3crn747&2005-10 1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.747 OF 2010 1. Rajendra Bal Kharade, 2. Gajendra Bal Kharade, & 3. Balasaheb R. Kharade. ..Applicants. Versus 1. The State of Maharashtra, & 2. Smt.Nasimabano Shaikh Ahmed. ..Respondents. .... Mr.A.P. Mundargi, Senior Advocate i/b. Mr.S.V. Kotwal, Advocate for the Applicants. Mr.S.P. Borulkar, Advocate i/b. Ms.Neha Jadhav, Advocate for respondent No.2. Mr.Y.M. Nakhawa, A.P.P. for the State. .... ALONG WITH CRIMINAL APPLICATION NO.2005 OF 2010 Nasimabano Shaikh Ahmed. ..Applicant Versus Mr.Ahmed Lal Khan Shaikh and 8 others. ..Respondents. .... Mr.S.P. Borulkar, Advocate i/b. Ms.Neha Jadhav, Advocate for Applicant. Mr.Y.M. Nakhawa, A.P.P. for the State. .... 3crn747&2005-10 2 CORAM : A.R.JOSHI, J. DATED : 10th JUNE, 2010 P.C. 1. Heard rival submissions at length on the earlier date and also on today's date in Criminal Application No.747 of 2010. So far as Criminal Application No.2005 of 2010 is concerned, heard rival submissions for some time. As the facts involved in both the Criminal Applications are similar, these are being disposed of by this common order. CRIMINAL APPLICATION NO.747 OF 2010: 2. Criminal Application No.747 of 2010 for anticipatory bail is preferred by the earlier three applicants. Out of them, applicant No.3, then aged 80 years an Advocate by profession, had died during pendency of the application. In this application, original complainant has been impleaded as respondent No.2. 3. Original complainant - respondent No.2 had preferred 3crn747&2005-10 3 a private complaint before the J.M.F.C., Pune against the present applicants and some other co-accused. Under orders under Section 156(3) of Cr.P.C. directions were given to the concerned police for investigation and as such offence was registered as Complaint No.7 of 2009 by Yerwada police station. Apprehending arrest in the said matter at the hands of Yerwada police, the present two applicants-original accused Nos.6 & 7 along with original accused No.8 (since deceased), preferred the present application for anticipatory bail. The said application was preferred on 17.2.2010 and since then till today the applicants are under protection as earlier orders were passed to that effect by the Court not to arrest. 4. It is alleged by the original complainant-present respondent No.2 that the present applicants have no right to claim any property much less 1/5th share of one Smt.Khairunissa. It is further alleged that it is mischievous on 3crn747&2005-10 4 the part of the applicants to claim such right over the property through alleged legal heirs of one Ibrahimlal Khan, husband of said Smt.Khairunissa. 5. In order to appreciate such arguments, certain factual position is required to be mentioned inasmuch as the property of one Mr.Shaikh, who died in the year, 1950 is devolved on his two sons by names Mr.Sunni Khan and Mr.Mainoddin ( who respectively died in the years, 1989 and 1996). The said property also devolved on one daughter by name Smt.Khairunissa and she married to Mr.Ibrahimlal Khan. At this stage, it is the allegation by original complainant-respondent No.2 that in the year 1965 said Mr.Ibrahimlal Khan had given oral talaq to Smt.Khairunissa. However, this submission is very much diluted even by the subsequent conduct of the complainant herself, which is detailed hereinunder at the appropriate place. 6. According to the present applicants, they had agreed 3crn747&2005-10 5 to purchase the said 1/5th share of Smt.Khairunissa and such transaction has been entered with her husband then alive Mr.Ibrahimlal Khan and such transaction is on the basis of one Visar Pavati dated 5.1.2003 and the will allegedly executed by said Mr.Ibrahimlal Khan dated 14.3.2003. It is significant to note that said Mr.Ibrahimlal Khan died on 23rd March, 2003. It is further the submission of the applicants that the said Visar Pavati and the will have been confirmed and consented by the legal heirs of said Mr.Ibrahimlal Khan. Again at this juncture, it must be mentioned that the said legal heirs are also made accused in the complaint lodged by the present respondent No.2 contending that the said Smt.Khairunissa had no share and infact said Mr.Ibrahimal Khan has given talaq to her in the year, 1965. 7. It is submission on behalf of respondent No.2 that the signatures on the Visar Pavati and on the will, allegedly signed by said Mr.Ibrahimlal Khan are forged and it is to be 3crn747&2005-10 6 ascertained as to who has forged those signatures. It is also the submission on behalf of respondent No.2 that so called confirmations of the said two documents are also doubtful and infact it requires custodial interrogation of the applicants. 8. On the backdrop of above factual position, certain factual positions as to the effect of the civil litigation between the parties is required to be mentioned. 9. In order to ascertain 1/5th share out of the property of her father one Mr.Shaikh, Smt.Khairunissa had filed a suit for partition bearing Regular Civil Suit No.2353 of 1989 and it was decreed in her favour by order dated 23.11.2000. Being aggrieved by the said decree, appeal No.67 of 2001 was preferred by present respondent No.2 (original complainant) which was filed in the year, 2001. During pendency of the appeal, Smt.Khairunissa died in the year, 2002 leaving behind her husband Mr.Ibrahimlal Khan. 10. At this juncture, certain events occurred in the said 3crn747&2005-10 7 appeal which have now diluted the objection raised by respondent No.2 that said Mr.Ibrahimlal Khan had already given oral talaq to Smt.Khairunissa and that he has no legal right, title or interest over any of her properties came to her share by way of the decree. In fact, after the death of said Smt.Khairunissa name of Mr.Ibrahimlal Khan was inserted as respondent. Even after death of said Mr.Ibrahimlal Khan, names of his legal heirs were impleaded as the respondents. It is significant to note that such implidment has not been challenged and apparently it has been accepted, they being heirs and entitled to share of Smt.Khairunissa. 11. In the opinion of this Court, such factual position as appeared in the Civil Appeal has taken away the force in the argument on behalf of respondent No.2 that due to alleged oral talaq given by Mr.Ibrahimlal Khan to his wife Smt.Khairunissa, he cannot inherit her property. 12. Infact one more significant circumstance occurred 3crn747&2005-10 8 when the said Civil Appeal No.67 of 2001 was withdrawn by present respondent No.2 (original complainant) Nasim Bano which was withdrawn on 3.2.2010. It is also factual position that one more Regular Civil Suit No.1424 of 2006 is preferred by the present applicants for getting certain reliefs injuncting the defendants including present respondent No.2 Nasim Bano from interfering with their rights over the 1/5th share of the property which had come to the share of Smt.Khairunissa and which had been agreed to be purchased by the applicants herein. 13. In view of the above factual position, instead of asking for any substantial relief by filing any civil proceedings, Smt.Nasim Bano, present respondent No.2, had filed the present complaint on 28th April, 2009 alleging fabrication of the will effected by Mr.Ibrahimlal Khan and fabrication of the alleged Visar Pavati dated 5.1.2003. The will is dated 14th March, 2003 and the Visar Pavati is dated 3crn747&2005-10 9 5.1.2003 as mentioned above however challenge to these documents alleging forgery of the signatures of Mr.Ibrahimlal Khan is only in April, 2009 by way of filing a criminal complaint before the J.M.F.C., Pune as mentioned above and which is under investigation under Complaint No.7 of 2009 of Yerawada police station. 14. Considering the above factual position, in the opinion of this Court on certain conditions imposed on the applicants, present application can be allowed as it could not be the necessity of the circumstance to give custodial interrogation of the applicants. CRIMINAL APPLICATION NO.2005 OF 2010 :- 15. This is an application by original complainant one Nasimbano Shaikh Ahmed, who is respondent No.2 in Criminal Application No.747 of 2010. Present application at hand is for cancellation of anticipatory bail granted in favour of respondent 3crn747&2005-10 10 Nos.1 to 7 in the application. Said respondents are either witnesses to the Visar Pavati and also to the will and some of them are alleged legal heirs of Mr.Ibrahimlal Khan. In the first part of this order, as detailed above, all such details as to the role of said witnesses and legal heirs whose names are appearing in the visar pawati and the will are detailed. Suffice it to say that considering the merits in the application preferred by respondent Nos.1 to 7 herein, the learned Sessions Court, Pune allowed their anticipatory bail application and which is under challenge in the present matter. 16. Considering the factual position as narrated in respect of Criminal Application No.747 of 2010, there is nothing to allow the criminal application No.2005 of 2010. Hence, the following common order : :: O R D E R :: [i] Criminal Application No.747 of 2010 for anticipatory bail stands allowed. [ii] In the event of arrest of applicant Nos.1 & 2 i.e. 3crn747&2005-10 11 Rajendra Bal Kharade & Gajendra Bal Kharade in Yerwada police station complaint No.7 of 2009, they shall be released on bail on their executing a P.R. bond in the sum of Rs.20,000/- (Rs. Twenty Thousand Only) each with one surety for the like amount each. [iii] In the event of arrest and availing of the bail as above, applicant Nos.1 & 2 shall attend Yerwada police station on every Monday and Friday between 10:00 a.m. to 2:00 p.m. for the period of eight weeks from availing of the bail. [iv] The trial Court shall not be influenced by any observations made in this order. [v] So far as Criminal Application No.2005 of 2010 is concerned, it is rejected and accordingly disposed of. (A.R.JOSHI,J.)