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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: ANAND CHINTAMAN DIGHE

DATE OF JUDGMENT02/05/1991

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) AHMADI, A.M. (J)

CITATION:  1990 AIR  625            1990 SCR  (1)  73  1990 SCC  (1) 397        JT 1990 (1)    28  1990 SCALE  (1)25

ACT:     The terrorists  and Disruptive  Activities  (Prevention) Act, 1987: Sections 3 and 4-Bail-Grant of-By the  Designated Court-Validity of-Appreciation of evidence collected at  the investigating stage, fore-closing the trial-Whether proper.

HEADNOTE: The respondent was arrested by the police in connection with the  murder of a Corporator, under Sections 147,  148,  149, 302 read with 120-B of the Indian Penal Code and Sections  3 and   4   of  the  Terrorist   and   Disruptive   Activities (Prevention)  Act, 1987.  The prosecution alleged  that  the respondent  conspired  and hatched the plot  to  murder  the deceased.   This  was  based on  the  respondent’s  repeated statement  to  the Press, which were also published  in  the local  newspaper/magazine  and interview  given  to  another paper, dubbing those party Corporators who had voted against the  respondent’s  party candidates for the offices  of  the Mayor and Deputy Mayor of the local civil body, resulting in their defeat as traitors and threatening them with death.      The Designated Court, released the respondent on  bail, but   this  Court  cancelled  the  bail.   Thereafter,   the respondent  moved  another application for bail  before  the Designated  Court, which granted bail on the view that  from the  newspaper reports it could not be assumed  or  inferred that  the  respondent  was in any  manner  involved  in  the conspiracy,  that there was no justification to  record  the First  Information Report, that the statements of  witnesses recorded  by the investigating officer, could not be  relied upon.      Allowing the appeal preferred by the State, this Court      HELD:  1.1 The police investigation prima  facie  shows that  mafia-type terror and fear psychosis was created which led to the cold-blooded murder of the deceased.  The  Judge, Designated   Court  acted  illegally  in  appreciating   the statements  of  witnesses  and  material  collected  by  the investigating officer at the investigation stage.  He should have dealt with the same in accordance with law. [623F]      1.2   The  Judge  virtually  pre-empted  the  trial  by delivering  the judgment on the culpability  of  respondent. The Judge grossly erred in

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                                                      620 fore-closing the trial by pre-judging the evidence which was yet to come on record.  No doubt, while cancelling the  bail order, this Court observed that the cancellation of bail was without  pre-judice to the rights of the respondent to  move the  Designated-Court for bail at any subsequent stage,  but that  was  only in the event of any further  evidence  being recorded  by  the  court or any fresh  material  being  made available  during  the investigation or  before  the  court. This  Court  also  directed that it was  necessary  for  the Designated-Court also directed that it was necessary for the Designated-Court  to consider further material collected  by the   investigating  agency,  by  recording  statements   of witnesses.  The Designated-Court did not record any evidence and there was no fresh material available before the  Court. The  Judge, Designated-Court, by putting his own gloss  over the same material has again granted bail to the  respondent. The  manner  in which the Judge has dealt  with  the  matter cannot be appreciated.[623D-E]      1.3  The bail granted to the respondent is  accordingly cancelled. [623G]

JUDGMENT:      CRIMINAL APPELLATE JURIDICTION: Criminal Appeal No. 336 of 1991.      From  the  Judgment  and Order dated  8.2.1990  of  the Designated  Court,  Pune in Crl. Misc. Application  No.5  of 1990.      V.V.   Vage,  V.N.  Patil  and  A.S.  Bhasme  for   the Appellant.      R.K. Jain, P.M. Hedge, Satish Samant and Kailash Vasdev for the Respondent.      The Judgement of the Court was delivered by      KULDIPSINGH,J.  Special Leave granted      Sridhar Khopkar a Shiv Sena Corporator in the Municipal Corporation Thane was murdered on April 21, 1989.  The First Information Report was lodged at Waghle Police Station Thane on  the  same date.  Anand Chintaman Dighe,  the  respondent before us, was arrested by the police in connection with the said case on charges under sections 147, 148, 149, 302  read with 120-B of the Indian Penal Code and Sections 3 and 4  of the  Terrorist and Disruptive Activities  (Prevention)  Act, 1987.  The allegations against Dighe are that  he  conspired and hatched the plot to murder Sridhar Khopkar.      The prosecution case is that election to the office  of Mayor  and  Deputy Mayor, Municipal Corporation  Thane,  was held  on  March 20, 1989.  The Sena party, majority  in  the Corporation, was expecting                                                        621      to win the election.  The party was, however, defeated. The  defeat was imputed to the cross-voting on the  part  of one or two members of the Shiv Sena.  The said cross  voting had  angered the Shiv Sena leaders.  The  cross-voters  were dubbed  as  traitors.  It is alleged that Dighe  had  issued repeated  statements to the press saying that the  traitors’ life  would  be made difficult and probably  they  would  be killed.   These statements were published in  Marathi  Daily "Navakal" dated march 22, 1989 and were repeated in a weekly magazine  "Lokprabha"  on  April  9,  1989.   Again  in   an interview  to  Daily "Urdu Times" dated April 16,  1989  the respondent Dighe had asserted that he knew the names of  the traitors  but  could  not disclose the same.   He  had  also asserted  in  the  said statement  that  the  punishment  of

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traitors  was  death and it would be difficult for  them  to servive.      The learned Judge, Designated court, Pune, by his order date  April 18, 1989 released Dighe on bail.  This Court  by an order dated January 16, 1990 cancelled the bail with  the following observations:           "In  the present case the learned  Judge  observed          that  it is a case of respectable person of  a  big          political  organisation,  his  freedom   cannot  be          curtailed  if he is entitled to bail.  His  liberty          cannot    be  curbed  if  enlarged  on  bail   and,          therefore, no kind of  condition is required to  be          imposed.   The  Court also observed  that  being  a          leader of the big political organisation one cannot          expect that the respondent will commit any  offence          if enlarged on bail and he cannot be called to be a          criminal.   The learned Judge was obsessed  by  the          fact  that  the respondent was  associated  with  a          political party and was oblivious of the nature  of          the  allegations made against him and the  relevant          materials  indicating that the respondent had  been          making utterances incting violence.  The respondent          gave  repeated statements to the Press saying  that          the  traitors’  life  will be  made  difficult  and          probably  they will be killed.  This was  published          in   Maarathi  Daily  ’Navakal’  on  22.3.89.    He          repeated   his  threat  and  this  appeared  in  an          interview  given  to  the reporter  of  the  Weekly          Magazine ’Lokprabha’ in its issue of 9.4.1989.   In          an  interview in daily ’Urdu Times’  dated16.4.1989          the  respondent asserted that he knew the names  of          the  traitors but could not disclose the same.   He          also  asserted that the punishment for traitors  is          death  and they would be killed and  this  decision          has not been taken by him-                                                      622                In  the backdrop of such assertions,  it  was          necessary  for  the Court to consider  the  further          materials collected by the investigating agency  by          recording statements of witnesses.  The court below          misdirected  itself in refusing to look  into  such          statements  and  concluding that it is a  case  for          granting bail taking into account only the position          held  by  the respondent in the party.   The  court          clearly  erred in disposing of the application  for          bail."      Thereafter   Dighe  moved an  application  before   the Designated  Court on January 23, 1990 for grant of  time  to surrender.  Dighe surrendered on February 5, 1990 and on the same  day he moved an application for bail before  the  said Court.   The application was heard on February 8,  1990  and the  orders  were pronounced on February 9,  1990  releasing Dighe  on  bail.   It  is the  said  order  which  has  been challenged before us in the appeal.      The  learned  Judge,  Designated-Court  after   lengthy discussion  came to the conclusion that from  the  newspaper reports  it could not be assumed or inferred that Dighe  was in any manner involved in the conspiracy.  The learned Judge observed as under:           "By  such  statement to the press,  it  cannot  be          assumed, or no inference can be drawn as such  that          Shri  Anand Dighe was the person who was trying  to          kill the traitor."           "Mere  statement  does  not  amount  to  any  kind          of conspiracy.  So, this cannot be the evidence  of

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        their agreement or meeting two minds to commit  any          kind of offence."           "I  cannot  take  these  newspaper  cutting   into          consideration.      The   learned   Judge  further  discussed   the   First information  Report and came to the findings that there  was no  justification to record the same.  The  observations  of the learnd Judge are as under:           "The only thing that had happened on that day, was          the murder of Shri Shridhar Khopkar.  He could very          well  register the offence that such a  murder  had          taken  place.   He could not register  the  offence          under   Section  3  and  4  of  the  Terroist   and          Disruptive (Prevention) Act, 1987-                                                        623          because  he  was  not possessed  of  any  kind  of          substantial material to register this offence. So,          in  short,  this  F.I.R.  is  of  no  use  to  the          prosecution, at least for the purpose this  offence          under Section 3 and 4 of the Act, ibid."      The  learned Judge further discussed the statements  of witnesses recorded by the investigating officer.  The  Judge scrutinized  the  statements of Arun  Jagtap,  Smt.  Sangita Khopkar   and  Miss  Sujata  Khopkar  and   treating   those statements  to  be evidence before the Court,  came  to  the conclusion  that  the statements could not be  relied  upon. The   learned  Judge  virtually  pre-empted  the  trial   by delivering  the  judgment on the culpability  of  respondent Dighe.   We are of the view that the Learned  Judge  grossly erred in fore-closing the trial by pre-judging the  evidence which was yet to come on record.      It  is  no doubt correct that this court in  its  order dated  January  16, 1990 observed that the  cancellation  of bail  was without prejudice to the rights of Dighe  to  move the  Designate-Court for bail at any subsequent  stage,  but that  was  only n the event of any  further  evidence  being recorded  by  the  Court or any fresh  material  being  made available  during  the investigation or  before  the  court. This  Court  also  directed that it was  necessary  for  the Designated-Court  to consider further material collected  by the   investigating  agency,  by  recording  statements   of witnesses.  The Designated-Court did not record any evidence and there was no fresh material available before the  Court. The  learned Judge Designated-Court by putting his own gloss over  the  same  material  has again  granted  bail  to  the respondent.   We do not appreciate the manner in  which  the learned  Judge  has  dealt  with  the  matter.   The  police investigation  prima facie shows that mafia-type terror  and fear  psychosis  was created which led to  the  cold-blooded murder  of  Shridhar  Khopkar.   The  learned  Judge   acted illegally  in appreciating the statements of  witnesses  and material  collected  by  the investigating  officer  at  the investigation stage.  He should have permitted the  evidence to  be  recorded  and  thereafter dealt  with  the  same  in accordance with law.      We, therefore, allow the appeal, set aside the order of the  Designated-Court and cancel the bail granted to  Dighe. He  is directed to surrender himself to custody  immediately. In case he does not so surrender within ten days from today, the  Designated-court shall issue non-bailable  warrant  for his apprehension. N.P.V.                                       Appeal allowed.                                                   624

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