In the present case Mr. Kantak has rightly criticised the action of arrest on the ground that no offence of abetment could be proceeded against the applicant unless the principal offender was booked. The learned Addl. P.P. submits that necessary action will be taken against the principal offender after investigation is complete. The only justification for such a stand seems to be because of the fact that the principal offender is a sitting M.L.A. If this be so, there was hardly any reason for the Investigating Officer to hasten the arrest of the applicant, who is undoubtedly charged only for the offence of abetment. Now that the Investigating Officer has already recorded statements of relevant witnesses and no other recovery is to be made as rightly observed by the J.M.F.C., while ordering judicial custody; and in any case the applicant is in judicial custody since 29-4-2001, therefore, no fruitful purpose would be served by keeping him in jail. The applicant has reasonably good defence and as urged by Mr. Kantak, the present action against the applicant seems to be wholly unwarranted and inappropriate.
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Bombay High Court
Khemlo Sakharam Sawant vs State on 8 May, 2001
Equivalent citations: 2001 BomCR Cri, (2001) 2 BOMLR 875 ,2002 (1) BOM C R 689 panji bench
Bench: A Khanwilkar
2. This application takes exception to the order passed by the Sessions Judge, North Goa, Panaji dated May 5, 2001, rejecting the application for bail preferred by the applicant herein.
3. Briefly stated, a complaint was received in the Crime Branch, Panaji from Shri Vinay Tendulkar alleging that on 27-4-2001 while he was in the midst of a meeting with the people from his constituency, the applicant/accused approached him for a private talk along with one Deepak Parab and told him that they were sent by Tai, i.e. Smt. Nirmala Sawant, President of Congress (T) of Goa State and seven MLAs of BJP who had shown inclination to join Congress (I) and further that they decided to offered him ministerial berth and Rs. 15 lakhs in cash to split from BJP and support Congress (I) to form Government. On the basis of this complaint, which was registered as Crime No. 3/2001, the concerned Station Officer, forwarded the said report to the Magistrate at around 18.30 hours and thereafter proceeded to investigate into the matter. It is stated that statements of two witnesses, have been recorded by the concerned Investigating Officer, namely, of Prasad Tendulkar (brother of the complainant) and Rajiv Naik (Personal Assistant of the complainant). It is stated that the Investigating Officer thereafter at around 11.30 p.m. along with a posse of Police, visited the residential house of the applicant at Amona in Bicholim taluka and he was called upon to accompany the Police for investigation in connection with the said complaint. The record indicates that the applicant followed the police without any resistance, but it is stated that thereafter a group of 40 persons gheraoed the police and prevented them from taking away the applicant. There are certain allegations made in the affidavit about the conduct of the applicant at the relevant point of time. However, that is not the subject matter of the proceedings, for the offence alleged against the applicant, in the present case, is simpliciter under section 12 of the Prevention of Corruption Act. Undisputedly, the applicant was produced before the J.M.F.C. for the purpose of remand to police custody on 29th April, 2001 after he was arrested on 28th April, 2001 around 11.30 p.m. It is not in dispute that the arrest was not pursuant to the warrant issued by the Court, but during the course of investigation by the concerned Investigation Officer. When the applicant was produced before the Magistrate for Police remand on the ground that his custody was necessary for another 7 days for further investigation, the Magistrate was pleased to reject the said request and ordered judicial custody. The order directing the applicant to be kept in judicial custody has become final. The order does record that statements of witnesses have been recorded and that nothing requires to be recovered. Thereafter, on the next date, the applicant moved the Judicial Magistrate, F.C., i.e. on 30th April, 2001 for grant of bail. The said application was however rejected on the same day by a reasoned order. The Judicial Magistrate dismissed the application, mainly on the ground that the co-accused was absconding.
4. Against this order, the applicant preferred an application before the Sessions Judge, which has been rejected by the impugned order.
5. The learned Addl. Public Prosecutor heavily placed reliance on the reasons recorded by the Sessions Judge and more particularly on the following:--
"I would now deal with the contention that the offence with which the accused has been booked is not serious as contended by learned Advocate Lawande. I do not find much force in this contention and the submission is without sound basis. Corruption, bribery, horse trading have become the order of the day corroding the fabric of society in all walks of life and eroding people's faith in a democratic governance; secured under the Constitution of India to its people justice, liberty and equality. Time and again it is seen that persons in the corridors of power abuse rather than use their power for common good. To say that offence is not serious like murder is adding insult to injury on a society torn between preserving values, and ethics and being drawn and swallowed in vortex of corruption in all walks of life. Like an offence of murder which is a crime against society, similarly corruption is an equally, if not more a serious offence than murder where there is invariably a motive. ............
The applicant in the instant case as is revealed had obstructed his arrest and even otherwise it is a matter at large that the family of the applicant accused and other persons have already moved for Anticipatory bail apprehending their arrest in that connection. That aspect of the matter cannot weigh while disposing this application but it is referred to in passing to show the conduct of the applicant and what would be his subsequent demeanour, if set at a large, if at all."
6. Heard both sides at length and perused the record. At the outset, I have no hesitation in observing that the Sessions Court while rejecting the bail application, was more influenced by morality than law. This is evident from the observations made by the Sessions Court that the offence in question was serious enough and therefore the applicant ought not to be released on bail. The Sessions Court, has clearly overlooked that it is the privilege of the Parliament to decide which offence should be treated as serious or otherwise. The legislative intent of treating the offence serious is eloquent from the sentence provided for the said offence. In the present case, the punishment for offence under section 12 is minimum six months and may extend upto a period of five years. This offence, therefore, cannot be equated with a serious offence like murder, as has been observed the Sessions Court. The Court should not be swayed away by the perception of morality, but should confine its decision to the requirements of law. The present application was one for bail and the matter was not before the Sessions Court for trial and imposing of sentence on returning the finding of guilt. In case of bail, the law is well settled. The Apex Court, has time and again observed that bail is a rule and jail is an exception, particularly when the offence in question is not an offence which involves life or death sentence. The parameters for bail in such matters, are well settled.
7. Mr. Kantak, appearing for the applicant, rightly relied on the decision reported in Joginder Kumar v. State of U.P. and others, , particularly in para 24 to contend that in the present case, the investigating agency had clearly exceeded its authority and acted contrary to the law enunciated by the Apex Court. Reliance has been placed on the following observations of the Apex Court:---
" The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a Police Officer issues notice to persons to attend the Station House and not to leave station without permission would do."
8. In the present case Mr. Kantak has rightly criticised the action of arrest on the ground that no offence of abetment could be proceeded against the applicant unless the principal offender was booked. The learned Addl. P.P. submits that necessary action will be taken against the principal offender after investigation is complete. The only justification for such a stand seems to be because of the fact that the principal offender is a sitting M.L.A. If this be so, there was hardly any reason for the Investigating Officer to hasten the arrest of the applicant, who is undoubtedly charged only for the offence of abetment. Now that the Investigating Officer has already recorded statements of relevant witnesses and no other recovery is to be made as rightly observed by the J.M.F.C., while ordering judicial custody; and in any case the applicant is in judicial custody since 29-4-2001, therefore, no fruitful purpose would be served by keeping him in jail. The applicant has reasonably good defence and as urged by Mr. Kantak, the present action against the applicant seems to be wholly unwarranted and inappropriate.
9. The learned Addl. Public Prosecutor, on the other hand relied on the observations made by the Apex Court in the matter of Shahzad Hasan Khan v. Ishtiaq Hasan Khan and another, . In para 7 of the said decision, the Apex Court observed thus:---
"The learned Judge also failed to consider the question that there were serious allegations of tampering of evidence on behalf of the accused persons. Vishram and Jagdish, two eye-witnesses had filed written applications before the trial Court making serious allegations against Masod and Masroof brothers of respondent No. 1. They alleged that they had been kidnapped and their signatures and thumb impressions had been obtained on some blank papers and they were being threatened with dire consequences and they requested the Court for being granted police protection. One of the salutary principle in granting bail is that the Court should be satisfied that the accused being enlarged on bail will not be in a position to tamper with the evidence. When allegations of tampering of evidence are made, it is the duty of the Court to satisfy itself whether those allegations have basis (they can seldom be proved by concrete evidence) and if the allegations are not found to be concocted it would not be a proper exercise of jurisdiction in enlarging the accused on bail. In the instant case there were serious allegations but the learned Judge did not either consider or test the same."
10. In the present case, although the Investigating Agency has alleged that if the applicant is released on bail, he is likely to tamper with the evidence. This apprehension is totally misplaced, for the simple reason that having regard to the nature of the allegations in the complaint, the crucial evidence is that of the complainant himself. Therefore, in case the applicant, if released on bail, and attempts to bring any pressure on the complainant, that would be a good case for cancellation of bail, but it will result in miscarriage of justice to keep the applicant in custody on the basis of mere apprehension. It is not necessary for this Court to go into the correctness of the statements recorded by the Investigating Officer for the same will have to be done at the appropriate stage during the trial. For the time being, what is to be seen, is the nature of the offence; and the possibility of the applicant, if released on bail, making any attempt to tamper with the prosecution evidence or witnesses. As observed earlier, the complaint is simpliciter for an offence under section 12 of the Prevention of Corruption Act, and in that connection, necessary evidence has already been recorded by the Investigating Agency. Merely because co-accused is absconding, is not a sufficient ground to refuse bail in such matters especially when the principal offender has not been booked and the applicant is merely charged of abetment. In the circumstances, I have no hesitation in observing that the Sessions Court was clearly in error in refusing bail mainly being influenced by considerations other than law.
11. The learned Addl. Public Prosecutor points out that on account of the conduct of the applicant, this is not a fit case, where he should be released on bail. In this connection, statement of P.I. Mamlatdar has been relied on to point out that the applicant threatened the said officer to sign a note mentioning that Mr. Mamlatdar had taken Rs. 10 lakhs from Mr. Manohar Parrikar for kidnapping and killing the applicant. It is not in dispute that the said allegation is subject matter of a complaint in a case which is registered as Crime No. 47/2001 before the Bicholim Police Station. The law will take its course in the said proceedings, for the allegations mentioned therein would be considered in those proceedings. I therefore refrain from making any observation regarding the correctness or otherwise thereof.
12. The other circumstance relied upon by the learned Addl. Public Prosecutor is that when the applicant was being arrested by the Investigating Officer, a group of 40 persons who were none else but close relations of the applicant gheraoed the police and prevented them from taking the applicant. The learned Addl. Public Prosecutor fairly concedes that there is nothing on record to indicate that the said persons had gheraoed the Investigating Officer at the instance of or at the instigation of the applicant herein. It appears that the said persons on their own, on the spur of the moment, agitated before the police and in the manner they thought appropriate. This circumstance, therefore, cannot be held against the applicant to refuse bail.
13. Mr. Kantak, has made a grievance before this Court that although the bail application was preferred before the Sessions Court on 30th April, 2001 and was directed to be listed for hearing on 2nd May, 2001 and which was accordingly heard and arguments concluded, the Sessions Court instead of pronouncing the order on the same day, kept the matter for orders on 4th May, 2001. But eventually pronounced the order only on 5th May, 2001. In substance, the grievance is that if the Court had concluded the arguments, there was no valid reason for the Sessions Court to reserve the judgment in this matter and in any case having notified the date for orders as 4th May, 2001 , it was totally inappropriate to adjourn the matter to 5th May, 2001 to pronounce the order impugned in the present application running into only 11 pages. The approach of the Sessions Court obviously is inappropriate, particularly when the matter concerns liberty of any person much less a citizen. As observed earlier, the alleged offence in the present case is only under section 12 of the Prevention of Corruption Act and therefore it was wholly inappropriate for the Sessions Court to reserve the orders on bail application and thereafter again adjourn the matter to another date as has been done in the present case.
14. In the circumstances, I have no hesitation in enlarging the applicant on bail, provided he is subjected to strict conditions. The learned Addl. Public Prosecutor has submitted that the applicant be directed to attend the Crime Branch, Panaji Police Station on daily basis till the investigation is completed between 5.00 to 8.00 p.m. and besides that the applicant should not enter the territory of Sanvordem Constituency during the investigation period.
15. In my view, the applicant can be released on bail forthwith on the following conditions:---
(a) That the applicant shall furnish one security for an amount of Rs. 10,000/-. The security be furnished to the satisfaction of the J.M.F.C., Panaji;
(b) The applicant shall also furnish a personal Bond for the like amount before the J.M.F.C., Panaji;
(c) The applicant shall not enter Sanvordem Constituency, during the progress of the investigation of the present case without prior permission of the J.M.F.C., Panaji;
(d) Until the filing of the Police Report under section 173, the Applicant shall not leave the jurisdiction of this Court without prior intimation to the Investigating Officer as well as without prior permission of the J.M.F.C., Panaji;
(e) The applicant shall report to the Investigating Officer at Crime Branch, Panaji daily between 5.00 to 8.00 p.m., initially for a period of seven days from today, and if necessary, as and when called upon by the Investigating Officer in connection with the investigation of the present case and the applicant shall extend full co-operation during the course of investigation;
(f) The applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Investigating Officer or the Court; and
(g) The applicant shall not commit an offence similar to the offence alleged to have been committed by him in the present case.
16. The applicant is therefore directed to be released on bail forthwith in connection with Crime No. 3/2001 registered with the Crime Branch, Police Station, Panaji on the aforesaid conditions.
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