Saloni Arora vs State Of Madhya Pradesh

This is first bail application under Section 439 of Cr.P.C filed on behalf of the applicant Saloni Arora.

The applicant is a lady, aged about 43 years and she is in jail since 04.08.2018 in connection with Crime No.519/2018 registered at Police Station- Police Thana MIG, Indore District - Indore (M.P.) for the offence punishable under Sections 201, 204, 306, 386, 387, 389, 465, 467, 468, 469, 471, 503 of IPC and Section 67 & 67-A of Information and Technology Act 2008.

The challan has been filed. However, further investigation under Section 173(8) Cr.P.C is pending consideration.

As per prosecution story, the applicant abetted the alleged act of commission of suicide by late Kalpesh Yagnik (for short, 'the deceased), a journalist in Hindi daily newspaper resulting into his homicidal death. According to the prosecution, the applicant is also a journalist and worked with the deceased in the same Hindi daily newspaper/press. Taking advantage of her status as divorcee, she developed closeness with the deceased and won his confidence. She manipulated him and tried to exploit the relationship with ulterior motive to extract money. She also recorded telephone conversation of the deceased and threatened to blackmail him and expose him in the public with the aid thereof.

In the aforesaid backdrop of the prosecution story, it is alleged that the deceased had filed a complaint to ADG, Indore on 06.07.2018 detailing the said facts with the prayer that in the event the applicant lodges the FIR against him for violating her or on any count, he may be heard before registration of the FIR and investigation.

Admittedly, till the date of occurrence of the incident on 12th July, 2018, no complaint or FIR was lodged by the applicant.

On 12th July, 2018 the deceased had fallen from the top storey of the press building resulting into his death. A marg was intimated by brother of the deceased, namely; Neeraj on 13th July, 2018. Thereafter, FIR was registered on 20th July 2018.

It is further alleged that the applicant had made WhatsApp calls & massages to the deceased on 06th July, 2018 demanding huge money by way of blackmailing and also to three more persons namely; Ravi Vijayvirgiya, Shadab & Shakti Bhatnagar. As such, there is proximity of the applicant for the alleged homicidal death of the deceased.

Thereafter, on 24th July, 2018 following items were seized:

(1) 4 pages of screen shots displaying whatsapp messages by mobile No.919769631006;

(2) Samsung mobile galaxy 8 of black colourbearingIMEI No.357851081112208/02 and 35782081112206/02 of deceased;

(3) Certificate under section 65B Cr.P.C., produced by the witness.

Thereafter the applicant was arrested from Mumbai on 04.08.2018 and produced before the Court on 05.08.2018 for police remand upto 09.08.2018. During the said period, following. items were seized:

(I) (i) & (ii) Laptop of Lenovo company and screen shots of WhatsApp messages between applicant and deceased;

(II) 4 pen drives; and

(III) Audicity Challan has been filed on 31.10.2018

Ms. Rekha Shrivastava, learned counsel for the applicant contends that applicant is innocent and she has been falsely implicated. She further submits that except seizure of laptop and mobile, etc., no other further investigation has been done. She has no criminal antecedents. She is a widow having a small child and to earn livelihood, she earlier worked in the same Hindi daily newspaper/press at Indore where she met with the deceased in the year 2007. She discontinued from the service in the year 2016 at Mumbai. She always has cordial relationship with the deceased. She never recorded the conversation with the deceased or manipulated him for the alleged extraction of money. She has no complaints against the deceased. Lastly she had talked with the deceased on 05.05.2018. Thereafter, she had not made any calls either on landline phone, mobile or WhatsApp calls etc., She has been implicated with prejudged and preconceived notion and with oblique motive in the alleged homicidal death of the deceased.

Learned counsel further submits that though the seizure memos were prepared on 24.07.2018 and 08.08.2018 but, for reasons best known to respondents uptill now report has not been submitted by the concerned FSL. She refers to the order passed by this Court on 21.02.2019, the relevant portion whereof reads as under:

"The Investigating officer Shri Tehjib Kazi is present in compliance of the Court order dated 19.2.2019.

Shri Kazi submits that link messages sent to deceased Kalpesh Yagnik were also forwarded to four persons. The voice messages have been decoded and sent for FSL report in the month of August 2017. The report is awaited. He states that since he is no more in the same Police Station and transferred to P.S.Tukoganj, Indore, therefore, he shall communicate the concern of this Court to the concerned Supdt., of Police for expeditious requisition of the report without further loss of time.

It is hereby ordered that let FSL report be placed before this Court on or before the next date of hearing.

List on 11.3.2019."

On the request of Investigating Officer- Shri Tehjib Kazi, the hearing of the case was adjourned to ensure that the FSL report, if any; of the items seized in August 2018 be made available before the next date of hearing.

Despite indulgence by this Court, the FSL report has not been produced instead, further three weeks time has been prayed for to seek the report thereof. She further submits that unreasonable prayer has been made by the prosecution only to defeat ends of justice as the applicant; a lady having a small son is subjected to incarceration without any justifiable reason. Her further incarceration shall jeopardize her life in the company of hardened criminals and pain to suffering of the small child. Moreso, there is no scope for further custodial interrogation. Under the circumstances, the applicant may be enlarged on bail on such terms and conditions, this Court deems fit and proper.

Today (on 13/03/2019), Shri Yusuf Qureshi, Superintendent of Police (East), Indore is present in person and he stated that he has joined on the post on 11.02.2019, and, therefore, he has not been associated with the investigation prior to the date of his joining on 11.02.2019.

At this stage, this Court called upon the Investigating Officer Shri Tehjib Kazi present in the Court to explain as to why the items seized on 24.07.2018, 08.08.2018 & 11.08.18 were not forwarded for the FSL for report till 12/10/2018. However, there is no explanation, muchless plausible explanation forthcoming for the same.

Shri Tilakraj, CFSL officer present before this Court submits that for the first time the seized items forwarded by the concerned police station vide letter dated 12/10/2018 were received by the FSL on 25/10/2018. Since it involves intricate procedure for decoding of the seized items and thereafter, voice verification by two different laboratories at Bhopal, therefore, it will take at least further three weeks time.

Shri R.S. Chhabra, learned Additional Public Prosecutor submits that so far only C.Ds., , Laptop and Pen drives have been seized which are under the process of examination by the FSL. The decoding and voice verification will take further three weeks. He fairly submits that except seized items, there is no other incriminating material was seized. As regards the items seized, the applicant and other witness are required to be further confronted with the same. Therefore, the applicant may not be enlarged on bail.

Shri Rohan Vyas, Advocat appearing for the objector has vehemently opposed the bail application inter alia contending that the applicant is a rank blackmailer. In the past also, she has manipulated many persons and realized huge money by arm twisting method. However, he is unable to provide any specific instance with details. Though this Court, does not blink away the feelings and emotional outburst of the objector due to homicidal death of the deceased, nevertheless, the same cannot be allowed to have march over right of the applicant to seek bail on the basis of material available on record as the bail is right and denial thereof is an exception thereto is the law holding the field.

Looking to the entirety of facts and circumstances of the case but, without commenting upon merits of rival contentions of the parties, since the applicant, a lady is in jail since 04/08/2018 and further decoding and verification of the voice messages, etc., are going to take long time as transpired during the course of hearing, the applicant having no other criminal antecedents and no further custodial interrogation of the applicant is required, in the opinion of this Court, the applicant has to be and is hereby ordered to be released on bail on the following stringent conditions:

(i) the applicant shall be released on bail upon her furnishing personal bond in the sum of Rs.5,00,000/- (Rupees five lakhs only) with one surety in the like amount to the satisfaction of the trial Court, on the condition that she shall remain present before the Court concerned during trial and also comply with the conditions enumerated under section 437(3) Cr.P.C.,

(ii) the applicant shall not leave the city of Indore till completion of the investigation pending in the context of seized articles awaiting FSL reports and also without leave of the trial Court;

(iii) the applicant shall also make herself available for interrogation by the Police Officer as and when required during investigation through notice;

(iv) applicant is also directed to mark her presence before the concerned Police Station on second and fourth Saturday of every month between 10:00 am to 12:00 noon;

(v) the applicant shall not influence the witnesses or tamper with the evidence in any manner whatsoever; and

(vi) in the event, applicant is found to have deviated or violated any of the terms and conditions of the bail, the prosecution shall be free to seek cancellation of the bail;

Certified copy as per rules.