Research › Search › Judgment

Bombay High Court · body

2022 DIGILAW 1957 (BOM)

Shubham Govind Pacharne v. State of Maharashtra

2022-08-25

ANUJA PRABHU DESSAI

body2022
JUDGMENT 1. The Applicant is one of the accused persons in Crime No.665 of 2021 registered at Shikrapur Police Station, Pune (rural) for ofences under Ss. 386, 420, 465, 467, 468, 471, 506, 120 B of the IPC. 2. In the charge sheet fled before learned Magistrate, Ghodnadi (Shirur) the Applicant was shown as an absconding accused. The Applicant had fled an application for pre-arrest bail (Criminal Bail Application No.8390 of 2021), which was dismissed by learned Additional Sessions Judge, Pune on 20/12/2021, resulting in fling of the present application before this Court. By order dtd. 11/01/2022 this Court granted interim bail to the Applicant with direction to report to the Investigating Ofcer on 17th, 18th and 19/1/2022. Accordingly, the Applicant appeared before the Investigating Ofcer. 3. The order of interim protection was extended from time to time. During the pendency of the application for anticipatory bail, charge sheet came to be fled and summons was issued to the Applicant to appear before the Trial Court. The Applicant appeared before the Trial Court on 01/07/2022 and fled an application for bail without disclosing the fact that he was on interim bail. The Magistrate neither took the Applicant into custody nor passed any order on the bail application but allowed him to go home. 4. The Applicant once again appeared before the Magistrate on 02/07/2022 and learned Magistrate passed an order stating that "Absconded accused Shubham Govind Pacharne appeared before the Court yesterday. Inadvertently accused Shubham Govind Pacharne had not taken into the custody. Today again Shubham Govind Pacharne appeared before me at 12.30 p.m. Perused copy of FIR report in Crime No.665 of 2021 registered with Shikrapur Police Station for the ofences punishable under Ss. 420, 465, 468, 386, 120 B, 201, 505, 506 r/w 34 of the Indian Penal Code. Accused Shubham Govind Pacharne will have been taken into Magistrate's Custody till 15/07/2022. Inform the Police Station Ofcer of Police Station, Shikrapur.". 5. On the same date the Investigating Ofcer- Mr. Hemant Shedge, PI, Shikrapur Police Station fled Remand Application dtd. 02/07/2022 seeking police custody of the Applicant for 7 days. The Investigating Ofcer/PI of Shikrapur Police Station also fled a separate application dtd. 02/07/2022 for rejecting the bail application fled by the Applicant. Learned APP also made an endorsement on the bail application resisting the prayer for bail. 6. Learned Judge passed order dtd. 02/07/2022 seeking police custody of the Applicant for 7 days. The Investigating Ofcer/PI of Shikrapur Police Station also fled a separate application dtd. 02/07/2022 for rejecting the bail application fled by the Applicant. Learned APP also made an endorsement on the bail application resisting the prayer for bail. 6. Learned Judge passed order dtd. 02/07/2022 on the remand application rejecting the prayer for police custody and remanded the Applicant to Magisterial Custody till 15/07/2022. Learned Magistrate passed another order on the same date i.e. 02/07/2022 stating that the accused was taken into custody inadvertently and after passing of the order to remand the Applicant, it was brought to his notice that this Court had granted interim bail to the Applicant till 11/07/2022. Learned Judge therefore ordered release of the Applicant forthwith. 7. Taking note of the aforesaid serious lapses, by order dtd. 11/07/2022 this Court (Coram :N.J. Jamadar J.) called for the report from the Magistrate. Subsequently by order dtd. 25/07/2022 this Court (Coram :- Prithviraj K. Chavan, J.) directed the Investigating Ofcer and the APP, who had appeared before the Magistrate, to fle their afdavits clarifying the position. In compliance with the order dtd. 11/07/2022 learned Magistrate has submitted the Report. The APP, who had appeared before the Magistrate and the Investigating Ofcer-Hemant Shedage have also fled their afdavits. 8. Learned Magistrate has stated that the concerned Bench Clerk had issued summons to the Applicant without the order of the Court and that explanation is already sought from the concerned clerk and matter is reported to the Principal District Judge for necessary action. Learned Magistrate has further stated that on 01/07/2022, when the Applicant had appeared before the Court and fled the Bail Application, he did not disclose that he was already released on interim bail. Since he was not aware of the Order passed by this Court, say of the Investigating Ofcer and APP was called for. Learned Judge has further reported that even on 02/07/2022, the advocate representing the Applicant did not point out that this Court had granted interim bail to the Applicant. Hence, the Applicant was taken into custody and remanded to MCR till 15/07/2022. 9. Learned Judge has further reported that subsequently the Investigating Ofcer and APP appeared before him and fled an application for police custody and also fled another application opposing the bail application fled by the Applicant. Hence, the Applicant was taken into custody and remanded to MCR till 15/07/2022. 9. Learned Judge has further reported that subsequently the Investigating Ofcer and APP appeared before him and fled an application for police custody and also fled another application opposing the bail application fled by the Applicant. In paragraph 20 of the said application the Investigating Ofcer had disclosed that the Applicant was granted ad-interim bail in view of which the request for PCR came to be rejected and the Applicant was ordered to be released forthwith. 10. A perusal of the report vis-a-vis the bail application reveals that the Applicant had surrendered before the Court and had applied for bail without disclosing the fact that the application for anticipatory bail fled by him was pending before this Court and that he was on interim bail. It was under these circumstances that the Magistrate took the Applicant in custody and ordered to remand him to judicial custody till 15/07/2022. 11. Learned Magistrate fxed hearing of the bail application on the same day and called for the say of the APP and the Investigating Ofcer. The Investigating Ofcer not only opposed the bail but sought police remand. The Magistrate while declining to grant police custody once again ordered to remand the Applicant to judicial custody till 15/07/2022. The report submitted by the Magistrate vis-a-vis the application for police remand reveals that the Investigating Ofcer had disclosed the fact that the Applicant was on interim bail. A perusal of the order on remand application also reveals that the learned Advocate representing the Applicant had brought to the notice of the Magistrate that as per the order of this Court, the Applicant had reported to the Investigating Ofcer on 17th, 18th and 19/1/2022. 12. The Magistrate was thus well aware that the application for pre-arrest bail fled by the Applicant was pending before this Court and that he was on interim bail. The Magistrate was therefore not justifed in ordering magisterial custody of the Applicant till 15/07/2022. This was a lapse on the part of the Magistrate, which came to be rectifed immediately on the same day by acknowledging that the Applicant was taken into custody due to inadvertence. Such lapse on the part of the Magistrate could be due to pressure of work or lack of experience. This was a lapse on the part of the Magistrate, which came to be rectifed immediately on the same day by acknowledging that the Applicant was taken into custody due to inadvertence. Such lapse on the part of the Magistrate could be due to pressure of work or lack of experience. Since there was no deliberate or willful breach of order of this Court, no further action is necessitated, except a word of advice to be more cautious in future. 13. The disturbing feature and the matter of serious concern is that though the Investigating Ofcer as well as learned APP were well aware that the Applicant was released on interim bail, that he had complied with the conditions of the bail order and that the application for anticipatory bail was pending before this Court, they not only resisted the bail application but sought police custody. 14. Pankaj Mahale, Assistant Public Prosecutor, who had appeared before the learned Magistrate has stated in his afdavit that he had sought police custody of the Applicant in good faith to protect the interest of the State. It is stated that the Applicant had surrendered without disclosing that he was on interim bail and had thereby misled the Court in passing the order on remand application. Whereas the Investigating Ofcer-Hemant Shedge has stated that he was informed by the APP that the Applicant had surrendered before the Magistrate. He claims that he had informed the APP that the Applicant was granted interim protection despite which the learned APP had insisted on submitting a remand report. 15. It has to be borne in mind that though the Public Prosecutor represents the State, he is an ofcer of the Court and is duty bound to assist the Court in the administration of justice. The role of the prosecutor is not restricted to protect the interest of the State but he is also under an obligation to ensure that the rights of the accused are protected. In the instant case the Assistant Public Prosecutor has failed in his duty as an ofcer of the Court and has rather acted as a mouth piece of the Investigating Ofcer. 16. In the instant case the Assistant Public Prosecutor has failed in his duty as an ofcer of the Court and has rather acted as a mouth piece of the Investigating Ofcer. 16. It is also pertinent to note that in Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273 the Hon'ble Supreme Court has laid down the guidelines to obviate unnecessary arrests by the police machinery and mechanical remand by the Magistrate. In the matter in hand the Investigating Ofcer has gone a step ahead by fling remand application before the Magistrate and seeking custody of an accused who was granted interim bail by the High Court. The explanation that he had done so as per the instructions of the APP cannot be accepted. The Investigating Ofcer is a senior ofcer of the rank of Police Inspector, who is expected to know the law and the consequences of breach of order of the Court. 17. The Investigating Ofcer was well aware that the Applicant was on interim bail. He cannot avoid responsibility by blaming the Assistant Prosecutor. Nevertheless, considering the accusations made by the Investigating Ofcer against the Assistant Public Prosecutor, which give rise to questions on the bonafdes of prosecuting agency, it is necessary to verify the facts. Hence, learned Principal District Judge, Pune, is directed to inqure into the genuineness of the accusations made by the Investigating Ofcer against the Assistant Public Prosecutor-Pankaj Mahale. 18. Registrar-Judicial-I to forward copy of this order to the Principal District Judge, Pune, with a request to enquire into the matter and submit the report to this Court within two weeks from the date of receipt of copy of this order. 19. Interim relief to continue till the next date of hearing. Stand over to 14/09/2022.