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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: RAMESH TAURANI

DATE OF JUDGMENT:       26/11/1997

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                THE 26TH DAY OF NOVEMBER, 1997 Present:               Hon’ble Mr. Justice M.K. Mukherjee               Hon’ble Mr. Justice K.T. Thomas D.M. Nargolkar, Adv. for the appellant A.S. Bhasme, Adv. for the Respondents                          O R D E R      The following under of the Court was delivered:      Leave  granted.  Heard  the  learned  counsel  for  the parties.      On August  12, 1997  at or  about  10.15  A.M.  Gulshan Kumar, a  well-known film producer of Mumbai and Chairman of a company  dealing in  cassettes, was fatally shot at in the heart of  the city. over his death a case was registered and in connection  therewith the respondent, who also carries on a large scale business in cassettes, was arrested on October 4, 1997  on the  allegation that  he  was  a  party  to  the criminal conspiracy  that was  hatched up  to  kill  Gulshan Kumar through  contract killers.  On his production before a Magistrate, the  respondent was  initially remanded  to  the police  custody  for  a  fortnight  and  thereafter  to  the judicial custody.  His prayer  for ball  was rejected by the Magistrate and  aggrieved there before moved the High Court. By its  order dated  October 4,  1997 the High Court granted him bail  on condition that he shall not leave the limits of the State  of Maharashtra  without informing  the police and without giving  the entire itinerary of the programme of his visit. Assailing  the above  order, the State of Maharashtra has filed  this appeal  for cancellation of the bail granted to the respondent.      Normally, this  Court does  not interfere  with  orders granting bail  but considering the nature and gravity of the offence alleged  against the  respondent and  the  materials collected against  him during  investigation, we  are of the opinion that  this is a fit case where the order of the High Court has  got to  be set  aside to  prevent mis-carriage of justice.      It appears  from the  impugned order  that in  granting bail to the respondent the High Court was much influenced by the fact that in the remand applications that were presented

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by the  investigating agency  in respect  of accused persons who had  been earlier arrested connection with the case, the name of  the respondent  was nowhere disclosed as a party to the conspiracy.  Remand applications  are to be filed by the Investigating Agency  to satisfy  the Court  that there  are justifiable grounds  to detain  an accused already arrested, in police  or judicial  custody. By  such  applications  the Investigating Agency  is required  to bring to the notice of the Court  the materials collect against an arrested accused to persuade  the Court  to remand  him to  custody  for  the purpose of  further investigation. To put it negatively, the Investigating Agency  is  not  required  to  state  in  such application the  materials,  if  any,  collected  against  a person who  is yet  to be  arrested. Such  being the limited purpose of  a remand  application the  non-disclosure of the name of  the  respondent  as  a  conspirator  (who  was  not arrested till  then) in  the remand  applications of  others arrested could  not -  and ought  not to  - have been made a ground by  the High  Court for  disbelieving the prosecution case qua  the respondent  and for that matter, granting ball to him.      The other  ground that  was canvassed by the High Court was that  the only evidence collected against the respondent was that  he handed  over an  amount of  Rs.25 lacs  to  the contract  killers     (who   according  to  the  prosecution committed the  murder of Gulshan Kumar). Apart from the fact that in  the context  of the  prosecution  case,  the  above circumstance incriminates  the respondent  in a large way we find that  t he  Investigating Agency  has  collected  other incriminating materials also against the respondent, to make out a  strong prima facie case against him. It is trite that among other  considerations which the Court has to take into account in deciding whether bail should be granted in a non- bailable offence  is the  nature and gravity of the offence. We are  therefore of  the opinion that the High Court should not have  granted bail  to the  respondent  considering  the seriousness  of   the  allegations   levelled  against  him, particularly at a stage when investigation is continuing.      We, therefore,  set  aside  the  impugned  order  dated October  23,1997   and  cancel   the  bail  granted  to  the respondent. The  respondent is  directed to surrender before the Magistrate  concerned on  or before December 3, 1997 and on  such  surrender  the  Magistrate  shall  take  him  into judicial custody.  In case  the respondent  does not  comply with the  above direction of ours, the Magistrate shall take appropriate legal  steps for  his apprehension and remand to judicial custody.      The appeal  is, thus,  allowed without prejudice to the right  of  the  respondent  to  pray  for  bail  before  the appropriate forum  and at the appropriate stage. If and when such a prayer is made, the Court concerned will Consider the same without  in any  way being inhibited by the observation of the High Court in the impugned order and of this Court in the present order.