1 1218.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1218 OF 2010 Mr.Suresh Bhaskar Bhosale ...Petitioner Versus State of Maharashtra & Ors. ...Respondents ...... Mr.Sujit J.Pathak i/b ABG & Associates for Petitioner. Mr.A.S.Gadkari, A.P.P. for State. Mr.Shekhare Ingawle for Respondent No.4. ...... CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. DATED:- FEBRUARY 8, 2011. P.C. 1. Heard Counsel for the petitioner as well as respondents. 2. From the facts which emerge on the basis of the pleadings filed by both the parties, it is noticed that after the decree was passed by the Civil Court, Bailiff proceeded to take possession of the premises in question. The Bailiff took police protection from respondent No.3 and proceeded to take possession on 20th February, 2010. The Bailiff thereafter handed over possession of the premises to the Constituted Attorney of the petitioner. The Constituted Attorney, in turn, handed over possession of the premises to newly added respondent No.4 Arjun Nandan Shelar on the basis of the 2 1218.10 Power of Attorney making provision therefor. Later on, the petitioner and his family members made attempt to take forcible possession of the premises disowning their Power of Attorney. For that reason, the relative of Respondent No.4 by name Ajinkya Shelar made complaint to the local police station on 17th March, 2010. 3. The petitioner claims that he has terminated Power of Attorney on 3rd March, 2010, but much before that the possession of the premises was handed over to the respondent No.4 by the Constituted Attorney of the petitioner on 26th February, 2010. The respondent No.4 could be dispossessed by the petitioner only by following due process of law and not taking forcible possession of the premises on the assumption that the Constituted Attorney has committed breach of trust or cheated the petitioner as such. It is the argument of the petitioner that the Constituted Attorney went to the extent of forging documents. However, no such formal complaint has been filed to any police station by the petitioner. The petitioner has not even chosen to move the Civil Court for appropriate direction if he wanted to disown the act of commission and omission of his Power of Attorney who had put the respondent No.4 in possession of the premises. 3 1218.10 4. As aforesaid, complaint was received by the local police station about the attempt of the petitioner and her relatives to forcibly dispossess the occupant of the disputed premises-Respondent No.4. That matter was inquired into by the local police station and eventually offence came to be registered as C.R.No.187 of 2010 on 21st May, 2010. The said offence was investigated and we are informed that police report under Section 173(2) of Cr.P.C. has also been filed in connection with the said offence in the concerned Court. 5. Taking overall view of the matter, therefore, it appears that it may be a case of petitioner being deceived by her Power of Attorney but that would not give any right to the petitioner to dispossess someone who is already in possession of the premises who was inducted by the Power of Attorney of the petitioner at the time when Power of Attorney was subsisting. If the petitioner is disowning the Power of Attorney relied by the Constituted Attorney, may have to proceed against the occupant of the premises by following due process of law but cannot be allowed to forcibly dispossess the occupant of the premises. 6. The relief claimed in this Petition of directing the local police to 4 1218.10 forcibly open the lock put on the disputed premises belonging to respondent No.4 and to proceed against the respondent No.4 clearly overlooks the above position that the respondent No.4 has come in possession of the premises only after the decree was executed by the Bailiff on 20th February, 2010 and the premises came to be handed over to the Constituted Attorney of the petitioner, who in turn, has inducted respondent No.4 in the said premises. 7. Insofar as the relief claimed by the petitioner to direct the Director General of Police to take action against Senior Inspector of Police Mr.Patil and Senior Inspector of Police Mr.Gore for illegally detaining his father and three Uncles and for torturing them in order to favour of Mr.Ramesh Halle and Mr.Arjun Shelar is concerned, the allegations in the Petition are denied by the concerned respondents including the Police Officials. There is no record to indicate that the petitioner or any of his relatives were arrested or detained by the local police in connection with any offence till the institution of this Petition on 15th April, 2010. It is not open for this Court to enter into disputed questions of facts. Suffice it to observe that the relief claimed in terms of prayer clause (c) is on the basis of averments which have already been countered and disputed. 5 1218.10 8. In the circumstances, this Petition is disposed of with liberty to the petitioner to pursue such other remedy against the occupant of the premises or against the Power of Attorney, as may be permissible by law, if so advised. All questions in that behalf are left open. 9. It is made clear that dismissal of this Petition or any observation made in this order will not come in the way of the petitioner to pursue the proposed remedy against the occupant of the premises-respondent No.4 or any person claiming through him or for that matter, the Constituted Attorney of the petitioner Mr.Ramesh Halle. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)