Bombay High Court Protects Sameer Wankhede From Arrest In Liquor Lisence Case Till February 28

The Bombay High Court protected former NCB officer Sameer Wankhede from arrest till February 28 in the liquor licence case registered against him after the latter agreed to appear before the Thane police and co-operate with investigators.

A bench of Justices SS Shinde and NR Borkar granted the limited protection after the state refused to make a statement to not arrest Wankhede when he appears before the police in pursuance to a notice issued under section 41A of the CrPC.

"Without entering into the merits of petition, the respondent no. 1 (Thane Police) after appearance of petitioner no. 1(Sameer Wankhede) can proceed under 41A (1) and 41A(2) of the CrPC but shall not invoke 41A(3) and 41A(4) of the CrPC," the Court ordered.

A notice under section 41A of the CrPC is sent to a party for for appearance before the police. While the first two sub-sections deal with appearance, sub sections 3 and 4 deal with the police's power to arrest after appearance and for non-appearance.

The court was hearing Wankhede's petition to quash the FIR against him and for protection from arrest till then. Wankhede contended that the FIR filed 25 years after the alleged offence is a result of malicious prosecution. Moreover, he contends that as a minor he had signed papers given by his mother.

The Kopri police in Thane booked Wankhede under Sections 181(false statement to public servant), 188, 420, 465 (forgery), 468 (forgery for purpose of cheating), 471 of the IPC after the Thane collector permanently cancelled the liquor licence for his Sadguru Hotel in Vashi. The police alleged that Wankhede falsified his age to obtain a liquor licence despite being a minor.

Senior Advocate Aabad Ponda for Wankhede submitted that admittedly he was a minor at the time of the alleged offence, which is between January to August, 1997. Moreover, the maximum punishment prescribed was up to seven years.

"It is my submission that there can't be an FIR in this case," he said citing provisions of the Juvenile Justice Act.

Advocate Niranjan Mundargi along with Advocate Faiz Merchant told the court that Wankhede, an officer was before the court because he had taken action against someone close to a Cabinet Minister.

Chief Public Prosecutor Aruna Pai for the State initially refused to make a statement undertaking not to arrest Wankhede till the next date of hearing. She said that Wankhede was issued a notice under section 41a of the CrPC to appear for investigation tomorrow. Therefore, there is no need for such a statement.

However, the bench was unhappy. "What is this not here nor there? Why are you not making a statement?" Justice Borkar asked to which Pai said she did not have instructions to make a statement.

"If for a 20-year-old offence they don't know what they are going to do, then I seek your protection sir," Ponda submitted.

The court then asked Pai to make a statement after seeking instructions. "There are so many convicts languishing in jail. We are unable to hear them... There is no urgency also in this matter," Justice Shinde said.

In the second session Pai refused to make a statement that no coercive action would be taken against Wankhede till the next date of hearing.

She cited section 41A of the CrPC to state that such a notice was issued when arrest of the person is not required. However, the police should be permitted to proceed against the officer as per law.

After this the court granted the limited protection.

In the quashing petition filed through Advocate Merchant, Wankhede states that he was 17 at the time of the alleged offence by his mother. Wankhede's mother passed away in 2015.

"The Petitioner most vehemently submits that, admittedly, as per the contents of the FIR, the accused was 17 years of age when the alleged crime had taken place vide the mother of the Petitioner. That, by virtue of the Petitioner being merely 17 years of age, he was not a major during the commission of the alleged crime. That, the law of the land does not acknowledge that a minor had the capacity in order to orchestrate the entire crime at hand. In fact, the Petitioner was merely in college when the alleged offence is said to have taken place. That, the Petitioner was merely signing documents where he was asked by his mother to sign."

Now invoking the Juvenile Justice Act, Wankhede states that an offence, if any, should be heard by the Juvenile Justice Board.

"The Petitioner at the time of offense, if any, was 17 years old which is an admitted fact and as per the provisions of the Juvenile Justice Act, 2000, he has to be tried by the Juvenile Justice Board as per section 9 of the act. It is further submitted that as per section 2(k) of the said act the Petitioner was a Juvenile at the commission of the offense as per the documents and had not completed the age of 18 years and hence the Petitioner cannot be tried."