Bombay High Court
Pradip Haribhau Khade And 1 vs The State Of Maharashtra Thr. Pso Ps ... on 8 May, 2024
2024:BHC-NAG:5642
1 929aba200.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (ABA) NO. 200 OF 2024
Pradip Haribhau Khade and another V/s State of Maharashtra
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Mr. J.B. Gandhi, counsel for the applicants.
Mrs. Ritu Sharma, APP for the non-applicant/State.
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 08/05/2024.
1. Apprehending the arrest at the hands of the Police,
in connection with Crime No. 470/2023 registered with Police
Station Civil Lines, Akola, District Akola for the offence
punishable under Sections 406, 420 read with Section 34 of
the Indian Penal Code, 1860, the applicants approached to this
Court for grant of pre-arrest bail.
2. Learned counsel for the applicants submitted that
the crime was registered on the basis of report lodged by Dr.
Kishor Shridharrao Dhone, wherein it is alleged that he is a
medical practitioner and the present applicants and the other
co-accused by visiting the medical shop which is situated near
his clinic, he got acquaintance with them, and they induced
him to invest the amount in one scheme. They have also
arranged one seminar on 13/02/2022, he has attended the
said seminar. It was induced that, if they invest the amount
through the Smart Phone, they would get additional interest
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and the additional amount. Therefore, he has invested the
amount as well as other prosecution witnesses have also
invested the amount. Initially, they have received some benefit
but subsequently, no benefit was received by them and
therefore, he approached to the police, on the basis of same,
the police have registered the crime against the present
applicants.
3. Learned counsel for the applicants submitted that as
far as the present applicants are concerned, the involvement is
absolutely false. It is the case of the investment in PLC Ultima
which is a Software, which is to be downloaded and the
person who invest the amount through the said scheme, he get
some benefit for some period. Thus, the value of the said
crypto currency is downward and equivalent to zero and
therefore, it is the responsibility of the investors against the
said investment. The applicants are not responsible for the
said investment.
4. Learned APP strongly opposed the said application
on the ground that not only the informant but various
investors are duped by inducing them to invest the amount to
Crypto Currency. The mobile phone of the present applicant is
to be seized. Though notice is issued to him, he has not
cooperated with the investigating agency and therefore,
custodial interrogation is required.
5. Having heard learned counsel for the applicant and
learned APP for the State, perused the recitals of the FIR. I
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have also perused the general terms and conditions of the PLC
Ultima, which read as under :
8(D) No guarantees / modification, restriction of
services of PLC Ultima / transfer to third parties
(1) Your access to the website and the services of PLC
Ultima is at your risk.
(2) PLC Ultima is authorized to modify the website and
services offered by PLC Ultima free of charge
without prior announcement or liability.
(3) PLC Ultima reserves the right to limit the use of
services including the ability of contacting other
members, through the website if PLC Ultima is of
the opinion that such violate contractual or legal
obligations or the services are otherwise abused.
(4) PLC Ultima does not guarantee that within the
scope of the competent jurisdiction under your
national law it is legal for you to use the services
of PLC Ultima or to advertise such or to participate
in any activities of PLC Ultima; that access to the
PLC Ultima website is at any time faultless and
interference-free, timely, or secure and that defects
are rectified.
(5) PLC Ultima reserves the right to transfer, assign,
sublicense or pledge, in whole or in part, its
business, individual assets hereof or individual
rights and obligations under this User Agreement
to third parties without prior notice, provided that
the third party also complies with applicable
contract and other laws.
6. On perusal of the recitals of the FIR, the allegation
against the present applicants to the extent that they have
induced and on their inducement, the complainant and other
investors have invested the amount, on the ground that they
can get the benefit 7 times, if they invest the money. Thus, it
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reveals that the investors have invested the amount,
considering the fact that they can get profit. At the most, the
only role attributed to the present applicants is of inducement.
7. Though learned APP submitted that the custodial
interrogation of the present applicants is required. The
investigating officer has issued the notice to the applicant
under Section 41(A). On perusal of the Section 41(A), it
reveals that, the notice under Section 41(A) is to be issued
when the police officer, in all cases where the arrest of a
person is not required under the provisions of sub-section (1)
of Section 41 shall issue a notice directing the person against
whom reasonable complaint has been made credible
information has been received or reasonable suspicion exists
that he has committed a cognizable offence, to appear before
him or at such other place as may be specified in the notice.
8. Thus issuance of notice by the Investigating Officer
under Section 41(A) itself sufficient to show that custodial
interrogation of the present applicant is not required and
therefore, the notice under Section 41(A) is issued. As far as
the compliance of Section 41 under Chapter V of the Code
deals with the arrest of persons is concerned, the Hon'ble Apex
Court in the case of Satender Kumar Antil Versus Central
Bureau Of Investigation & Anr. reported in 2022 LiveLaw (SC)
577 wherein it is held that Section 41 under Chapter V of the
Code deals with the arrest of persons. Even for a cognizable
offense, an arrest is not mandatory as can be seen from the
mandate of this provision. If the officer is satisfied that a
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person has committed a cognizable offense, punishable with
imprisonment for a term which may be less than seven years,
or which may extend to the said period, with or without fine,
an arrest could only follow when he is satisfied that there is a
reason to believe or suspect, that the said person has
committed an offense, and there is a necessity for an arrest.
Such necessity is drawn to prevent the committing of any
further offense, for a proper investigation, and to prevent him/
her from either disappearing or tampering with the evidence.
He/she can also be arrested to prevent such person from
making any inducement, threat, or promise to any person
according to the facts, so as to dissuade him from disclosing
said facts either to the court or to the police officer. One more
ground on which an arrest may be necessary is when his/her
presence is required after arrest for production before the
Court and the same cannot be assured.
9. This provision mandates the police officer to record
his reasons in writing while making the arrest. Thus, a police
officer is duty-bound to record the reasons for arrest in
writing. Similarly, the police officer shall record reasons when
he/she chooses not to arrest. There is no requirement of the
aforesaid procedure when the offense alleged is more than
seven years, among other reasons. The consequence of non-
compliance with Section 41 shall certainly inure to the benefit
of the person suspected of the offense
10. In view of the above, the guidelines issued buy the
Hon'ble Apex Court in the case of Satender Kumar Antil
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(supra) here no notice issued by the Investigating Officer to
the present applicant enumerating the grounds for the arrest.
Even the notice issued under Section 41-A, the Investigating
Officer has not assigned the reason why arrest is not required,
but considering the notice is issued under Section 41-A itself is
sufficiently to show that custodial interrogation of the present
applicant is not required and therefore, investigating officer
has issued a notice under Section 41-A. Considering the same,
and considering the fact that there is no compliance under
section 41-A, the application of the applicants for grant of
anticipatory bail deserves to be allowed. Accordingly, I
proceed to pass following order.
ORDER
a] In the event of their arrest, in connection with Crime No. 470/2023 registered with Police Station Civil Lines, Akola, District Akola for the offence punishable under Sections 406, 420 read with Section 34 of the Indian Penal Code, 1860, the applicants- Pradip Haribhau Khade, Akshay Pradip Khade shall be released on anticipatory bail on executing P.R. Bond of Rs. 25,000/- each with one solvent surety in the like amount.
b] The applicants shall attend the concerned Police Station once in a week on Sunday between 10.00 a.m. to 01.00 p.m. and shall cooperate with the investigating agency.
rkn 7 929aba200.2024.odt c] The applicants shall not induce, threat or promise any witnesses who are acquainted with the facts of the present case.
The application is disposed of.
[URMILA JOSHI-PHALKE, J.] Signed by: Mr. R.K. NANDURKAR rkn Designation: PA To Honourable Judge Date: 09/05/2024 18:40:39