1 Criminal Application No.5357/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5357 OF 2010 Ramcharan s/o Mohanlal Jaiswal ... APPLICANT VERSUS Devendra s/o Daulatrao More & ors. ... RESPONDENTS ..... Shri N.S. Ghanekar, Advocate for applicant Mrs. A.N. Ansari, Advocate for respondents 1 to 3 Shri N.B. Patil, A.P.P. for respondent No.4. ..... CORAM : K.U. CHANDIWAL, J. DATE : 27th April, 2011 PER COURT : 1. Heard finally. The applicant has urged to recall this Court’s order of grant of pre-arrest bail recorded in Criminal Application No.3785/2010 in M. Case No.4/2010, registered with City Chowk Police Station, Aurangabad, as pre conditions are deliberately violated. 2. A house with a plot belonging to Chunnilal (Chunniram) Onkarlal Sharma, a friend of the applicant is purported to be purchased by the respondents by virtue of a sale 2 Criminal Application No.5357/2010 deed dated 24.6.2010 for an amount of Rs.33,34,000/- showing the same to be a barely plot, though there exists a building. It is claimed by the applicant as complainant that said Chunniram Onkarlal Sharma, famously known as C.R. Sharma, is not to be seen since more than 30 years though his property still subsists and protected by the neighbours. The applicant has asserted sale deed to be a fabricated document, manufactured to swallow unattended abandoned property of C.R. Sharma 3. It was claimed by the applicant that, one of the respondent is son of a retired police officer and consequently, complaints and grievance put forward by the residents including the applicant/ complainant to the police was not attended to. Even the Commissioner of Police did not adhere to his obligation in redressing grievance. Consequent upon such apathy of the police, a complaint was moved before the learned Judicial Magistrate, First Class at Aurangabad, seeking investigation in terms of section 156(3) of the Criminal Procedure Code and based on the same, an offence is purportedly registered by the concerned police under compulsion. 4. When the matter was moved before this Court for anticipatory bail, in Application No.3785/2010, following statement was made by Smt. Ansari on 15.10.2010 : 3 Criminal Application No.5357/2010 “Learned Advocate Mrs. Ansari submits that the applicants are ready to file affidavit of owner who has transferred them property and for such reason she seeks one week’s time. She also submits that besides affidavit of the owner, proper evidence regarding identity card i.e. election card or other relevant document also will be filed.” Second para of the order dated 15.10.2010 reads as under : “2. Stand Over to 22 nd October, 2010. If no document and affidavit of owner i.e. from whom the applicants claimed to have purchased the property has been filed, the applications will be deemed as dismissed without reference to the Court and ad- interim protection will be deemed as vacated, if it is already granted.” 5. On 22.10.2010, in the said Criminal Application No. 3785/2010, brother Judge recorded following order : “Learned counsel for the applicant tendered affidavit of one Chunnilal Sharma, as per the directions of this Court. However, for proper verification of the deponent of the said affidavit his presence is must. In the premise, at the request of learned counsel for the applicant, to enable her to keep the deponent of the affidavit present, S.O. to 25.10.2010. Interim protection, if any to continue till then. Matter to be shown at serial No.1 after admission board.” 4 Criminal Application No.5357/2010 6. A note was put up by the office dated 21.10.2010 that documents and affidavit not filed by the Advocate. Again identical note was put up on 15.11.2010. Thereafter the order dated 22.11.2010 finally allowing the anticipatory bail was recorded. Paras 3 and 4 thereof read as under : 3. The FIR is registered on basis of a private complaint which was referred to the police under section 156(3) of the Criminal Procedure Code. The private complaint case is filed by one Ramcharan Jaiswal (complainant) alleging that he is friend of one Chunnilal Sharma. He alleged that plot No.16 situated in Kushalnagar is owned by Chunnilal Sharma. It is alleged that the applicants got fabricated certain documents by interpolating signature of Chunnilal Sharma. The applicants claimed that they entered into purchase transaction with said Chunnilal Sharma in respect of the said plot. As directed by this Court, the applicants have filed affidavit of said Chunnilal Sharma. The affidavit of Chunnilal Sharma prima facie shows that he has executed the sale deed dated 26th April, 2010 in favour of the applicants. The matter appears to be of civil nature and arises on account of the property disputed. The police may investigate about identity of the owner i.e. Chunnilal Sharma who has filed affidavit in this case. 4. Considering the nature of dispute and particularly the affidavit of Chunnilal Sharma, the application is allowed in terms of the ad-interim relief granted vide order dated 8th October, 2010 i.e. to release the applicants on bail, in the event of their 5 Criminal Application No.5357/2010 arrest, on furnishing the bail bonds in sum of the amount as per the order of the Sessions Court and on condition that the applicants shall appear before the Investigating Officer as and when called and shall cooperate during the course of investigation.” 7. The grievance of the complainant/ applicant is, in spite of specific above referred directions, the respondents (the accused) did not adhere either production of said Chunniram Onkarlal Sharma before this Court or the investigator nor the documents are tendered. 8. Smt. Ansari submits, said deponent was produced before the Court intermittently between 22.12.2010 to 22.11.2010. this assertion of learned counsel is devoid of any Court record, hence, needs rejection. 9. Apparently, the orders dated 15.10.2010 and 22.10.2010 were not brought to the notice of the Court while recording the order dated 22.11.2010. 10. The expectation to produce the affiant before either the investigator or the Court was to be demonstrated, which lacked and consequently, the order exercising discretion in terms of Section 438 of the Criminal Procedure Code, being snatched by not informing earlier events, calls for interference. 6 Criminal Application No.5357/2010 11. Smt. Ansari informs that the signature apparent of the person C.R. Sharma as pointed out by Mr. Ghanekar by referring to old document, would not be visibly of the same person as name of the owner is Chunniram Onkarlal Sharma. 12. At this stage of the matter, one should be conscious, the pattern of individual signature differ. It was Chunniram probably, made said Sharma to sign it as C.R. Sharma. However, it is for the investigator to enquire as to what was the admitted signature of said C.R. Sharma and a person who posed himself to be Chunniram Onkarlal Sharma purportedly admitted at Government Hospital, Ahmednagar. 13. Several facets of appropriation of the sale proceeds making payment of huge amount are advanced by Mr. Ghanekar. However, not essential to comment, hence I am not adverting to the same as the scope before the Court is limited. Hence order : O R D E R 14. The release of the accused/ respondent Nos.1 to 3 by order dated 22.11.2010 on anticipatory bail in Criminal Application No.3785/2010 is recalled. The respondents to 7 Criminal Application No.5357/2010 surrender the investigator on or before 5.5.2011. The investigator is at liberty to take action in accordance with law against the so called impersonated Chunnilal Onkarlal Sharma, admitted at Govt. Hospital at Ahmednagar. Application finally disposed of. K.U. CHANDIWAL JUDGE fmpcri5357.10