1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 4305 /2008 [Harikisan s/o Ratanlalji Sarda vs. State of Maharashtra and three others ) ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr R.M.Daga, Adv.for applicant. Mr S.B.Ahirkar, APP for R-1 Mr Shyam Dewani, Adv.for Res. Nos. 2 to 4 .......... CORAM : A.P.BHANGALE, J. DATED : JANUARY 20, 2010. Heard. 2. The applicant prays for cancellation of anticipatory bail granted by learned Ad-hoc Additional Sessions Judge, Nagpur, by order dated 28.11.2008 passed in Criminal Application No. 2291 of 2008 and further sought a direction to the Investigating Officer to arrest the respondent nos. 2 to 4. 3. Facts briefly stated are : The applicant had lodged a private complaint against Respondent No.2 (his brother ) and respondent nos. 3 and 4 ( sons of Respondent No.2). The dispute and grievances are concerning rights to immovable property. The applicant has claimed that the property which belongs to joint Hindu Undivided Family is being grabbed by respondent nos. 2 to 4 in pursuance of criminal conspiracy hatched between them by misleading authorities concerned, like the Nagpur Improvement Trust, alleging fraud and forgery on the part of respondent nos. 2 to 4. It is 2 contended that the learned JMFC Nagpur in Criminal Complaint Case No.3822 of 2008 ordered inquiry by police under section 156 (3) of the Cr.P.C. into the accusations made in the Complaint in the nature of offence punishable under sections 406, 420, 468, 471 read with section 34 of the IPC with Crime No. M -03/2008. 4. It is the grievance of learned Advocate for applicant that without hearing the complainant in the case discretion to grant anticipatory bail ought not to have been exercised in favour of respondent nos. 2 to 4 by learned Ad- hoc Addl. Sessions Judge, Nagpur, when anticipatory bail order was passed on 28.11.2008 in Misc. Cri.Appln. No. 2291/2008. 5. It is contended that the respondent nos. 2 to 4 did not cooperate with the investigation and their custodial interrogation was necessary. 6. In support of application, learned Advocate for applicant relied upon the ruling in State of Maharashtra vs. Pratapsinha @ Sanjay S Chavan: 2006 (6) Mh.L.J. 625 to argue that if order granting anticipatory bail is perverse or erroneous, it could be set aside the same depending upon facts of the case. 7. Learned Advocate for Respondent nos. 2 to 4 opposing the application, contended that it is essentially a dispute between two brothers – complainant and respondent no.2. The complainant was adopted in another family while respondent no.2 alone remained in their original family. It is further submitted that Investigating Officer do not require custody of respondent nos. 2 to 4 as they have fully cooperated in the ongoing investigation as was ordered by learned Magistrate pursuant to the private complaint by the complainant ( applicant herein). It is further submitted that while the State is 3 not interested in cancellation of anticipatory bail granted in favour of respondent nos. 2 to 4, the applicant is trying hard to get it cancelled. It is submitted that the private counsel for the applicant must act only to assist the Public Prosecutor and not to indulge in combat on behalf of complainant with respondent nos. 2 to 4 to pursue cancellation of anticipatory bail which was granted long back. It is further contended that the Investigating Officer can file report u/s 173 Cr.P.C. upon completion of inquiry or investigation in view of ruling in Mohd. Yousuf vs. Afaq Jahan (Smt) & another: (2006 ) 1 SCC 627. 8. Learned APP for respondent no.1 states, under instructions from the Investigating Officer, that the I.O. do not require respondent nos. 2 to 4 for custodial interrogation as they have produced necessary documents for the purposes of inquiry. Hence anticipatory bail may not be cancelled. 9. I have heard submissions and perused the rulings cited, as also the record. 10. The legal position in respect of grant of anticipatory bail is well- settled in view of ruling in Salauddin vs. State of Maharashtra: AIR 1996 SC 1042. Anticipatory bail is granted for limited period till regular Court can apply its mind for grant or refuse regular bail. Regular court is expected to deal with the matter on appreciation of material placed before it after the investigation has made progress or when charge-sheet is submitted. Therefore, protection granted by way of anticipatory bail is essentially for limited period until final report u/s 173 Cr.P.C. or charge-sheet is filed before the regular Court with plea for regular bail. In other words, when charge-sheet or final report is filed in the regular Court it is mandated that the accused are to surrender in custody of the regular Court and move for bail. The regular court may allow 4 the accused to remain on interim bail before the regular court hears the plea for regular bail and dispose off it, of course, on merits. It is common knowledge that the grant of anticipatory bail is neither a passport to commit crime nor a shield against all or every likely accusation. Because plea for bail needs decision with reasons to be passed by regular Court concerned. Considering various factors, such as, nature and seriousness of accusations, likelihood of long sentence, possibility of abscondance of accused or tampering of evidence character, antecedents and community ties of the accused, strength of evidence against accused as also whether accused have kept previous terms of bail order (granted if any). In Prashant Kishor Mehta vs. State of Maharashtra 2008(5) Mh.L.J. 824, this Court in para 74 held as under : “ 74. In the ultimate analysis, I hold that anticipatory bail can be for a limited duration up to the time when viable change takes place in fact situation like completion of investigation or filing of charge-sheet and that Salauddin's case ( supra) which is forerunner for all subsequent cases to conclude that anticipatory bail could be only for a limited period is not at variance with the judgment of the Constitution Bench in the case of Gurubaksh Singh (supra )”. 11. For the reasons afore-mentioned, I think the anticipatory bail granted to the respondent nos. 2 to 4 would enure till the charge-sheet is filed before the regular Court. When charge-sheet is filed the accused shall surrender before the regular Court and apply for regular bail on merits in accordance with law. Hence it is not necessary to cancel anticipatory bail as granted herein, as it shall expire upon filing of charge-sheet before the regular Court. The application stand 5 disposed of accordingly. Needless to state that this Court has not expressed any opinion on merits of the case, on facts. JUDGE sahare