Bombay High Court
- vs .- on 31 July, 2013
Author: A.P. Bhangale
Bench: A.P. Bhangale
aba385.13-Order 1
FARAD CONTINUATION SHEET No.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLN. (ABA) NO.385 OF 2013
Bandopant S/o Shankarrao Mallelwar
-Vs.-
State of Maharashtra
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri S.P.Dharmadhikari, Sr. Advocate with Shri S.V.Sirpurkar, Adv. for applicant.
Shri S. S. Doifode, APP for State.
ig CORAM : A. P. BHANGALE, J.
DATE : 31/07/
2013
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1) The applicant has moved this Court after his
anticipatory bail application dated 11-07-2013 was rejected by the Sessions Court, Gadchiroli on 19-07-2013. The applicant, by this application dated 22-07-2013 prays for anticipatory Bail, is facing serious accusations on the ground that he is part of criminal conspiracy to supply explosives and ammunition to the Naxalites groups engaged in violent and unlawful activities in the naxalite infested areas in the Districts of Gadchiroli. FIR No.3001 of 2013 was lodged under Sections 13, 18, 39 of the Unlawful Activities (Prevention) Act, 1967 read with Sections 4 and 5 of the Explosives Substances Act and further read with Sections 395, 143,147, 148,149 and Section 120-B of the Indian Penal Code.
::: Downloaded on - 27/08/2013 21:13:08 ::: aba385.13-Order 22) It is case of the respondent State at this stage that preliminary investigations are in progress upon the report lodged that Medical Officer, one Dr.Karpe influenced by the present applicant- local Zillah Parishad Member - had allowed the Government Ambulance to be used by the present applicant to carry explosives as well as ten live cartridges meant for use in AK-47 Rifle etc. material to be supplied from the house of the accused to the Naxalites operating in the area. The vehicle was accosted by the police and the inmates of the vehicle were interrogated, who disclosed their identity as Driver and Managers of the present applicant, who disclosed that the explosives and the cartridges of AK-47 Rifle were being carried by means of the Ambulance vehicle of the Primary Health Center use of which was allowed by Medical officer Dr.Karpe at the instance of the present applicant. The preliminary investigations have revealed that the two Managers and Driver employed by the present applicant were inmates of the vehicle accosted and revealed the role played by this accused to supply the explosives and the ammunition to the Naxalites from the house of the accused. From the raid in the house of the brother of the applicant two chits purportedly written by the Naxalite gangster were found and seized on 26-06-2013.
3) Learned senior counsel for the applicant urged for ::: Downloaded on - 27/08/2013 21:13:08 ::: aba385.13-Order 3 the relief on the ground that the applicant is a license holder for plucking Tendu leaves in Gadchiroli District and had suffered from the violent acts of Naxalites as his truck was burnt in 2007. It is contended that he had received threats from Naxalites in the past; he is local political leader belonging to National Congress Party. He had lost Z. P. Election in 2007. It is argued that applicant is local political leader and would not enter into criminal Conspiracy with gangsters to supply explosives and ammunition to Naxalite groups. It is contended that he is innocent. It is sought to be argued that if a person is under threat of Naxals and does something due to fear, he may not be labeled as criminal, otherwise half of the villagers would go behind the bars. This argument cannot save the active or passive assistance of any person to the criminal gangs or groups from being investigated by interrogation in custody, if necessary.
Learned senior counsel also informed that Dr.Karpe, Medical officer, who had provided the use of the Ambulance of the Primary Health Center allegedly at the instance of the present applicant, which was accosted by the police and from which the alleged contraband articles were recovered is already granted pre-arrest bail order by my brother Judge, Hon'ble Shri Justice M.L.Tahaliyani, of this Court .
4) It must be noted that maintainability of this ::: Downloaded on - 27/08/2013 21:13:08 ::: aba385.13-Order 4 application for anticipatory bail under Section 438 of the Criminal Procedure Code is challenged by the learned Additional Public Prosecutor on the ground that it is barred in view of the Section 43D (4) of the Unlawful Activities (Prevention) Act. It is contended that every offence punishable under the said Act is cognizable and the custodial interrogation is necessary to investigate into serious accusations against the applicant and others, who have indulged in advocating, abetting and aiding in any manner the Naxalite's criminal activities like forming unlawful assemblies, to commit grave offences like robbery, extortion, dacoity, murder etc. The investigation into serious accusations is at the stage of inception and the applicant is reportedly on the run despite warrant of arrest issued by the local criminal Court against him. Additional Sessions Judge had rejected the plea for his pre-arrest bail by a reasoned order.
4) In the facts and circumstances appearing from the police material brought to my notice against the applicant, which need not be elaborately disclosed at this stage when investigation is still at the stage of infancy, I found that many criminal cases were reported against the applicant in the past, although no any past conviction could be pointed out against the applicant. It is possible that it may be for want of sufficient reliable evidence, or for absence of proof beyond ::: Downloaded on - 27/08/2013 21:13:08 ::: aba385.13-Order 5 reasonable doubt that he may have been acquitted in the past but it would not mean that he was given clean chit of innocence in all the past criminal trials held against him. In the present case considering that prima facie there is ground to believe involvement of the applicant in serious accusations under the probe and the fact that investigation is at its preliminary stages, I am not prepared to take a different view that the Additional Sessions Judge rejecting his anticipatory bail as custodial interrogation of the applicant, if permitted may yield more valuable and material information in respect of the unlawful activities of the Naxalites gangs or groups which are required to be exposed, sternly dealt with and all their unlawful activities need to be prevented in future in the interest of maintaining law and order in the society and for welfare and safety of people in the naxal infested areas of the State. Naxalite or Maoist activities by whatever label they may be known to people in general, undertaken by certain groups of people who believe in the language of violence to attain their objectives, howsoever laudable they may be and those who have formed gangs or groups clandestinely to indulge in illegal acts and omissions for collection, transportation, distribution and use of illegal explosives, accessories, arms and ammunition are aided, assisted or helped by the local persons voluntarily or may be even ::: Downloaded on - 27/08/2013 21:13:08 ::: aba385.13-Order 6 involuntarily, which ultimately result in commission of heinous, cowardly acts of commission of murders, extortions, abduction for ransom, dacoity etc. which have posed serious menace to law and order situation not only in the State of Maharashtra, but also in neighboring states e.g. Andhra Pradesh, M.P., Chhattisgarh, West Bengal and certain areas of the Nation covered by rich and beautiful thick forest and fauna, are used as shelters and hiding places by the outlaws.
Poor inmates of forest are impressed upon to assist the outlaws to provide shelter, food, etc. under influence of money or threats. Unlawful activities by criminal groups or gangs do prevent the free movement of the law abiding citizens in such areas as also pose menace for the orderly administration as also growth and development in such areas.
Any police or forest official or any government official who wants to openly identify himself feel insecure to have free movement and to perform his official duty due to the clandestinely armed and dangerous group activities by criminals and extortionists in Naxal infested areas. This is harsh ground reality which cannot be ignored.
5) While investigation is pending in respect of such serious case, light view can not be taken in view of salutary policy of law to prevent pre-arrest bail in cases instituted for the offences punishable under the Unlawful Activities ::: Downloaded on - 27/08/2013 21:13:08 ::: aba385.13-Order 7 (Prevention) Act, 1967 (Act No.37 of 1967). The legislature does bar the relief of anticipatory bail in cases involving commission of unlawful activities which need to be prevented and sternly dealt with. The view must be adopted which can expose the criminal gangs depending on local active or clandestine assistance of collecting arms, ammunition and explosives. The modus operendi to use the Government Ambulance vehicle to transport and supply the explosives, accessories and live cartridges used for AK-47 Rifles to the Naxalites operating in the area, and the material in the form of chits received from them addressed to the applicant or his brother indicating the communication between the Naxalites and on the other hand the accused applicant and his brother also need to be thoroughly investigated. In my opinion, with stumbling block of Section 43D (4) of the Unlawful Activities (Prevention) Act as barrier to the plea of the applicant for pre-arrest bail order, the only option for the applicant is to surrender himself to the investigating officer and cooperate in the ongoing investigation; in that case, applicant shall be at liberty to apply for regular bail on merits no sooner than investigation as against him is completed.
6) For the aforesaid reasons, the application for anticipatory bail/ pre-arrest bail order stands rejected.
JUDGE Joshi ::: Downloaded on - 27/08/2013 21:13:08 :::