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2000 DIGILAW 427 (BOM)

Ajay Kumar Jain, I. P. S. v. State of Maharashtra

2000-06-28

VISHNU SAHAI

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ORDER (ORAL) Vishnu Sahai, J. - Heard counsel for the parties. Through this application preferred under section 438 Cr. P.C. the applicant who is a suspended Additional Commissioner of Police, has prayed for anticipatory bail in C.R. No. 23 of 2060 under Sections 8, 10, 13(i)(d) of the Prevention of Corruption Act, 1988 read with sections 201, 120-B, IPC registered on the basis of a complaint of Police Inspector Sanjiv Kokil, attached to the Byculla Police Station by the Anti-Corruption Bureau. Greater Mumbai. 2. The factual matrix, in short from which this application arises is as under. On 22-5-2000, P.I. Kokil was on night duty in the limits of Zone - III. At about 2.05 a.m. Deputy Commissioner of Police (D.C.P.) found Sairaj Bar Restaurant in the jurisdiction of Byculla Police Station open beyond the scheduled time. P.I. Kokil was Galled by the D.C.P. and was asked to draw a Panchnama regarding the restaurant being kept open beyond scheduled hours. It is the case ofP.I. Kokil that on 235-2000 co-accused P.C. Lodha who introduced himself as Chartered Accountant of the applicant and who claimed to be acting on behalf of the applicant informed him, that he was to be suspended for dereliction of duty committed by him and asked him to come down to Mahim Police Station ans1 meet him in his maruti car bearing Registration No. MP- 24 - G 1747. Pursuant to the said telephonic call, P.I. Kokil went opposite Mahim Police Station where he found co accused Lodha waiting in the said car. Co-accused P.C. (Lodha informed P.I. Kokil that the applicant had decided to suspend him for the dereliction of duty and demanded Rs. 5 lacs from him if he wanted that the suspension order be not passed.. The said amount was reduced to Rs. 3 lacs plus a sum of Rs. 10.000/- to be paid to co-accused Lodha as service charges. P. 1. Kokil agreed to pay the said amount to Lodha and the latter told Kokil to contact him after the money was ready. Simultaneously. P.C. Lodha dialled a number on his Mobile and spoke as follows: "JAIN SAHAB MAI LODHA DOL RAHA BOOM, KAAM BOGAYE HAI, PAANCB BAJE TAK PAISE AA JAYEGA." On 23-5-2000 at 6.30 p.m. P.I. Kokil after connecting his residential phone to his tape recorder. contacted co-accused Lodha on his Mobile number and during the course of conversation. Simultaneously. P.C. Lodha dialled a number on his Mobile and spoke as follows: "JAIN SAHAB MAI LODHA DOL RAHA BOOM, KAAM BOGAYE HAI, PAANCB BAJE TAK PAISE AA JAYEGA." On 23-5-2000 at 6.30 p.m. P.I. Kokil after connecting his residential phone to his tape recorder. contacted co-accused Lodha on his Mobile number and during the course of conversation. Lodha reiterated the demand for money and told Kokil that his suspension was held in abeyance. P.I. Kokil informed Lodha that an amount of Rs. 1 lac had been collected and asked for time to collect the balance amount. On 23rd. 24th and 25th May, 2000. Kokil collected the said amount from his friends and relatives. On 26-52000 he called at the Anti-Corruption Bureau. Mumbai and lodged the present complaint wherein this application for anticipatory bail has been moved. After completion of pre-trap formalities a trap was laid. P.L Kokil went home and contacted Lodha on the given Mobile number and confirmed the place where the money was to be delivered. Thereafter. Lodha called P.I. Kokil near Mahim Police Station for handing over the money. Kokil along with the panch witnesses went to Mahim Police Station. Lodha alongwith Kokil and the panch witnesses in his car drove towards Bandra. On the way, Lodha contacted the office of the applicant on his mobile phone and informed him that Kokil come with the money as demanded. Thereafter, Lodha demanded money and accepted the bribe amount. As soon as he received the amount, P.I. Kokil gave the pre-arranged signal and Lodha was apprehended with the marked currency notes in his possession alongwith the mobile phone number and other articles. 3. It is common ground between the counsel for the parties that Lodha is the Chartered Accountant of the applicant and his family members and is regularly visiting the office of the applicant and there were financial transactions between Lodha and the family members of the applicant. It is also common ground between them that the Mobile phone Number 9821053583 which is in possession and use of the applicant is registered in the name of Lodha. The investigation reveals that on 23-5-2000 after P.I. Kokil showed his willingness to make the payment, Lodha contacted the applicant on the said Mobile phone number and the conversation was recorded on the cell phone number of P.I. Kokil. The investigation reveals that on 23-5-2000 after P.I. Kokil showed his willingness to make the payment, Lodha contacted the applicant on the said Mobile phone number and the conversation was recorded on the cell phone number of P.I. Kokil. The investigation also reveals that on 23-5-2000 after 5 p.m. i.e. the time when Kokil was to make payment the applicant contacted Lodha from his office on his cell phone No. 9820130698 three times and on 22-5-2000 after the receipt of the default report from the D.C.P. Zone 3 the applicant had recommended some punishment to P.I.Kokil. P.I. Mohite and PSI Giri and this was recorded on the noting page enclosed to the default report by the D.C.P. Zone-3 and on 29-5-2000 at 11.30 p.m. the applicant in the presence of witnesses removed the said page of the default report from the file, prepared a fresh one and recommended a different punishment to the officers concerned after substituting the original page of the said file the applicant burnt the original page from the file. It is pertinent to mention that during the course of interrogation. Lodha in his statement implicated the applicant as the person on whose behalf he had demanded and accepted the sum of Rs. 2 lacs and the sum of Rs. 10.000/- as service charges. 4. I make no bones in observing that no satisfactory reason could be furnished by the learned counsel for the applicant as to why Lodha has falsely implicated the applicant. 5. On the material referred to above in my view a prima facie case of conspiracy between Lodha and the applicant for demanding and accepting money as a bribe for showing favour to P.I. Kokil is made out and the learned Principal Judge in his order refusing anticipatory bail to the applicant was justified in observing that the matter requires further investigation. 6. Mr. Memon, learned counsel for the applicant strenuously urged that pursuant to the ad interim orders of the Principal Judge the applicant had been attending the Anti - Corruption Bureau's office. Mumbai and consequently there is no need for his custodial interrogation. There is some dispute on this because contention of the prosecution counsel is that between 4-6-2000 to 20-6-2000 the applicant was not available. 7. But. I have no reservations in observing that absence of necessity for interrogation simplicitor would not ipso facto entitle the applicant to anticipatory bail. Mumbai and consequently there is no need for his custodial interrogation. There is some dispute on this because contention of the prosecution counsel is that between 4-6-2000 to 20-6-2000 the applicant was not available. 7. But. I have no reservations in observing that absence of necessity for interrogation simplicitor would not ipso facto entitle the applicant to anticipatory bail. 8. It is well settled that anticipatory bail is granted in exceptional circumstances and this Court while considering the question of granting it, bears in mind the gravity and the nature of the offence. The instant is both a grave and reprehensible offence because the person of the rank of a Additional Commissioner of Police, who is expected to be a model for others to emulate conspired with his Chartered accountant so that a person of the rank of Inspector should pay bribe to him. To say the least the act of the applicant is demeaning in nature. If anticipatory bail is granted to the likes of the applicant, it would send wrong signals to people and they would have a feeling that persons in authority can commit a crime with impunity and the law would treat them softly. The net result would be that the citizenry would loose faith in courts and that indeed would be distressing. It should be borne in mind that the rule of law is enforced through the courts and the law does not discriminate between the high and the low. The circumstance that the applicant is an Additional Commissioner of Police in my view, would go against him because the higher the office a person holds the greater is the rectitude expected from him. 9. For the aforesaid reasons reject this application. But, at the same time. I wish to make it clear that in case a regular application for bail on behalf of the applicant is preferred before the court below the same would be decided by it wholly uninfluenced by this order because considerations of a far more stringent nature weigh with the court while considering an application for anticipatory bail as against one for regular bail. At this stage, Mr. Memon made a oral prayer that I should stay the operation of my order for two days as the applicant intends to move the Apex court. I do not find any merit in this prayer and reject it. Petition dismissed.