( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 1062 of 2008 (For Bail) Pravinkumar Trimbaklal Gohil ..Applicant. Vs. The State of Maharashtra ..Respondent. Mr K. P. Ravi, Advocate for the Applicant. Ms M. H. Mhatre, A.P.P. for the State-Respondent. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 05.05.2008. DATED : 05.05.2008. DATED : 05.05.2008. P.C.:- P.C.:- P.C.:- 1. Heard the learned counsel for the applicant-accused and the learned APP for the State. 2. Perused application, affidavit and counter-affidavit. 3. The applicant-accused is seeking bail under Section 439 of the Code of Criminal Procedure in connection with C.R. No.46 of 2008 registered by the Wagle Estate Police Station under Sections 420, 465, 466, 467, 468, 471 and ( 2 ) 120-B of the Indian Penal Code. 4. Charge against the accused-applicant is that he made a false Power of Attorney. The complainant, in the case, is one Mr Ganesh Vaity who claims to have held development rights with respect to all plots of which brothers, Raghunath, Trimbak, Vasant and Kamalakar are Final Plot Allottees. Further allegations are that the applicant has made a false power of attorney with respect to the Plot No. 95 which is in possession of the applicant. Based on these allegations First Information Report (F.I.R.) is filed and offence is registered. 5. The applicant was arrested on 11.3.2008 and was produced before the Judicial Magistrate, First Class, Thane on 12.3.2008. The learned Magistrate committed the applicant to the police custody till 14.3.2008. When the applicant was produced for second remand on 14.3.2008 police sought further custody which was refused by the learned Magistrate and committed him to the magisterial custody till 25.3.2008. He submits that this order is in breach of principles of ( 3 ) natural justice. 6. The applicant submits that the police authorities without the knowledge of the applicant moved revision application on 18.3.2008 before the learned Sessions Judge challenging the order of the learned Magistrate committing the applicant to magisterial custody and obtained police custody of the applicant till 25.3.2008. He submits that this order is in breach of principles of natural justice. 7. The applicant states that on 13.3.2008 when he was in police custody, the Investigating Officer took the applicant to Mumbai in a private vehicle. He was taken out in the morning and brought back to the police station in the evening. The purpose of this exercise, according to the Investigating Officer, was to try to recover the original Power of Attorney. The applicant states that the Investigating Officer allowed the complainant and one of his henchmen to accompany the applicant-accused in the said private vehicle which was hired by the complainant. During this journey, the ( 4 ) complainant threatened the applicant by saying that he would kill his grand son and also threatened to dispossess from his (applicant’s) property, if he did not peacefully vacate the Final Plot No. 95 of which he is in possession. 8. With the above allegations followed by other serious allegations against the Investigating Officer the present applicant has moved this application to seek bail. 9. When this matter was before this Court on 15.4.2008, looking to the allegations made in the application, the applicant as well as the prosecution were directed to file affidavit of their respective stand. In reply, Ms Lata Sambhaji Donde, Police Inspector, presently attached to Wagle Estate Police Station, Thane has filed her affidavit stating that the allegations made by the applicant are false and frivolous and during search of his house photo copy of the irrevocable General Power of Attorney dated 11.9.1996 and one letter addressed to the City Survey Officer, Thane regarding transfer of the plot on his name was recovered. However, no ( 5 ) recovery panchnama has been produced on record. 10. The applicant submits that if the alleged power of attorney alleged to have been recovered carrying signature of Ganpatlal is perused and signature thereon of the present applicant existing on the bail application is compared, it is clear that the said signature is not that of the present applicant. The present applicant has, thus, denied any knowledge with respect of the alleged irrevocable power of attorney. 11. The alleged power of attorney appears to have been notarized. The Investigating Officer could have interrogated the Notary to find out whether any such power of attorney was made by the present applicant. No such investigation is made by the Investigating Officer. 12. The wife of the applicant has made the following series of serious allegations against the Investigating Officer in her affidavit, the contents of which are reproduced below: " Mr Ganesh Vaity is not only a Builder but also a very powerful political ( 6 ) leader. Two of his brothers are Corporators and all the five Vaity brothers are builders and developers. In a manner of speaking they are the first family in Thane. It was because of their political and financial clout that this false case came to perpetuated on the accused. The police had been behaving in a most partisan manner in this case. The police is also guilty of extreme third degree methods applied on the accused and have indulged in unprofessional and illegal actions like manipulating of the statements of the accused and the witnesses and also manipulating the police diaries, panchnamas etc. At the time of the filing of the F.I.R. Mr Vaity had submitted to the police and alleged letter in respect of forged power of attorney executed by the accused. I say that my Advocate was once shown this power of attorney by the Investigating Officer. It did not contain the signature of the accused. Therefore, it cannot be considered as a Power of Attorney executed by the Accused. The alleged forged Power of Attorney shown to our Advocate by the Investigating Officer was not even complete. The police took remand of the accused on three occasions saying they wanted his custody for recovering the original power of attorney. For doing this they should have logically searched his house first. Instead they first took him to Mumbai (on 13.3.2008) then took him to various places in Gujarat ( on 19, 20 and 21.3.2008). They then simply locked him up in the Police Lock up for 2-3 days. Just one day before the remand was to come to an end i.e. on 24.3.2008 they searched the house of the accused. When the police Team along with some Goons belonging to Mr Vaity’s Gang came to our house at about 7:30 p.m. on 24.3.2008. Only three ladies were present in the house (the accused has no sons, he has only two daughters). These three ladies were the accused’s wife, his daughter-in-law and her sister-in-law. ( 7 ) The house was also not searched by the Police but by Mr Vaithy’s Goons. Nothing was recovered from our house on that occasion. If they have recovered anything it would have been reflected in the Police Diaries presented before the Hon’ble Magistrate on 25.3.2008 and also in the remand application made by the Police on 25.3.2008. Neither of these documents say that a xerox copy of the Power of Attorney was recovered from our house. Instead the Investigating Officer had stated before the Hon’ble Judicial Magistrate that a letter purported to have been written by the Accused to the City Survey Officer was recovered from our house on that day. This is a total lie. The Police did not take away any paper from our house on that day. The Investigating Officer had in fact even commented at the time of leaving that she did not expect to recover any documents on that day. If the Police wanted to recover the original Power of Attorney they should have searched our house first instead they had initially took the Accused to Mumbai and Gujarat. Our Advocate has made extensive searches in the office of the Talathi, Tahsildar, City Survey Office, office of the City Divisional Office etc. He has found that the said forged Power of Attorney had never been used by any one in any of these offices. The accused is charged with making a Power of Attorney which has not been put to any use. Our Advocate had given a letter to the Police saying that certain documents of the Accused including the tax receipts etc are in his possession and the Police were welcome to search his office. They have not done so till date but in the remand application made on 25.3.2008, the police had said that they needed further custody of the accused so that they could search our Advocate’s Office. 6."I have every reason to believe that this so called forged Power of Attorney was made by Mr Ganesh Vaity himself. I ( 8 ) shall be extremely grateful to the Hon’ble Court if an order passed directing the Police to take action against Mr Ganesh Vaity for making a false complaint." 13. If the allegations made by the wife of the applicant-accused are perused, prima facie, possibility of the Investigating Officer playing in the hands of the complainant cannot be ruled out. In the facts and circumstances of the case, I am of the considered view that the applicant is entitled for bail on following terms and conditions. a] The applicant detained in connection with C. R. No.46 of 2008 registered by the Wagle Estate Police Station be enlarged on bail in the sum of Rs.25,000/- with one local solvent surety to make of the said amount. b] The applicant shall attend concerned Police Station once between 1st to 5th date of every month till further order. c]The applicant shall not directly or ( 9 ) indirectly, make any inducement or threat or pressurise any prosecution witnesses and shall not in any manner tamper with the prosecution evidence. d] Any observation made in this order shall not be construed as finding or expression on merits of the case at the time of trial. 14. At the same time, the conduct of the Investigating Officer; namely, Ms Lata Sambhaji Donde, Police Inspector, is liable to be enquired into. The Superintendent of Police, Thane is directed to personally look into the matter to make enquiry and take appropriate action, if any lapse on the part of the Investigating Officer Ms Lata Sambhaji Donde is found. In the enquiry he is expected to examine the present applicant, his wife and he is further expected to investigate the allegations made and the manner in which the investigation was conducted. 15. This Court expects Action Taken Report ( 10 ) (A.T.R.) of the Superintendent of Police against the I.O. to reach this Court within four weeks from the date of receipt of copy of this order. 16. Registry is directed to communicate this order to the Superintendent of Police, Thane with a copy thereof to the D.I.G. Mumbai to report compliance of this order. 17. The learned A.P.P. undertakes to communicate this order to both these Authorities. 18. Criminal Application No. 1062 of 2008 stands disposed of. However, for the receipt of the report from the Superintendent of Police, Thane matter to come up on board on 10.6.2008 treating it as part heard. 19. Stand over to 10th June, 2008. (V.C. DAGA,J.) (V.C. DAGA,J.) (V.C. DAGA,J.)