Bombay High Court
Mangala Rajesh Kothari vs The State Of Maharashtra on 30 January, 2021
Equivalent citations: AIRONLINE 2021 BOM 862
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
(1) BA No.1537/2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO.1537 OF 2020
Mangala Rajesh Kothari = APPLICANT
VERSUS
The State of Maharashtra = RESPONDENT/S
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Mr.Uday S.Malte,Advocate for Applicant/s;
Mr.AM Phule,APP for Respondent-State.
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CORAM : SMT.VIBHA KANKANWADI,J.
RESERVED ON : 11th January, 2021
PRONOUNCED ON: 30th January, 2021
PER COURT :-
1. Present applicant has been arrested in
connection with CR No.827/2020 registered with
Kopargaon Police Station, Kopargaon, District
Ahmedngar, for the offences punishable under
Sections 420, 466, 468, 471 read with 34 of IPC.
2. Heard learned Advocate Shri Malte for
applicant and learned APP Shri Phule for Respondent
State.
3. It has been vehemently submitted on
behalf of the applicant that Assistant Police
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Inspector - Dipak Ambadas Borase has lodged an FIR
against the present applicant and one N.C.Khicchi,
who was then Police Head Constable, working with
Shirdi Police Station, District Ahmedngar. In
fact, present applicant herself had issued notice
to said N.C.Khicchi on 8.7.2002, stating that many
certified copies were supplied by him to the
applicant for production in Claim Petitions before
Motor Accident Claims Tribunal (for short, the
Tribunal) on behalf of different claimants/persons
and after the applicant had received the
information from the Advocate of the Insurance
company in those matters, it was found that
Mr.Khicchi has made various alterations. She felt
that she is being cheated.
4. Thereafter, the then Additional District
& Additional Sessions Judge, Kopargaon had given a
confidential letter to the then District
Superintendent of Police, Ahmednagar on 1.2.2003 to
have investigation in respect of the false and
fabricated claims before the Tribunal. Based upon
that inquiry, one Rohidas Sukdeo Pawar, the then
PSI working with Shirdi Police Station had lodged
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the FIR on 27.5.2004, vide CR No.42/2004. The
present applicant came to be arrested in that
matter and she has been released on bail.
5. Further, it also appears that there was
Criminal Writ Petition bearing Criminal WP No.
257/2015 filed before this Court in view of the
inquiry made by learned Additional District &
Sessions Judge,Kopargaon to take action. Permission
was granted to convert the said writ petition into
Criminal Public Interest Litigation (PIL) vide
order dated 7.6.2018 and the said PIL is still
pending. When the said matter was before the
Division Bench of this Court on 1 st December, 2020,
report regarding progress in the investigation was
produced and a statement was made by learned APP
that the present applicant is absconding. In fact,
it was a wrong statement, according to learned
Advocate for the applicant. He submits that when
the FIR is lodged on 27.11.2020, then within three
days how it can be said that the applicant is
absconding.
6. As regards the earlier FIR is concerned,
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i.e. CR No.41/2004, the investigation was complete
and charge sheet has been filed before the JMFC
bearing RCC No.516/2005 and it is pending before
the JMFC, Rahata. Present applicant was arrested
in that offence on 15.7.2004 and was in police
custody till 19.7.2004. In fact, the second FIR
itself was not maintainable. If the notice that
was issued by the present applicant is seen, it
mentions about 18 cases those were filed before
Kopargaon Court and MACP No.729/2001 (one of the
case from 18 cases), later on transferred to
Sangamner Court after establishment of the Tribunal
there. Now in the present FIR, it has been
contended that certain numbers of the cases
remained to be mentioned, especially four cases,
out of 18 cases, viz. 1) MACP No.369/29002; 2)
335/2002; 3) 385/2002 and 4) 434/2002. Those were
included in the list given in the notice issued by
the applicant. After their numbers have been
changed, those have been mentioned in the present
FIR. Therefore, when the entire investigation is
over and it would have revealed that the applicant
had not at all appeared in MACP No.335/2002, there
was absolutely no necessity to lodge a fresh FIR.
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On this count also, she is entitled to be released
on bail.
7. Another ground that was submitted on
behalf of the applicant is that even after lodging
the second FIR, accused NC Khicchi was arrested and
he has been released on bail under Section 437 of
Cr.P.C. by learned Additional Chief Judicial
Magistrate, Kopargaon, Court No.3, on 30.11.2020.
On the ground of parity also, she is entitled to be
released on bail and the 3rd ground that has been
canvassed is medical ground. It is stated that the
present applicant, who is a practicing lawyer, is
now aged 65 years and she is suffering from knee-
joint problem and is advised for knee replacement
surgery. The medical papers are produced on
record. She is also suffering from lumber lordosis
because of degenerative changes in the form of
osteophytes. She is unable to carry out her daily
pursuits without assistance in the jail. Affidavit
of her daughter has been produced on record, who is
also practicing Advocate. Husband of the present
applicant is also a practicing Advocate. The
medical report was called and it also appears that
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the same supports the present applicant. Therefore,
on these three grounds, the learned Advocate for
the applicant, has canvassed for bail.
8. The learned Advocate for the applicant
has relied on a decision of Division Bench of this
Court in the case of Pawan Ranjithmal Lodha Vs.
State of Maharashtra and anr. - 2017 (5) Mh.L.J.
(Cri.)103: 2017(3) Bom.C.R.(Cri.) 534 wherein, this
Court held that, if an offence forming part of
second FIR arises as a consequence of offence
alleged in first FIR, then offences covered by both
FIRs are same and, accordingly, second FIR will be
impermissible in law. In other words, offences
covered in both the FIRs shall have to be treated
as a part of first FIR. Test of sameness is clearly
applicable to facts of the case.
9. Further, the decision that is relied upon
by the learned advocate for the applicant is, Ram
Lal Narang Vs. State (Delhi Administration),
reported in (1979) 2 SCC 322; wherein it is
observed, " The question is not whether the nature
and character of the conspiracy has changed by the
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mere inclusion of a fee more conspirators as
accused or by the addition of one more among the
objects of the conspiracy. The question is whether
the two conspiracies are in substance and truth the
same. Where the conspiracy discovered later is
found to cover a larger with broader ramifications,
it cannot be equated with the earlier conspiracy
which covered a smaller field of narrower
dimensions."
10. Further decision that is relied on is,
Babubhai Vs. State of Gujrath and Anr with
companion matters, reported in (2010) 12 SCC 254
wherein it was held that, the test of sameness is
required to be considered. Further, on the same
line, there is a decision in the case of Amitbhai
Anilchandra Shah Vs. Central Bureau of
Investigation and Anr. - (2013) 6 SCC 348.
11. Per contra, learned APP strongly opposed
the application and submitted that though the
applicant is a lawyer by profession; yet with the
help of police constable, she has managed to lodge
fake and false claims for getting compensation from
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the insurance companies before the Tribunal. In
fact, the entire fact was revealed after the
learned Additional District & Sessions Judge
pointed out all these facts by his confidential
letter dated 1.2.2003. Now, the applicant is
trying to shield her acts by saying that she had
issued the notice to accused No.1, first in time,
on 8.7.2002. She has not taken any further action
pursuant to the said notice. In view of the
inquiry that was held, some MACP cases were
included in the earlier FIR. Perusal of the FIR
would show that it was relating to 13 matters, when
it ought to have been in respect of 18
cases/matters. Perusal of the present FIR would
make it very much clear that the present informant,
who is also a Police Officer, is well aware about
the earlier FIR and, therefore, it has been
specifically mentioned that though it mentioned 18
matters; yet four matters still were not included,
which were MACP Nos.369/2002; 335/2002; 385/2002
and 434/2002. The background, on which the second
FIR came to be lodged is, various orders those have
been passed in Criminal Writ Petition, which has
been later on converted into Criminal PIL, which is
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still pending for its adjudication. Seriousness in
the matter was considered by this Court. Taking
into consideration the contents of the FIR that in
one of the matters, in fact, death was due to
drowning; yet it was tried to have been shown that
it has caused due to vehicular accident. Further,
in another matter, death was due to dash by unknown
vehicle and it was so shown in the original FIR.
However, when the so-called certified copy of the
same, which appears to have been issued by accused
NC Khicchi, indicates the registration number of
the vehicle and then those persons have been made
as respondents. The statements of the applicants in
those petitions were recorded before lodging the
present FIR, which show that present applicant as
well as co-accused used to meet them and assure
them about compensation; used to take their
signatures or thumb impressions on various
documents. This is nothing but a conspiracy and
fabrication of documents with an intention to
commit fraud upon the Court, cheat the insurance
companies and to extract the amount from the
company. Further physical custody is also required
as well as there is prima facie evidence against
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the present applicant. As regards the medical
condition of the applicant is concerned, he
submitted that proper and required treatment is
given to the applicant in jail and lastly he prayed
for dismissal of the application.
12. At the outset, it can be seen that the
allegations against the present applicant are
definitely serious. Legal profession is a noble
profession. The relationship of client and
Advocate is of confidence. But, then definitely
there are certain elements now in the legal
profession, which are defaming the profession
itself. There are instances of lodging fake and
bogus claims on the basis of false documents; may
be obtained from police station. But we are
required to consider the present case, where it
reflects the same. The first point, that is raised
is, in respect of filing of second FIR as not
maintainable. If we peruse the earlier FIR as well
as the present FIR, it can be seen that in the
second FIR, there is definitely a reference to the
earlier FIR and it has been specifically mentioned
that, out of those 18 cases mentioned in the first
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FIR, there is no place to the subsequent four cases
which have been mentioned above. Now, as regards
the second FIR is concerned, there is no mention as
to why it is filed after so much of delay. But,
then the said delay would be fatal to the
prosecution or not will have to be considered by
the concerned court trying the case. In his
affidavit filed by one Harshawardhan Gawali,
present Police Inspector attached to Kopargaon city
police station, in view of the order passed by this
Court on 6.1.2021, is nothing but re-production of
the FIR and it is then also stated that he had
consulted the superior officer in regard to filing
of the second FIR and it was advised to him to file
the second FIR.
13. This Court, while dealing with the Bail
Application has its own limitation to consider this
point as the applicant cannot have a prayer seeking
quashing of 2nd FIR in the present application.
However, since the point is raised, prima facie,
things are required to be considered. Even as per
the ratio laid down in the case of Babubhai Vs.
State of Gujarat (supra) and Amitbhai Shah VS CBI
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and Anr. (supra), the Hon'ble Apex Court has not
concluded that it is absolutely improbable and
impermissible to have a second FIR. In Amitbhai
Shah's case (supra) it has been observed, - "If two
FIRs pertain to two different incidents/crimes, a
second FIR is permissible, which is not the case in
the present case. A second FIR would lie in the
event for example when pursuant to the
investigation in the first FIR, a larger conspiracy
is disclosed, which was not part of the first FIR."
It will not be out of place to mention here that
after the application of this test to the facts in
hand, the Hon'ble Supreme Court observed that, that
was not the case before it, and therefore, the
second FIR in that case was held to be not
permissible.
14. Further in Babubhai's case (supra) it has
been observed, "in case of subsequent FIR, the
Court has to examine the facts and circumstances,
giving rise to both the FIRs and the test of
sameness is to be applied to find out whether both
the FIRs really would same incidence in respect of
same occurrence or are in regard to the incidence,
which are two or more parts of the same
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transaction. If the answer is in the affirmative,
the second FIR is liable to be quashed. However,
in case contrary is proved where the version in
the second FIR is different and they are in
respect of two different incidence/crimes, the
second FIR is permissible."
15. Further reliance can be placed on a
decision in the case of Anju Choudhari Vs. State
of U.P. - (2013) 6 SCC 384, wherein also the same
principle of sameness was reiterated and in this
case also, the decision in the case of Babubhai's
case (supra) was referred. Thus, relying upon
these authorities, the Division Bench of this Court
in Pawan Lodha's case (supra) had come to the same
conclusion.
16. As aforesaid, in the case in hand though
now the second FIR is filed, wherein the basic fact
is showing that there was conspiracy or common
intention between both the accused persons, but
then it is in respect of the subsequent filing of
the petitions. It is stated that in the earlier
FIR, four cases, referred to above, were not
mentioned. It has been tried to be pointed on
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behalf of the applicant that, out of these four
cases, now mentioned, one case, i.e. MACP No.
385/2002, was in fact, bearing old case No.
392/2002 and MACP No.369/2002 was also already
covered under the FIR. It is to be noted from the
further contents of the present FIR that it is
accepted by the informant that the said number was
already covered in the first FIR. But, as regards
the contents of the FIR are concerned, it is stated
that those contents are not as per the documents
those have been collected. In other words informant
has tried to say that there new information about
said matter. In the original FIR, in respect of the
incident it was stated that one unknown tempo,
whose registration number is not known, was
involved in the accident. But, the copy of the
FIR, which was filed with the claim petition,
showed registration number of the said tempo. Even
if for the sake of arguments it is accepted that
MACP No.369/2002 and MACP No.385/2002 (old
No.392/2002) were already covered in the first FIR;
yet as regards MACP No.335/2002 and 434/2002, there
is admittedly no mention in the first FIR. Now,
the applicant says that she never appeared in MACP
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No.335/2002. It is for her to prove the same and
since the investigation is still pending in respect
of it, the Investigating Officer would thoroughly
consider the same. Therefore, we cannot jump to
the conclusion here that the second FIR was
absolutely not maintainable.
17. It also appears from the copy of the
order filed by the present applicant that after the
second FIR was lodged, accused No.1 - NC Khicchi
was arrested and he has been released on bail by
the learned Additional Chief Judicial Magistrate,
Kopargaon on 30.11.2020. At that time, the same
Judge has not given a detailed order, as he has
given when the present applicant had filed the bail
application. By a detailed order thereafter he has
rejected the bail application filed by the present
applicant. He has not considered the ground of
parity in detail. However, it has been mentioned
in Para Nos.10 to 12 of the order that role of
accused Nos.1 and 2 are not identical. It has been
also observed that forgery is alleged to have been
committed by accused No.1 and accused No.2 has used
those forged documents as genuine though she had
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knowledge about the forgery thereof and, therefore,
the role of the present applicant is on higher
pedestal. What has not been considered by the
learned Magistrate, it appears, is common intention
to forge the documents; use them as genuine for the
purpose of cheating. Unless one would not have
prepared it, another would not have used it.
Therefore, it cannot be said that role of one
accused was more than another. Taking into
consideration the allegations, both the accused had
knowledge and they did acts with that knowledge,
appears to be the case of the prosecution and in
fact, it would be proved by the prosecution.
Furthermore, it can also be proved by the present
applicant that she had no knowledge as to how the
forgery has been committed by accused No.1. But
then she intended to say in her notice that when
accused No.1 used to bring the clients for her
including the documents, she had no knowledge about
the contents of those documents. Therefore, it was
premature on the part of the learned Trial Judge to
observe that the ground of parity is not available
to present applicant. Now, only the fact is
required to be considered that accused No.1 has
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been released on bail. The person who prepared the
false and fabricated documents has been released on
bail; then the person who used those documents
would definitely have the ground of parity in his/
her favour.
18. Present applicant was released on bail
after her arrest when the first FIR was filed.
Perusal of the order passed by the learned JMFC,
Court No.2, Kopargaon on 19.7.2004 would show that
the applicant was released on bail in ordinary
course. The RCC No. 516/2005 is still pending and
the learned APP has not pointed out that the
applicant had ever breached the terms of the bail.
19. Now, as regards the observations by the
Division Bench of this Court in PIL on 1.12.2020
are concerned, it appears that the learned APP was
given such instructions; yet when the FIR was
lodged on 27.11.2020, then how the Investigating
Officer had come to the conclusion about the
applicant being absconding is a mystery. Merely
because after 27.11.2020, if he would have gone to
her house and she was not found there, it cannot be
said that she was absconding within a period of
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three days. Prosecution has not come with a case
that the applicant has not attended the Court in
RCC No. 516/ 2005 on the fixed dates and therefore,
non-bailable warrants have been issued against her.
Those statements before the Division Bench of this
Court are not hurdle for applicant in this
application.
20. The third ground that has been raised is
medical ground. There are documents produced on
record showing that present applicant, who is aged
now 62 years, due to degeneration is suffering from
knee-joint problem. The certificate dated
6.12.2020 issued by Pandit Accident Care and Unique
hospital, Ahmednagar would show that she has been
advised knee replacement operation. Surprising to
note that within two days, i.e. on 8.12.2020, she
has been arrested. It cannot be the co-incidence
that she obtained the certificate on 6.12.2020 and
she came to be arrested on 8.12.2020. Further, the
medical record produced by her also shows that she
is suffering from the said ailment since 10.5.2018.
The status report of her health was also called
from the Superintendent of Prison. The Medical
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Superintendent has given the report to
Superintendent of Prison, wherein it is stated that
she had a mild knee joint swelling and she has
difficulty in standing up from sitting position.
It is further stated that she has been advised to
have low salt and less oily food and she has been
asked to continue wearing knee-caps. Further
management and treatment has been suggested with
advice of orthopedic surgeon.
21. Therefore, taking into consideration the
said development as also for the reasons enumerated
above, when substantial part of the investigation
is already over and now the investigation is in
respect of only two matters and depends on the
documents, those which have been already seized or
within reach of the police authorities, the further
physical custody of the applicant is not required
and she deserves to be released on bail. Hence,
following order, -
ORDER
i. The Bail Application stands allowed;
ii. The applicant, who has been ::: Uploaded on - 30/01/2021 ::: Downloaded on - 09/02/2021 08:17:46 ::: (20) BA No.1537/2020 arrested in connection with CR No.827/2020, registered with Kopargaon Police Station, Kopargaon, District Ahmednagar, for the offences punishable under Sections 420, 466, 468, 471 read with 34 of IPC, she be released on PR of Rs.50,000/- (Rupees Fifty Thousand ) with two solvent sureties of Rs.25,000/- each.
iii. The applicant shall attend the concerned police station on every Sunday between 10.00 AM to 2.00 PM and co- operate with the investigation.
iv. The applicant shall not tamper with the prosecution evidence nor shall indulge in any criminal activity.
v. The applicant shall comply with the requirements contained in paras 12(1) to (6) of Chapter-I of Criminal Manual, which ever are applicable.
vi. Bail before the Trial Court.
(SMT. VIBHA KANKANWADI) JUDGE BDV ::: Uploaded on - 30/01/2021 ::: Downloaded on - 09/02/2021 08:17:46 :::