1 3.apln3222-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3222 OF 2010 1. Mrs.Bharati Patel, 2. Mr.Navinchand Patel, & 3. Mr.Ghyansham Patel. ..Applicants. Vs. 1. State of Maharashtra, 2. Mr.Sandip Patel, & 3. Mrs.Bhumika Patel. ..Respondents. .... Mr.Milan Desai, Advocate i/b. Mr.Prashant Parsurampuria, Advocate for the applicants. Mr.K.V. Saste, A.P.P. for the State. Ms.Fenil N. Nair, Advocate for the Respondent Nos.2 & 3. .... CORAM : A.R.JOSHI, J. DATED : 28TH JULY, 2010 P.C. 1. Heard rival submissions for sometime on this application for cancellation of anticipatory bail. Present application preferred by the parents and their one son against the another son and his wife. As such, admittedly, all the parties to this proceeding are in close relations and admittedly the same flat of Walkeshwar admeasuring 1040 sq. ft. is in joint possession of all. 2 3.apln3222-10 2. The allegations are that sometime in February, 2010 when present applicants i.e. parents and their one younger son were out of the flat for some pilgrimage, certain changes in the flat were made by the present respondents/orig. accused i.e. another son and his wife. Such changes were to the effect as to create additional entrance and putting a brickwall in the flat so as to divide the flat into two unequal parts, 70% of the flat in occupation and possession of the respondents/accused and remaining portion for the parents and their younger son. It was also noticed by the applicants that cupboard was removed from its usual place and was taken in the area which was being used by the accused persons. Allegations are that in the said cupboard, there were jewelery items worth Rs.5 lakhs or so. Consequently, on or about 25.2.2010 a complaint was lodged with the Malbar Hill police station wherein no action was taken by the police station and consequently in the month of March a private complaint came to be lodged. On such complaint, which was taken before the Court having the territorial jurisdiction of Yellow Gate police station, directions were given to the said 3 3.apln3222-10 concerned Yellow Gate police station for investigation under Section 156(3) of Cr.P.C.. As such, FIR came to be lodged on or about 10.3.2010 specifically for various offences such as under Sections 307, 378, 379, 382, 390, 415, 420, 441, 442, 445 to 450, 453, 477 of IPC. It is significant to note that the offences punishable under Sections 504 & 506 are not specifically alleged though during the oral submissions learned Advocate for the applicants submits that only because of such threats received by the present applicant No.3 at his office place at Ballard Pier, the applicants chose the forum of such Court having jurisdiction over Yellow Gate police station and lodged a complaint there. It appears that this aspect has also been looked into but not in detail by the learned Sessions Judge, Mumbai while allowing the application for anticipatory bail in favour of the present respondents Nos.2 & 3. 3. During the arguments, it is submitted on behalf of the applicants that though during the month of May i.e. on 10.5.2010 appearance was filed on behalf of the original 4 3.apln3222-10 complainants i.e. present applicants and though the matter appears to have been adjourned on 11.6.2010, it was misunderstanding of the concerned Advocate on behalf of the present applicants as to the matter adjourned on 15.6.2010. Consequently, on 11.6.2010 there was nobody to represent the complainants though on earlier occasion there was representation. As such, it is a factual position that there was no hearing given to the complainants though apparently it is a matter of dispute between the close relatives. 4. This Court has gone through the order by which anticipatory bail is granted to the present respondent Nos.2 & 3. It appears that the learned Sessions Court, Mumbai was weighed with the jurisdictional aspect of the Court and also much weighed with the apparent civil nature of the case and short order came to be passed without there being any observations as to the allegations of the applicants which are contained in the letter to the police dated 25.2.2010 muchless concerning the allegations of theft. 5. Considering the above circumstances, it would have 5 3.apln3222-10 been in the interest of justice to allow the complainants' side to be heard. However, that has not been done and when the matter was posted on 11.6.2010, it was put to an end by passing an order. In any event, in the opinion of this Court the matter is required to be sent back to the concerned Sessions Judge, Greater Bombay for reappraisal of the Anticipatory Bail Application No.524 of 2010 after giving an opportunity to the present applicants to be heard. Needless to mention that the learned Sessions Judge shall deal with the said application on the merits of the case and after hearing the rival submissions without being influenced by any observations made by this Court in the present order so far as merits of the case are concerned. Hence the order :- :: O R D E R :: [i] The impugned order dated 11.6.2010 passed by the learned Sessions Judge, Greater Bombay in Anticipatory Bail Application No.524/2010 is set aside. The matter is remanded back to the learned Sessions Judge, Greater Bombay for disposal of the said 6 3.apln3222-10 application after giving reasonable opportunity to the parties of being heard. In the meantime, interim protection which was granted earlier in favour of both the respondent Nos.2 & 3 to continue. [ii] Needless to mention that the learned Sessions Judge shall deal with the said application on the merits of the case and after hearing the rival submissions without being influenced by any observations made by this Court in the present order so far as merits of the case are concerned. [iii] With the above directions, Criminal Application is disposed of accordingly. (A.R.JOSHI,J.) PPD