ABA-437-441-11.sxw 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO.437 OF 2011 Taslim Salim Shaikh ... Applicant V/s. The State of Maharashtra, Thru' Powai Police Station ... Respondent ALONG WITH ANTICIPATORY BAIL APPLICATION NO.441 OF 2011 Vequar Sarfarz Khan ... Applicant V/s. The State of Maharashtra, Thru' Powai Police Station ... Respondent Mr. Majeed Memon, i/b. Mr. J.M. Khajotia, for the Applicant in ABA/437/2011. Mr. Majeed Memon, i/b. Mr. Vinit Jain, for the Applicant in ABA/441/2011. Mr. K.V. Saste, APP, for the Respondent. CORAM:- A.M. THIPSAY, J. DATED :- 28 TH JUNE, 2011. P.C. : 1. Heard. 2. I have gone through the F.I.R. and the statements recorded by the Police in the course of investigation. I have also gone through the photographs of the room said to be in the occupation of the First Informant, as mentioned in the F.I.R. ABA-437-441-11.sxw 2 Dixit 3. According to the First Informant, she purchased a place in Salim Compound from one Barkya for a consideration of Rs.500/- and that she has been residing there since last 45 years. According to her, the Developer one Salim Shaikh and his hirelings have been threatening her, for vacating the said place. That on 17th April, 2011, the Applicants and one Jaffar allegedly entered her house in the midnight at 2:30 a.m. and committed several offences including the offence of theft. It is alleged that the Applicants and the said Jaffar took away a Godrej Cupboard, one iron box and one wooden sofa, totally costing Rs.4,500/-, from the house of the First Informant. It is also alleged that the Godrej Cupboard was containing cash of Rs.5,000/-. Thus, totally, theft of property amounting to Rs.9,500/- is alleged to have been committed by the Applicants and the said Jaffar. 4. Mr. Memon, the learned Advocate for the Applicants, submitted that there is a dispute between the children of the Developer Salim Shaikh, daughter Smt. Nishad Rehman Shaikh and son Taslim.. He submits that the First Informant is working as a maid servant with Smt. Nishad Rehman Shaikh. It is submitted on behalf of the Applicants that the daughter of the Developer has caused her maid servant to lodge a false report. 5. The Applicants were protected by the grant of interim anticipatory bail for quite some time. The Applicants have attended the Police Station and their statements have been recorded. 6. Mr. Saste, the learned APP, submitted that the First Informant is not concerned with the dispute regarding the property and that since the F.I.R. makes out a prima facie case against the Applicants, the matter needs to be properly ABA-437-441-11.sxw 3 Dixit investigated into. He submitted that the property allegedly stolen needs to be recovered in the course of investigation and for that purpose the detention of the Applicants in custody would be essential. 7. I have carefully considered the matter. I have noticed the nature of the structure which the First Informant claims to be residing in. From the photographs of the said structure, which are found in the Police papers, the walls of the said structure appear to have been made of plastic sheets. The Investigating Officer states that there are no goods or other articles in the said structure at present. Thus, what has been allegedly stolen from the said structure, apparently, consisted of the entire movable property that the First Informant was having in the said structure. 8. It appears that the main dispute is about the possession of the part of the land and/or the structure in the context of the fact that the property is being developed. Undoubtedly, if the incident of theft is true, the stolen property is required to be recovered, as a part of investigation. Mr. Memon, however, submits that the Applicants are ready to deposit cash of Rs.9,500/-, as the costs of the property alleged to have been stolen, without prejudice to their contention that no theft of the property of the First Informant has actually been committed by the Applicants. Mr. Saste, the learned APP, submitted that such deposit of cash amount cannot be a substitute for collecting evidence of theft. The contention advanced by Mr. Saste, the learned APP, is correct, but, in the facts and circumstances, it is, indeed, doubtful whether by ordering detention of the Applicants in custody, the articles said to have been stolen can be recovered. 9. As already observed, the main dispute appears to be with respect to possession of the property in question. Mr. Memon states before me, on behalf of ABA-437-441-11.sxw 4 Dixit the Applicants, that the Applicants shall not evict or drive away the First Informant from the place, without following due process of law. This statement is accepted. 10. One of the co-accused was arrested and released on bail. In the circumstances, I think it proper to grant anticipatory bail to the Applicants, subject to certain conditions. 11. In the event of their arrest in C.R. No.170 of 2011 of Powai Police Station, Mumbai, the Applicants be released on bail in the sum of Rs.25,000/- each, with one surety in like amount, on the following conditions : (i). The Applicants, without prejudice to their rights and contentions, shall jointly and/or severally deposit a total sum of Rs.9,500/- with the Investigating Officer as the value of the property allegedly stolen. This amount of cash shall be dealt with according to the order that may be passed for its disposal by the concerned Magistrate, at a subsequent stage. (ii). The Applicants shall not contact, meet or approach the First Informant or any other prosecution witnesses, in any manner, whatsoever. (iii). The Applicants shall report to the Police Station and make themselves available for investigation and interrogation, as and when required by the Investigating Officer. [A.M. THIPSAY, J.]