1. I have heard Mr. A.P Mundargi for the applicant and Mr. I.S Thakur learned APP for the State. I have also perused the order dt. 8-12-1995 passed by the Additional Sessions Judge, Greater Bombay refusing anticipatory bail to the applicant.
2. This is an application for anticipatory bail in a case under sections 4 and 5 of the Prevention of Gambling Act, and section 25 of the Indian Telegraphs Act. The facts in brief giving rise to this application are as under:—
On 5-12-1995, at about 11.45 p.m an intimation was received by the Kalachowky police station that matka gambling is in operation at the house of one Sundergi Gangar. Immediately, on receipt of the information, a raid was conducted by the Dy. Commissioner of Police, Zone-III, in the residential premises of Sundergi Gangar. In the raid, the following things were recovered:—
1) Five junction boxes with hunting lines (I am informed that hunting lines means parallel telephone exchange);
2) Five telephone instruments;
3) Papers indicating prevalence of matka gambling;
4) Three tape recorders;
5) Calculators; and
6) Cash to the tune of Rs. 52,610/-.
3. It is alleged by the prosecution that on interrogation of Sundarji Gangar, it was learnt that the applicant is the king pin and the pivot around which the business of matka gambling revolves. The interrogation of Sundarji Gangar also revealed that he was only an agent and like him there were a large number of other agents who were working for the applicant.
4. It appears that on the information received from Sundarji Gangar the premises of one Suresh Bhagat situated in Worli were also raided. At that place 39 running telephone instruments along with some other material were found. It is further alleged that Suresh Bhagat made a statement to the police to the effect that the petitioner was the main man involved in Matka gambling and he and a number of others like him were only his agents.
5. The applicant apprehending his arrest in the instant case has consequently moved this application for anticipatory bail.
6. The contention of the prosecution is that the custodial interrogation of the applicant would be necessary to find out whether there is any conspiracy between him and the telephone department and also to trace out the ramifications and the extent of matka business. According to the prosecution the applicant is a ‘Matka King’ and controls the business of matka gambling not only in the State of Maharashtra but also in other parts of the country.
7. Mr. Mundargi, learned counsel for the applicant, vehemently urged that an application for anticipatory bail is only maintainable in respect of a non-bailable offence and inasmuch as the offences under sections 4 and 5 of the Prevention of Gambling Act are bailable; the sole question with which the Court is concerned is as to what is the material warranting the custodial interrogation of the applicant under section 25 of the Indian Telegraphs Act. He also placed before me the decision of the Apex Court reported in (1980) 2 SCC 565 : AIR 1980 SC 1632, Gurbaksh Singh v. State of Punjab. On the basis of the aforesaid decision he urged that the contingency that the investigating agency was likely to come across incriminating material during the course of investigation would not be a cogent ground for refusing the grant of anticipatory bail.
8. Mr. I.S Thakur, learned APP for the State, apart from urging that the custodial interrogation of the applicant was required in order to find out as to whether there is a conspiracy between the applicant and the telephone department and the ramifications and extent of the business of Matka gambling and the depth of applicant's involvement in it, it would be expedient not to grant anticipatory bail to the applicant in view of the fact that he was detained under the Maintenance of Internal Security Act and three cases (including the present one) are pending against him.
9. I have given my anxious consideration to the submissions canvassed by both the sides. A perusal of the judgment of the Apex Court reported in (1980) 2 SCC 565 : AIR 1980 SC 1632 (supra) shows that in the aforesaid judgment the provisions of section 438, Criminal Procedure Code, 1973, were considered by the Apex Court. That section reads as follows:
“438. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions or such directions in the light of the facts of the particular case, as it may think fit, including:—
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the persons shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).”
10. In order to examine the question whether the aforesaid decision would have a blanket bearing to the facts of the present case as urged by Mr. Mundargi, it would also be necessary to peruse the provisions as contained in section 438, Criminal Procedure Code in relation to the State of Maharashtra. Vide maharashtra act no. 24 of 1993 it is provided that in place of section 438 of the Code of Criminal Procedure, 1973 the following section shall be substituted. The relevant portion reads thus:
“438. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors:—
(i) the nature and gravity or seriousness of the accusation as apprehended by the applicant;
(ii) the antecedents of the applicant including the fact as to whether he has on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;
(iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and
(iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forthwith or issue an interim order for the grant of anticipatory bail…..”
11. A perusal of section 438, Criminal Procedure Code, 1973 and the provisions of section 438, Criminal Procedure Code as applicable in the State of Maharashtra would show that in the matter of granting anticipatory bail under the latter certain considerations like—
(i) the nature and gravity or seriousness of the accusation as apprehended by the applicant; and
(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;
have to be taken into consideration by the Court. The aforesaid two considerations are not provided in section 438, Criminal Procedure Code, 1973 which came up for consideration before the Apex Court in the case reported in (1980) 2 SCC 565 : AIR 1980 SC 1632 (supra). Therefore, it would be legitimate to hold that the aforesaid decision would not have a blanket bearing in the present case which has to be decided in the light of the provisions contained in section 438, Criminal Procedure Code as applicable to the State of Maharashtra.
12. If the yardstick contained in section 438, Criminal Procedure Code as applicable to the State of Maharashtra, is taken into consideration then obviously the prima facie grave and serious nature of the accusation against the applicant and the fact that he was detained under the Maintenance of Internal Security Act would have a material bearing. In (1980) 2 SCC 565 : AIR 1980 SC 1632 the provisions contained in section 438, Criminal Procedure Code of 1973 were considered by the Apex Court. In that provision unlike the provision of section 438, Criminal Procedure Code applicable to the State of Maharashtra it has not been mentioned that the relevant factors which the court would take into consideration in deciding whether the anticipatory bail should be granted or not would include the two mentioned at (i) and (ii) in the preceding paragraph.
13. Considering the gravity and seriousness of the accusation against the applicant, and the antecedents of the applicant, who as mentioned above was also detained under the Maintenance of Internal Security Act, I do not find that this is a fit case to admit the applicant to anticipatory bail and consequently this application is rejected.
14. Mr. Mundargi at this stage urges that the question whether the decision of the Apex Court reported in (1980) 2 SCC 565 : AIR 1980 SC 1632 (supra) in which the provisions of section 438. Criminal Procedure Code of 1973 have been considered by the Apex Court is applicable to this case or not is a substantial question of law and consequently, leave to appeal to the Supreme Court be granted. In view of the specific provisions contained in section 438, Criminal Procedure Code applicable to the State of Maharashtra, I do not find any merit in his contention and consequently, refuse the leave prayed for. Mr. Mundargi also prayed that as the applicant intended approaching the Apex Court, I should stay the operation of my order. I do not find any merit in this prayer also and reject the same.
15. It is clarified that whatever observations have been made in this order are confined to the present application and shall not influence the Court when a regular bail application either under section 437, Criminal Procedure Code or under section 439, Criminal Procedure Code comes up before it.
16. Certified copy of the order shall be issued to the counsel for the applicant by tomorrow, on payment of necessary charges, if possible.
Application rejected.