Criminal Application (BA) No.896 of 2016,Criminal Application (BA) No.903 of 2016

4th April, 2017.

Petitioner Counsel: Shri S.P. DHARMADHIKARI, Sr. Adv., Shri PRAFULLA MOHGAONKAR and Shri UDAY DABLE
Respondent Counsel: Shri S.S. DOIFODE

Cases Cited:
Dinesh Vs. State of Maharashtra, 2014 ALL SCR 1865=Cri. Appl. No. 424/2016, Dt.7.7.2016 (Nag.) [Para 11,17,18]
State of Maharashtra Vs. Vishwanath Maranna Shetty, 2012 ALL MR (Cri) 4095 (S.C.)=(2012) 10 SCC 561 [Para 11,17]
Gulab Jethanand Khemnani Vs. State of Maharashtra, 2007 (2) Mh. L. (Cri) 538 [Para 14,15]
State of T.N. Vs. Kutty alias Lakshmi Narasimhan, 2001 ALL MR (Cri) 2166 (S.C.)=(2001) 6 SCC 550 [Para 14,15]
Mohd. Farooq Abdul Gaful & anr Vs. State of Maharashtra, (2010) 14 SCC 641 [Para 14,15]
State of Maharashtra Vs. Bharat Shantilal Shah & ors., (2008) 13 SCC 5 [Para 17]

JUDGMENT

JUDGMENT :- Both these applications are being disposed of by this common order as they arise out of the same crime being Crime No. 468/2015 registered at Police Station, Pratap Nagar, Nagpur against these applicants and others. They have been arraigned in this crime for commission of such offences as are punishable under Sections 143 147, 149, 341, 342, 364-A, 365, 384, 385, 386, 120B, 504 and 506-B read with Section 149 of the Indian Penal Code and Section 3 of the Maharashtra Control of Organized Crime Act, 1999 (for short, "the MCOC Act").

2. Heard Shri S. P. Dharmadhikari, learned Senior Advocate for applicant in Criminal Application No. 896 of 2016; Shri S. V. Sirpurkar, learned counsel for applicant in Criminal Application No. 903 of 2016 and Shri S. S. Doifode, learned Additional Public Prosecutor for respondentState in both the applications.

3. The main allegation against these applicants and others is that in order to extort astronomical sum from the victim of the crime who has lodged the complaint on 28.12.2015, the applicants and others kidnapped him or the complainant at about 12.00 pm of 13.12.2015 from the spot situated near the complainant's house and putting him under fear of death or injury, took the ransom of Rs. 1.75 crores by tricking him into believing that the person who lent him a part of ransom money of Rs. 1 crore was his saviour coming to his rescue in his dire straits, though actually he was his master kidnapper standing behind the curtain. The conspiracy to kidnap the complainant for ransom of Rs. 2 to Rs. 5 crores, it is alleged, has been hatched by Raju Bhadre, applicant in Criminal Application No. 896 of 2016 and another accused, not an applicant in these applications and executed by their cohorts, one of them being Rahul Dubey, an applicant in Criminal Application No. 903 of 2016.

4. Soon after the complainant was picked up by use of force from spot situated near his house and was dumped into a 4wheeler, he was blindfolded and then for several hours together, the complainant was taken from one place to the another in the city of Nagpur while being intermittently subjected to beating by fist blows. During such journey, the complainant was asked to pay ransom of Rs. 5 crores which amount, after much pleading on the part of the complainant, was reduced to Rs. 2 crores. The complainant did not have with him even this amount and, therefore, the complainant was suggested by the kidnappers to borrow the amount from his good friends. He was directed to make phone calls to try his luck with his friends. The complainant succeeded in raising a sum of Rs. 75 lacs from two of his friends. At that point of time, the complainant was further coerced to make his all out efforts to organize the funds somehow or the other. Then, suddenly the complainant remembered the name of Raju Bhadre as he knew him well and considered him to be a man to count on in case of need. He took name of Raju Bhadre before the kidnappers, but told them that although Raju Bhadre could help him come out of the situation by lending him requisite amount, he was unable to contact him as he did not have his telephone number. One of the kidnappers suggested that the complainant could get the telephone number from his other friends. The complainant tried and did get the telephone number and then he called up Raju Bhadre. Initially, Raju Bhadre showed his unwillingness, but later on he said, he would organize cash amount of Rs. 1 crore to be given to the complainant.

5. It was the promise given by Raju Bhadre to the complainant to lend him amount of Rs. 1 crore which made the complainant believe that Raju Bhadre was the friend and not the foe. But, that was not to be as it turned out later on. Raju Bhadre informed the complainant that he could collect this amount from his acquaintance, Gaurav Mendhe and believing in it, the complainant told the kidnappers that the amount was ready and it could be collected from Gaurav Mendhe. The kidnappers made a show of sending one of their associates to Gaurav Mendhe, while still holding in their custody the complainant, to Gaurav Mendhe and then Gaurav Mendhe confirmed to the complainant that the cash of Rs. 1 crore was delivered to the man sent at the request of the complainant.

6. After this operation was over, the complainant was released. The complainant stated that he could not immediately lodge report as he was very much frightened for his own life as well as lives of his wife and child. The complainant had even returned the amount of Rs. 1 crore to Raju Bhadre two days later.

7. After the complaint was lodged by the complainant, police started investigation. The investigation revealed some startling facts, one of which was the involvement of Raju Bhadre. The investigation disclosed that the whole plan was conceived by Raju Bhadre and the main accused, not an applicant in either of these applications and was executed by the main accused and the coaccused in this crime to the perfection. The plan was to create a show of helping to the complainant by lending him some amount by Raju Bhadre and then make him return this amount a few days later together with the feeling of obligation and enhanced respect for Raju Bhadre. The fact was that as the investigation revealed, Gaurav Mendhe was the trusted aide of Raju Bhadre and no amount was ever handed over to Gaurav Mendhe. Gaurav Mendhe was only instructed by Raju Bhadre to confirm to the complainant that the amount of Rs. 1 crore was ready in cash with him and could be delivered by him to a person on the instructions of the complainant. Gaurav Mendhe acted as per these instructions and also confirmed to the complainant that the amount was delivered to a man sent by him. However, according to the investigating agency, no cash exchanged hands between Gaurav Mendhe and the kidnappers though the complainant felt it to be so and reeling under feeling of gratefulness that he returned the amount of Rs. 1 crore to Raju Bhadre in two instalments of Rs. 50 lacs each.

8. This is all about the allegations made against both the applicants which according to Shri S. P. Dharmadhikari, learned Senior Advocate and Shri S. V. Sirpurkar, learned counsel, are hard to believe on their face value for the reason that there is a material discrepancy in the date of incident mentioned in the complaint dated 28.12.2015 and in the supplementary statement dated 4.1.2016 of the complainant. In the complaint, the date of incident has been stated to be 13.12.2015 and in the supplementary statement, it is changed to 11.12.2015 and, therefore, learned counsel submit that the possibility of concoction of the story by the complainant is not ruled out and this is coupled with the fact that the complaint itself has been lodged after delay of about fifteen days giving some lame excuse.

9. Shri S. S. Doifode, learned Additional Public Prosecutor, however, submits that even though the complaint has been lodged after a delay of about fifteen days, some explanation has been given by the complainant for belated lodging of the First Information Report which will have to be considered on its own merit during trial and not at this stage. He also submits that the difference regarding date of incident would have to be considered in the light of the entire evidence and at this juncture, the available evidence discloses that the incident has occurred on 11.12.2015 and as such, at this stage, this difference in dates cannot be considered as rendering the allegations against the applicants as of doubtful nature.

10. On going through the complaint, supplementary statement of the complainant and confessional statements which are placed before me for perusal, I find that there is substance in the argument of learned Additional Public Prosecutor. This material prima facie indicates that the difference in the dates of incident arising from two statements of the complainant is not of such a nature as to give rise to any prima facie doubt about occurrence of incident of kidnapping for ransom itself. Therefore, at this stage, no significance could be attached to the said discrepancy pointed out by learned counsel for the applicants. Then there is also some explanation about the delay given in the complaint. The trial of the applicants is already underway. There are also confessional statements of some of the accused which are available on record and which throw light on circumstances having a bearing upon material aspects of the case. So, the delay in lodging of the FIR and explanation given for it all would have to be considered for its impact on the prosecution case in the light of the entire evidence, and that would be possible, not at this stage, but on conclusion of trial.

11. Shri Dharmadhikari, learned Senior Advocate for applicant Raju Bhadre has submitted that even when there exists a prima facie substance in the allegations made against the accused involved in an offence punishable under Section 3 of the MCOC Act, still the other criteria i.e. the criteria of the applicant committing similar offence, must be shown to be satisfied by the prosecution and if it is not, the applicant is entitled to be released on bail. He points out from the order dated 7th July 2016 : [2014 ALL SCR 1865] passed in Criminal Application No. 424 of 2016 (Dinesh v. State of Maharashtra) by this Court that this is the view taken by this Court. He further submits that the Special Leave Petition being SLP No. 8523/16 filed by the State against the said order dated 7th July 2016 has been dismissed by the Hon'ble Apex Court on 15.11.2016. According to him, in the instant case, there is no material available on record to show that if released on bail, the applicant is likely to commit similar offence. He submits that although there were 13 crimes registered in the past against applicant Raju Bhadre, in most of those crimes, either he was acquitted or granted bail or was given relief by the Division Bench of this Court in the nature of stay of First Information Report in Crime No. 85/2014. He further submits that in all these crimes, none of the coaccused of applicant Raju Bhadre in the present crime, was the coaccused. Therefore, he further submits, as held in the case of Dinesh, [2014 ALL SCR 1865] (supra) by this Court, it could not be said that there is any possibility of applicant Raju Bhadre committing a similar offence. Shri S. V. Sirpurkar, learned counsel for accused Rahul Dubey has also argued on similar lines. Shri Doifode, learned APP, however, disagrees. He submits that although factually it is correct to say that in most of the previous crimes, accused Raju Bhadre has been acquitted or released on bail or has been granted some respite, it could not be the criteria for satisfying oneself that the accused would not indulge in similar offence. According to him, even registration of previous crimes is enough to come to the conclusion that the applicants are likely to commit similar offence. He has placed reliance upon the State of Maharashtra v. Vishwanath Maranna Shetty reported in (2012) 10 SCC 561 : [2012 ALL MR (Cri) 4095 (S.C.)].

12. Before dealing with the arguments relating to second criteria of Section 21 (4) of the MCOC Act, the criteria of possibility of commission of offence, it would be appropriate to consider whether there is any prima facie substance in the allegations made against both these applicants as, it is the main criteria not only under Section 21 (4) of the MCOC Act, but also under Section 439 read with Section 437 Cr. P. C. for granting or refusing bail.

13. On going through the complaint, supplementary statement of the complainant, confessional statements recorded under Sectin 18 of the MCOC Act and also statements of hidden witnesses, I find that at this stage, there is available sufficient material to hold that there is prima facie substance in the allegations made against both these applicants. The version of the complainant prima facie shows that he had borrowed amount of Rs. 1 crore from applicant Raju Bhadre and after he was told by the kidnappers that this amount was received by them, that he was set free by the kidnappers. Complainant could not see who the kidnappers were and where he was being taken as all the while during kidnappers' custody, he was under blindfold. The confessional statements of applicant Raju Bhadre and coaccused Diwakar, Sunil Bhatiya and Aashish Naidu, all disclose in sufficient detail, of course in a prima facie way, as to how the conspiracy was hatched by the main accused and applicant Raju Bhadre; as to how applicant Raju Bhadre remained behind the curtain while pulling the necessary strings; as to how coaccused Diwakar and other applicant, Rahul Dubey and others executed to the core the criminal plan and as to how ultimately, the complainant was made to believe that he was helped by applicant Raju Bhadre, though it was not the fact. The statements of hidden witnesses no. 7, 55, 45, 44 and 19 at this stage indicate that the confessional statements of the applicant Raju Bhadre and other coaccused cannot be left out of consideration, rather they would show that they need to be kept in mind even at this stage to ascertain the prima facie worth of the allegations against these applicants and doing so, I find that there is prima facie substance in those allegations. Therefore, in my view, there is sufficient material available on record from which one can see that prima facie case for all the offences alleged against the applicant Raju Bhadre and other applicant Rahul Dubey is made out at this stage.

14. Learned Senior Advocate for the applicant Raju Bhadre and learned counsel for the other applicant Rahul Dubey have submitted that the confessional statements have been retracted by accused persons in accordance with the provisions of Section 18 of the MCOC Act and, therefore, at this stage, a serious doubt has arisen about the facts said to be stated in the confessional statements. Thus, they urge that the confessional statements should not be considered at all. Learned Additional Public Prosecutor submits that even retracted confessions can be considered appropriately and if they are to be disbelieved, that can be done only on merits of the case when the trial is concluded and not at this stage. He submits that now it is wellsettled law that confessional statements constitute substantive piece of evidence. He places reliance on Gulab Jethanand Khemnani v. State of Maharashtra reported in 2007 (2) Mh. L. (Cri) 538; State of T.N. v. Kutty alias Lakshmi Narasimhan reported in (2001) 6 SCC 550 : [2001 ALL MR (Cri) 2166 (S.C.)] and Mohd. Farooq Abdul Gaful & anr v. State of Maharashtra reported in (2010) 14 SCC 641.

15. Sofar as the law that a confessional statement recorded under Section 18 of the MCOC Act forms a substantive piece of evidence is concerned, there can be no two opinions about it. This has been wellsettled by the Hon'ble Supreme Court in the case of Mohd. Farooq (supra). Equally is the settled position of law about the treatment to be given to a retracted confessional statement. In case of State of T. N. v. V. Kutty, [2001 ALL MR (Cri) 2166 (S.C.)] (supra), the Hon'ble Supreme Court has held that once a confession is retracted, it is not necessary that the court must presume that it is tainted. The Hon'ble Apex Court held that there is a duty imposed upon the Court to evaluate the evidence concerning the confession by looking at all aspects and find out whether the confession was voluntary and true, which could be possible only on merits of the case and not at the stage when the confessional statements are considered for the purpose of grant of bail or otherwise. This law has been followed by the learned single Judge of this Hon'ble Court (as the Hon'ble Judge then was) in the case of Gulab (supra).

16. In the present case, it is not in dispute that applicant Raju Bhadre retracted his confession made under Section 18 of the MCOC at the first available opportunity when he was produced before the learned Chief Judicial Magistrate in compliance with the requirement of subsection (4) of Section 18 of the MCOC Act. But, the law being that even a retracted confessional statement can be relied upon in a given set of facts and circumstances, as held by the Hon'ble Supreme Court in the State of T. N. v. Kutty, [2001 ALL MR (Cri) 2166 (S.C.)] at this stage, merely because the confession has been retracted by the accused Raju Bhadre, it would not be permissible for this Court to straightaway ignore these statements as it would be something to be determined on merits of the case. Till that happens, this Court would like to accept these statements as they are, which I have already done. Same would be applicable to other confessional statements. As such, I find no substance in the argument of learned Senior Advocate Shri Dharmadhikari and learned counsel Shri Sirpurkar that the confessional statements need to be left out of consideration.

17. Now, the question would be, whether the applicants against whom a prima facie case for alleged offences has been found to be made out, could be released on bail or not. Section 21 (4) of the MCOC Act lays down that apart from the criteria of prima facie substance in the allegations, there is also another criteria which must be found to be satisfied before refusing to grant bail to the applicant involved in an offence punishable under Section 3 of the MCOC Act. In the present case, the offences alleged against applicant Raju Bhadre in thirteen crimes previously registered against him were such as in which none of the coaccused in the present crime was made as an accused therein. Then, in those crimes, in many of them, applicant Raju Bhadre was acquitted and in remaining of them, was either granted bail or relieved by giving of stay of the First Information Report. As is the view of this Court expressed in the case of Dinesh, [2014 ALL SCR 1865] (supra) which is supported by the law down by the Hon'ble Apex Court in the case of State of Maharashtra v. Bharat Shantilal Shah & ors reported in (2008) 13 SCC 5, the offences previously registered against an accused in which the accused is acquitted or granted some relief in the nature of bail or stay of the FIR, which is so in case of the applicants here, could be said to be hardly any consideration for recording the satisfaction that if released on bail, applicant Raju Bhadre is likely to commit an offence, for the purpose of denying bail to him. In fact, in order to ascertain as to whether or not an accused is likely to commit an offence, as required under Section 21 (4) of the MCOC Act, the Court must consider various factors such as antecedents of the accused, his propensity and the nature and manner in which he is alleged to have committed the offence, as held in the case of Vishwanath, [2012 ALL MR (Cri) 4095 (S.C.)] (supra). Considering the fact that in most of the previously registered crimes applicant Raju Bhadre has been acquitted and in remaining of those has been granted some relief or the other, as discussed earlier, I do not think that those previous crimes could provide any reasonable basis for the Court to hold that if released on bail, applicant Raju Bhadre is likely to commit an offence. When this is observed qua applicant Raju Bhadre, the same would also be applicable to the case of the other applicant Rahul Dubey.

18. The matter, however, does not end here. The question of bail in the present crime is more complex than what it seems to be on the face of it. The question is not only of whether the applicants are likely to commit similar offences if released on bail, it is also of the nature which touches the most basic issue of the primary consideration for exercise of discretion of bail in favour of the applicants by the Court under Section 439 read with Section 437 Cr. P. C. By considering the parameters governing discretion of the Court under these Sections, I am of the considered view, both the applicants would not be entitled to be released on bail. One of the offences registered against them is for kidnapping for ransom punishable under Section 364-A of the Indian Penal Code which offence, as I have said earlier, is prima facie made out against the applicants in the instant case. This offence is punishable with death or life imprisonment. This offence, I must say, was not registered against applicant Dinesh, [2014 ALL SCR 1865] (supra) who was granted bail in his Criminal Application (BA) No. 424 of 2016 decided on 7.7.2016. The most serious offence in that case was an attempt to commit murder, punishable under Section 307 of the Indian Penal Code and in the facts peculiar to that case it was punishable with maximum imprisonment of ten years. Such is not the case in the crime registered against both the applicants. The offence punishable under Section 364-A of the Indian Penal Code, I would say at the cost of repetition, is punishable with death or life imprisonment which is what makes it very serious and it is such nature of offence which, in my view, at this stage disentitles both the applicants from securing their release on bail. Therefore, I further find that both the applications are liable to be rejected.

19. Of course, Shri S. V. Sirpurkar, learned counsel for the other applicant Rahul Dubey has submitted that the trial of the case against both these applicants is half way through and now it has emerged that the complainant has turned hostile which fact would stand in support of the case of applicant Rahul Dubey seeking his release on bail. If such is the case, it would at the most provide a new ground, a ground of change of circumstances to the applicants for filing fresh bail applications before the trial Court and unless this aspect is appropriately considered by the trial Court, inspite of the fact that this Court has concurrent jurisdiction in the matter, it would be difficult for this Court to consider it here, it being not aware of all the details of the trial and how it has gone by uptill now. Then, as rightly submitted by learned Additional Public Prosecutor, it is also a matter of judicial propriety and if I may say, there is an advantage in availing of the jurisdiction of the Sessions Court first in such cases, for, the trial is conducted by the Sessions Court and it possesses first-hand information of all relevant facts and circumstances including the demenour of witnesses, which may not be enjoyed by this Court.

20. In the result, I am not inclined to grant these applications. Applications stand rejected. However, it is made clear that the trial Court shall not be influenced by any of the observations made in this order while deciding the case against the applicants on its own merits. The applicants shall have liberty to file fresh bail applications before the trial Court on the ground of change of circumstances. Applications are disposed of accordingly.

Applications dismissed.