Thursday, 14 April 2016

Whether application for anticipatory bail can be rejected on the ground that offence was not registered against accused?


At this stage, we would like to state that upon registration of C.R.
No.46 of 2015 the Petitioner Nos.3 and 4 being the sister and brother-in­-law
of the Petitioner No.1 had filed an application for anticipatory
bail.  The said application was dismissed on the ground that no offence
was registered against them.  Suffice is to say that the registration of
offence   is   not   a  sine   qua   non  for   entertaining   an   application   for
anticipatory bail.  The only requirement is a reasonable apprehension
of arrest in a non­bailable offence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1252 OF 2015
Bharat Devdan Salvi
  
v/s.

The State of Maharashtra 
  
 CORAM : RANJIT MORE &
          SMT. ANUJA PRABHUDESSAI, JJ. 

Date of Pronouncement: 20th January, 2016
Citation; 2016 ALLMR(CRI)1239

2. This is a petition filed under article 226 of the constitution
r/w section 482 of the Code of Criminal Procedure for quashing the
C.R. No.46 of 2015 registered with Bhosari Police Station, Pune, for the
offences punishable under sections 376 and 417 r/w. 34 of the IPC.

3. The   brief   facts   necessary   to   decide   this   petition   are   as
under:­
The Respondent No.2 who was to marry the Petitioner No.1
had lodged the FIR dated 15.2.2015 alleging that on 9.12.2014, the
Petitioner No.1 had sexual intercourse with her against her will and
without   her   consent.     The   Respondent   No.2   further   alleged   that
subsequently the Petitioner No.1 and his family members called off the
marriage and thereby cheated her.
4. Ms. Kshitija Sarangi, the learned counsel for the Petitioners has
submitted that the FIR does not disclose offence under section 375 or
415 IPC.  She has submitted that the marriage was called off in view of
the   lack   of   compatibility   between   the   Petitioner   No.1   and   the
Respondent No.2.  She has further submitted that the Petitioner Nos.2
to 7 being the family members of the Petitioner No.1 were present at
the   time   of   finalising   the   marriage   and   they   are   not   involved   in
commission of any offence as alleged.  The   learned   counsel   for   the
Petitioners has submitted that the allegations in the FIR do not disclose
any   offence   and   continuation   of   the   proceedings   will   be   abuse   of
process of law.

5. Mr. Shinde, the learned APP has submitted that the material
on record prima facie shows the involvement of the Petitioner No.1.
He  fairly   concedes  that  the  material on  record  does  not  show  the
involvement of the Petitioner Nos.2 to 7 in commission of the offence
under section 376 or 417 of the IPC.
6. Mr. Satyavrat Joshi, the learned counsel for the Respondent No.2
has submitted that the Petitioner No.1 had sexual intercourse with the
Respondent No.2 under a false promise of marriage.   He has further
submitted that by calling off the marriage, the Petitioner No.1 and his
family members have cheated the Respondent No.2.
7. We have perused the records  and considered the submissions
advanced   by   the   learned   counsel   for   the   Petitioners,   the   learned
counsel   for   the   Respondent   No.2   and   the   learned   APP   for   the
Respondent No.1­State. 
8. The legal principles in regard to quashing of first information
report had been considered by the Hon'ble Apex Court in  State of
Haryana & Ors. V/s. Bhajanlal & Ors. 1992 SUPP (1) SCC 335 and
several other subsequent decisions.   Recently in  Rishipal Singh Vs.

State of U.P. & Anr  (2014) 7 SCC 215 the Apex Court while considering
the scope and ambit of section 482 of the Cr.P.C. has held that 
“A bare perusal of Section 482 Cr.P.C. makes it crystal clear
that the object of exercise of power under this section is to
prevent abuse of process of Court and to secure ends of justice.
There are no hard and fast rules that can be laid down for the
exercise of the extraordinary jurisdiction, but exercising the
same is an exception, but not a rule of law. It is no doubt true
that there can be no straight jacket formula nor defined
parameters to enable a Court to invoke or exercise its inherent
powers. It will always depend upon the facts and circumstances
of each case. The Courts have to be very circumspect while
exercising jurisdiction under Section 482 Cr.P.C.
9. The  Apex Court after considering the previous pronouncements
has reiterated the guidelines with regard to exercise of jurisdiction by the Courts
under Section 482 Cr.P.C.  ­
“What emerges from the above judgments is that when a
prosecution at the initial stage is asked to be quashed, the tests
to be applied by the Court is as to whether the uncontroverted
allegations as made in the complaint prima facie establish the
case. The Courts have to see whether the continuation of the

complaint amounts to abuse of process of law and whether
continuation of the criminal proceeding results in miscarriage
of justice or when the Court comes to a conclusion that
quashing these proceedings would otherwise serve the ends of
justice, then the Court can exercise the power under Section
482 Cr.P.C. While exercising the power under the provision, the
Courts have to only look at the uncontroverted allegation in the
complaint whether prima facie discloses an offence or not, but
it should not convert itself to that of a trial Court and dwell into
the disputed questions of fact.”
10. The present case needs to be examined in the backdrop of the
above mentioned principles.  A plain reading of the FIR  reveals that
the   Respondent   No.2   was   to   marry   the   Petitioner   No.1,   who   is
otherwise related to her. Their engagement ceremony was held on
12.9.2014 in presence of their respective family members including
the   Petitioner   Nos.3   and   4,   the   sister   and   brother­in­law   and   the
Petitioner   Nos.5,   6   and   7,   the   maternal   uncles   and   aunt   of   the
Petitioner No.1.
11. The Respondent No.2 had alleged that on 2.12.2014 she had
visited her cousin at Pune.   On 9.12.2014 she visited the Petitioner

No.2,   her   would   be   mother­in­law,   at   Pune.     The   Petitioner   No.2
persuaded her to wait till the Petitioner No.1 returned home from the
work place.   The Petitioner No.1 came home at about 9.00 p.m. and
since it was late, the Petitioner No.2 advised the Respondent No.2 to
stay over.   The Respondent No.2 has alleged that on the same night
when she was going to the room of her mother­in­law to sleep, the
Petitioner No.1 took her to his room and had sexual intercourse with
her against her wish and despite her resistance by assuring her that
they would be marrying soon.  She has stated that the Petitioner No.1
threatened to call off the marriage if she disclosed the incident to
anyone.
12. The   Respondent   No.2   has   further   alleged   that   since   the
Petitioners avoided finalising the wedding date, she went to his work
place on 24.01.2015 and questioned him about the same.  There was
an altercation between her and the Petitioner No.1 over the said issue.
On 10.02.2015, the uncle of the Petitioner No.1 called her and her
parents to  Chisban village to fix the wedding date.  However, instead
of fixing the wedding date, they called off the marriage in view of the
incident of 24.1.2015. The Respondent No. 2 claimed that petitioners
have cheated her and her family by calling off the marriage without

any reason. Based on these allegations the aforestated crime has been
registered   against   above   Petitioners   for   offences   punishable   under
sections 376 and 417 of the IPC.
13. It may be mentioned that to constitute an offence of 'rape' as
defined under section 375 of the Indian Penal Code, the act must be
covered by any  of the six clauses of section 375 of the Indian Penal
Code.  In order to constitute rape under the first and second clause of
Section 375, which are relevant for the purpose of this case, sexual
intercourse  has to be against the will and without the consent of the
woman. In  State Of U.P vs Chhotey Lal   (2011) 2 SCC 550  the Apex
Court has held that:
“The   expressions   `against   her   will'   and   `without   her
consent'   may   overlap   sometimes   but   surely   the   two
expressions in clause First and clause Secondly have different
connotation   and   dimension.   The   expression   `against   her
will' would ordinarily mean that the intercourse was done
by   a   man   with   a   woman   despite   her   resistance   and
opposition. On the other  hand, the expression `without her
consent' would comprehend an act of reason accompanied
by deliberation.

…    In State of H.P. v.     In State of H.P. v. Mango Ram3 , a 3­
Judge Bench of this Court while dealing with the aspect of
`consent' for the purposes of Section 375 IPC held at page
230 of the Report as under:
"Submission of the body under the fear of terror cannot be
construed as a consented sexual act. Consent for the purpose
of Section   375 requires   voluntary   participation   not   only
after the exercise of intelligence based on the knowledge of
the   significance   and   moral   quality   of   the   act   but   after
having fully exercised the choice between resistance assent.
Whether there was consent or not, is to be ascertained only
on a careful study of all relevant circumstances." and, the
expression `without her consent' would comprehend an act
of reason accompanied by deliberation.”
14. The averments in the FIR need to be examined in the backdrop of
the above legal position.   The Respondent no.2 was engaged to the
petitioner no.1. A plain reading of the FIR reveals on the relevant
night, when the Respondent no. 2 had visited the Petitioner No.1 at his
residence at Pune, the petitioner no. 1 had tried to get intimate with
her.  When she resisted and told him that it was not appropriate, the

petitioner no.1 told her that they would soon be getting married.   She
has alleged that despite her resistance, the petitioner no.1 had forcible
sexual intercourse with her against her will.  She has stated that when
she cried, the  petitioner no.1 threatened to call off the marriage if she
disclosed the incident to any one.  
15. The   allegations   in   the   FIR   prima   facie   indicate   that   the
respondent no.2 had not consented to and was not willing to enter into
a physical relationship, despite which the petitioner  no.1 had forcible
sexual intercourse with the Respondent no.2 against her wishes.     The
medical evidence is also prima facie suggestive of sexual intercourse.
The allegations prime facie constitutes 'rape' under Clause 1 and 2 of
sec.375.   The question whether it was a case of passive submission
under psychological pressure or whether it was a result of tacit consent
are the questions which will have to be finally decided on analysis of
evidence. Suffice it to state that quashing the FIR in respect of the
offence under Section 376 against the petitioner no.1 at this stage
would amount to rejecting the accusation made by the respondent no.2
without   giving   her   any   opportunity   to   prove   the   said   allegations.
Hence, the prosecution for the offence punishable under Section 376 of
IPC cannot be quashed qua the petitioner no.1. 

16. It is pertinent to note that the Petitioner Nos. 2 to 7 are the
family members of the Petitioner No.1.  There are no allegations in the
FIR that these Petitioners had either aided or abetted the Petitioner
No.1 in commission of offence under section 376 of the IPC.  The only
allegation   against   these   Petitioners   is   that   they   had   called   off   the
marriage between the Petitioner No.1 and the Respondent No.2 and
had thereby cheated the Respondent No.2.  It is in the light of these
allegations the offence under section 417 r/w. 34 of the IPC has been
registered against the Petitioner No.1 and his family members.
17. “Cheating” is defined under  Section 415 of the IPC which reads
as under:­
“Whoever,   by   deceiving   any   person,   fraudulently   or
dishonestly induces the person so deceived to deliver
any property to any person, or to consent that any
person   shall   retain   any   property,   or   intentionally
induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not
so deceived, and which act or omission causes or is
likely to cause damage or harm to that person in body,
mind, reputation or property, is said to “cheat” .
18. The   Honourable   Supreme   Court   in  G.V.Rao   v.   L.H.V.Prasad
(2000) page 693 has held as under:

“As mentioned above, Section 415 has two parts. While
in   the   first   part,   the   person   must   "dishonestly"   or
"fraudulently"   induce   the   complainant   to   deliver   any
property;   in   the   second   part,   the   person   should
intentionally induce the complainant to do or omit to do
a thing. That is to say, in the first part, inducement
must be dishonest or fraudulent. In the second part, the
inducement should be intentional. As observed by this
Court   in  Jaswantrai   Manilal   Akhaney   vs.   State   of
Bombay, AIR 1956 SC 575 = 1956 Crl.L.J. 1611 =
1956   SCR   483,   a   guilty   intention   is   an   essential
ingredient of the offence of cheating. In order, therefore,
to   secure   conviction   of   a   person   for   the   offence   of
cheating, "mens rea" on the part of that person, must be
established. It was also observed in Mahadeo Prasad vs.
State of West Bengal, AIR 1954 SC 724 = 1954 Cr.L.J.
1806, that in order to constitute the offence of cheating,
the intention to deceive should be in existence at the
time when the inducement was offered. Thus, so far as
second part of  Section 415  is concerned, "property", at
no stage, is involved. Here it is the doing of an act or
omission to do an act by the complainant, as a result of
intentional   inducement   by   the   accused,   which   is
material. Such inducement should result in the doing of
an act or omission to do an act as a result of which the
person concerned should have suffered or was likely to
suffer damage or harm in body, mind, reputation or
property”
19. In the instant case, the allegations in the complaint are that the
petitioner   no.1   had   sexual   intercourse   with   the   respondent   no.2
against her wishes, by stating that they would be marrying soon and
later the petitioner no.1 and his family viz. petitioner nos.2 to 7 called
off the marriage and thereby cheated the respondent no.2.   The FIR

reveals that the imputations of cheating are made only because the
Petitioners had called off the marriage.
20.  In Hridaya Ranjan Prasad Verma vs. State of Bihar (2000) 4
SCC 168 the Apex Court has held that: 
“in determining the question it has to be kept in mind that the
distinction between mere breach of contract and the offence of
cheating is a fine one. It depends upon the intention of the
accused at the time to inducement which may be judged by his
subsequent conduct but for this subsequent conduct is not the
sole test. Mere breach of contract cannot give rise to criminal
prosecution   for   cheating   unless   fraudulent   or   dishonest
intention is shown right at the beginning of the transaction,
that   is   the   time   when   the   offence   is  said   to   have   been
committed. Therefore it is the intention which is the gist of the
offence. To hold a person guilty of cheating it is necessary to
show that he had fraudulent or dishonest intention at the
time of making the promise”.
21. In the instant case,  the FIR reveals that the marriage of the
Petitioner No.1 and the Respondent No.2 was finalised by their parents

and other family members and their engagement ceremony was held
on 12.9.2014.  The FIR does not indicate that the Petitioner No.1 from
the very inception did not have intention to marry the respondent
no.2.  The FIR does not indicate that the Petitioner No.1 had obtained
the consent of the Respondent No.2 and had induced her into entering
into a physical relationship by making a false promise of marriage
without having intention or inclination to marry her.  The fact that the
Petitioner No.1 subsequently refused to marry her would not lead to an
inference  that from  the very  inception the Petitioner No.1 did not
intend to marrying her.
22. The records reveal that the marriage of the Petitioner No.1 and
the Respondent no.2 was called off after the incident of 24.1.2015
when the Respondent No.2 had visited the workplace of the Petitioner
No.1 and quarreled with him over non finalizing of the date of the
marriage. A mere breach of promise of marriage or calling off the
marriage due to non compatibility or for any such reason would not
per se constitute an offence under  section 415 of the IPC,  particularly
when the FIR does not state that the Petitioner No.1 and his family
members had deceived the Respondent No.2 or intentionally induced
her to do any such act which was likely to cause damage or harm to

the respondent no.2. 
23. The allegations made in the FIR therefore, do not attract the
ingredient of section 415 of the IPC and consequently do not constitute
offence punishable under section 417 of the IPC.  This being the case,
the petitioners  cannot be prosecuted for the offence punishable under
section 417 r/w. 34 of the IPC.
24. At this stage, we would like to state that upon registration of C.R.
No.46 of 2015 the Petitioner Nos.3 and 4 being the sister and brotherin­law
of the Petitioner No.1 had filed an application for anticipatory
bail.  The said application was dismissed on the ground that no offence
was registered against them.  Suffice is to say that the registration of
offence   is   not   a  sine   qua   non  for   entertaining   an   application   for
anticipatory bail.  The only requirement is a reasonable apprehension
of arrest in a non­bailable offence.
25. Be   that   as   it   may,   upon   dismissal  of   the   said   application   for
anticipatory bail, these two petitioners were arrested on 7.6.2015. They
had   filed   an   application   for   regular   bail   on   9.6.2015   being   Bail
Application No.1917 of 2015 before the learned Additional Sessions
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Judge, Pune.  By order dated 17th June, 2015, this Court had directed
the learned Sessions Judge to dispose of the said application as early as
possible and possibly on 19.6.2015 itself.  Said order was not complied
with.   Considering the fact that the FIR did not disclose any offence
against these two Petitioners, who are Doctor by profession, this Court
by order dated 24th June, 2015 ordered to release them on bail.  
26. It is pertinent to note that though the offence was registered
under   section   376   and   417   IPC,   the   FIR   does   not   spell   out   any
allegations of rape against the petitioner Nos.3 and 4. The Investigating
Officer has stated in her affidavit that on 4.04.2015 she had received an
application from the Respondent no.2 alleging that the petitioners no.3
and 4 had threatened her and that she apprehends threat to her life.  It
may be mentioned that no crime has been registered against these
petitioners for threatening the Respondent no.2. These petitioners were
implicated in the crime only on the allegation that they had influenced
the   petitioner   no.1   in   calling   off   the   marriage   and   had   thereby
committed an offence of cheating punishable under section 417 of the
IPC. Based on these allegations, these petitioners were arrested on
8.06.2015.
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27. It   is   pertinent   to   note   that   the   offence   under   section   417   is
bailable and is punishable with imprisonment for one year, or fine or
both, despite which these two petitioners were arrested and remanded
to custody from time to time.     Needless to state that the power of
arrest as well as the power to remand  cannot be exercised in  a casual
manner.  
28. In   Joginder Kumar v. State of U.P. & Ors. (1994) 4 SCC 260,
the Apex Court has emphasized that:
“No arrest can be made because it is lawful for the police officer
to do so.   The existence of the powers 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 lock­up  of a person can
cause incalculable harm to the reputation and self­esteem of a
person.  No arrest can be made in a routine manner or 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 the
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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 his liberty is a serious
matter.”
29. In the case of Arnesh Kumar v. State of Bihar &  Anr. (2014) 8
SCC 273,  the Apex Court after considering the scope of Section 41 of
Cr.P.C. has held as under:
“7.1.  From a plain reading of the aforesaid provision, it
is evident that a person accused of offence punishable
with imprisonment for a term which may be less than
seven years or which may extend to seven years with or
without fine, cannot be arrested by the police officer only
on its satisfaction that such person had committed the
offence   punishable   as   aforesaid.   Police   officer   before
arrest, in such cases has to be further satisfied that such
arrest   is   necessary   to   prevent   such   person   from
committing   any   further   offence;   or   for   proper
investigation of the case; or to prevent the accused from
causing   the   evidence   of   the   offence   to   disappear;   or
tampering   with   such   evidence   in   any   manner;   or   to
prevent such person from making any inducement, threat
or   promise   to   a   witness   so   as   to   dissuade   him   from
disclosing such facts to the Court or the police officer; or
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unless such accused person is arrested, his presence in the
court whenever required cannot be ensured. These are the
conclusions, which one may reach based on facts. Law
mandates the police officer to state the facts and record
the   reasons   in   writing   which   led   him   to   come   to   a
conclusion covered by any of the provisions aforesaid,
while making such arrest. Law further requires the police
officers to record the reasons in writing for not making
the arrest. In pith and core, the police office before arrest
must put a question to himself, why arrest? Is it really
required? What purpose it will serve? What object it will
achieve? It is only after these questions are addressed and
one   or   the   other   conditions   as   enumerated   above   is
satisfied, the power of arrest needs to be exercised. In
fine, before arrest first the police officers should have
reason   to   believe   on   the   basis   of   information   and
material   that   the   accused   has   committed   the   offence.
Apart   from   this,   the   police   officer   has   to   be   satisfied
further that the arrest is necessary for one or the more
purposes envisaged by sub­clauses
(a) to (e) of clause (1) of Section 41 of Cr.PC.”
30. Upon considering the scope of Section 41A of Cr.P.C. and while
emphasizing the need to ensure that the police officers do not arrest
the accused  unnecessarily and Magistrate do not authorize detention
casually   and   mechanically   the   Apex   Court   has   given   following
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directions:
“……11.1.   All   the   State   Government   to   instruct   its
police officers not to automatically arrest when the case
under Section 498A of IPC is registered, but to satisfy
themselves   about   the   necessity   for   arrest   under   the
parameters laid down above flowing from Section 41
Cr.P.C.
11.2.  All police officers be provided with a check list
containing specified sub­ clauses under Section 41(1)(b)
(ii);
11.3.  The police officer shall forward the check list duly
filed   and   furnish   the   reasons   and   materials   which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
11.4.  The Magistrate while authorising detention of the
accused shall peruse the report furnished by the police
officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention;
11.5.     The   decision   not   to   arrest   an   accused,   be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent
of police of the district for the reasons to be recorded in
writing;
11.6.   Notice of appearance in terms of Section   41A of
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Cr.PC be served on the accused within two weeks from the
date of institution of the case, which may be extended by
the Superintendent of Police of the District for the reasons
to be recorded in writing;
11.7.   Failure to comply with the directions aforesaid
shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable to
be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.
11.8.    Authorising detention without recording reasons
as aforesaid by the judicial Magistrate concerned shall be
liable for departmental action by the appropriate High
Court.
12. We hasten to add that the directions aforesaid shall
not only apply to the cases under Section 498­A of the I.P.C.
or Section   4 of   the   Dowry   Prohibition   Act,   the   case   in
hand, but also such cases where offence is punishable
with imprisonment for a term which may be less than
seven years or which may extend to seven years; whether
with or without fine.”
31. Reverting to the present case, though the Investigating officer has
stated in the affidavit that the guidelines as laid down by the Apex
Court in the arrest of Accused were followed at the time of arrest, a
perusal of the case diary reveals that the directions in Arnesh Kumar
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(supra) have not been followed. The concerned investigating officer
had   arrested   the   petitioners   no.3   and   4   without   ascertaining   their
complicity   in   the   offence.   Though   the   offence   was   bailable,   these
petitioners   were   produced   before   the   Magistrate   and   remand   was
sought for “the purpose of ascertaining the reason for calling off the
marriage, for verifying whether the other relatives were involved, to
verify whether these petitioners were involved in cheating any other
person   and   for   arresting   the   co­accused   Annasaheb   Jadhav”.     The
records   reveal   that   the   learned   magistrate   had   also   mechanically
remanded them to custody from time to time without even ascertaining
the nature of the allegations against these petitioners. 
32. The petitioners no.3 and 4 had filed the bail application before
the sessions court on 9.6.2015.  The learned Sessions Judge had called
for   the   say   of   the   prosecution   on   19.6.2015.     By   order   dated
17.06.2015   the   learned   Judge   was   directed   to   dispose   of   the
application on 19.06.2015 itself.   The learned Judge did not dispose
of   the   application   and   adjourned   the   same   to   22.6.2015.     On
24.06.2015 the learned counsel for the petitioners made a statement
that on 19.6.2015 the counsel for the petitioners and the learned APP
were present in the court and despite the request to hear the bail
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application, the learned Judge was reluctant to hear the application
and had adjourned the hearing to 22.06.2015.  It was further stated
that the counsel for the petitioners had appeared before the court on
22.06.2015 and that she was informed that the bail application would
be heard in the afternoon session.   However, by 12 p.m. she was
informed that the learned Judge had proceeded on leave on medical
grounds and the hearing of the bail application was further adjourned.
In view of the above statement, this court by order dated 24.6.2015
ordered   to   release   the   petitioners   on   bail.     The   Principal   District
Sessions Judge, Pune was directed to submit the report to this court.
33. We have perused the report and the explanation tendered by the
learned Judge, and the same in our view is not satisfactory.   The bail
application was filed on 09.06.2015 and was opposed on the same
grounds as stated in the remand application.   The learned Judge failed
to   consider   that   there   were   no   allegations   of   rape   against   these
petitioners and the only allegation were of offence punishable under
Section 417 IPC.     The learned Judge had adjourned the hearing on
19.6.2015, merely on the statement of the APP that the offence was of
serious nature.   Despite the direction to dispose of the bail application
on 19.06.2015, and despite the offence being bailable offence, the

failure of the learned Judge to dispose of the application expeditiously
has also resulted in  illegal detention of the petitioners  in custody from
7
th June, 2015 to 24th June, 2015.
34. It is indeed a matter of great concern that despite the offence
being bailable, the Investigating agency, the Judicial Magistrate as well
as   the   Sessions   Court   were   responsible   for   detaining   the   aforesaid
petitioners   in   custody   from   7.6.2015   to   24.6.2015   in   total
contravention of the directions of the Apex Court in Arnesh Kumar
(supra) and in violation of the fundamental rights of the petitioner
nos.3 and 4.  
35. Hence we deem it fit to direct an enquiry agianst the errant police
officers, as well as the concerned judicial officers, in accordance with
the  directions of the Apex Court in Arnesh Kumar (para 11.7 and 11.8.
supra).   The petitioner nos.3 and 4 are at liberty to file appropriate
proceedings for compensation, if they so desire.
36. Under the circumstances and in view of discussion supra, we pass
the following order:­
(i) The petition is partly allowed, with costs of Rs.50,000/­

to be paid to the petitioner nos.3 and 4. 
(ii)   The   C.R.No.46   of   2015   registered   at   Bhosari   Police
Station, Pune,  is quashed qua the Petitioner Nos.2 to 7 and
quashed   qua   the   petitioner   no.1   only   in   respect   of   the
offence under section 417 r/w 34 of the IPC.
(iii)   The registry is directed to forward copy of this order to
the   Commissioner   of   Police,   Pune.   The   Commissioner   of
Police, Pune to enquire into the matter of illegal detention
and to fix the responsibility and to take disciplinary action
against the erring police officers.  
(iv)   The   respondent   no.1   shall   recover   the   costs   of
Rs.50,000/­ from the erring police officers.   
(vi The inquiry and action taken report be filed before this
court within four months from the date of receipt of this
order.
(vi)   A   copy   of   this   order   be   forwarded   to   the   Registrar
General, High Court, to be placed before the Honourable The
Chief Justice, Bombay High Court.
         (ANUJA PRABHUDESSAI, J.) (RANJIT MORE, J.)

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