1 CA 4814.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4814 OF 2010 Rajesh Lal Pratap Singh .. Applicant Vs. The State of Maharashtra & Ors. .. Respondents. Shri H.E.Palwe for the applicant. Ms.P.P.Shinde APP for the State. CORAM : J.H. BHATIA, J. DATED : 25th JANUARY, 2011. P.C.: 1. This is an application for cancellation of bail granted by the learned Adhoc Addl. Sessions Judge at Sewree, Mumbai in MECR No.4 of 2007 registered on the basis of the complaint filed by the present applicant. I proceed to hear and dispose of this application without notice to respondent nos.5 and 6, for reasons to follow. 2. The present applicant is the original complainant. According to him in the litigation before the Small Causes Court the decree was passed for possession and since 1992 he was trying to execute that decree for possession. When the bailiff went to execute the decree on 13.6.1999, one Sunil Laxman Naik was present and he 2 CA 4814.10 obstructed the execution on the ground that he was in possession of the premises as owner of the hotel for about 35 years and the decree was not against him and it could not be executed against him. Thereafter, the present applicant filed the proceedings, being Notice No.19 of 1999, against said Sunil Laxman Naik. On 24.2.2004 Smt. Nalini Ashok Naik and Kishor Laxman Naik filed death certificate of Sunil Laxman Naik, purporting to have been issued on 24.2.2004 by the Mumbai Municipal Corporation. Later on it was revealed that the said death certificate was forged and fake document and Sunil Laxman Naik is alive. Respondent no.6 is Sunil Laxman Naik and respondent no.5 is Kishor Laxman Naik @ Shyam Sunder Laxman Naik. The complaint of the present applicant was that respondent nos.5 and 6, in collusion with Smt.Nalini Ashok Naik, had forged death certificate of Sunil Laxman Naik while he was very much alive just to mislead the Small Causes Court in deciding the execution proceedings. The complaint was filed before the Metropolitan Magistrate and it was registered as C.C.No.242/PW/2008. The learned Metropolitan Magistrate directed investigation under section 156(3) of the Code of Criminal Procedure. As per that order Dadar police 3 CA 4814.10 station registered MECR No.4 of 2007 against accused persons and they came to be arrested on 24.11.2007. Inspite of expiry of 90 days after arrest of the accused, the police did not file charge-sheet. Therefore, learned Magistrate granted bail to respondent nos.5 and 6 as per provisions of section 167 (2) of the Code of Criminal Procedure. 3. After that the present applicant filed an application for cancellation of bail. Then the present applicant approached Dadar police station for re- investigation of the case. Respondent nos.5 and 6, who were accused, apprehended arrest by the police again and, therefore, they approached the Sessions Court for anticipatory bail by filing Anticipatory Bail Application no.208 of 2009. Looking to the facts and circumstances, learned Addl. Sessions Judge granted them ad-interim anticipatory bail with notice to the police. Inspite of number of opportunities given to the police, there was no response and, therefore, by the order dated 6.10.1999 learned Adhoc Addl. Sessions Judge confirmed the ad-interim order of anticipatory bail. The present application is filed by the applicant-complainant for cancellation of anticipatory bail. 4 CA 4814.10 4. In view of the facts disclosed above it is clear that on the complaint of present applicant the offence was registered under sections 465, 467, 471, 472, 474, 476, 420, 120-B read with 34 of the Indian Penal Code. Each of the offence is triable by the Magistrate. The police had arrested the accused persons and the accused were in custody for more than 90 days when the bail was granted to them as per provisions of section 167(2) of the Code of Criminal Procedure. The police have not filed the charge-sheet till this date, possibly because the investigation is not complete. If the accused is in custody exceeding 90 days, even where investigation is relates to the offence punishable with death, imprisonment for life or imprisonment for a term not less then ten years, the accused is entitled to be released on bail as per provisions of section 167(2) of the Code of Criminal Procedure. This provision is applicable even to serious cases like murder, dacoity, rape etc. In the present case, the only complaint against the accused is that they had filed fake death certificate before the Small Causes Court and in this case, accused were in custody for more than 90 days when the bail was granted to them. 5 CA 4814.10 5. It appears that even though accused were in jail for long time, the present applicant was not satisfied and he approached this court for cancellation of bail. Then he approached the police for re-investigation of the case. From his conduct it appears that the applicant wanted to get the accused persons re-arrested. Due to apprehension of the arrest again, inspite of bail granted to them earlier, the accused persons were compelled to approach the Sessions Court to seek anticipatory bail. After giving sufficient opportunity to the prosecution the learned Addl. Sessions Judge granted anticipatory bail and the complainant has moved this court for cancellation of the anticipatory bail. In view of the fact that the bail was already granted to them under section 167 (2) of the Code of Criminal Procedure, the accused were not required to approach the Sessions Court for anticipatory bail because the police had no authority under law to re-arrest them in the same case. However, it appears that the complainant tried to misuse the police machinery and wanted that the accused be re-arrested, therefore, the accused sought sheild of anticipatory bail. The conduct of the complainant in coming to this court for cancellation of anticipatory 6 CA 4814.10 bail clearly shows that he is not genuinely prosecuting the case but is trying to persecute the accused persons and by hook or crook he wants them to be kept behind bars. The filing of such application not only causes wastage of time of the court but it also amounts to misusing process of the court. Therefore, the application is liable to be rejected. 6. The applicant stands rejected with costs of Rs.10,000/- to be deposited by the applicant/complainant with State Legal Authority within two weeks from today. If the amount is not deposited by the complainant, it shall be recovered as fine amount from him. (J.H. BHATIA, J)