RISK: High-rise buildings are forbidden in the Funnel Zone of airport area as there could be damage during landing and takeoff. The Navy has barred the building of high-rise buildings in the approach and take-off area of the Goa airport.
EXCERPTS FROM JUSTICE NUTAN’S VERDICT
Even being the brother of Minister for Power Mauvin Godinho in the BJP government did not secure Wilson Godinho anticipatory bail on the charge of suicide against the ex- Merces Sarpanch Prakash Naik at his residence. It is suspected that there was a property dispute between them. A WhatsApp message which was in circulation has played a major role. Mauvin Godinho is in further trouble as the Centre has upheld that high-rise buildings cannot be built in the approach road to the airport. Mauvin is agitated as the buildings have been promoted by a close associate of his. There are another seven buildings in the flight path which the Navy has sought demolition before the High Court. It is alleged that Mauvin had got the PDA to supersede the Airport Authority guidelines on construction in the “funnel zone”……
The applicant seeks his release on bail in anticipation of arrest by invoking the jurisdiction of this Court under Section 438 CrPC,1973. Heard Shri Nitin Sardessai, learned Senior Counsel with Ms. Gautami Kamat, learned Advocate for the applicant, who submitted at the outset that the custodial interrogation of the applicant was not required in an offence under Section 306 IPC.
It was his contention looking to the scene of Crime that it was a case of murder and not suicide. He referred to the complaint of the sister of the deceased dated 18/01/2020 and adverted to the WhatsApp message to submit that it could not have been typed by the deceased within a minute and which he proceeded to demonstrate in Court. It was also his contention that the WhatsApp message purportedly from the deceased relating to his suicide did not co-relate with the WhatsApp chat which the deceased had with his friend which showed minimal grammatical errors unlike those in the WhatsApp message. It was his contention that it was for the Investigating Agency to find out whether the note was planted and whether it was a case of murder or suicide.
He further submitted that the transaction of the applicant qua the property at Merces had to be investigated. It was not a case that the applicant was not apprehended being the brother of a local Minister. The investigating agency was carrying out the investigation and only if there was necessity the applicant would be placed under arrest. He placed reliance in P. Chidambaram v/s. Directorate of Enforcement [(2019) 9 SCC 24].
Shri S.G. Desai, learned Senior Advocate on behalf of the Intervenor who had been permitted to intervene in the proceedings and assist the Prosecution had filed his written synopsis in which he gave a background of the sale transaction relating to the property in question and how the applicant came in contact with the deceased in connection with the said property.
The deceased had agreed to provide access through the said property and through the open space provided the applicant spent money to develop the open space by constructing a regular chapel at the place of the existing cross and by developing the open space into a playground and garden etc. And enclosing it with the compound wall to separate from the rest of the property.
The applicant had advanced
35lakhs or more to the deceased in the interest of his proposal while simultaneously applying for the permission of the local Panchayat for the construction of a compound wall in the said property which did not belong to him so as to be able to secure access to the property purchased by him. The applicant extended lacks of rupees to the deceased towards the construction of the compound wall, the cross and the park in the amount of 35lakhs or more and which compound wall was substantially complete in the open space leaving out space for the road or access to be allotted to the applicant.
The accusations against the applicant has been made on a sound footing and not with an object of injuring or humiliating him since the accusations against the applicant have come from dying declaration having evidentiary value. The grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the applicant and collecting useful information apart from the material concealed by him. In the event, the applicant was secured with such an order, it would definitely hamper investigation. Anticipatory bail should not be granted to the applicant as custodial interrogation for eliciting more information was necessary. Custodial interrogation was qualitatively more elicitation oriented than questioning a suspect who is well ensconded with a favourable order of anticipatory bail by relying in State Rep. by The C.B.I. V/s. Anil Sharma [(1997)7 SCC 187]. The gravity of the offence and a need for custodial interrogation are two important factors for deciding the application. The lopsided investigation being carried out is evident from the fact that the co-accused Tahir is yet to be arrested or summoned for investigation by the Police. This establishes that the Police are acting hand in gloves with the applicant and are controlled by the applicant and his brother who is the present Panchayat Minister.
“112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as
to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused’s likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
Having considered the various judgments relied upon on behalf of the applicant and the Intervenor and coming to the facts of the case, the genesis of the offence is the WhatsApp message purportedly circulated at the instance of the deceased himself indicating his intention to commit suicide being under tremendous pressure and harassment at the instance of the applicant and Tahir over money transactions and involving property deals. Although it has been the case of the applicant that he had furnished some documents to the prosecution, the approach of the investigating Agency is quite laidback to say the least and who have rested easy on the premise that documents have been furnished by the applicant and also given the details of his call records. The manner in which the investigation had progressed thus far even on an examination of the case diary leaves much to be desired and does not show a conscious effort on the part of the investigating Agency to unearth the Crime and to examine the role played by the applicant in the suicide of the deceased.
The offence by itself is serious and the seriousness required to investigate such an offence has unfortunately not been exhibited by the Investigating Agency obviously for the reasons of the applicant being the brother of the local Minister and it appears from the manner of the investigation conducted thus far as borne out from the case diary that there is no seriousness to actually investigate the role of the applicant in the Crime.
The applicant admittedly had dealings with the deceased relating to the property at Merces and there were money transactions between them. Besides, the applicant wanted to have an access to his property purchased with the intervention of the deceased which was not possible in view of the objections raised on behalf of the villagers of Merces and the work of construction undertaken therein was stalled in that regard. It appears from the records that the deceased was under tremendous pressure and threats regarding the money transactions between the applicant and the deceased himself and therefore it cannot be heard on behalf of the applicant that he had reported at the Police Station soon after the circulation of the WhatsApp message and had showed his bonafide. Rather the manner in which the Police allowed him to go at the inception itself on the specious premise that no FIR was registered against him itself speaks volumes about the clout wielded by the applicant being the brother of the local Minister over the Investigating Agency.
The Police can be better equipped to unearth the Crime and investigate the role played by the applicant therein which can be achieved only by his custodial interrogation and not when the applicant seeks to get himself ensconced with the protective wall of the anticipatory bail order in his favour. As clearly held in Anil Sharma (supra), by the Hon’ble Apex Court that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 of the Code and that effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and other materials which would have been concealed, the custodial interrogation of the applicant is the need of the hour. Success in such interrogation would elude if the suspected person is well protected and insulated by a pre arrest bail order during the time he is interrogated and which would tend to reduce it to a more ritual.
reputation at stake
The other point canvassed on behalf of the applicant that he is a family man or that his reputation is at stake cannot be juxtapositioned with the need for his custodial interrogation when it is the duty of the State to examine the case in all its details and unearth the Crime which is possible only by the custodial interrogation of the applicant. The applicant if he is a law abiding citizen should not dither or elude the course of interrogation to clear his name and there is no such thing that his name is likely to be tarnished only because his custodial interrogation is the need of the hour. Having examined the case in all its perspective and feeling it necessary that it is only when the applicant is in custody that the Investigating Agency would be better equipped to unearth the Crime, the application for a pre-arrest bail cannot be entertained under any circumstances.
In the result, therefore, i do not find any merit in the application which is hereby dismissed.
—NUTAN D. SARDESSAI,