1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 860 of 2009 Narayandas v. The State of Maharashtra, Govindlal, Brijkishore and Rajkishore -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr R.M. Daga, Advocate and Mr Mohit Khajanchi, Advocate with him for applicant. Mr A. Parihar, APP for State Mr Shyam Dewani, Advocate for respondents no. 2, 3 and 4. Coram : A.P. Bhangale, J Dated : 15th September 2009 1. Heard learned counsel for the parties. Applicant is seeking cancellation of order dated 9.2.2009 granting anticipatory bail to respondents no. 2 to 4 by Ad-hoc District Judge-3, Nagpur in Misc. Criminal Application No. 67 of 2009 in Crime No. M-1/2009 registered with Police Station, Kotwali, Nagpur under Sections 406, 420, 468 read with Section 34 of 2 the Indian Penal Code. 2. Applicant, respondent no. 2 Govindlal and one Harikisan are real brothers while respondent no. 3 Brijkishore and respondent no. 4 Rajkishore are sons of respondent no. 2 Govindlal. According to applicant, Hindu undivided family of three brothers owns property situated at Plot No. 84, Central Avenue, Nagpur which stands in the name of respondent no.2 Govindlal with NMC and NIT records, he being Karta of the family. Taking advantage of this situation, respondent no.2 obtained No Objection Certificate from the local authorities for transfer of property in the name of respondents no. 3 and 4. On the strenghth of gift deed, respondents no. 3 and 4 then applied for mutation of their names as owners of the property to the NIT and NMC. According to applicant, property being joint family property, respondent no.2 could not have alienated or transferred it in any manner without the consent of applicant and that of Harikisan. For this criminal conspirary, forgery and cheating, applicant lodged report with Police Station, Kotwali, Nagpur against respondents no. 2 to 4. Since police did not move, applicant filed criminal complaint case in which learned 3 Magistrate ordered enquiry and report under Section 156 (3) Cr.P.C. It is after this direction that respondent no.1 registered offences punishable under Sections 406, 420, 468 read with Section 34 of the Indian Penal Code against respondents no. 2 to 4 vide Crime No. M-1/2004. 3. Apprehending their arrest in the said crime, respondents no. 2 to 4 filed Misc. Criminal Application No. 67 of 2009 for grant of anticipatory bail. It is informed that initially interim anticipatory bail was granted by Adhoc District Judge-3, Nagpur vide order dated 22.1.2009. Later on, the interim anticipatory bail was confirmed vide order dated 9.2.2009. It is this order which is sought to be cancelled by the present applicant. 4. Learned counsel for the applicant strenuously contended that since enquiry under Section 156 (3) was ordered on the criminal complaint case filed by applicant, respondents no. 2 to 4 ought to have made applicant as party-respondent or that learned Ad-hoc District Judge-3 should not have decided 4 application without affording opportunity of being heard to applicant. Second limb of his contention is that reply filed on behalf of respondent no.1-State opposing application was not at all considered by the Adhoc District Judge-3 and the order was made in a cryptic and mechanical manner. Learned Additional Public Prosecutor appearing on behalf of respondent no.1 supported the contentions canvassed by learned counsel for applicant. 5. Learned counsel for respondents no. 2 to 4, on the other hand, submits that order passed by the Ad-hoc District Judge-3 and assailed before this Court is a well-reasoned order, considering all circumstances. He submits that custodial interrogation of respondents no. 2 to 4 is not at all necessary. 6. I have perused order dated 9.2.2009 assailed in this application. Order runs in two paragraphs and for the reasons stated in paragraph 2 of the order, learned Adhoc District Judge-3 has granted anticipatory bail. The said paragraph 2 reads thus - “2. Applicants have come with a case that the 5 disputed house is his exclusive property. In fact Narayan Sarda has no concern with the property since they were given in adoption during their minority and according to the complainant it is a Hindu Undivided Family Property and they are having right in the property. Whether the property is self acquired or a Hindu Undivided Property is a pure issue of civil nature and I feel custodial interrogationis not warranted. It has come on record that the applicants have cooperated the investigation by submitting all documents which they have and given undertaking to cooperate the police to complete the investigation. Hence, ad interim bail granted is confirmed on the same terms and conditions. Applicants shall cooperate the investigation. Sd/- M.R. Vakil, Adhoc District Judge-3 & A.S.J. Nagpur” On perusal of the order assailed, it is obvious that reply, if any filed on behalf of the State Government, does not appear to have been considered by the District Judge-3. 7. There is a communication dated 6.2.2009 placed on record by applicant which is addressed by PSI K.S. Pawar of 6 Kotwali Police Station to the District Government Pleader and Public Prosecutor, Nagpur. PSI K.S. Pawar requested the Public Prosecutor to oppose application for grant of anticipatory bail and that custodial interrogation of the applicants (respondents 2 to 4 herein) was necessary - (i). Name of complainant found place in Corporation tax record till 2007 as one of the three share-holders. However, his name has later on been deleted. Documents are required to be seized on which basis said deletion has been caused. (ii). Documents on the basis of which NOC has been obtained from the Nagpur Improvement Trust. (iii). It is necessary to interrogate as to which documents the applicants used while getting name of complainant deleted from City Survey record. (iv). It is necessary to interrogate as to why need to create gift deed arose if at all applicant no.1 is owner and applicants no. 2 and 3 are his sons. (v). Investigation is to be made whether accused nos. 1,2 and 3 in collusion with concerned NMC and NIT officials have fabricated documents and caused mutation in their 7 name. (vi). Accused no.1 produced original papers in relation to property which was in a damaged condition and could not be read. It was necessary to seize the same, but both the sons of applicant interferred and did not allow the document to be seized. Even though they undertook to produce document as and when required, they have not produced the same and are thus not cooperating in the investigation.” Since crux of the contention on behalf of learned counsel for applicants is that reply which was placed on record by the Investigating Officer concerned was disregarded while bail was granted, learned APP appearing for respondent no.1 was asked to verify from the Police Sub-Inspector concerned whether reply in pursuance to the communication dated 6.2.2009 was placed on record or not. Learned APP appearing before me orally submits that since concerned Investigating Officer was transferred, it could not be exactly gathered as to whether reply was filed before the Court or not. 8. There is order of the Adhoc District Judge-3 dated 8 30.1.2009 whereby accused were directed to produce all the relevant documents before the Investigating Officer for verification. A pursis dated 6.2.2009 was filed on behalf of respondents no. 2 to 4 herein that documents were placed for verification and writer of the Police Inspector has endorsed to that effect. However, in his say, learned APP appearing before the Sessions Judge endorsed that there was no stamp of Investigating Officer and it could not be said with certainty that the documents were verified. There is also say to the effect that accused were not cooperating with Investigaging Officer. Learned Additional Public Prosecutor is unable to make statement as to whether accused were really arrested pursuant to ad-interim order which was confirmed later on. 9. Be that as it may, in Salauddin Abdulsamad Shaikh v. State of Maharashtra reported in (1996) 1 SCC 667, the Supreme Court has held - “Anticipatory bail is granted in anticipation of arrest in non- bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is 9 the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the HighCourt is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.” 10. The said view is followed by the Apex Court in K.L. Verma v. State reported in (1998) 9 SCC 348 where it is reiterated that anticipatory bail orders should be of a limited duration only and limited duration must be determined having regard to the facts of the case and the need to give the accused 10 sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, the Apex Court has held that till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. The ratio laid down by the Apex Court in the aforesaid two cases is again reiterated in Vaman Narain Ghiya v. State of Rajasthan reported in (2009) 2 SCC 281. 11. In view of the above, anticipatory bail granted by the District Judge-3 is cancelled. However, it shall continue until 29th September 2009 by which time, respondents no. 2 to 4 may move the regular Court and apply for bail on merit. It is made clear that benefit of extension of anticipatory bail given to respondents no. 2 to 4 shall expire automatically at the end of 29th September 2009. In the event an application for grant of bail is made by respondents no. 2 to 4 or any one of them, 11 regular Court shall dispose of the same on its own merit in accordance with law after hearing all the parties. Hamdast granted. Judge. Hsj