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MHNS010037252022
Order below Exh. 1 in Criminal Bail
Application No. 916/2022.
1.

This is an application preferred by applicants (1) Mr. Rupani
Venkatesh
S/o
Ramulu,
(2)
Mr.

Sadam
Krishna
S/o
Sadam
Venkateshwarlu and (3) Mr. Md Khaja Khan S/o G Hussain Khan for
anticipatory bail under section 438 of Cr.P.C. in C.R. No. I­172/2022
registered in Mumbai Naka Police Station, Nashik for the offence
punishable under sections 166, 166­A, 223, 306, 348 r/w section 34 of
the Indian Penal Code.
2.

In short, the case of the prosecution is that applicants who are
police officers being public servant failed to perform their legal duties by
not following the legal procedure and in connivance with each other kept
deceased Birari, Chandankumar, Santosh Sahane in their custody illegally.
They have failed to provide police personnel as well as did not take step
for safety of his life. In order to recover stolen property they caused
mental pressure to deceased Birari and abetted him to commit suicide.
3.

Applicants have preferred this application on the ground that
they are falsely involved. Applicant no. 1 visited Nashik to investigate
upon the statement made by accused Santosh Shinde in Crime No.
380/2019. He named Vijay Birari and Jaliya @ Santosh Sahane to whom
he has sold gold articles. He also disclosed six other persons who are
connected with the commission of the crime. The applicant no. 1 took
custody of Santosh Shinde and came to Nashik for further investigation.

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Similar type of offences were registered at other police station.

The
applicants booked a room in Government rest house. They went to the
shop of Vijay Birari as disclosed by Santosh Shinde. They had formal
discussion with Vijay Birari.

He closed his shop and then went to
Panchvati police station which was video recorded by applicant no. 3 so as
to avoid untoward incident. The keys were handed over to Vijay Birari by
his employee Chandakumar who accompanied them. Vijay Birari told the
applicants that he could be an asset and could help recover stolen article.
The family members of Vijay Birari i.e. his wife, Advocate Sameer Inamdar
joined him at Panchvati police station.

There was discussion between
Santosh Sahane, his family member, Vijay Birari with respect to assisting
police machinery to recover the stolen articles. Thereafter, they returned
to the rest house. They had lunch which clearly reflect that Vijay Birari
was not in physical custody or handcuffed which reflect that he was
willing accompanying the police.
4.

Applicants Vijay Birari, Chandankumar and Santosh Sahane
as well as arrested accused Santosh Shinde stayed in the guest house. At
about 11.30 they received phone call from ASI of Panchvati police station
whereby he informed that relatives of Vijay Birari are planning to remove
gold articles from their shop.

On the next day they went for having
breakfast, at about 1.00p.m. to 1.30 p.m. applicant no. 1 informed
applicant no. 3 that sufficient time has been given to Vijay Birari and
Santosh Sahane, however, they refused to cooperate and they are required
to formal arrest them so as to take them to Cyberbad, Telangana. This
conversation was over heard by Vijay Birari.

Chandankumar told
applicant no. 2 that Vijay Birari is the only man from whom recovery of
golden articles can be made. Vijay Birari got skeptical and apprehensive
that he would be arrested so he jumped from the fourth floor. AD case
was registered.

Mobile phone were seized after the statement of the
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applicants were recorded before police officer as well as before the
Magistrate. There was no intention to violate any guidelines of B.K.Basu
Case.

Nobody from the family of Birari has complaint about illegal
detention. Applicants were not carrying out inquiry for personal gain.
They have not aided or abetted the deceased to commit suicide under
threat of being arrested. Applicants were performing their legal duty and
are in no way concern with the drastic step taken by the deceased.
Applicants are police officers working for Telengana police force. They
have no antecedents and have long service, hence, prayed that they are
ready to abide by all the conditions and prayed that bail be granted.
5.

Say was called of Investigating Officer wherein he submits
that, written communication was not given to Panchvati police station
about taking deceased Birari in custody. Article 22 of the Constitution of
India categorically states that within 24 hours of taking any person in
custody has to be produced before the nearest Magistrate, even then he
was not taken before the nearest Magistrate for transit warrant and was
kept in custody illegally with them. From the statements recorded of the
wife of the deceased and Rajendra Birari it reflects that applicant no. 1
was demanding 2 Kg. Gold or Rs.80 Lakhs for which he was exerting
mental pressure on them. Applicants have shut the shop of the deceased
and kept the keys with them. Wife of deceased was demanding the keys
from Hyderabad police, however, they declined which reflects that they
have illegally seized the shop of deceased.
6.

Applicants told the wife of the deceased falsely that deceased
had been taken to Hyderabad which clearly reflects the mensrea to cause
mental harassment to the deceased which cause him to jump from fourth
floor. Even the employee of deceased was detained by the applicants even
though he had no concern. If applicants are released on bail there is
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possibility of destroying the evidence.

They have to inquire who was
employed for the security of the life of the deceased and witnesses. They
have to recover important documents which are directly or indirectly
connected with the offence for which their custody is required. They have
to inquire why applicants have exerted pressure on the relatives of the
deceased. They have to inquire from the lawyer of the deceased as to
what communications were going on between them. Hence, prayed that
application be rejected.
7.

Heard Ld. Advocate for the applicants Shri. Bhate and Ld. APP
Shri. Chandrkor for the State in detail as well as perused the documents,
case papers relied by both the parties. It is seen that after inquiry in AD
offence has been registered by State Crime Branch Investigation against
the applicants who are police personnel of Telangana State. It is seen that
applicants along with other police persons came to Nashik with respect to
offence. Co­accused Santosh Shinde had led the police that he had sold
the ornaments to deceased Birari. Applicants apprehend deceased at his
shop along with his employee Chandankumar. It has also come on record
that deceased shop was shut down. As per the complaint as well as the
preliminary inquiry it reflects that applicants have demanded 2 Kg. Gold
or Rs.80 Lakhs from the wife of the deceased to show recovery. It is also
seen that the applicants have not produced the deceased before the local
Magistrate even though he was in their custody for more than 24 hours.
All these factors reflects that applicants have detained the deceased in
their custody. Investigating officer has categorically stated that they have
to collect important evidence with respect to custody of the deceased and
the persons who were given duty for the safety of the deceased.
8.

Much arguments have been made by the Advocate for the
applicants with respect to the constant follow up with the local police
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station with respect to the deceased. However, the applicants are police
personnel they had kept the deceased in their custody without following
the due procedure, hence, the contention of the applicants that they had
bonafidely acted cannot be considered.
9.

Ld. APP has submitted that not only the deceased has
sustained injury on his head, however, he has suffered various injuries
which reflects that deceased was subject to ill­treatment. On perusing the
PM Report of deceased it reflects that in total 26 injuries are reflected on
the body of the deceased.

In the column of which injuries are ante­
mortem or postmortem and duration it reflects that injury no. 1 to 22 in
column of external injuries are ante­mortem in nature whereas injuries
nos. 23 to 26 are postmortem in nature. In such circumstances it clearly
reflects that injury no. 1 to 22 are caused prior to the death i.e. ante­
mortem. In such circumstances as there was clear breach of the provisions
of section 57 of Cr.P.C. by not producing the accused before the local
Magistrate within 24 hours, hence, custodial interrogation of the applicant
is justifiable for thorough investigation. Applicants being police officer
were required to follow the procedure contemplated, however, they have
failed to follow the same. The grounds made by the investigating officer
are justified. No case has been made by the applicants to hold that they
have been falsely implicated in the present case. I am not inclined to
consider present application. Hence, I proceed to pass following order :­
ORDER
Application is hereby rejected.
Sd/­xxx
Nashik.
Date : 28/07/2022.

(V.S.Malkalpatte­Reddy)
Additional Sessions Judge,
Nashik.