2012 ALL MR (Cri) 2473
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A.P. BHANGALE, J.

Madhav Manikrao Dhande Vs. State

Criminal Application (BA) No.152 of 2012,Criminal Application (BA) Nos. 40 of 2012,Criminal Application (BA) Nos. 99 of 2012,Criminal Application (BA) Nos. 112 of 2012,Criminal Application (BA) Nos. 126 of 2012,Criminal Application (BA) Nos. 212 of 2012

28th March, 2012

Petitioner Counsel: Mr.V.M.DESHPANDE, Adv., Mr.R.M.DAGA, Adv. (appointed), Mr.A.S.MARDIKAR, Adv., Mr.R.L.KHAPRE, Adv., Mr.R.N.GHUGE, Adv., Mr.P.S.PATIL
Respondent Counsel: Mr.N.W.SAMBRE, P.P.

(A) Criminal P.C. (1973), S.176(1A) - Inquiry by Magistrate into cause of death - Two parallel versions appearing from investigation papers - Considering seriousness of accusations and necessity to book real culprits - Judicial Magistrate in view of S.176(1A) is duty bound to inquire and submit report to trial Court accordingly.

Judicial inquiry, which is mandatory according to law, ought to have been held considering seriousness of the accusation and necessity to book the real culprits by arriving at the truth in larger interest of public. When two parallel versions may appear from the investigation papers : one which may be in favour of the applicant/accused and the another version which may go against them, it is but essential that the report of Judicial Magistrate concerned pursuant to judicial inquiry can prove handy and useful for the trial Court to reach a correct conclusion when the trial is concluded. Therefore, if such inquiry is not yet held, the Judicial Magistrate concerned shall note Amendment Act of 2005 and the provisions made in Section 176 (1A) of Cr.P.C., as he is duty bound to do so according to law and shall inquire and submit report to the trial Court accordingly (through Sessions Judge). [Para 13]

(B) Criminal P.C. (1973), S.437 - Bail - Grant of - Two parallel versions appearing from investigation papers which are forming part of charge sheet - Probability of conviction cannot be predicted in such a case - Benefit of bail cannot be denied merely on ground that accusations are serious - Further probability of attempt to tamper with evidence by applicants can also be taken care of by imposing stringent conditions against applicants. (Para 14)

JUDGMENT

JUDGMENT :- Heard.

2. By these applications, the applicants are seeking grant of bail in connection with Crime No.108 of 2011 reported at Police Station, Risod, District Washim, under Sections 201, 302, 330, 331, 341, 342, r/w. 34 of the Indian Penal Code and Section 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as 'the Atrocities Act').

3. The First Informant Mr.Madhav Manikrao Dhande, Police Inspector informed Risod Police about the incident. According to him, he was patrolling along with Police Constable Badge No.382, A.P.C. Mr.Rathod, etc. by official jeep. While they were patrolling, they received a source information that 5 to 6 pardhi persons are preparing to commit the offence of dacoity. Therefore, the first informant along with the police staff were put on alert in the forest area near Wathoda border. At about 3.35 a.m. policemen came across 5 to 6 persons, who were stopped by police. At that time, two persons, who were armed with sword and knife, attacked the police staff and started pelting stones. Police tried to arrest the offenders who were resisting their arrest, but the police, after using proper force against the offenders, overpowered and took them in custody after an altercation with them. Rest of the offenders who were pelting stones, took disadvantage of darkness and absconded. Two offenders, who were armed with sword and knife, were taken in custody. At that time, since those two offenders used weapons in their possession, H.C. B.No.335 Prakash Taram and H.C. B.No.343 Ashok Vaidya etc. were injured. One of the offenders who had run away, had also left one iron rod which was recovered under panchanama. The incident lasted for 30 to 45 minutes as two arrested accused Begya Pawar and another accused Raju Sheshrao Pawar were arrested. Against those two persons, a complaint was lodged on 10.5.2011 itself at about 6.20 a.m. In respect of this complaint, astonishingly final report is not yet filed pursuant to investigation made in the complaint.

4. According to the applicants, on 14.6.2011, another complaint was lodged bearing F.I.R.No.108 of 2011, under Sections 302, 330, 331, 341, 342 201 r/w. Section 34 of the Indian Penal Code, read further with Section 3(2) of the Atrocities Act by Anwar Mehboob Sheikh, Deputy Superintendent of Police, State CID at Police Station, Risod informing the police that, on or about 10.5.2011, police had taken custody of Begya Pawar, aged about 20 years, r/o. Wadhona, Tq. Sengaon, District Hingoli, who died later while in custody. His dead body was referred for post mortem to Vasantrao Naik Memorial Government Medical College, Yavatmal.

5. Mr.Anwar Mehboob Sheikh, Dy. Superintendent of Police, State C.I.D. had informed that he had taken note of Standing Order from the Director General of Police, State of Maharashtra and took investigation into his hands. He visited the spot where dead body of Begya Nainu Pawar was lying and also visited hospital where injured Raju Sheshrao Pawar was taking medical treatment. He also met Sub-Divisional Magistrate, Washim in hospital who informed about the inquest panchanama drawn over dead body and also the fact that the dead body was referred for post mortem examination. Mr.Sheikh recorded statement of Raju Sheshrao Pawar and visited Police Station, Risod and took into his possession the papers in respect of A.D. No. 27 of 2011 reported u/s.174 of the Code of Criminal Procedure. He also took into possession copies of papers of F.I.R. No.88 of 2011 reported at Police Station, Risod and acquainted himself with report made by Police Inspector Dhande regarding the incident dt.10.5.2011 at 3.30 a.m. According to Mr.Anwar Sheikh Mehboob, he came to know subsequently after receiving inquest panchanama and post mortem report in respect of dead body of Begya Nanu Pawar - that Begya was arrested from his house and Raju Pawar another accused, was arrested from his agricultural field and they were brought by vehicle bearing Registration No.MH-28 R-539 and Government Vehicle bearing Registration No.MH-37 A-4137. According to him, he also came to know that the said accused were tortured by police by means of fibre stick, pipe etc. Thus, after receiving post mortem report in respect of injuries received by deceased Begya, first informant also contended that he had recorded statements of one Vivek Madhavrao Deshmukh and Swapnil Sarnaik - alleged panch witnesses at the time of drawing of spot panchanama and recovery panchanama drawn in the course of investigation of F.I.R. No.88 of 2011, u/s. 399 etc. of the Indian Penal Code reported at Police Station, Risod. According to the first informant, he came to know that those two panchas stated that they were going by motor cycle and had stopped when they came across altercation between policemen and unknown offenders. But, according to Mr.Anwar Sheikh Mehboob, their statements were not satisfactory as, according to him, prima facie, Begya and Raju, two accused were tortured by police on 10.5.2011. Further, according to the first informant, since both those accused Begya and Raju were belonging to Pardhi community (reserved category), penal action under the Atrocities Act was also sought apart from sections 302, 330, 331, 341, 342, 201 r/w. Section 34 of the Indian Penal Code in the complaint lodged by Mr.Anwar Sheikh Mehboob Sheikh.

6. On behalf of the applicants, it is submitted that although the first informant in F.I.R. No.108 of 2011 was making serious accusations against policemen, he did not explain in the F.I.R. as to why he waited until 14.6.2011 to lodge complaint when the incident, according to him, occurred long back on 10.5.2011 and in the averments made in the F.I.R. itself, he contended that he had taken immediate action on the day of incident itself by visiting the spot, collecting post mortem notes, inquest panchanama etc. According to the learned Advocate for the applicants, there can be no explanation as to why there was delay to lodge the F.I.R. No.108 of 201 at Police Station, Risod, except an afterthought and due deliberations.

7. It is submitted that, after reporting the incident which was recorded as F.I.R. No.88 of 2011, not only Begya and Raju Pawar were medically examined, but all the policemen who were also injured were also medically examined at Government hospital, Risod and the Injury Certificates were issued regarding the medical examination done in respect of the injuries received by the injured persons. The Injury Certificates were issued to H.C. B.No.335, Prakash who is applicant in Bail Application No.40 of 2012. Prakash was admitted in the hospital during the period between 10.5.2011 to 14.5.2011. The Injury Certificate was also issued to H.C. B.No.343 Ashok Vaidya, who is applicant in Bail Application NO.212 of 2011; Vasant Jadhav, who is applicant in Bail Application No.126 of 2012; Nagorao Khandke, who is applicant in Bail Application No.99 of 2012; Punjab Patkar, who is applicant in Bail application No.42 of 2012 and Madhav Dhande, who is applicant in Criminal Application No.152 of 2012.

8. According to the learned Advocates for the applicants, unfortunately, the injured Begya died on 10.5.2011 because he had also received injuries at the time of altercation with police. The incident was reported by Mr.Madhav Dhande on the same day. It is submitted that when, according to the first informant, Mr. Anwar Sheikh Mehboob, had taken immediate action by taking up the investigation on behalf of State C.I.D., he had also recorded statements of independent witnesses - two panchas namely Vivek Deshmukh and Swapnil Sarnaik, but curiously enough he did not incorporate their statements recorded under Section 161 of the Code of Criminal Procedure in the charge sheet (final report) in respect of F.I.R. lodged by him bearing No. 108 of 2011 reported at Police Station, Risod. It is submitted that, according to those independent witnesses, they had started early in the morning by motor cycle so as to reach Parbhani, which was about 100 kms. away. Therefore, according to the learned Advocates for the applicants, it was quite probable to start early in the morning at about 3.30 a.m. especially when it was summer time and the month of May, when sun rises early.

9. Learned Public Prosecutor brought to the notice of this Court in the course of submissions at the bar that apart from the statements of Swapnil and Vivek Deshmukh, statement of one Naresh Baban Jadhav was also recorded u/s.161 of the Code of Criminal Procedure, who had accompanied with Swapnil and Vivek while they were going by motor cycle early in the morning on 10.5.2011 to Parbhani. Although these statements appear as part of A.D. case inquiry papers, for the reason best known to the Investigating Officer, copies of those statements were not submitted along with the final report pursuant to investigation in F.I.R.No.108 of 2011.

10. The learned Advocates for the applicants submitted that, on the pretext of investigation, a parallel story is sought to be developed regarding alleged assault by present applicants while deceased Begya was in their custody. In support of this submission on behalf of the applicants, map (page no.51 of the charge sheet papers) of the alleged spot of incident was relied upon in the charge sheet. It is submitted that the alleged spot of incident is about 63 ft. away from the male lockup room and the spot cannot be said to be in straight visible line from the male lockup gate looking to the map drawn by Circle Officer, Risod during the course of investigation. According to the Investigating Officer, witness Gnyaneshwar was locked in the male lockup room and he had seen the incident of assault by police claiming that, he was near the gate of the said male lockup room, he had seen Dhande saheb and other policemen assaulting two persons which, according to the learned Advocates for the applicants, appears improbable story as the alleged spot of incident could not have been visible from the spot where Gnyaneshwar was allegedly detained in the lockup. His statement was also recorded on 16.6.2011, when the incident is alleged to have occurred on 10.5.2011 though the averments made in the F.I.R. show that the steps of investigation were taken up immediately by the Investigating Officer. Curiously enough, it is submitted that, in the F.I.R. dt.14.6.2011, this statement of Gnyaneshwar was referred which was, in fact, recorded subsequently on 16.6.2011, two days after the F.I.R. Prima facie, it would be difficult to say as to why police will take him to the alleged spot of incident to enable him to witness the incident of assault by policemen. According to prosecution, another eye witness namely Nitin Bhaurao Deshmukh came forward on 19.7.2011 for to make a statement regarding the incident dt.10.5.2011. He claimed that he was sitting opposite to the spot where the Station diary was kept in the Police Station. He also claims that he was watching telecast of a match on the TV. But, he does not refer to any alleged incident of assault by policemen. He did not give any particulars as to which match he was watching at those odd hours till 2.00 a.m. He claims that he had seen two persons who were brought by police, who were wearing nicker and baniyan only and who were in injured condition and were questioned by Mr.Dhande Saheb regarding the offenders and their associates. According to witness Nitin, he was asked to go to the back side of the Police Station. There, he had seen the crowd of policemen and also that the injured were taken to hospital. Latter, he came to know that, out of the two injured persons, one of them namely Begya Pawar has died. Thus, it is submitted that the person who could have actually seen the incident of assault by policemen did not say anything about it, while the person who could not have seen the incident being away at the 63 ft. or above distance and not in straight visible line from the spot, made a statement that he had seen the incident of assault made by police. Under these circumstances, it is also brought to my notice that F.I.R. No.452 of 2011 was lodged on 15.12.2011, u/ss.143, 294 and 506 by Mr.A.M.Dhande against Raju Sheshrao, Jangam, Sayabai, Savitribai, Kisan Sanjivanibai etc. for to take action against them as they had filthily abused police and threatened to throw chilly powder in their eyes and kill them. The incident had happened at about 4.00 p.m. in the Court premises and copy of the complaint was sent to the Additional Sessions Judge, Washim. It is submitted that this complaint bearing F.I.R. No.452 of 2011 reported at Police Station, Washim was very important as the Investigating Officer claimed that test identification parade has been held after 15.12.2011, which cannot have any evidentiary value but a force even if it is assumed that there is identification by witnesses against whom a serious complaint was made.

11. It is also submitted on behalf of the applicants that the accusation against the applicants policemen is in respect of alleged torture in order to extort confession. If that is so, then such accusation even if acceptable may result in punishment u/s.331 of the Indian Penal Code, which is punishable with imprisonment upto 10 years and fine. In order words, it cannot be treated as offence of murder punishable under Section 302 of the Indian Penal Code. Further, according to the learned Advocate for the applicants, although, assuming that, according to the Investigating agency, Begya died while he was in the custody of police then, in view of Section 176(1A) of the Code of Criminal Procedure, in addition to the inquiry or investigation held by police, judicial inquiry by the Judicial Magistrate within whose local jurisdiction the offence was allegedly committed, shall hold judicial inquiry by recording evidence in connection with the alleged incident of custodial death in order to discover the truth as to cause of death. The provisions were amended by the Amendment Act of 2005 in respect of Section 176 of the Code of Criminal Procedure, under which the mandatory judicial inquiry into the cause of death of a person while in police custody ought to have been made. According to the learned Advocates for the applicants, although charge sheet has been filed on 12.9.2011, investigating agency proceeded to hold test identification parade in the month of December, 2011. The applicants are not aware as to whether permission of the Court was taken for to investigate further in view of Section 173(8) of the Cr.P.C. The learned Advocates for the applicants, therefore, submitted that when there are parallel versions in respect of the same incident and no summary report was filed by the police regarding F.I.R. No.88 of 2011, it cannot be said, at this stage, that the incident reported earlier was false or not acceptable. The learned Advocates for the applicants, therefore, prayed for grant of bail subject to such conditions as may be imposed by the Court.

12. The learned Public Prosecutor, who opposed grant of bail on the ground that the nature of accusations are serious, submitted that the delay in lodging the F.I.R. is explainable on the basis that State's approval for to lodge F.I.R. against Police Officers was awaited. He does not dispute that no final report was submitted in respect of F.I.R. No.88 of 2011 and that no charge-sheet is filed. He also does not dispute that statements of witnesses namely Vivek and Swapnil etc. recorded under A.D. Inquiry of the Code of Criminal Procedure are not part of the charge sheet filed in the present case. The learned Public Prosecutor criticized the conduct of the applicants since they presented themselves for medical examination after death of Begya (deceased). Only one of the applicant Prakash Taram was examined at 7.45 a.m. on 10.5.2011, while deceased Begya was medically examined at 9.00 a.m, Raju Pawar at 9.30 a.m. and the applicants were examined medically during the period between 11.30 a.m. to 12.00 noon. According to the learned Public Prosecutor, statement of doctor concerned who had medically examined the policemen as well as the accused was also recorded in the course of investigation and that may indicate attempt on the part of policemen to manipulate the medical report. The learned Public Prosecutor also chose to submit written notes of arguments and submitted that the case diary of the A.D. Case need to be perused for explanation of delay in lodging F.I.R. in the present case. According to him, deceased had died as a result of shock and haemorrhage following multiple contusions all over his body with multiple fractures - total 44 injuries as mentioned by the doctor performing post mortem examination. He submitted that the accusations made against the present applicants are serious under different heads and if bail is granted, the applicants may try to tamper with the evidence. At the most, he submitted that the trial may be expedited in stead of granting bail to the applicants.

13. I have considered the submissions made by the learned Counsel for the respective parties. Although the Investigating Officer Mr.Dilip Chauhan, Deputy Superintendent of Police is present, the learned Public Prosecutor is unable to make a concrete statement as to whether judicial inquiry, as mandated u/s. 176 (1A) of the Cr.P.C., was held by the Judicial Magistrate concerned or not. In my opinion, judicial inquiry, which is mandatory according to law, ought to have been held considering seriousness of the accusation and necessity to book the real culprits by arriving at the truth in larger interest of public. When two parallel versions may appear from the investigation papers : one which may be in favour of the applicant/accused and the another version which may go against them, it is but essential that the report of Judicial Magistrate concerned pursuant to judicial inquiry can prove handy and useful for the trial Court to reach a correct conclusion when the trial is concluded. Therefore, if such inquiry is not yet held, the Judicial Magistrate concerned shall note Amendment Act of 2005 and the provisions made in Section 176 (1A) of Cr.P.C., as he is duty bound to do so according to law and shall inquire and submit report to the trial Court accordingly (through Sessions Judge).

14. Having considered the submissions at the bar and the investigation papers, which are forming part of the charge sheet or which are supplementary inquiry/investigation papers, looking to the two parallel versions appearing, one cannot predict probability of conviction in such a case so as to deny benefit of bail on the ground that the accusations are serious. For the reasons stated above, therefore, I think that the apprehension expressed on behalf of State as to probability of attempt to tamper with the evidence by the applicants can also be taken care of by imposing stringent conditions against the applicants in this regard. In the result, therefore, in my opinion, benefit of conditional bail cannot be denied to the applicants. Hence, the following order is passed.

15. Each of the applicants be released on bail upon furnishing a personal bond in the sum of Rs.50,000/- by each of them with two or more sureties to be provided by each of the applicants. Provided further :

(i) The applicants/accused shall attend the trial on each date of hearing.

(ii) The applicants/accused shall attend the Investigating Officer whenever required.

(iii) The applicants shall not carry any weapon nor shall commit any crime while on bail.

(iv) The applicants shall inform their address and change in address, if any, with their Telephone Numbers/Cell Numbers, if any, to the Investigating Officer and shall co-operate with him.

(v) The applicants shall not directly or indirectly tamper with the prosecution evidence in any manner.

16. Report of the Judicial inquiry, if any, as contemplated under Section 176 (1A) of Cr.P.C. shall be sent to the trial Court (through Sessions Judge, Washim).

17. The Criminal Applications are allowed accordingly.

18. Hamdast is allowed.

Applications allowed