1 crn2901&2907-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION [1] CRIMINAL APPLICATION NO.2907 OF 2010 Ashok Khemchand Sheth. ..Applicant. Versus The State of Maharashtra. ..Respondent. WITH [2] CRIMINAL APPLICATION NO.2901 OF 2010 Shri Anil Amrut Patil. ..Applicant. Versus State of Maharashtra. ..Respondent. .... Mr.Nitin Pradhan, Senior Counsel i/b. Ms.S.D. Khot, Advocate for the Applicant in Criminal Application No.2907 of 2010. Mr.A.A. Kulkarni, Advocate i/b. Mr.Umesh Mankapure, Advocate for the applicant in Criminal Application No.2901 of 2010. Mr.S.N. Gawade, A.P.P., for the State. .... CORAM : A.R.JOSHI, J. DATED : 08TH JULY, 2010 P.C. 1. Both these applications for anticipatory bail are being disposed of by this common order as both the applicants are 2 crn2901&2907-10 apprehending their arrest in the matter of C.R. No.131 of 2010 registered with Sangli City Police Station for the offence punishable under Sections 406, 409, 465, 468, 471, 420 read with Section 34 of Indian Penal Code. 2. Heard rival submissions at length on earlier dates. Prior to appreciating the rival contentions, certain preliminary issues may be narrated in order to understand the scope of the matter. 3. The applicant in Criminal Application No.2907 of 2010 was a Chairman of the Education Department of Sangli- Miraj-Kupwad Municipal Corporation between the period from April, 2006 to November, 2008 and again thereafter till February, 2010. Whereas the applicant in Criminal Application No.2901 of 2010 is presently serving as Administrative Officer of School Board of the Sangli-Miraj- Kupwad Municipal Corporation. The said applicant took charge of the post from 4th June, 2009 till date and prior to that he was working with Zilla Parishad, Kolhapur as 3 crn2901&2907-10 Education Officer. 4. Somewhere on 12th June, 2010 C.R. No.131 of 2010 came to be registered with Sangli City police station by Secretary of Sangli-Miraj-Kupwad Municipal Corporation against the present applicants and one more person by name Balkisan Jaju for the relevant offences mentioned above. Admittedly, said Balkisan Jaju has been granted anticipatory bail. However, the same was rejected for both these applicants. 5. For many years, certain private premises including the premises for School No.11 at Sangli, were taken on rent/lease from private person Trust etc.. So far as the present matter is concerned, School No.11 was started in the premises taken out on lease from one Ganpati Sansthan Radhakrishna Trust. For many years, various schools including School No.11 were conducted in such rented premises. However, certain policy decision was taken by the Government of Maharashtra and it was communicated to all the concerned Corporations to 4 crn2901&2907-10 construct their own school buildings out of funds from Sarvashiksha Abhiyan to stop the practice of continuing with leasehold premises. Various circulars were issued to that effect by the concerned authority. Apparently somewhere in December, 2008 construction was carried out by the Sangli- Miraj-Kupwad Municipal Corporation at Shyamrao Nagar and School No.11 was shifted to such place and place of the Trust which was taken on rent became vacant but remained with the Corporation as old school record was stored. 6. Somewhere on 23rd July, 2009 or thereabout the Headmaster of School No.11 addressed a letter to the Administrative Officer of the Primary Education Committee informing that the school is shifted to the new premises however the record is still lying in the old rented premises and further directions were sought to take appropriate decision regarding the said rented premises. Somewhere on 31st August, 2009 a office note was passed for taking the decision with respect to handing over of the school premises 5 crn2901&2907-10 to its original owner. On the same day, the applicant in Criminal Application No.2907 of 2010 i.e. Chairman of the Primary Education Committee of the Corporation passed office order directing to handover the premises of School No. 11 and also premises of other schools which were not in use due to shifting of the schools. At this juncture, it is pertinent to note that in the said office order, there was no shelter taken of the General Body meeting resolution No.328 dated 19th March, 2008. Again at this juncture, it is pertinent to note that the said General Body meeting Resolution No.328 is allegedly forged document as the original is not forthcoming during the investigation in the present case. Again it is admitted position that the applicants herein are not the signatories or in any way connected to the said alleged resolution No.328. It may also be mentioned that during the investigation, statements of those signatories have been recorded by the police and they denied having signed any such resolution. 6 crn2901&2907-10 7. Somewhere on 20th May, 2010 in the General Body Meeting of the Corporation, the issue was raised regarding surrender of the rented premises where School No.11 was earlier being conducted. It was found out from the Corporation record that on 19th March, 2008 only the resolutions bearing Nos.231 to 263 were passed and as such it was ascertained that said resolution No.328 was fabricated document. Even the signatories to the said resolution i.e. the then Mayor and two other members of the Corporation denied the authorship of such resolution as mentioned above. Consequently, under the directions of the then Mayor of the Corporation in 2010 an enquiry officer was appointed and he submitted his report doubting the actions of applicant in Criminal Application No.2907 of 2010 who was Chairman of the Primary Education Committee of the Corporation. Based on such enquiry report, a criminal complaint was lodged. 8. During the arguments, it was argued and substantiated by the record that the Deputy Superintendent, 7 crn2901&2907-10 Sangli had opined that there is no criminal offence and itis a matter of departmental enquiry. However, subsequently present FIR at C.R. No.131 of 2010 came to be lodged with Sangli City Police Station. Both the applicants are apprehending their arrest in the said C.R. and hence both these present applications. 9. The anticipatory bail applications preferred by the applicants before the Additional Sessions Judge, Sangli were rejected mentioning the need of custodial interrogation. However, original accused No.3 one Balkishan Jaju was granted such relief as he was the power of attorney, entered into an agreement for sale concerning the property belonging to the Trust and was returned to the Trust by the Municipal Corporation and for which a separate conveyance deed was effected with third parties on behalf of the Trust. 10. During the arguments various letters, which are at Exhibits-A to E to the memo of Criminal Application No.2907 of 2010, are brought to the notice of this Court which is 8 crn2901&2907-10 correspondence as to different steps taken by the present applicants thereby finally the premises, where School No.11 was earlier being conducted, was transferred back to the Trust. Nowhere in this correspondence shelter of resolution No.328 is taken. 11. During the arguments, statements of the witnesses recorded during the investigation were shown to the Court, including the statements of the signatories to the resolution No.328. By said statements, the said signatories denied the authorship of said resolution, as mentioned above. Infact original resolution is not forthcoming. 12. During the arguments, it is tried to be established on behalf of the State that without their being any concurrence from the General Body meeting of the Corporation, such decision could not have been taken by the present applicants. However, on this aspect, learned Senior Counsel Shri Nitin Pradhan pointed out various provisions contained in Chapter-VIII of the Bombay Provincial Municipal Corporations 9 crn2901&2907-10 Act, 1949 and specifically the provisions of Sections 76 to 80. It is further argued that these provisions nowhere specifically mention the need of any concurrence of the general body for surrender of rented premises back to the original owners. Moreover, it is further argument on behalf of the applicants that the shelter of said resolution No.328 is not taken by the applicants while surrendering the properties back to their original owners including the property of school No.11. 13. During the arguments on behalf of the applicant in Criminal Application No.2901 of 2010, learned Advocate pointed out certain dates on which said applicant took charge of his post as Administrative Officer. He took charge of the post on 4th June, 2009 and as such has nothing to do with the resolution bearing No.328 which was apparently passed on 19th March, 2008. It is further brought to the notice of this Court that registered deed concerning the said property of school No.11 surrendered to its original owner the Trust, is dated 26th May, 2008 and in the said registered deed at 10 crn2901&2907-10 para No.7 there is a specific mention regarding General Body Meeting held in the Corporation in which the resolution was passed for transfer of the School No.11 from that place to elsewhere. By pointing out this, it is further submitted on behalf of the said applicant that existence of such resolution No.328 was definitely prior to the date of such sale deed i.e. prior to 26th May, 2008 and on that day the said applicant had not taken charge of the post as Administrative Officer of the Education Board of the Corporation. 14. Considering the rival submissions and considering the effect of the statements of witnesses and the documents, in the opinion of this Court, custodial interrogation of the present applicants is not warranted as the investigation is based on the falsity or otherwise of the resolution No.328 and for which if needed the presence of the applicants can be secured by the investigating agency and for that purpose certain directions can be given to them of attendance. 15. Hence, both the criminal applications are disposed of 11 crn2901&2907-10 with following order :- :: O R D E R :: [i] Criminal Application Nos.2907/2010 & 2901/2010 are allowed. [ii] In the event of arrest of the respective applicants - Ashok Khemchand Sheth & Anil Amrut Patil in C.R. No.131 of 2010 registered with Sangli City police station, they shall be released on bail on their executing P.R. bonds in the sum of Rs.25,000/- each [Rs.Twenty Five Thousand Only] with one surety for the like amount each. [iii] The above grant of anticipatory bail shall be effective till filing of the chargesheet. Thereafter both the applicants shall approach to the concerned Court having seized of the matter for seeking regular bail. [iv] In the event of arrest and availing of bail, as above, the applicants shall attend the Sangli City police 12 crn2901&2907-10 station on every Monday and Friday between 10:00 a.m. to 12:00 noon till filing of the chargesheet. [v] The trial Court shall not be influenced by any observations made in the present order so far as merits of the case are concerned. (A.R.JOSHI,J.)