[Cites 8, Cited by 0]
Bombay High Court
Dhanaji Dubriya vs Union Territory Of Daman And Diu And Ors. on 16 December, 2025
2025:BHC-AS:55442
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.4501 OF 2025
Dhanji Dubriya ...Applicant
Versus
Union Territory of Daman & Diu and Ors. ...Respondents
Mr. Sanjeev Kadam, Senior Advocate (through VC) a/w
Mr. Vivek Rane i/b. Mr. Vivek Pandey, Advocate for
Applicant.
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 Applicant seek their release on bail in connection
with FIR No. 0039 of 2025 dated 26th August 2025, registered with
the Coastal Police Station, Kadaiya, Daman, for offences
punishable under Section 140(2), 308(7) 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 17 th October
2025. Pertinent to note is that, while filing the Final Report, the
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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
Applicant 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, 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
Territory of Dadra & Nagar Haveli and Daman and Diu. The
Applicant is a Police Officer namely the PSI, Crime Branch, Dadra
& Nagar Haveli and Daman and Diu.
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 Applicant and others
immediately demanded an amount of Rs. 25,00,000/- as a 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 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/-.
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 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 Applicant, who is a PSI, along
with the Co-accused Ramdevsinh Jadeja, Vishal Mir, Chintan Desai,
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
Ankush Singh, Jatinkumar Patel, Vikas Rajput, Dilip Gavit, all
Police Constables and Krishnavijaysingh Gohil, Head Constable,
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 Applicant, Dhanji Dubriya, and co-accused-
Krishvijaysingh, who were involved in negotiating the ransom
amount to be paid; Ramdevsinh Jadeja, Vishal Mir, Chintan Desai,
Jatinkumar Patel, Ankush Singh 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; Ankush Singh, who also slapped
his friend Pinakin Patel, and Vishal Mir, who slapped his other
friend Hardik Patel. 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 3 rd September 2025.
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 Co-accused
except the Applicant, who is a 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 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 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 Applicant 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 Applicant are before this Court seeking
the relief as prayed.
3. Mr. Sanjeev Kadam, Ld. Senior Advocate appeared for
the Applicant, Mr. Ashwin Thool, Ld. Standing Counsel appeared
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
for the U.T. and Mr. Shreyas Lalit, Ld. Counsel, represented the
intervenor/Complainant. All the parties placed on record their
written submissions. Sonu Dubey, PSI submitted written
submissions on behalf of the Respondent Nos.1 and 2 through the
Standing Counsel Mr. Thool.
4. SUBMISSIONS ON BEHALF OF THE APPLICANT:
4.1 At the outset, it was submitted that the offences under
which the Applicant and the Co-accused are charged are all
bailable offences and hence, as of right, the Applicant 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 Applicant
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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 Applicant 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 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 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.
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
4.11 The role of the present Applicant does not constitute
any offence as alleged. Hence, Mr. Kadam prays that the Applicant
be released on bail.
AND 2:
At the very outset, it is necessary to record that the submissions of
the Respondents largely support the case of the Applicant. 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 17 th October
2025 is filed before the JMFC, Daman.
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 20th 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 Applicant 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 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 Applicant 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.
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
6.8 The reasoning in the charge sheet is entirely and
inherently contradictory. Once the investigating agency has
accepted that the Applicant and others intentionally put the
Complainant and his friends in fear of injury to them, it is
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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
Act, 1988 as the Police Officer attempted to obtain undue
advantage from the Complainant and his friends.
6.11 The role of the Applicant and others is established. The
Complainant and his friends have identified the Applicant and the
Co-accused. Moreover, instead of co-operating with the
investigation, the Co-accused, Jatinkumar Patel, tried to derail the
same by inflicting injuries upon himself. The letter dated 30 th
August 2025 to the SP shows a huge conspiracy between the
Applicant, 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
BNSS, 2023 are reproduced herein below:
"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;
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
(h) whether the report of medical examination of the woman has
been attached where investigation relates to an 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--
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to
the Magistrate during investigation;
(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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
relation to such report or reports 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--
(a) a summons-case, he shall issue summons to the accused for his
attendance; or
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
(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: (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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 Pradesh1 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 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
2024 INSC 363
2024 SCC OnLine SC 269
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 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:
(1985) 2 SCC 537
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
"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 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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] .)
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.
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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:
"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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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."
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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 apprehension for the same, with an object to
obtain ransom. The Applicant 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 Applicant 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.
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 1st September
2025 was filed requesting the Applicant and co-accused to be
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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
conspiracy that they will not at all co-operate with the
investigation 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 Applicant and
Co-accused. The Magistrate was also informed that further
investigation established that the Applicant 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 Applicant 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
was also filed referring to the FIR No. 39/2025 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 Applicant 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 on any reason or justification to drop the offence
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
Magistrate.
7.14 Another important aspect is the sanction accorded by
the DIG to the prosecution of the Co-accused except the Applicant,
who is a 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 Applicant and the Co-accused Constables
and Head Constable for the offences mentioned in 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.
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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 26 th 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 Applicant and 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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
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.
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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
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
Applicant 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
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
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
Applicant 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 Applicant and Co-accused have attempted to derail the
investigation by feigning ill health and avoiding interrogation. The
report has also demonstrated an 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 Applicant 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.
16th December 2025
Prasad Rajput
(P.A.) 904_BA_4501_2025.docx
8. Considering the above discussion, the settled position
of law and the factual matrix, this is not a fit case to enlarge the
Applicant on bail. The Bail Application is thus, rejected.
(DR. NEELA GOKHALE, J)
16th December 2025
