1 ABA.215-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL ANTICIPATORY BAIL APPLICATION NO.215 OF 2011 Vijay Jagganath Tribhuvan. .. Applicant. Versus The State of Maharashtra ..Respondent. .... Mr.V.S. Kotwal, Advocate i/b. Mr.M.S. Mohite, Advocate for the Applicant. Mr.B.B. Tiwari, Advocate for orig.complainant. Smt.P.P. Bhosale, A.P.P. for the State. .... CORAM : A. R. JOSHI, J. DATED : 28th MARCH, 2011. P. C. : 1. Heard rival submissions at length on this application for anticipatory bail preferred by the applicant apprehending his arrest in the matter of C.R. No.I-30/2011 registered with Koparkhairane Navi Mumbai Police Station on 22.1.2011. 2. Perused the documents accompanying the application for anticipatory bail. Also perused the police investigation papers. The charges leveled against the present applicant are that he dispossessed the first informant from Plot No.12, Room No.2, Sector-7, Koparkhairane situated at Samrat Co-operative Housing 2 ABA.215-11 Society, Koparkhairane, Navi Mumbai on or about 21.1.2011 and took forcible possession of the said flat and all the articles belonging to the complainant-woman were removed from the flat. Offences charged against the applicant are punishable under Section 452, 323, 504, 506 read with Section 34 of Indian Penal Code. 3. During the arguments, learned Counsel for the Applicant submits that at the most the offence under Section 451 of IPC can be attracted and which is bailable though cognizable. He further submitted that it would be only simplicitor dispossession of the complainant from the flat. Section 452 of IPC implies something more and even use of force while dispossessing the parties. To be more precise, Section 452 IPC postulate that whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, and if trespass is committed, then the offence is cognizable, non-bailable and even non-compoundable. All the same, the allegations made in the First Information Report 3 ABA.215-11 dated 22.1.2011 do prima facie attract the provisions of Section 452 of IPC and not simplicitor Section 451 of IPC though it is so argued. 4. This Court has carefully gone through various documents which are annexed to the present application showing the title created in favour of the present applicant by way of registered sale deed and no-objection certificate given by CIDCO dated 12.1.2011. In fact, initiation of such creation of the document in favour of the applicant started sometimes after end of December, 2010 and registration of the document was made sometime in the first week of January, 2011. By pointing out effect of these documents, it is submitted that the present applicant is having valid title over the said property. 5. As the matter at hand is concerning dealing with the application of anticipatory bail, it is not to be ascertained as to which party is having title over the property. Suffice it to say that if on the face of the allegations and on other material available during the police investigation if the complainant-woman, who is intervenor in the present application, can establish that prior to her dispossession of 21.1.2011, she was in possession of said flat on 4 ABA.215-11 certain understanding between original owner one Mr.Modi, then there is definitely a case as against the present applicant so far as the offence punishable under Section 452 of IPC is concerned. 6. On perusal of the investigation papers, it is found out that husband of the complainant-woman was Joint/Deputy Secretary of the said Samrat CHS society during the year 2007 or so, as some minutes of the meeting have been shown to the Court which are of March, 2007. This prima facie show that the complainant is not at all a stranger in the said flat and it cannot be accepted that her entire story is false and fabricated regarding her prior possession over the flat, though, it is so argued on behalf of the applicant. Also in the police investigation papers, a document showing payment of Rs.7000/- by original complainant-woman towards the same flat to the said society is shown to the Court which also prima facie shows that what is stated in the complaint of first informant is prima facie acceptable. 7. During the arguments, learned A.P.P. for the State further submitted that the owner of the said flat one Mr.Modi is also co- accused and presently not available. This factual position was 5 ABA.215-11 revealed to the Court when the Court enquired with the leaned A.P.P. as to whether the statement of said Mr.Modi has been recorded during the investigation as it would be of much crucial importance when the same flat is claimed by the complainant- woman and also by the present applicant. 8. Considering the above circumstances, in the opinion of this Court, it is not a fit case in which discretionary relief of pre-arrest bail can be granted in favour of the present applicant. Hence, the order :- :: O R D E R:: i. Criminal Application No.215 of 2011 for anticipatory bail stands rejected. (A. R. JOSHI, J.) PPD