of the present Applicants does not
constitute any offence as alleged. Hence, Mr. Pandey prays
that the Applicants be released on bail.
5. SUBMISSIONS ON BEHALF OF RESPONDENT
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NOS. 1 AND 2:
At the very outset, it is necessary to record that the
submissions of the Respondents largely support the case of the
Applicants. The Investigating Officer (IO) namely, PSI Sonu
Dubey has tendered his written submissions.
5.1 Mr. Thool narrated the facts of the case. Upon
investigation, the Investigating Officer did not find the
applicability of Section 140(2) of the BNS as appropriate and
hence, it was dropped from the charge sheet.
5.2 There was no demand of money made by the
Police personnel, in fact, it was the Complainant and his
friends who offered to pay the money. There is no material to
show that the victims were brought to the Police Headquarters
to elicit money from them. None of the witnesses, namely,
Bhavin, Vicky or the Complainant's mother have ever spoken
with the Police Officers. The Police have thus, carried out a
very fair, impartial and sincere investigation. Accordingly, the
charge sheet dated 17th October 2025 is filed before the JMFC,
Daman.
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6. SUBMISSIONS ON BEHALF OF THE INTERVENOR /
RESPONDENT NO.4:
6.1 As soon as the charge sheet was filed under
bailable offences, the JMFC, Daman, by its order dated 20 th
October 2025, noted that prima facie offence was made out
under Section 140(2) and 308(2) of the BNS. Notice was
issued to the prosecution/APP.
6.2 The JMFC, Daman has taken cognizance of
Section 140(2) and 308(2) of the BNS, which are both non-
bailable offences, thus, the bail application cannot be confined
to considering bailable offences.
6.3 The Applicants and Others have not challenged
the cognizance order.
6.4 No justification is offered by the investigation
agency to drop 140(2) of the BNS in the charge sheet, neither
has any justification been offered before the JMFC, Daman.
The investigation conducted by the Police is an imprimatur of
perversity.
6.5 Section 140(2) of the BNS is clearly made out in
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the facts of the present matter. The entire facts narrated in the
FIR clearly establish illegal abduction without sufficient and
justifiable cause, releasing them only on receiving the ransom
as demanded. The ingredients of Section 140(2) of the BNS
are adequately made out. Even the charge sheet itself
demonstrates that the Complainant and others were abducted,
detained and released only when the ransom amount was
received by the Applicants and other accused. The Apple Air
Pods and other valuable items were recovered from the
drawer in the Police Headquarters.
6.6 The statements of witnesses recorded under
Section 183 of BNSS clearly make out the offence.
6.7 The Complainant and his friends were locked in a
room but, were able to roam in the said room does not
constitute liberty to negate the act of abduction.
6.8 The reasoning in the charge sheet is entirely and
inherently contradictory. Once the investigating agency has
accepted that the Applicants and others intentionally put the
Complainant and his friends in fear of injury to them, it is
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impossible to disbelieve abduction as the entire act of
detention, till ransom amount was received, was carried out
in the Police Headquarters. The charge for extortion remains
so long as the allegation of abduction remains. One ceases to
exist without the other since extortion is borne out from the
act of abduction.
6.9 The Court possess inherent powers to see through
the perversity in the charge sheet and is not bound by the
investigation conducted by the police. Moreover, a Writ
Petition is filed and pending, seeking transfer of investigation
of the said FIR to the CBI. There is reasonable apprehension of
bias since the police are investigating their own colleagues.
The bail Court is not bound by an errant investigation.
6.10 The act of extortion committed by a Police Officer
invites application of Section 7 of the Prevention of
Corruption Act, 1988 as the Police Officer attempted to obtain
undue advantage from the Complainant and his friends.
6.11 The role of the Applicants and others is
established. The Complainant and his friends have identified
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the Applicants and the Co-accused. Moreover, instead of co-
operating with the investigation, Applicant No. 2 tried to
derail the same by inflicting injuries upon himself. The letter
dated 30th August 2025 to the SP shows a huge conspiracy
between the Applicants, Co-accused and seniors and
colleagues. The Complainant, therefore prayed that the Bail
Application be rejected.
7. ANALYSIS:
7.1 These rival submissions fall for consideration of
this Court in the present matter. The limited question that
arises in the present matter is whether the Magistrate is
bound by the opinion of the Investigating Officer as given by
him in the charge-sheet while considering a bail application.
7.2 For better exposition, the relevant provisions of
the BNSS, 2023 are reproduced herein below:
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"193. Report of police officer on completion of investigation.--
(1) Every investigation under this Chapter shall be completed
without unnecessary delay.
(2) The investigation in relation to an offence under sections
64, 65, 66, 67, 68, 70, 71 of the Bharatiya Nyaya Sanhita, 2023
or under sections 4, 6, 8 or section 10 of the Protection of
Children from Sexual Offences Act, 2012 shall be completed
within two months from the date on which the information was
recorded by the officer in charge of the police station.
(3) (i) As soon as the investigation is completed, the officer in
charge of the police station shall forward, including through
electronic communication to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the
form as the State Government may, by rules provide, stating--
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted
with the circumstances of the case;
(d) whether any offence appears to have been committed
and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether the accused has been released on his bond or
bail bond;
(g) whether the accused has been forwarded in custody
under section 190;
(h) whether the report of medical examination of the
woman has been attached where investigation relates to an
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offence under sections 64, 65, 66, 67, 68, 70 or section 71 of
the Bharatiya Nyaya Sanhita, 2023;
(i) the sequence of custody in case of electronic device;
(ii) the police officer shall, within a period of ninety days,
inform the progress of the investigation by any means
including through electronic communication to the
informant or the victim;
(iii) the officer shall also communicate, in such manner as
the State Government may, by rules, provide, the action
taken by him, to the person, if any, by whom the information
relating to the commission of the offence was first given.
(4) Where a superior officer of police has been appointed under
section 177, the report shall, in any case in which the State
Government by general or special order so directs, be submitted
through that officer, and he may, pending the orders of the
Magistrate, direct the officer in charge of the police station to
make further investigation.
(5) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond or bail
bond, the Magistrate shall make such order for the discharge of
such bond or bail bond or otherwise as he thinks fit.
(6) When such report is in respect of a case to which section
190 applies, the police officer shall forward to the Magistrate
along with the report--
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to
the Magistrate during investigation;
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(b) the statements recorded under section 180 of all the
persons whom the prosecution proposes to examine as its
witnesses.
(7) If the police officer is of opinion that any part of any such
statement is not relevant to the subject matter of the
proceedings or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in the public
interest, he shall indicate that part of the statement and append
a note requesting the Magistrate to exclude that part from the
copies to be granted to the accused and stating his reasons for
making such request.
(8) Subject to the provisions contained in sub-section (7), the
police officer investigating the case shall also submit such
number of copies of the police report along with other
documents duly indexed to the Magistrate for supply to the
accused as required under section 230:
Provided that supply of report and other documents by
electronic communication shall be considered as duly served.
(9) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-
section (3) has been forwarded to the Magistrate and, where
upon such investigation, the officer in charge of the police
station obtains further evidence, oral or documentary, he shall
forward to the Magistrate a further report or reports regarding
such evidence in the form as the State Government may, by
rules, provide; and the provisions of sub-sections (3) to (8)
shall, as far as may be, apply in relation to such report or reports
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as they apply in relation to a report forwarded under sub-section
(3):
Provided that further investigation during the trial may be
conducted with the permission of the Court trying the case and
the same shall be completed within a period of ninety days
which may be extended with the permission of the Court.
210. Cognizance of offences by Magistrate.--(1) Subject to the
provisions of this Chapter, any Magistrate of the first class, and
any Magistrate of the second class specially empowered in this
behalf under sub-section (2), may take cognizance of any
offence--
(a) upon receiving a complaint of facts, including any
complaint filed by a person authorised under any special
law, which constitutes such offence;
(b) upon a police report (submitted in any mode including
electronic mode) of such facts;
(c) upon information received from any person other than
a police officer, or upon his own knowledge, that such offence has
been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or try.
227. Issue of process.--(1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be--
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(a) a summons-case, he shall issue summons to the accused
for his attendance; or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit,
a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having
jurisdiction:
Provided that summons or warrants may also be issued
through electronic means.
(2) No summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses
has been filed.
(3) In a proceeding instituted upon a complaint made in writing,
every summons or warrant issued under sub-section (1) shall be
accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees
or other fees are payable, no process shall be issued until the
fees are paid and, if such fees are not paid within a reasonable
time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of section 90."
7.3 Thus, when a police report is placed before the
Magistrate under Section 193(3)(i) of the BNSS, concluding
that an offence appears to have been committed by a
particular person or persons, the Magistrate has three options:
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(i) he may accept the report and take cognizance of the
offence and issue process, (ii) he may direct further
investigation under sub-section (3) of Section 175 of the
BNSS and require the police to make a further report, or (iii)
he may disagree with the report and discharge the accused or
drop the proceedings. If such police report concludes that no
offence appears to have been committed, the Magistrate again
has three options: (i) he may accept the report and drop the
proceedings, or (ii) he may disagree with the report and
taking the view that there is sufficient ground for proceeding
further, take cognizance of the offence and issue process, or
(iii) he may direct further investigation to be made by the
police under sub-section (3) of Section 175 of the BNSS.
7.4 The Supreme Court in its recent decision in the
matter of Sharif Ahmed vs State of Uttar Pradesh 1 held that a
charge sheet under Section 173(2) of the Cr.P.C must be
complete and supported by material /evidence, and that the
Magistrate must independently scrutinize it rather than rely
1 2024 INSC 363
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on the Investigating Officer's opinion. Referring to its earlier
decision in the matter of Dablu Kujur vs State of Jharkhand2,
the Supreme Court reiterated its words in another earlier
decision in the matter of Bhagwant Singh v. Commissioner of
Police and Another3, as under:
"14. When such a Police Report concludes that an offence
appears to have been committed by a particular person or
persons, the Magistrate has three options: (i) he may
accept the report and take cognizance of the offence and
issue process, (ii) he may direct further investigation
under subsection (3) of Section 156 and require the police
to make a further report, or (iii) he may disagree with the
report and discharge the accused or drop the proceedings.
If such Police Report concludes that no offence appears to
have been committed, the Magistrate again has three
options: (i) he may accept the report and drop the
proceedings, or (ii) he may disagree with the report and
taking the view that there is sufficient ground for
proceeding further, take cognizance of the offence and
22024 SCC OnLine SC 269
3 (1985) 2 SCC 537
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issue process, or (iii) he may direct further investigation
to be made by the police under sub-section (3) of Section
156."
7.5 The Supreme Court in Sharif Ahmed (Supra)
further said that:
"14.....It is in this context that the provisions of Sections 190
and 204 of the Code become important. Clause (a) of
Section 190 states that the Magistrate can take cognisance of
an offence on receiving a complaint of facts which constitute
such offence. Clause (b) relates to a situation where the
Magistrate receives a police report carrying such facts, i.e.,
facts which constitute such offence. In Minu Kumari and
Another v. State of Bihar and Others [(2006) 4 SCC 359],
this Court referred to the options available to the Magistrate
on how to proceed in terms of Section 190(1)(b) of the
Code, and held:
"11...The position is, therefore, now well settled that upon
receipt of a police report under Section 173(2) a
Magistrate is entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even if the police
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report is to the effect that no case is made out against the
accused. The Magistrate can take into account the
statements of the witnesses examined by the police during
the investigation and take cognizance of the offence
complained of and order the issue of process to the
accused. Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence only if the
investigating officer gives an opinion that the
investigation has made out a case against the accused.
The Magistrate can ignore the conclusion arrived at by the
investigating officer and independently apply his mind to
the facts emerging from the investigation and take
cognizance of the case, if he thinks fit, exercise his powers
under Section 190(1)(b) and direct the issue of process to
the accused. The Magistrate is not bound in such a
situation to follow the procedure laid down in Sections
200 and 202 of the Code for taking cognizance of a case
under Section 190(1)(a) though it is open to him to act
under Section 200 or Section 202 also. (See India Carat
(P) Ltd. v. State of Karnataka [(1989) 2 SCC 132 : 1989
SCC (Cri) 306 : AIR 1989 SC 885] .)
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12. The informant is not prejudicially affected when the
Magistrate decides to take cognizance and to proceed with
the case. But where the Magistrate decides that sufficient
ground does not subsist for proceeding further and drops
the proceeding or takes the view that there is material for
proceeding against some and there are insufficient
grounds in respect of others, the informant would
certainly be prejudiced as the first information report
lodged becomes wholly or partially ineffective. This Court
in Bhagwant Singh v. Commr. of Police held that where
the Magistrate decides not to take cognizance and to drop
the proceeding or takes a view that there is no sufficient
ground for proceeding against some of the persons
mentioned in the first information report, notice to the
informant and grant of opportunity of being heard in the
matter becomes mandatory. As indicated above, there is
no provision in the Code for issue of a notice in that
regard."
7.6 The Supreme Court, in the same decision, further
observed that:
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"23.....Further, the earlier portion of the same paragraph,
while referring to the opinion of the investigating officer,
does so to demonstrate the significance of the opinion of the
investigating officer at this stage. However, this does not
preclude the Magistrate from exercising her powers in
adopting an approach independent from such opinion, as has
been held by this Court in Bhagwant Singh (supra) and Minu
Kumari (supra).
24. It is the police report which would enable the Magistrate
to decide a course of action from the options available to
him. The details of the offence and investigation are not
supposed to be a comprehensive thesis of the prosecution
case, but at the same time, must reflect a thorough
investigation into the alleged offence. It is on the basis of this
record that the court can take effective cognizance of the
offence and proceed to issue process in terms of Section
190(1)(b) and Section 204 of the Code. In case of doubt or
debate, or if no offence is made out, it is open to the
Magistrate to exercise other options which are available to
him."
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7.7 The sum and substance of the ratio culled out by
the Supreme Court is that, the Magistrate is not bound by the
analysis of the investigative officer as contained in the charge
sheet. The charge sheet is only the opinion of the investigating
officer arrived after analyzing the information collected by the
police after investigation, including recording statements of
witnesses, examining material collected by the police, during
investigation etc. It is the Magistrate, ultimately, who takes a
judicial decision, using the contents of the charge sheet as a
thresh hold, to take cognizance or otherwise, and proceed to
issue process to the accused.
7.8 Coming to the facts in the present case, a plain
reading of the FIR indicates that the police were cognizant of
the facts of the incident. Initially, the police registered the FIR
for offences punishable under Sections 140(2), 308(7) and
3(5) of the BNS. During investigation, statements of witnesses
under Section 183 of the BNSS were recorded. A case of
abduction was clearly made out, as the Complainant had
specifically narrated a threat to cause hurt or reasonable
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apprehension for the same, with an object to obtain ransom.
The Applicants and the Co-accused abducted the Complainant
and his friends and detained them in Police Headquarters
without any proceedings and released them only on receiving
the ransom amount. They were slapped and pushed around,
their mobile phones and other valuable items were snatched
from them. All these facts are also noted in the charge sheet.
While seeking police custody of the Applicants and the Co-
accused, in the Remand Report dated 27th August 2025, the
Investigating Officer reiterated that:
'During the course of inquiry in the matter by Coastal
Police Station, Kadaiya staff, it was revealed that the said
offence was orchestrated by the Staff of Crime Branch,
DNH&DD and 7 staff of Crime Branch were identified by
the complainant. Based on these statements, under the
oral instructions of the superior officer, FIR No. 39/2025
under Section 140(2), 308(7), 3(5) of the Bharartiya
Nyaya Sanhita, 2023 registered at CPS, Kadaiya, Nani
Daman.'
7.9 Thereafter, by Remand Report dated 1 st September 2025
was filed requesting the Applicants and Co-accused to be
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remanded in judicial custody. A detailed description of the
incident is narrated in the Remand Report including the
allegation of abduction and extortion. The relevant contents
of the Remand Report are as under:
'During the interrogation the accused persons confessed
their role in the crime....Further, since there is
conspiracy involved in the above act, and the
Complainant in his supplementary statement on
30/08/2025, revealed that there were perfumes Athar,
cables pens, 1 Apple AirPods, etc., in his vehicle when it
was taken to the Crime Branch office, these articles were
not found in the vehicle after he was released by them
from their custody and when he cleaned his vehicle.
Hence, section 61(2) & sec 305(c) of BNS has been
incorporated in the offence....These marginally noted
accused persons when they are taken for interrogation in
the case, and they were asked about the details
regarding the extorted money and the vehicle used in
the extortion, the complainant they would immediately
start to inflict injuries on themselves discreetly without
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the knowledge of the Police staff, or even fake it. They
have even vomited so that they can be immediately
taken for medical examination, which was done, but the
doctor did not find anything, on the contrary when the
injection was refused to be taken the doctor felt that he
was faking it, they would turn to the places where CCTV
cameras are placed and start shouting, even intimidate
the police who are with them. These accused have a
malafide intention, just to create such a situation. By this
act he is avoiding giving any details regarding the
extorted money or the vehicle, thereby derailing the
recovery process....
All the accused concerned in the present crime FIR No.
39/2025 U/s 140(2), 308(8), 3(5), 61(2) & 305(c)
Bharatiya Nyay Sanhita were serving in the Crime
Branch and have served the police department for a
decent amount of time, they aware of police functioning
and working. They know how to avoid any
interrogation. They with their common intention have
clearly appeared to have chalked out a conspiracy that
they will not at all co-operate with the investigation
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being done.'
7.10 Most importantly, by application dated 17th
October 2025, the Investigating Officer namely, Sebastian
Devasia, Police Inspector, Daman conveyed to the Magistrate
that in view of the evidence collected, Section 61(2), 305(c)
and 238 of the BNS, 2023 have been added to the charges
against the Applicants and Co-accused. The Magistrate was
also informed that further investigation established that the
Applicants and Co-accused, destroyed their mobile phones'
data (Electronic Record) to derail the investigation and have
also caused hurt to the Complainant and his friends. The
Applicants and Co-accused have abused their position and
threatened to implicate the Complainant and his friends in a
false case, which is against the law. Hence, Mr. Sebastian
urged the Magistrate to add Sections 241, 115(2) and 258 to
the offences already invoked i.e., 140(2), 308(7), 3(5), 61(2),
305(c) and 238 of the BNS.
7.11 Thereafter, Remand Report dated 17th October
2025 was also filed referring to the FIR No. 39/2025
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reiterating offences punishable under all the aforesaid sections
including Sections 140(2) and 308(7). Strangely, on the same
date, the same officer conveyed to the Complainant, under
Section 193 of the BNSS, that the charge sheet was filed
under Sections 308(7), 258, 238, 241, 3(5) and 115(2) of the
BNS, 2023. Accordingly, the charge sheet was filed on the
same bailable sections. Section 140(2) was dropped from the
charge sheet.
7.12 I have gone through the charge sheet in detail.
The charge sheet reiterates the entire investigation carried out
as stated in the Remand Reports. Statements of witnesses
including the Manager of the wine shop, identification of
Applicants and the Co-accused, supplementary statements of
eye-witnesses, seizure of 10 mobile phones, recovery of Apple
Air Pods from the drawer of the Crime Branch along with 3
blue ball pens, Aadhar Card of the Complainant, copy of the
passport of the Complainant, Hardik Patel and Pinakin Patel,
CCTV footage of the route taken by the cars, etc., are detailed
in the charge sheet. The entire charge sheet, however, is silent
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on any reason or justification to drop the offence under
Section 140(2) of the BNS. It only records that on discussion
with superior officers, only bailable offences were retained in
the charge sheet. The Magistrate, vide its order dated 20 th
October 2025, appreciating the material collected and placed
on record, observed that prima facie offences punishable
under Section 140(2) as well as 308(2) are made out, hence,
issued notice to the prosecution before passing any further
order. This order remains unchallenged as on date. On this
backdrop, while rejecting the bail application, the Magistrate
noted the order dated 20th October 2025, which amounted to
taking cognizance and proceeded to prima facie hold that a
case under section 140(2) triable by the Sessions Court and
punishable with death or life imprisonment and fine is made
out and hence, rejected the bail application.
7.13 Considering the settled legal position and the
factual matrix in the present case, as discussed above, the
Magistrate undeniably is vested with the powers to accept the
charge sheet as it is or independently apply his mind to the
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facts emerging from the investigation and take cognizance of
the case, as he deems fit. Hence, I am in total agreement with
the view taken by the Magistrate.
7.14 Another important aspect is the sanction accorded
by the DIG to the prosecution of the Applicants and the Co-
accused except Dhanji Dubriya, PSI, whose sanction order is
not placed on record. I have perused the sanction order
carefully. The sanction is accorded for the said offences as
mentioned in the FIR and any other offences punishable
under the provisions of law, in respect of the act aforesaid and
for taking cognizance by a Court of competent jurisdiction.
While according this sanction, it is evident that the senior
officer i.e., the DIG himself, is well aware of the provisions of
law under which the offences are committed as well as the
powers of the Magistrate to take cognizance of offences,
independent of the opinion of the Investigating Officer. Hence,
the sanctioning authority has been careful to not only accord
sanction for prosecution of the Applicants and the Co-accused
Constables and Head Constable for the offences mentioned in
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the FIR/ charge sheet, but also has left it to the discretion of
the Magistrate Court to take cognizance of any other offences
as deemed appropriate in law.
7.15 Another disturbing aspect in the case is that a
submission is made by the Respondent Nos 1 and 2, in an
attempt to canvass their unbiased conduct of investigation,
that by order dated 27th August 2025, a Special Investigation
Team was formed to conduct the investigation. The team
consisted of SDPO Sh. Adarsh Patel, SDPO Khanvel, PSI Sonu
Dubey and PSI Puneet Meena. However, there is an order
dated 26th September 2025 i.e., barely a month after the SIT
was formed, issued by the DIG, namely, Sh. Santosh Kumar
Meena, IPS - the sanctioning authority as well, discontinuing
the SIT. By the said order, the erstwhile members of the SIT as
named above, were directed to handover all the related
documents/ crime file of case FIR No. 39/2025 to the
Investigating Officer, Sebastian Devasia. Copy of the said
order is marked to all concerned, including the members of
the SIT. Hence, the submission on behalf of the Applicants and
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the Co-accused regarding 'sterling' quality of the purported
'unbiased' investigation is a mere attempt to eye-wash the
narrative before this Court. It is then difficult to comprehend
as to, in what capacity Mr. Sonu Dubey, PSI has placed before
this Court, Written Submissions purported to be on behalf of
Respondent No. 2, through the Ld. Standing Counsel Mr.
Thool. The entire conduct of the Investigating Agency is thus,
questionable.
7.16 Insofar as the parameters of grant of regular bail
are concerned, it is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released
on bail;
(v) character, behaviour, means, position and standing of the
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accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by grant of
bail.
7.17 The most important aspect in the present matter is
that the accused are police officials working in the Crime
Branch of Daman, an elite branch of the police machinery. By
abusing their position as police officials, they coerced the
Complainant and his friends, intimidated them in
accompanying the police to the Headquarters; detained them;
physically abused them; took away their mobile phones;
monitored the location of the Complainant's friends who were
called to come with the ransom money and released them
only when the ransom money was paid. The police force's
primary role is to maintain law and order and protect citizens.
Crimes by police officials themselves, therefore, undermine
the integrity of the entire justice system, erodes public
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confidence and compromises the fairness of legal proceedings.
Law enforcement personnel are held to higher ethical and
legal standard than ordinary citizens because their job
requires public accountability and adherence to the law that
they enforce. The Applicants and the Co-accused must be put
to a higher degree of accountability for the commission of the
offences as alleged. On the contrary, the Respondents attempt
to dilute the criminal acts of their colleagues is a definitive
method to erode public trust. This conduct undermines the
very object of the criminal justice system, which they are duty
bound to enforce. In the facts and circumstances of this case,
the offences committed by the Applicants and the Co-accused
are grave and serious. I am also of the view that prima facie,
the offences as alleged in the FIR and of which cognizance is
taken by the Magistrate, is made out.
7.18 The Remand Report itself has narrated the manner
in which the Applicants and Co-accused have attempted to
derail the investigation by feigning ill health and avoiding
interrogation. The report has also demonstrated an
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apprehension that being Police officers, they are aware of
methods of police functioning and working and have
conspired to obliterate investigation. Furthermore, they have
successfully destroyed the electronic evidence by way of
deleting mobile phone data. The original offence itself
included intimidation of the Complainant and his friends.
Thus, the conduct of the Applicants and the Co-accused does
not inspire confidence in this Court that they are not likely to
tamper with evidence, and intimidate witnesses if enlarged on
bail.
8. Considering the above discussion, the settled
position of law and the factual matrix, this is not a fit case to
enlarge the Applicants on bail. The Bail Application is thus,
rejected.
(DR. NEELA GOKHALE, J)
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