1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3309 OF 2007 1) Pandharinath Haribhau Mohite 2) Vasant Rambhau Gharat 3) Dasharath Rama Mali 4) Ganesh Hiraji Thakur .. Applicants versus State of Maharashtra .. Respondent ... Mr.A.P. Mundargi i/b Niranjan Mundargi for the applicant. Mr.K.V. Saste APP for the State. Mr.Subhash Jha i/b Shri R.D. Suryawanshi for the original complainant. W I T H W I T H W I T H CRIMINAL APPLICATION NO. 3310 OF 2007 Satyanarayan N. Shrimali .. Applicant versus State of Maharashtra .. Respondent ... Mr.Shirish Gupte with Mukul Taly i/b M/s.S. Mohamedbhai & Co. Mr.D.P. Adsule, APP for the State. Mr.Subhash Jha with R.D. Suryawanshi for the original complainant. CORAM : D.G.KARNIK, J DATED : 15th January 2008 2 P.C.: 1. Heard learned counsel for the applicant and learned APP for the State. 2. Both these applications arise out of the same crime and hence are being decided together. 3. The applicants seek bail in connection with a crime registered against them in Santacruz police station under Crime No.MECR no.1 of 2006 for alleged offences punishable u/s.420, 465, 467, 468, 471 and 477A r/w sec.34 of the IPC. The applicant in Criminal application no.3309 of 2007 are the members of the managing committee of Narali Agripada Co-operative Housing Society Ltd. (for short ’the Society’) Applicant in criminal application 3310 is former director of Suranjan Developers Pvt. Ltd with whom the Society has entered into a development of contract. 4. The facts stated in brief are that the Society was formed in the year 1969 or thereabout with original 50 members. The society purchased a property at Khar which is the subject matter of the dispute. In the year 1977, the land in question was declared as a slum. The society proposed to develop 3 the land under the Slum Rehabilitation Scheme which was previously known as SRD scheme and is presently known as SRA scheme. On 17th March 1993, about 213 persons were admitted as members of the Society. Respondent no.2, who is the complainant, is one of the members admitted as to the membership of the society on 17th March 1993. The society entered in a contract with Ramko Builders for development of the property. Disputes arose between the society and Ramko builders and the contract was terminated by the society. Ramko Builders therefore filed a suit bearing CS No.263 of 1994 on the Original Side of this Court and the suit is still pending. In the said suit, by an order dated 24th January 1994, this court appointed a Court Commissioner to inspect the disputed site and submit a report. Accordingly, Court Commissioner has submitted his report giving the details of the several premises (tenements) in occupation of various persons. After termination of the contract with the Ramko Builders, the Society entrusted work of the development of the property to Suranjan holding Estate Developers Pvt.Ltd (for short ’the new developer"). As stated earlier, applicant in criminal application no.3310 of 2007 is a former director of the new developer. At this stage, it may also be mentioned that on 14th June 2006, a survey of the property appears to have been made by additional 4 Collector in charge of Slum Rehabilitation. Additional Collector has also noted the persons in occupation of various tenements in the property. Thus, there are two reports on record, one of the court commissioner of May 1994 and one of the Additional Collector of June 2006 regarding the persons in occupation of various tenements in the property. 5. On 20th April 2006, a complaint was filed by the complainant (respondent no.2 in these applications) alleging that the applicants had committed offences u/s.420, 467, 468, 471, 477-A r/w sec.34 of the IPC in as much as they had shown wrong persons as occupants of tenements and/or admitted bogus members to the membership in the society with a view to make allotment of the tenements in the SRA scheme to such bogus persons. The applicant alleged that several false documents were prepared by the respondents for admitting the new persons as members of the Society and/or showing as occupiers of the tenements in the property fradulently with a view to enable them to obtain the tenements in the property developed under the SRA scheme. On the private complaint of the complainant, the learned Magistrate passed an order u/s.156(3) of the Code of Criminal Procedure directing investigation. The Officer 5 in-charge of the Santacruz police station has carried out the investigation. There is some dispute between the parties as to whether the investigation has been completed or not. It however appears that the substantial investigation has been carried out and only the report is to be submitted to the Magistrate. At this stage, apprehending that the applicants may be arrested by the Officer in-charge of the Santacruz police station, the applicants have moved this court for anticipatory bail u/s.438 of the Code of Criminal Procedure. 6. The learned APP submitted that it is necessary to arrest the applicants for the purpose of their custodial investigation. Counsel for the applicants contraverting the submission stated that the order was passed by the learned Magistrate u/s.156(93) as far back on 11th May 2006 and during the period of last 19 months, applicants have fully co-operated with the police with investigation which has been completed and only a report is to be submitted to the court. Learned APP also admitted that substantial investigation has been completed, he however submitted that handwriting of the applicants is required to be obtained before the conclusion of the investigation. He further submitted that the society has taken a loan of more than a crore of 6 rupees from Canara Bank and the applicants are the office bearers of the society. As the documents relating to the loan are required to be recovered from the applicants, only the applicants are required to be taken in custody. He also submitted that the applicants have submitted various documents to the SRA authorities and those documents are also required to be recovered for which custody of the applicants is necessary. He further submitted that one of the members of the society viz. Chimanlal Shah is absconding and in order to locate his whereabouts and arrest him, custody of the applicants is necessary. 7. As regards the first ground for custody it may be stated that the handwriting of the applicants can be obtained even without they being taken in custody. Counsel for the applicants submitted that the applicants are willing to go to the police station and give their specimen handwriting on any day. Custody is not necessary merely for the purpose of obtaining handwriting. In my view, submission deserves acceptance and the applicants can be directed to give their specimen handwriting by visiting the police station. 8. As regards the documents relating to the loan, original documents would be in custody of the 7 Canara Bank which has granted loan. The original documents would always remain with the lender and not with the borrower. The police would be in a position to obtain original documents/ xerox certified copies from the lender i.e. Canara Bank. As regards the documents which have been submitted to the SRA again the original documents would be in custody of the SRA which is a government authority. The police can always get the originals and/or xerox certified copies from the SRA and the said original documents cannot be obtained from the applicants. In my view therefore, custody of the applicant is not necessary for the purpose of obtaining original documents relating to the loan or the alleged false documents submitted by the applicant to the SRA. 9. Mr.Chimanlal Shah who is stated to be absconding was not a member of the managing committee of the society. He was just an ordinary member of the society. Counsel for the applicants submit that the address of Chimanlal Shah as appearing in the records of the society would be furnished to the police. They do not know the present whereabouts of Mr.Shah. 10. For the reasons stated above, the applicants are entitled to a conditional anticipatory bail. 8 Hence I pass the following order. O R D E R O R D E R O R D E R . In the event of arrest of any of the applicants, each of them shall be released on bail of Rs.One lakh with two or more sureties to make up the amount of Rs.One lakh subject to the following conditions:- i) The applicants shall co-operate with the investigation ii) The applicants shall give their specimen handwriting and specimen signatures by going to the police station. iii) The applicants shall attend the police station once a week on every Monday for a period of eight weeks and thereafter once a month between 1st and 5th of British Calendar month till the filing of the charge-sheet and shall attend the police station as and when specifically summoned for that purpose. . This order shall come to an end after the charge sheet is being filed whereupon the applicants would be free to apply to the appropriate court for 9 regular bail. In the event such an application for regular bail is made before the regular court, the same shall be considered on its own merits without in any way being influenced by the observations in the order. (D.G. KARNIK, J)