P.C.
Heard learned counsel for the applicant and learned Additional Public Prosecutor for State. Perused the application, reply filed by the State and rejoinders filed by the applicant as also documents filed below Criminal Application No.709 of 2012.
2. Applicant is seeking pre-arrest bail in Crime No.2/12 registered with Police Station, Malegaon District Washim for the offences punishable under Section 302, 201, 435, 120B read with Section 34 of the Indian Penal Code and Sections 5 and 25 of the Arms Act.
3. Applicant had moved before the Sessions Judge, Washim vide Misc. Criminal Application 284 of 2012 in which she had prayed for interim anticipatory bail also. That prayer was rejected and, therefore, applicant filed Criminal Application (ABA) No.204 of 2012 before this Court. This Court (brother M.N.Gilani, J) on observing that main application was still pending, did not entertain the application and expected the learned Sessions Judge to decide the application of the applicant finally by 8.6.2012. Learned Sessions Judge, Washim dismissed main application vide order dated 8.6.2012 and this is how the applicant is before this Court. This Court vide order dated 27.6.2012 (sister Smt.Sadhana S. Jadhav, J) has directed release of the applicant on interim anticipatory bail in the event of applicant's arrest on PR Bond in the sum of Rs.50,000/- with two solvent sureties in the like amount and with further condition that applicant shall surrender her Passport to the Investigating Officer and she shall report to the I.O. everyday commencing from 29th July, 2012 between 03.00 and 5.00 p.m.
4. Facts as are contained in the application are applicant's husband who is a qualified doctor has worked in UK for a considerable period as ENT Surgeon. After his retirement, he and applicant decided to settle down at their native village Pangrabandi, Tahsil Malegaon, District Washim. Applicant has devoted herself to social service and she is Sarpanch of village Pangrabandi. It is further averred that on 18th December, 2011, nephew of the applicant (her sister's son) Mahesh Bade met with an accident as his vehicle "Maruti Gypsi" fell down in a ghat near village Pangrabandi. Offences under Sections 279, 427, 304A of the Indian Penal Code were registered with Police Station, Malegaon vide Crime No.195/11. However, later on, father of deceased Mahesh lodged a complaint alleging that it was a homicidal death (murder) upon which offences punishable under Section 302, 201, 435, 120B read with Section 34 of the Indian Penal Code and Sections 5 and 25 of the Arms Act came to be registered. Along with the names of her husband and two sons, name of the applicant was also subsequently added as one of the accused persons. It is stated that offence under Section 302 IPC is not attracted so far as applicant is concerned and her custodial interrogation is also not necessary. She claims that she is innocent and at the relevant time, she was attending a function organized by Wanjari Samaj Sewa Parishad of Washim District on account of Bhagwan Baba Punya Tithi.
Note : At this state when learned APP was asked as to whether pursuant to the order of interim anticipatory bail passed by this Court, the applicant has furnished interim anticipatory bail and whether she was arrested, he is not in a position to make specific statement. Similarly, learned counsel for the applicant regrets his inability to make a specific statement. He, however, states upon instructions that applicant has submitted 7/12 extracts to the Investigating Officer and that till yesterday, applicant has attended the I.O. as per the direction of this Court. Since neither learned APP nor learned counsel for the applicant is able to make specific statement and I.O. is also absent, applicant and I.O. are directed to remain present before this Court on 18.7.2012 at 10.30 am when further and final order will follow.
Stand over to 18.7.2012.
DATED : 18th July, 2012.
Further and final order : (in continuation with order dt.16.7.2012)
Heard.
5. This Court had made a query as to whether, pursuant to the interim anticipatory bail order passed by this Court, the applicant has furnished interim anticipatory bail and whether she was arrested. Mr.R.V.Sonone, who is Investigating Officer, is present in the Court today. According to the Investigating Officer, the applicant is attending him daily pursuant to the interim order passed in this application. But, according to him, the applicant has not co-operated in the investigation, though she attended him. The Investigating Officer also asserted that he is in need of custodial interrogation of the applicant and, therefore, had not arrested her as application for anticipatory bail is not yet finally decided.
6. Mr.Shyam Dewani, Adv. for the applicant submitted that the applicant is present in the Court personally at final hearing as directed on 16.07.2012 and she has tendered an affidavit in the Court to communicate that since the date of passing of the interim anticipatory bail order dated 27th June, 2012, she has attended Police Station, Malegaon. She has also sought to surrender her passport, mobile phone etc. She was called upon to attend on 29th June, 2012 as the Police Station had not received interim anticipatory bail order passed by this Court. Thereafter, she also attended on 29.6.2012 - when the Investigating Officer seized the passport, sim card as well as mobile phone of Nokia Company. The Investigating Officer does not dispute that seizure of articles produced by the applicant was made under the panchanama, but prayed for custodial interrogation of the applicant.
7. Mr.S.S.Doifode, learned A.P.P., under the instructions from the Investigating Officer, submitted that the applicant did not answer the questions in respect of crime committed and she avoided the questions by vague replies such as "I do not know. ", "I do not remember " and thus, true and satisfactory answers were not given in respect of facts under investigation. The Investigating Officer also needs to investigate into circumstances and reasons as to why deceased Mahesh Bade was murdered and why the applicant herein had called the deceased at Pangrabandi on the day of incident and how the evidence of murder was attempted to be destroyed. According to the Investigating Officer, she has also assisted her sons Vilas and Rajendra, who are accused in the case, to abscond out of India and she may further assist her sons to remain absconding. Being the Sarpanch of the village and in control of economic affairs of her family, she is likely to influence the witnesses in the crime and may also politically influence them to tamper with the evidence. She is influential person of Washim and Akola districts and witnesses are also residing in the same districts and she is most likely to frustrate the investigation against her. Under these circumstances, the learned A.P.P. has prayed to reject this application for anticipatory bail.
8. My attention is also invited to the Statement of the applicant herein, which appears to have been recorded while this application is pending, in question and answer forms and according to the learned A.P.P., the applicant gave evasive and vague answers like "I do not know." "I do not remember" to the questions being put to her instead of giving true answers as contemplated under Section 161(2) of the Code of Criminal Procedure.
9. I have already heard the submissions in details from both the sides on 16.07.2012. It appears that the applicant had also moved an application for grant of anticipatory bail before the learned Additional Sessions Judge, Washim. After this Court passed an order dt.6.6.2012 in Criminal Application (ABA) No.204 of 2012, since, at that stage, the learned Additional Sessions Judge was in seisin of the application for grant of anticipatory bail, which was filed as Misc. Civil Application No.284 of 2012, it was decided by a reasoned order dt.8.6.2012 by the learned Additional Sessions Judge, Washim, who rejected the prayer for pre-arrest bail for the applicant. It appears that the learned Additional Sessions Judge noted the material collected during the investigation in the form of statements of different witnesses. The submissions made on behalf of the applicant that her name was not mentioned in the F.I.R. and that there is no evidence of her involvement in the crime were also noted. It is pertinent to note that the learned Additional Sessions Judge also referred to the material in the form of Statement of one witness Gajanan Thakre who had seen the applicant and her husband near the spot on the day of incident. The learned Judge also referred to the fact that she had called deceased Mahesh on the day of incident and directed him to meet her sons Vilas and Rajendra at Chopandara, which was a lonely place and further also referred to the material collected in the course of investigation to the effect that Vilas and Rajendra - (both absconding accused) had directed witness Vishal to leave the spot and the material do indicate that deceased Mahesh had died in mysterious circumstances The learned Additional Sessions Judge who observed that the applicant may influence the prosecution witnesses and tamper with the prosecution evidence, decided that anticipatory bail cannot be granted in her favour while investigations against her remains pending.
10. Mr.Shyam Dewani, Adv. made a reference to the affidavits tendered on behalf of the applicant including rejoinder/affidavit filed by him to submit before this Court that, on 18.12.2011 - it was Sunday and the applicant was reportedly present in the Panchayat Samiti Sabhagruha at Risod, District Washim. He also invited my attention to some photographs produced before me bearing date - 18.12.2011 and the time mentioned as - between 3.40 hrs. to 4.50 hrs. Further, according to Mr.Dewani, the applicant is receiving medical treatment from some doctors such as Dr.Jayshree Pise, Aishwarya Paradkar Dr.J.D.Waghela, Dr.Sanjay Sonone and submitted that the applicant is also praying for grant of anticipatory bail on the ground of her health. Learned A.P.P. opposed this plea of alibi and documents collected to plead medical ground to argue that trial Court can consider plea of "Alibi" at appropriate stage and investigating agency will take medical care of the applicant when she is arrested.
11. On merits, according to Mr.Dewani, Adv., in the F.I.R. No.2 of 2012 which was lodged on 2.1.2012 at Police Station, Malegaon, District Washim, under Sections 302, 201, 435, 120(B) r/w. Section 34 of the Indian Penal Code, initially, the applicant's name did not figure in the proforma of FIR; but, later on, the investigating agency involved her in serious accusations. Mr.Dewani, Adv. submitted that the applicant has shown her bona fides by tendering her Passport to the investigating agency as also her license under the Arms Act to possess fire arms with ammunition described as 0.12 boregun No.270027 made in France licensed by the competent Authority under the Arms Act. She has also tendered Certificate of Registration (photostat copies) indicating that the accused Ramakant Ghuge, her husband, is registered as Overseas Citizen of India.
12. The learned Advocate Mr.Dewani also made a reference to the rulings to support his submission that custodial interrogation of the applicant is not necessary and she is entitled for grant of anticipatory bail. He submitted that even if investigating agency is making allegation that she has not co-operated in the investigation on the pretext that she has given vague and evasive replies, such a ground is a general ground being raised by the Investigating agency in every case and on such a ground, anticipatory bail cannot be rejected. He also submitted that anticipatory bail can also be granted even after filing of charge sheet in view of the ruling in the case of Ravindra Saxena vs. State of Rajasthan reported in 2010 (1) SCC 684.
13. Mr.Dewani, Adv. has also referred to the ruling in the case of Lal Kamlendra Pratap Singh vs. State of U.P. and Ors. reported in (2009) 4 SCC 437, especially para 8 therein to submit that arrest is not a must in all cases of cognizable offences. It appears that, in that case, there was a prayer to quash the FIR and the proceedings u/ss.467, 468, 471, 420, 409 and 218 of the Indian Penal Code. In that case, the Apex Court expressed its opinion that it was not a fit case to quash the F.I.R. and after dismissal of appeal, the accused was directed to move the trial Court for bail.
14. Reference is also made to the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others reported in AIR 2011 SC 312. It appears that, the Apex Court, while considering the legal position for grant of anticipatory bail in the light of various earlier cases decided by the Apex Court, laid emphasis on the decision given by the Constitution Bench and the settled legal position regarding grant of anticipatory bail. By making a specific reference to the binding decision in the case of Gurbaksh Singh Sibbia and Others vs. State of Punjab reported in AIR 1980 SC 1632, it appears that - in Sidaharam Mhetre 's case (cited supra), the Apex Court expected the Courts to carefully and with meticulous precision to evaluate the facts of the case so as to exercise the discretion on the basis of available material and facts of the particular case. The Apex Court also observed that in cases where the Court is of considered view that the accused has joined the investigation and he has fully cooperated with the investigating agency and is not likely to abscond, custodial interrogation of the accused should be avoided. The Apex Court also observed with reference to the Constitution Bench ruling in Sibbia's case that it is unreasonable to lay down strict inflexible and rigid rules in exercise of such discretion by limiting the period for which the order u/s.438 could be granted. In Sibbia's case, the Constitution Bench laid down principles with regard to grant of anticipatory bail as under :
"a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under Section 438.
c) Order under Section 438 would not affect the right of police to conduct investigation.
d) Conditions mentioned in section 437 cannot be read into section 438.
e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character, this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be reexamined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant."
15. It is further noted that following factors are required to be taken into consideration while dealing with the application for grant of anticipatory bail.
"i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii) The possibility of the applicant to flee from justice;
iv) The possibility of the accused's likelihood to repeat similar or the other offences.
v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.
ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. "
16. Mr. Shyam Dewani, Adv. for the applicant also made a reference to the ruling in the case of Savitri Agrawal and Others vs. State of Maharashtra and another reported in 2009 (9) SCale 514. It was a case of dowry death and cruelty punishable under Sections 304-B and 498-A of the Indian Penal Code and the Apex Court was considering the principles of cancellation of bail already granted as also principles to be kept in mind while exercising discretion to grant anticipatory bail. In para 21 therein, the Apex Court observed that "very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted." It cannot be disputed that the principles for grant of bail and cancellation of bail already granted are distinct even in regard to the factors to be borne in mind.
17. Mr.Dewani, Adv. also referred to the ruling in the case of Vinod Phadke vs. State, through Police Inspector, Investigation Officer reported in 2001 (Supp.2) Bom.C.R. 235. In that case of alleged forgery of tickets, the Court had considered the facts and concluded that custodial interrogation was not necessary merely when it was alleged that the accused are suspected persons and were not cooperating or giving evasive replies. This Court had considered that it was not a ground by itself to support the plea grant of custodial interrogation. The ruling was given in the facts and circumstances and nature of crime alleged in that case.
18. Then reference is made by Mr.Dewani, Adv. to the ruling in the case of Kantiram @ Nilkanth and another vs. State of Maharashtra reported in 2000 (3) Mh.L.J. 71. The learned Single Judge of this Court appears to have observed that " normally remedy of anticipatory bail would not be available in cases where prima facie dependable allegations in respect of serious offence are alleged. It was also observed that when the allegations are made that the applicant was absconding, mere description that a person is absconding would not be enough. In order to avoid involvement in a case which a person considers to be unjustified against him, a person may also make effort only to keep himself away from the police machinery. Even in that case, when the offence was reported u/s.306 of the Indian Penal Code in the background of failure of love affair between the deceased and the accused and, therefore, the accused were granted benefit of anticipatory bail.
19. Mr.Dewani, Adv. also referred to the ruling in the case of Pankaj Vidhyasagar Gupta vs. The State of Maharashtra reported in 1989 (2) Bom.C.R. 178 in which reference was made to Kiran Bedi's case reported in 1988 S.C. (Cri) 106 and opinion was expressed that inference cannot be drawn that in no case an anticipatory bail can be granted in a case of murder when the investigation was still incomplete. This Court observed that the ruling in the case of Gurubaksh Singh vs. State of Punjab, AIR 1980 SC 1632 still holds the field.
20. Regarding basic principles governing grant of anticipatory bail, reference is also made to the case of Jagannath Ramchandra Biyani vs. State of Maharashtra reported in 1981 Mh.L.J. 791 to submit that anticipatory bail should not be refused merely because prosecution claimed that they want the accused in police custody for the purpose of investigation. The genuineness of the alleged need for police custody has to be examined and it must be balanced against the duty of Courts to uphold the dignity of every man and to vigilantly guard his right to liberty without jeopardizing the State objective of maintenance of law and order. The two basic principles which must be kept in view while considering the question of grant of anticipatory bail are : (I) there should be no likelihood of the accused absconding and (ii) there should be no likelihood of the accused misusing his liberty.
21. Mr.Dewani, Adv. then referred to the ruling in the case of Miss Harsh Sawhney vs. Union Territory (Chandigarh Administration) reported in (1978) 2 SCC 365 wherein it was directed that the appellant herein shall appear for interrogation by the police whenever reasonably required, subject to her right under Article 20(3) of the Constitution of India.
22. Shri Dewani, Adv. also made a reference to the case of Menino Lopes vs. State of Goa reported in 1994 Mh.L.J. 1803 to argue that statutory right of accused to move for bail at subsequent stage cannot be forfeited in view of Section 437 of the Code of Criminal Procedure. He submitted that if the accused has roots in the society, he can be released subject to the conditions such as : not to tamper with the prosecution witnesses or to cooperate with the investigation etc.
23. The learned Advocate then relied on the ruling in Ravindra Saxena vs. State of Rajasthan reported in (2010) 1 SCC 684 to argue that decision u/s.438 of the Code of Criminal Procedure cannot be jettisoned on technicalities such as challan having been filed, anticipatory bail cannot be granted, the Court must exercise its discretion judiciously and anticipatory bail can be granted at any time so long the applicant has not been arrested.
24. Next ruling referred by the learned Advocate is the case of Saju vs. State of Kerala reported in AIR 2001 SC 175, in which the Apex Court concluded that the prosecution did not prove the charge of conspiracy beyond all reasonable doubt. I think this ruling regarding proof of a prosecution case by prosecution evidence at the stage of appeal in the Apex Court is redundant at this stage while we are considering the prayer for grant of anticipatory bail. It is well known that criminal conspiracy is most often hatched in secrecy and mostly it is within exclusive knowledge of the participants thereof. It may be proved according to law for example with reference to Section 10 of the Indian Evidence Act at the stage of trial. Principles regarding proof of prosecution evidence by evidence beyond all reasonable doubt, are, therefore, attracted when the trial has made progress to the stage of evidence and being concluded by the trial Court by hearing submissions on merits of the case.
25. At this stage, I need not consider the rulings which relates to the stage of arguments in the trial or in appeal when entire evidence led by the parties is before the Court. The principles regarding appreciation of evidence led belongs to the stage when trial is complete, evidence is already led and when the Court is considering the arguments before it, although, in this regard learned Advocate Mr.Dewani sought to rely upon more rulings.
26. On the other hand, Mr.S.S.Doifode, learned A.P.P. opposed the application for grant of anticipatory bail on merits contending that the statements of number of witnesses have been recorded indicating prima facie involvement of the present applicant in a serious crime of murder pursuant to criminal conspiracy. Initially, according to him, the conspirators have tried to create a scene depicting as if deceased driving the motor vehicle Gypsy belonging to Ramakant Ghuge (accused) met with an accident in a hilly area known as "Pangrabandi Ghat". According to the investigating agency, the scene was created as if to show that the Gypsy motor vehicle exploded and the driver (deceased Mahesh Bade) died due to burn injuries. In respect of the incident, Crime No.195 of 2011, u/ss. 279, 304-A r/w. Section 427 of the Indian Penal Code was investigated by API Shri Bute, who had referred the dead body of deceased Mahesh for post mortem examination and then dead body was handed over to accused no.5 in this case on the ground that he was maternal uncle of deceased Mahesh. According to the investigating agency, this was nothing but a make believe story invented by criminal conspiracy between the accused. As, later on 2.1.2012, one Trumbak @ Kakasaheb Sonrao Bade (father of deceased Mahesh) gave complaint against all the accused and informed police that, on the pretext that Mahesh was not doing their domestic work and misappropriated their money, the accused have committed his murder pursuant to criminal conspiracy secretly hatched and tried to destroy evidence by making of an imaginary scene of alleged accident.
On the basis of complaint made by the father of deceased, the crime was recorded at Crime No.2 of 2012 u/ss. 302, 201, 434 r/w. 34 of the Indian Penal Code at Police Station, Malegaon. According to the investigating agency, deceased Mahesh was educated at the house of accused Nos.5 and 10 and used to assist them in their domestic work and financial transactions since his childhood, but since he got rid of slavery of accused and he decided to start his independent business and started the business of Online commodity sale at Akola through "Angel broking agency". Since then because deceased neglected work of the accused and started his own business, the accused felt deeply insulted and jealous as the deceased Mahesh had purchased a shop and started "Krushi Seva Kendra" for his real brother and also purchased Tata Safari vehicle. The accused thought that deceased Mahesh might have committed misappropriation of their money. Thus, with vindictive attitude, the applicant (accused no.10) summoned Mahesh from Akola to village Pangrabandi by making a phone call from her mobile phone. When he came, he was sent to the lonely area known as Chopandara - where, in the hilly barren area, accused nos.1 and 2 were practicing firing exercises by means of firearms. When deceased Mahesh accompanied with his friend went there, on the pretext that accused Nos.1 and 2 wanted to have private talk with the deceased, his friend was asked to go back at the house of the accused and wait. Thus, it is the case of the prosecution that accused Nos.1 and 2 avoided Vishal (friend of Mahesh) and took advantage of loneliness of the deceased and pursuant to criminal conspiracy, assaulted him and caused his death. Thereafter, all the accused, pursuant to criminal conspiracy, with a view to destroy evidence of murder, carried the dead body of deceased by Gypsy vehicle in Pangrabandi ghat area taking precaution and keeping vigilance with the help of their servant and motor vehicle Scorpio used by co-accused.
It is alleged that the dead body was burnt by means of petrol can etc. and then, during the stage of investigation, the accused exerting their economic, social and political influence tried to mislead the Investigating Officer and relatives of the deceased. The Investigating agency, during the stage of investigation, alleged that accused Nos.1, 2 and 10 absconded to a foreign country, while accused nos.8 and 9 were arrested and some of incriminating articles were recovered during the course of investigation including illegal arms and cartridges allegedly concealed by the accused apart from Gypsy vehicle, which was found with engine body and petrol tank intact. According to the investigating agency, after deceased Mahesh was mercilessly killed, evidence was tried to be destroyed by the accused trying to show that an accident had occurred to the Gypsy vehicle and that the deceased was driving the vehicle. According to the investigating agency, they have collected call details of different mobile phones used by the various accused and also issued notices against the fugitive accused who absconded outside India.
27. The learned A.P.P. has invited my attention to the Statements of various witnesses recorded during the course of investigation and commented on the role played by various accused in commission of the crime in question. According to him, on 19.12.2011, in the morning, dead body of Mahesh was found in burnt condition in Gypsy vehicle, while there was no damage seen to the engine, body, petrol tank and bonnet of Gypsy. It is alleged that accused have mercilessly assaulted the deceased, kept his dead body in the Gypsy vehicle and then poured petrol on the body and set his dead body on fire with an intention to create a scene of accident. The learned A.P.P. submitted that one witness Vishal (friend of deceased Mahesh), who had accompanied with him, Dr. Amol Bawankar, Gajanan Thakre, Sunanda (mother of deceased) have pointed out to prima facie involvement of the applicant in a very serious crime. The learned A.P.P,. regarding the defence of alibi sought to be placed before the Court by means of photographs, submitted that the defence of the applicant need not be considered at this stage when investigation is at its preliminary stage as against the applicant, although some of the accused are charge-sheeted. He submitted that the sons of the applicant, who were involved in murder of Mahesh, have left India and are still absconding.
According to the learned A.P.P., the material collected indicated multiple numbers of accused committing the crime in connivance with each other pursuant to criminal conspiracy. The weapons as well as cartridges were also seized during the course of investigation from the house of Pujari employee of accused Ramakant which, according to the investigating agency, were concealed by the servant of accused Ramakant. The learned A.P.P. also invited my attention to the material collected during the investigation showing that one jerkin was found in burnt condition in a nala far away from the Gypsy who was weaving it is mystery. While certain articles were recovered from one of the co-accused. Â One petrol can was also recovered during the course of investigation which was found concealed under the bridge. Opinion regarding alleged accident invented by the accused was also obtained from the Automobile Engineering indicating involvement of accused. In the post mortem examination, it was found that the deceased had sustained ante-mortem injuries such as - a) fracture to Shaft on left Femure, b) Fracture to parital region and c) Cerebral contusion over parietal and occipital in the form Haematoma of 2 x 2 cms. The cause of death mentioned in the Post Mortem report is "shock due to cardio-respiratory arrest due to burn injuries". It is also apprehended by the learned A.P.P. that the accused can tamper with the prosecution evidence as they being rich and influential persons in the locality with huge immovable property possessing number of guns and riffle without license and huge ammunition in their control which were seized from one Shrikrishna Joshi indicating that the accused kept ammunition with weapons through their pujaris (temple serving servant) Shrikrushna Joshi. The learned A.P.P. also submitted that there were past crimes reported against accused Ramakant, Nilesh, Vilas and even against present applicant. Crime No.29 of 1996, u/s. 379 and 447 of the Indian Penal Code was reported against applicant at Police Station, Malegaon District Washim. Learned Adv. Mr.Dewani points out that no chargesheet was filed in that crime.
28. The learned A.P.P. also relied upon the call details of mobile phones which were in possession of the applicant/accused and other accused. According to the A.P.P., although investigation is completed against some of the accused and charge sheet is filed against them, since the applicant was absconding and out of India and while her sons Vilas and Rajendra were also absconding, they were shown as absconding accused in the charge-sheet. After husband of applicant/accused Ramakant was arrested, arrest warrant u/s.105-B of the Code of Criminal Procedure was also issued by the Judicial Magistrate, First Class, Malegaon against the absconding accused including the present applicant/accused, who had absconded to United Kingdom. Under these circumstances, it is submitted that the accusations against the applicant herein are very serious. After interim anticipatory bail was granted in her favour though she attended the Investigating Officer, she did not co-operate with the investigation into serious offence of criminal conspiracy and murder and tried to plead alibi before this Court.
The learned A.P.P. submitted that the accused facing accusations on the ground of criminal conspiracy secretly hatched need not be physically present at the time when the deceased was physically assaulted. She was instrumental in summoning deceased Mahesh by communication made to him by her through her mobile phone, which led Mahesh to visit village Pangrabandi along with his friend, who later allegedly met with so-called accident under very mysterious circumstances. But, according to the investigating agency, it was revealed that there was no accident of Gypsy, but a make believe scene of accident was created and in fact, deceased Mahesh was mercilessly assaulted and killed by accused pursuant to their criminal conspiracy to commit his murder and to cause disappearance of evidence of murder. Although applicant has tendered rejoinder to disown these accusations, I think that, looking into serious accusations and the rulings pointed out by the learned A.P.P. as follows, the applicant herein does not deserve to be enlarged on anticipatory bail. The rulings cited are thus :
1. Pokar Ram vs. State of Rajasthan and Others, AIR 1985 SC 969.
2. Kiran Devi vs. State of Rajasthan and another, 1987 (Supp) SCC 549.
3. Abdul Hamit Ansari and Others vs. State of Maharashtra, AIR 2000 SC 3541(1).
4. Er. K.K. Jerath vs. Union Territory, Chandigarh and Others, AIR 1998 SC 1934.
5. State of Maharashtra vs. Satyakumar Kamalkishore Nashine and another, 2007 ALL MR (Cri) 3224 (Bombay High Court).
6. Jai Prakash Singh vs. The State of Bihar and another, 2012(3) Scale 484.
7. Rashmi Rekha Thatol and another vs. State of Orissa and Others, 2012(5) Scale 123.
8. The State (Through Deputy Commissioner of Police, Special Branch, Delhi) vs. Jaspal Singh Gill, AIR 1984 SC 1503.
29. With reference to the rulings cited by the learned Advocate for the applicant as well as the learned A.P.P., it is necessary to crystalize the legal position in this regard, which appears well settled. When the applicant is seeking pre-arrest bail order by moving u/s. 438 of the Code of Criminal Procedure, the Court need to consider various factors including the need for custodial interrogation. Permitting Interrogation of an accused by ordering the accused to be in custody of the investigating Officer in any yet to be solved serious/heinous crime allegedly committed pursuant to the criminal conspiracy between multiple number of accused is a significant decision at the stage of the investigation when it is still at its preliminary stage as against any person suspected to have been involved in such serious crime of murder by a Criminal Conspirator and therefore, to my mind, the learned Judicial Magistrate concerned may authorize detention of the suspect/accused in police custody. Unless the accused is suspected of any direct or indirect involvement/role in the alleged criminal conspiracy to commit murder is interrogated in custody, it may not be possible for the Investigating Officer to take the investigation speedily in the right direction as against the accused, because the accused involved in criminal conspiracy may have got lot of material and valuable information regarding the offences and may have got exclusive knowledge of the places, incident, time, accomplices/participants etc. details in respect of commission of the serious/heinous crime. Mysteries may remain concealed and underground unless custodial interrogation is made in such a serious crime like murder or criminal conspiracy to commit murder. In the absence of custodial interrogation, it would be too difficult for the investigating agency to unearth details of the serious crime and to book all the real culprits. Remand of an accused, either to police custody or judicial custody, is governed by the provisions of the Code of Criminal Procedure.
In other words, the curtailment of personal liberty of an individual by arrest and by remand by a Judicial Order is done as per the procedure established by law. Investigating Officer is required to question the suspect/accused to detect the real culprits by taking investigation on correct lines. As provided in Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure, there can be no doubt that from the time of arrest for a maximum period of 24 hours, even without the authorization from any Court, the Police Officer, who has arrested the accused, can keep him in his custody and interrogate him. However, the time limit of 24 hours is only the upper limit and it does not mean that invariably in all the cases, for no reason, the accused can be detained in police custody for 24 hours. As per Section 57 of the Code of Criminal Procedure and Article 22(2) of the Constitution of India, at the earliest, from the time of arrest, the accused should be transmitted either to the jurisdictional Magistrate or to the nearest learned Judicial Magistrate for remand. When the accused is so produced before the learned Judicial Magistrate whether he is a jurisdictional Magistrate or the nearest Magistrate, he has power to authorize the detention of the accused either in police custody or in judicial custody, as he deems it fit, for a maximum period of 15 days. During the said period, the nature of the custody, once ordered, can be changed by the Magistrate. [vide CBI, vs. Anupam J. Kulkarani reported in 1992 (3) SCC 14]. It is true that the police custody is not the be-all and end-all of the whole investigation but yet it is one of its primary requisites particularly in the investigation of serious and heinous crimes. The legislature also noticed this and permitted limited police custody.
30. When an interim anticipatory Bail order is passed, it may be observed that there is tendency on the part of the investigating officer deprived of an opportunity of the custodial interrogation of the accused to keep the procedure of arrest at standstill during pendency of the application for pre-arrest Bail. This is because investigation against the particular accused is still at its stage of infancy and because the period of first fifteen days should naturally apply in respect of the investigation of that specific case for which the accused may be held in police custody. But such custody cannot further held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused; during the course of investigation, an accused cannot be compelled to make any statement which is likely to incriminate him/her. However, for an accused, the freedom to keep silence emanating from Article 19(1)(a) of the Constitution of India is subject to the reasonable restrictions provided in Section 161(2) of the Code of Criminal Procedure. Thus, if an accused is sought to be interrogated by the police, he/she is bound to answer truly all the questions relating to the case and cannot claim that he/she has got absolute right to keep silence, and so, she/he will not make any statement during interrogation. The only exception is that the accused need not answer any question, answer to which is likely to incriminate him/her. In Nandini Satpathy vs. P.L.Dani, (1978) 2 SCC 424, the Hon'ble Supreme Court, at the end, directed her to appear before the police to face the interrogation so as to truly answer all the relevant questions relating to the said case, however subject to her right against self - incrimination. While stressing the significance of custodial interrogation, in State vs. Anil Sharma reported in 1997 (7) SCC 187, the Hon'ble Supreme Court has held as follows:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders"
31. In State of Bombay v. Kathi Kalu Oghad reported in AIR 1961 SC 1808, the Eleven Judges Bench of the Hon'ble Supreme Court, while interpreting the scope of Article 20(3) of the Constitution of India, has held as follows:-
(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not "compulsion".
32. Recently, in Assistant Director, Direct of Enforcement vs. Hassan Ali Khan reported in 2011 (4) Scale 53, the Hon'ble Supreme Court - in Paragraph No.6 has held as follows:-
"6. Having regard to the extra ordinary circumstances and complexity of the issues involved and the magnitude of the case, we consider it appropriate to authorize the detention of the respondent/accused herein for his custodial interrogation."
33. From the above Judgments of the Hon'ble Supreme Court, it could be easily gathered that, consistently, the Hon'ble Supreme Court has held that the custodial interrogation by the police during investigation is qualitatively more elicitation-oriented than questioning a suspect insulated by pre-arrest Bail order. Larger public interest requires that in appropriate cases it is essential to take forward the investigation effectively in the right direction; hence it is absolutely necessary for an Investigating Officer to have custodial interrogation of the accused. As held by the Hon'ble Supreme Court in Kathi Kalu's case, cited supra, mere questioning of an accused person by a Police Officer during interrogation will not amount to testimonial compulsion so as to fall within the ambit of Article 20(3) of the Constitution of India. The freedom to keep silence emanating from Article 19(1) (a) of the Constitution of India is subject to the reasonable restrictions provided in Section 167(3) of the Code of Criminal Procedure; however, the same is controlled by Article 20(3) of the Constitution of India. To put it in simple terms, the accused cannot claim absolute right to keep silence and is bound to truly answer all the relevant questions put to him during the course of investigation, however, he can refuse to answer only such of those questions, answers to which are likely to incriminate him.
In view of the above settled position of law, whenever any request for custody of the police is made, irrespective of the fact that the accused expresses his unwillingness to make a statement, in the event the Court is satisfied on evaluating the factors like gravity, seriousness and magnitude of the crime, the necessity of custodial interrogation etc., after recording the said reasons, as provided in Section 167(3) of the Code of Criminal Procedure, the Magistrate shall authorize the detention of the accused in police custody during the initial period of 15 days of remand for any appropriate period. In a given case, whether it is absolutely necessary to grant police custody or not is a matter to be decided by a judicial Magistrate in remand court concerned depending upon the facts and circumstances of each case and the same cannot be put into a straight-jacket formula.
34. The provisions of Section 438 of the Code of Criminal Procedure were not on the Statute Book earlier, but have been inserted on the recommendation of the 41st Law Commission in the year 1973, just to safeguard liberty of respected individual against the unnecessary harassment, superfluous litigation and his unnecessary dragging in the realm of crime. Just as personal liberty is precious for any individual, so is the larger interest of the society to detect serious crimes and maintaining law and order. Both are extremely important for survival of the civilized society. We should take judicial notice and cannot loose sight of the deteriorating law and order situation, increasing number of murders, rapes and other serious crimes committed by rich and influential criminals, crimes by armed gangs and criminals, many hardcore criminals, who have organised gangs, all of them have shaken the strong roots of the society. Thus, if the fundamental right of personal liberty is unreasonably liberalized, then it may lead to the failure in the detection of serious crimes committed by such categories of hardcore criminals by soft-paddling, fricative interrogation. Thus, laying too much emphasis to protect their personal liberty and human rights, criminals insulated by pre-arrest bail order may be able to go scot free without exposure of any element of their guilt or iota of criminality. Resultantly, the crime may go unpunished, for which ultimately the society has to suffer irreparably. To deal with such a situation and also to meet with the expectation of the society that the criminals would be dealt with appropriately according to law, in an efficient and effective manner, the interrogation of the accused by various methods, not affecting the human rights, is essential tool in the hand of investigating agency. The proposed handle of anticipatory bail, cannot be given thoughtlessly in the hands of a accused suspected of having committed a serious crime by invocation of provisions of Section 438 of the Code of Criminal Procedure. While evaluating the power of investigating agency of custodial interrogation, the Apex court in case CBI vs. Anil Sharma, (1997) 7 SCC 187 observed as under:-
"Custodial interrogation is qualitatively more elicitation - oriented than questioning a subject who is well ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person know that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders...................."
"No doubt, the concession of anticipatory bail could be granted in some extraordinary circumstances, the question which needs determination is as to whether the applicant has been able to make out a case for getting benefit of the provisions. Undoubtedly, while considering such a prayer, the court would take into consideration the following essentials:-
(I) Nature and gravity of the accusations;
(ii) Antecedents of the applicant;
(iii) The possibility of his fleeing from justice, and
(iv) Whether the accusation has been made with an intent to injure or humiliate him."
35. Prima facie, in the case in hand, the offences are serious with past crimes reported against the applicant and the co-accused. There is possibility of the accused to avoid interrogation to flee away from justice. It cannot be said that accusation against the applicant is made to humiliate her or to injure her in any manner. In view of gravity of offence brought to my notice, I think the Court's endeavor would be to maintain valuable right of the individual on the one hand and the interest of the society at large at the other hand. When once, the case is registered, the aim of the investigating agency is to examine all the nooks and crannies, and to elucidate the truth, and indict the real culprits, avoiding false implication. Thus, the argument that interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused of all categories of crime. To prevent any subversion or suppression of truth or any miscarriage of justice in the investigation, the custodial interrogation has become essential in the present case.
36. In the present case, bearing in mind the above principles and looking to the very serious accusations of criminal conspiracy and murder committed in pursuance thereof as also alleged the past history or crime reported against some of the accused including the present applicant, the apprehension of the investigating agency that if anticipatory bail is granted, the applicant, making use of her influence as Sarpanch in the village, may tamper with the evidence or may flee away from justice and may assist her absconding sons (main accused) to remain at large - are the factors to be borne in mind in the light of serious accusations. Considering the nature of material which has been collected in the course of investigation, it cannot be said that the applicant has no prima facie involvement at all in serious accusations. Therefore, bearing in mind the ratio in Anil Sharma's case as also the principles which are well settled in the light of the rulings referred to above, I am of the considered view that if custodial interrogation is not permitted, in such a case, the mysteries in the incident of alleged planned manner by multiple number of accused involved in criminal conspiracy to destroy evidence of murder, the crime of huge magnitude may remain shrouded in secrecy due to rich and influential accused seeking to avoid arrest on some or other pretext; and some accused still absconding, the applicant does not deserve to get concession of being insulated by an order of pre-arrest bail. Her custodial interrogation is essential and therefore, her application is accordingly dismissed.
37. The Interim order stands cancelled.
38. Mr.Shyam Dewani, Adv. for the applicant, at this stage, prays for suspension of operation of this order for a period of atleast ten days on the ground that the applicant wants to approach the Hon'ble Supreme Court. The learned A.P.P. objects the prayer so made. Since the applicant is intending to challenge this order before the Hon'ble Supreme Court, operation of this order shall remain suspended for a period of ten days from the date of passing of this order.
Copy of this complete order dated 16.07.2012 and 18.07.2012 together - duly authenticated be supplied to the learned Advocate for the applicant and the learned A.P.P. for State of Maharashtra.