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2018 DIGILAW 1030 (BOM)

Vijay v. State of Maharashtra

2018-04-12

SANGITRAO S.PATIL

body2018
JUDGMENT : 1. The applicant has sought the relief of pre-arrest bail in connection with Crime No. 15 of 2018, registered in Police Station, Ardhapur, District Nanded for the offences punishable under Sections 7, 12, 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 ("the Act", for short). 2. The applicant is the Additional Superintendent of Police, It wara Division, Nanded, District Nanded. Initially, he was posted as incharge of Police Station, Tiwasa, District Amrawati, as a part of training during probation. The complainant namely Harihar Mahadeo Puri, resident of Amrawati, was dealing with the business of supply of building material. A truck bearing registration No. MH-27/X-8090, belonging to the complainant, loaded with sand, was intercepted by the police near old Toll Naka of Tiwasa on 14th May, 2017. He was called in the Police Station on 15th May, 2017 at about 5.00 p.m. He was produced before the applicant, who was incharge of the Police Station. A crime was registered against him and the truck driver for the offences punishable under Sections 379, 186 read with Section 34 of the Indian Penal Code and also under Section 3 of the Prevention of Damage to Public Property Act, 1984 and Section 21 of the Mines Act, 1952. Since the complainant was not keeping good health, he was allowed to go at home at about 11.00 p.m. by A.P.I. Kamble and police personnel Sunil Udakhe with the instructions to attend the Court at Tiwasa on 26th May, 2017 at 11.00 a.m. The driver of the truck was detained in the Police Station itself. When the complainant was in Saikrupa Dhaba, Mozri at about 12.30 in the night, it is alleged that, the applicant came there and asked him, whether he had run away from the Police Station since he was arrested. The complainant informed the applicant as to how he was allowed to leave the Police Station, whereon the applicant asked one of his staff members to slap the complainant and make him to sit down. The applicant further called the motor-vehicle of the Police Station and took the complainant to the Police Station. The applicant threatened him with the say that he had committed a grave offence by running away from the Police Station and he would not be able to get bail for about three months. The applicant further called the motor-vehicle of the Police Station and took the complainant to the Police Station. The applicant threatened him with the say that he had committed a grave offence by running away from the Police Station and he would not be able to get bail for about three months. The applicant then made the complainant to sit in his own car and took him to the bridge of river Wardha. On the way, he asked the complainant as to how-much amount was paid by him to A.P.I. Kamble and Sunil Udakhe. The complainant told the applicant that he had not paid any amount to them. Thereafter, the applicant asked the complainant about his occupation and told him that he would save the complainant, but asked as to how-much amount would be paid. The complainant offered Rs. 50,000/-, whereon the applicant ironically questioned him as to whether the complainant was holding him as a Police Station Officer (Thanedar). The applicant demanded Rs. 10,00,000/-. When the applicant expressed his difficulties and requested the applicant to reduce that demand, the applicant asked the complainant to pay Rs. 3,00,000/- and further warned that otherwise, he would show the complainant the power of an I.P.S. Officer. The applicant assured the complainant that he would not either arrest the complainant and help him in getting his truck released and filing of the charge-sheet. Because of the fear of the applicant, the complainant agreed to pay Rs. 3,00,000/-. Since the complainant was feeling uneasy because of all those events, the applicant took him to the hospital at Tiwasa for medical examination. After examining the complainant, the Doctor advised the police to take the complainant to Irwin Hospital at Amrawati. However, he was taken to the Police Station and thereafter, was reached to his dwelling house at Amrawati. 3. It is alleged that the applicant received the amount of Rs. 1,00,000/- from the complainant on 5th June, 2017. Thereafter, the applicant repeatedly demanded the balance amount of Rs. 2,00,000/-. He continued his demand for the balance amount of Rs. 2,00,000/- even after he was transferred from Police Station, Tiwasa to join as Additional Superintendent of Police at Nanded. The complainant got recorded the telephonic conversation between the applicant and himself from time to time in respect of the demand of the balance amount. 2,00,000/-. He continued his demand for the balance amount of Rs. 2,00,000/- even after he was transferred from Police Station, Tiwasa to join as Additional Superintendent of Police at Nanded. The complainant got recorded the telephonic conversation between the applicant and himself from time to time in respect of the demand of the balance amount. The applicant had given phone numbers of some persons of his acquaintance to the complainant for paying the balance amount to them on his behalf. 4. Being fed up with the demands of the applicant, the complainant approached the office of Anti-Corruption Bureau (ACB), Amrawati on 4th September, 2017 and lodged complaint against the applicant. After lodging that complaint also, the complainant received telephonic calls from the applicant in respect of his demand for balance amount. Ultimately as per the instructions of the applicant, the complainant agreed to pay the amount of Rs. 1,00,000/- to accused No. 2 Sunnysingh Bungai. Accordingly, a trap was laid on 30th January, 2018. The tainted currency notes of Rs. 1,00,000/- were handed over to accused No.2 Sunnysing as directed by the applicant. During the course of the trap also, the said Sunnysingh was in telephonic contact with the applicant. After the complainant handed over the tainted currency notes of Rs. 1,00,000/- to accused No.2 Sunnysingh, he was caught red-handed. The Police Inspector (ACB), Rahul Tasre then filed FIR against the applicant in Police Station, Ardhapur, District Nanded on 31st January, 2018, on the basis of which the above numbered crime came to be registered. The applicant is apprehending arrest in respect of the said crime. 5. The learned Senior Counsel, appearing for the applicant, submits that a malicious complaint has been filed by the complainant under the pressure of some other persons with a view to destroy the career of the applicant. He is an I.P.S. Officer on probation. He did not demand any bribe from the complainant at any point of time. The allegations made against the applicant are false and baseless. He then submits that except the bare words of the complainant about the alleged demand of bribe by the applicant, there is no corroboration to show involvement of the applicant in the above mentioned offences. He did not demand any bribe from the complainant at any point of time. The allegations made against the applicant are false and baseless. He then submits that except the bare words of the complainant about the alleged demand of bribe by the applicant, there is no corroboration to show involvement of the applicant in the above mentioned offences. Relying on the judgment in the case of Mukhtar Singh v. State of Punjab (2016) 11 SCC 357 , he submits that in order to constitute the offences punishable under Sections 7 and 13 (2) read with Section 13 (1)(d) of the Act, the demand and voluntary acceptance of illegal gratification knowing it to be the bribe are the twin requirements. He submits that there is no corroboration to the version of the complainant that he paid Rs. 1,00,000/- to the applicant at any point of time. Moreover, the amount of Rs. 1,00,000/- has been recovered from one Sunnysingh Bungai. The applicant has no concern whatsoever with the said Sunnysingh. The amount recovered from said Sunnysingh cannot be said to have been received by him on behalf of the applicant. According to the learned Senior Counsel, prima facie, there is no evidence to connect the applicant with the above mentioned offences. He further contends that the case is depending on documentary evidence. Nothing is required to be seized from the applicant. Even after this Court passed an order directing the Investigating Officer not to take any coercive action against the applicant, he visited the office of the Investigating Officer and gave his sample voice. He is ready to cooperate with the Investigating Officer. The applicant is a responsible I.P.S. Officer. He would not get absconded. He will be available to the Investigating Officer as well as the Court as and when required. In the circumstances, relying on the judgment in the case of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 , he prays that the applicant may be granted the relief of pre-arrest bail on whatever conditions the Court may deem fit. 6. The learned A.P.P. strongly opposed the application. In the circumstances, relying on the judgment in the case of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 , he prays that the applicant may be granted the relief of pre-arrest bail on whatever conditions the Court may deem fit. 6. The learned A.P.P. strongly opposed the application. He pointed out to the scripts of telephonic conversation between the applicant and the complainant, showing that there were repeated demands of bribe by the applicant from the complainant on the ground that the applicant helped the complainant in getting his truck released and also for not arresting the complainant in respect of the crime registered against the complainant. The applicant was demanding bribe to assist the complainant in the matter of filing soft charge-sheet as well. He pointed out to various statements of the witnesses with reference to the telephonic conversation between the complainant and the applicant, which would indicate that even after his transfer from Tiwasa to Nanded, the applicant demanded the bribe and asked the complainant to pay the remaining amount of Rs. 2,00,000/- to the persons viz :- Arpita Agrawal, who was Deputy Manager of ICICI Bank, K.D. Pani and accused No.2 Sunnysingh Bungai. The applicant himself had given their mobile phone numbers by sending messages. The complainant had taken screen-shots in respect of those messages. He then pointed out to the conversation between the applicant and the complainant, wherein the applicant demanded the bribe amount. He then pointed out to the conversation under which the applicant asked the complainant to pay the remaining amount to accused No.2 Sunnysingh. He further pointed out to the conversation between the applicant and Sunnysingh prior to the trap and also during the course of the trap, which indicates that the amount of Rs. 1,00,000/- was paid by the complainant to accused No.2 Sunnysingh as directed by the applicant. The learned A.P.P. submits that with this positive evidence, the contention of the applicant that he is innocent person and has been falsely and maliciously implicated, cannot at all be believed. He submits that the applicant is a probationary I.P.S. Officer. It was not at all expected of him to indulge in corruption at the threshold of his career. He further submits that the amount of Rs. 1,00,000/- that has been paid by the complainant to the applicant on 5th June, 2017 has to be recovered. He submits that the applicant is a probationary I.P.S. Officer. It was not at all expected of him to indulge in corruption at the threshold of his career. He further submits that the amount of Rs. 1,00,000/- that has been paid by the complainant to the applicant on 5th June, 2017 has to be recovered. He contends that the applicant, with a view to destroy the evidence of his conversation with the complainant, pretended that his SIM Card has been lost. According to him, this itself shows guilty mind of the applicant. He cannot claim himself to be an innocent person. His custodial interrogation would be necessary for further investigation. Relying on the judgment in the case of Sudhir v. State of Maharashtra and another 2016 (1) SCC 146 , he submits that considering the serious nature of the offences alleged against the applicant, he is not entitled to get the relief of pre-arrest bail. 7. As seen from the contents of the complaint, the applicant was connected with Crime No. 197 of 2017, registered in Police Station, Tiwasa, District Amrawati for the offences punishable under Sections 379, 186 read with Section 34 of the Indian Penal Code, under Section 3 of the Prevention of Damage to Public Property Act, 1984 and under Section 21 of the Mines Act, 1952, when the applicant was incharge of the said Police Station. The complainant has specifically stated as to how the applicant demanded bribe of Rs.10,00,000/- from him, which was subsequently reduced to Rs. 3,00,000/- for extending help to the complainant in getting his truck released, for not arresting him in respect of the said crime and in the matter of filing soft charge-sheet. 8. The telephonic conversation between the applicant and the complainant was recorded on 5th September, 2017 at Secunderabad in Hotel Rahul International in the presence of two gazetted officers/panch witnesses and ACB officers, shows that the complainant had gone there to meet the applicant as per the instructions of the applicant. After the complainant met the applicant in that hotel, during the course of their talks, the complainant thanked the applicant for the help extended to him for getting his truck released. The applicant asked the complainant about two panchas, who were with him and further asked as to why he brought them. After the complainant met the applicant in that hotel, during the course of their talks, the complainant thanked the applicant for the help extended to him for getting his truck released. The applicant asked the complainant about two panchas, who were with him and further asked as to why he brought them. After the complainant explained presence of those persons, the applicant asked the complainant about cash amount. The complainant expressed inability to arrange for that amount. The complainant showed a cheque in the sum of Rs. 1,00,000/- to the applicant that was received by him from somebody and told the applicant that the said cheque would be encashed by 8th of the month. The complainant assured the applicant that he would bring Rs. 1,00,000/- by 10th or 11th of the month. It seems that the applicant expressed his displeasure as the complainant had not brought that amount and only assured to pay that amount subsequently. The applicant seems to have reminded the complainant that he helped him in getting his truck released, and expressed displeasure stating that the complainant was ignoring him. In the same conversation, the complainant referred to the earlier payment of Rs. 1,00,000/- and assured to pay further amount of Rs. 1,00,000/- by 10th or 11th of the month, whereon the applicant reminded him that he was supposed to pay Two (lakh). The complainant then expressed his inability to arrange for Rs. 2,00,000/-. The applicant asked him as to why it would not be possible, whereon the complainant stated that the amount of Rs. 2,00,000/- would be rather high. Thereafter, it seems that the applicant got annoyed and he challenged the complainant to go home and that he would see the complainant. The complainant requested him not to take any adverse action. In order to ensure payment of money from the complainant, the applicant seems to have threatened him that he could do anything from anywhere. The applicant then seems to have got it confirmed from the complainant that the amount of Rs. 1,00,000/- would be paid by 10th positively. From this conversation, it is, prima facie, clear that the amount of Rs. 1,00,000/- was actually paid by the complainant to the applicant prior to that conversation and the amount of Rs. 1,00,000/- was to be paid on 11th of the month as per the demand of the applicant. 9. 1,00,000/- would be paid by 10th positively. From this conversation, it is, prima facie, clear that the amount of Rs. 1,00,000/- was actually paid by the complainant to the applicant prior to that conversation and the amount of Rs. 1,00,000/- was to be paid on 11th of the month as per the demand of the applicant. 9. The papers of investigation show that on 11th September, 2017, the applicant suggested the complainant to deposit the amount in the account of one K.D. Pani. Then on 13th September, 2017, the applicant asked the complainant on phone to give the amount to one Arpita Agrawal of ICICI Bank, Amrawati. The said fact has been stated by Arpita Agrawal in her statement as well. The conversation between the applicant and the complainant in respect of these telephonic talks has been recorded. The scripts thereof are in the papers of investigation. 10. After the applicant joined as Additional Superintendent of Police at Nanded, the applicant met the complainant there also. There is recording of conversation between them in which the applicant repeated the demand of Rs. 1,00,000/-. 11. The papers of investigation show that as per the directions of the applicant, the amount of Rs. 1,00,000/- was to be paid to accused No.2 Sunnysingh. Accordingly a trap was laid on 30th January, 2018. The applicant gave contact number of accused No.2 Sunnysingh to the complainant. This conversation also has been recorded. It is clear from the conversation between the complainant and accused No.2 Sunnysingh that the brother of accused No.2 Sunnysingh was the roommate of the applicant when he was preparing for I.P.S. 12. The script of conversation between the complainant and accused No.2 Sunnysingh shows that as per the instructions of the applicant, accused No.2 Sunnysingh was going to receive the amount of Rs. 1,00,000/- from the complainant. Prior to and during the trap also, there had been telephonic conversation between accused No.2 and the applicant. It seems that when the tainted currency notes of Rs. 1,00,000/- were given by the complainant to accused No.2 Sunnysingh, he noticed that they were tainted with powder. He asked the complainant about that powder and questioned whether he was not inviting any trouble. After handing over those currency notes to accused No.2 Sunnysingh, the complainant contacted the applicant on phone and informed that the said amount was paid to accused No.2 Sunnysingh. He asked the complainant about that powder and questioned whether he was not inviting any trouble. After handing over those currency notes to accused No.2 Sunnysingh, the complainant contacted the applicant on phone and informed that the said amount was paid to accused No.2 Sunnysingh. Then accused No.2 Sunnysing also talked to the applicant. It seems that accused No.2 Sunnysingh informed the applicant that he had received, whereon the applicant said Okay. 13. With the above mentioned conversation between the applicant and the complainant as well as between the applicant and accused No.2 Sunnysingh, it is, prima facie, clear that it was on the instructions of the applicant that the amount of Rs. 1,00,000/- was paid by the complainant to accused No.2 Sunnysingh. Thus, prima facie, there is not only a demand of bribe by the applicant from the complainant, but conscious acceptance thereof as well. Even from the earlier conversation between the complainant and the applicant, it would be prima facie clear that the amount of Rs. 1,00,000/- was paid by the applicant much prior to the day of the trap. Thus, the twin requirements mentioned in the judgment in the case of Mukhtar Singh (supra), cited by the learned Senior Counsel, are, prima facie, fulfilled in the present case. 14. In paragraph No. 14 of the judgment in the case of Shri Gurbaksh Singh Sibbia and others (supra), it is observed as under :- "Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application...." 15. From the above cited judgment, it is clear that the discretion vested in the Sessions Court or the High Court in the matter of exercising jurisdiction under Section 438 of the Code of Criminal Procedure, has been kept free by the Hon'ble the Apex Court. The only rider is that it should be used judiciously. As observed in paragraph No.31 of the said judgment, the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and the larger interests of the public of the State are some of the considerations which the Court has to keep in mind while deciding the application for anticipatory bail. 16. The learned A.P.P. relied on the judgment in the case of Sudhir (supra), wherein it has been observed that no inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. The grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. 17. In the present case, there is strong prima facie evidence to show that the applicant demanded bribe from the complainant and accepted the same, firstly directly from the complainant and then through accused No.2 Sunnysingh in the sum of Rs. 1,00,000/- each. The learned A.P.P. submits that since the date of the trap, despite extensive attempts made by the Investigating Officer, the applicant could not be traced out. He further submits that the applicant reported to the Investigating Officer that his SIM Card has gone missing. According to the learned A.P.P., in order to destroy the evidence in respect of the conversation and messages recorded in that SIM Card, the applicant has come with such a false case. He further submits that the applicant reported to the Investigating Officer that his SIM Card has gone missing. According to the learned A.P.P., in order to destroy the evidence in respect of the conversation and messages recorded in that SIM Card, the applicant has come with such a false case. In my view, in the above circumstances and considering the serious nature of the offences alleged against the applicant, it would certainly be necessary to take the applicant into custody so as to recover the amount of Rs. 1,00,000/- that has been received by him from the complainant. 18. The applicant is a probationary I.P.S. Officer. It seems that at the beginning of his career itself, he, prima facie, indulged in corrupt practices. If that be so, one can imagine with what intention, the applicant joined such a public service. A person of such character, prima facie, would not be entitled to get the extraordinary relief of pre-arrest bail, which is basically meant for innocent persons to save them from the humiliation and harassment caused due to unnecessary arrest and detention. In the circumstances, the application is liable to be rejected. 19. Interim relief of pre-arrest bail was not granted in favour of the applicant. Since the learned A.P.P. pressed for his presence as per the provisions of Section 438 (1-B) of the Code of Criminal Procedure, he was directed to remain present before the Court on the date of final hearing. However, on the request of the learned Senior Counsel for the applicant, a direction was given to the Investigating Officer that he shall not take coercive action against the applicant till final hearing of the application. It was further clarified that the applicant would not be entitled to claim any equity on the basis of this direction. In the circumstances, the contention of the applicant that he appeared before the Investigating Officer at his own, gave his voice sample and offered to co-operate for further investigation, would not enure to his benefit to seek the relief of pre-arrest bail. 20. The observations made in this order, being prima facie in nature, would have limited effect for deciding the present application only and would not influence any other proceeding arising out of the present crime. 21. In the result, I pass the following order:- ORDER The application is rejected and disposed of.