1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2783 OF 2009 Sudhir Vasant Karnataki Applicant versus The State of Maharashtra Respondent Mr.A.P.Mundargi, Sr.Counsel i/by O.A.Siddiqui for applicant. Mr.S.R.Borulkar, Public Prosecutor with Y.S.Shinde, APP for State. WITH CRIMINAL APPLICATION NO.2809 OF 2009 Deepak Madhavrao Mankar Applicant versus State of Maharashtra and another Respondents Mr.A.P.Mundargi, Sr.Counsel with Hitesh Jain, Subhodh Jadhav and Daljeet Singh i/by H.E.Palwe for applicant. Mr.M.S.Mohite, advocate for the First Informant. Mr.S.R.Borulkar, Public Prosecutor with Y.S.Shinde, APP for State. CORAM : A.S.OKA, J. DATE : 03rd July 2009 PC :- 1. Not on board. Paper are produced at 3.00p.m.. The Regular Court (Coram : D.B.Bhosale, J.) taking-up the applications for anticipatory bail 2 passed an order that these applications for pre-arrest bail should not be placed before the said Court. As per the general directions issued by the Hon'ble the Chief Justice, the matters which are not taken-up by the Court presided over by Hon'ble Shri Justice D.B.Bhosale, are ordered to be placed before this Court and that is why these applications have been placed before this Court. The ad-interim relief granted by the regular Court is operating today. Therefore, the applications are taken-up for final hearing. 2. I have heard the submissions of the learned Senior Counsel appearing for the applicants in both the matters. I have also heard the submissions of learned Public Prosecutor appearing for the State and learned counsel appearing for the first informant. These two applications are filed for anticipatory bail. 3. Both the applications relate to C.R.No.150 of 2009 registered at Khadak Police Station, Pune for the offences punishable under sections 143, 147, 452, 384, 336, 337, 427, 504, 506 and 395 of the Indian Penal Code. The applicant in Criminal Application No.2783 of 2009 is accused no.1. The applicant in Criminal Application No.2809 of 2009 is accused no.4 who was arrested yesterday in connection with another offence and, therefore, he is not present. It is also an admitted position that the applicant in Criminal Application No.2783 of 2009 is not present today when the application was called out and when this order is being dictated. The order dated 26th June 2009 passed by this Court (Coram : 3 D.B.Bhosale, J.) directs that the applicants in both the applications should remain present in the Court on the next date of hearing. 4. It will be necessary to refer to the allegations made in the FIR lodged by the first informant on 14th June 2009. The applicant in Criminal Application No.2783 of 2009 claims to be a builder and developer by profession. The applicant in Criminal Application No.2809 of 2009 is a political worker and is a councillor of the Pune Municipal Corporation. The allegation is that by criminal intimidation the accused created an atmosphere of terror and forced the first informant to transfer his property to the accused no.1. It is stated that the first informant is residing along with his wife and son who is Doctor by profession in the property in question. He claims to be a retired teacher. It is stated that another son of the first informant is employed as a Flight Lieutent in Air Force and at present he is posted at Gwalior. The dispute relates to land bearing City Survey Nos.1332 and 1332-A admeasuring 1905 sq.meters situate at Shukrawar Peth, Pune. It is contended by the first informant that he is having an undivided 1/3rd share in the said property. A reference has been made to a suit filed by his mother against him. He stated that public notices appeared in the news papers in August 2006 recording that the other co-sharers were desirous of selling their share. The first informant objected to it by giving a reply recording that he was not desirous of selling his share. It appears that in respect of the undivided share of the other co-sharers in the said property, a sale deed was executed on 4th February 2008 in favour of the applicant in Criminal Application No.2783 4 of 2009. The allegation is that on 6th February 2008 the said applicant (accused no.1) along with one Datta Sagare came to the property of the first informant along with 40 to 50 goondas. They were accompanied by other co-sharers of the first informant. It is alleged that at about 10.30 a.m; they demolished one room forming part of the property. It is stated that the persons accompanying the accused no.1 were abusing the first informant and his family members. It is stated that on the very day the first informant contacted his advocate and informed him about this incident and requested him to take legal action. It is stated in the FIR that on 6th July 2008 at about 11.00 a.m; one Ms.Sadhana Vartak (accused no.2) who was not known to him called him on telephone and enquired about the 40 to 50 goondas who had entered in his property. On 26th February 2008 a phone call was received by the son of the first informant of one Ms.Bhongale (accused no.17). His son informed the said lady that the first informant and his wife were away to Ambejogai. It is stated that on that day 12 to 15 goondas employed by the accused no.1 who were under the influence of liquor came to the property and abused the 1st informant. The said 15 to 20 persons pelted the liquor bottles and stoned at the house of first informant. A similar incident is alleged to have occurred on 28th February 2008 at 12.30 in the midnight. It is stated that some persons came near the house and pelted liquor bottles and stones at his house. The wife of the first informant called up the Police on telephone number 100. Later on, Police arrived at the scene and took away the persons present there to the Police Station. It is stated that when he reached the concerned Police Station, the said Datta Sagara 5 was standing outside the Police Station. The officer on duty informed the first informant and his wife to go away and thereafter the said goondas were immediately released. It is stated that on 29th February 2008 when the first informant visited the Police Station his complaint was not registered. It is stated that the first informant filed a complaint with the Commissioner of Police, Pune. 5. An allegation has been made that the accused no.1 was interested in purchasing the undivided share of the first informant by hook or crook. It is alleged that one Dharmadhikari took the first informant and his son to Ms.Sadhana Vartak and the said Ms.Sadhana Vartak informed the first informant that the accused no.4 (applicant in Criminal Application No.2809 of 2008) had purchased one third undivided share of the first informant. It is stated that on the next day the said Sadhana Vartak, Datta Sagare, Dharmadhikari and 20 to 25 goondas came to his residential premises and gave threats for forcing the first informant to sign certain documents. It is alleged that all this was done at the instance of accused no.1. It is alleged that the said persons threatened to cut the hands of the 1st informant. It is stated that thereafter on one day in the afternoon the said Sadhana Vartak came to his house and took the first informant to accused no.4 (applicant in Criminal Application No.2809 of 2009) in Congress Bhavan. It is stated that the accused no.4 informed the first informant that he had purchased one third undivided share of the first informant. He stated that though he was intending to give him a sum of Rs.1.00 crore, at the instance of the said Sadhana Vartak, he offered a sum of Rs.1.25 6 crores and informed the first informant to vacate his premises. It is stated that the first informant was forced to call his son working in Air Force to sign the documents and he was threatened that if the documents were not signed, the hands of his son will be cut. It is stated that under the atmosphere of terror, the first informant was forced to call his son working in Indian Air Force. It is stated that Sadhana Vartak who is also shown as an accused forced the first informant to accept the demand draft in the sum of Rs.1.25 crores and the first informant was informed that he should deposit the said demand draft and show the receipt. It is stated that on 10th March 2008 Sadhana Vartak took the first informant and his family members to the office of Sub Registrar. It is stated that the first informant and his family members were forced to sign the sale deed and the said Sadhana Vartak signed as an attesting witness. It is stated that the first informant was forced to withdraw the suit. It is stated that the first informant and his family members were continuously kept in the atmosphere of terror and they were forced to sign the said sale deed. It is stated that there was a threat to the life of his son and, therefore, he also signed the sale deed. 6. The applications made for anticipatory bail by these two applicants have been rejected by the Sessions Court. 7. The learned Senior Counsel appearing for the applicants has invited my attention to the averments made in Suit No.330 of 2008 filed by the first respondent against his mother, other family members and 7 accused no.1. He pointed out that though in the said suit was filed on 12th February 2008, a reference to the incident of 6th February 2008 that accused no.1 along with 40 to 50 goondas and other persons visited the suit premises is made in the plaint, it is not the case made out that in the suit that one room in possession of the first informant was demolished. He pointed out that the order of status-quo was passed on 13th February 2008 in the said suit. He invited my attention to the recitals in the registered sale deed allegedly executed by the first informant, his wife and his two sons. He stated that the sale deed itself contains a recital that there were disputes and the said disputes have been settled. He stated that the demand draft in the sum of Rs.1.25 crores was received by the first informant and he executed a receipt in favour of M/s.Sky Realters. He pointed out that one of the sons of the first informant is a doctor and the other is an officer in Indian Air Force. He pointed out that not only that the sale deed was executed by the first informant on 10th March 2008, but on on 12th August 2008 the Suit No.330 of 2008 was unconditionally withdrawn by the first informant. He submitted that the most important aspect is that the FIR has been lodged belatedly on 14th June 2009. He submitted that the allegations in the FIR are very vague and the same are contrary to what is reflected in the sale deed. He submitted that no action has been taken by the first informant to get the sale deed set aside which clearly records that there was a dispute which has been settled. He submitted that in none of the earlier complaints allegedly made by the first informant, there is a reference to the fact that the suit was withdrawn. He submitted that the dispute raised by the first informant is purely a civil 8 dispute and absolutely no case of any offence is made out. 8. As far as accused no.4 is concerned, it is submitted that the accused no.4 does not come into picture as regards earlier incidents and the only allegation is that the first informant was taken by Sadhana Vartak to accused no.4. He submitted that though the accused no.4 is in custody in connection with other offence, nevertheless, the application for anticipatory bail is maintainable as he has not been arrested in connection with the offence in question. 9. The learned Public Prosecutor has invited my attention to various complaints filed from time to time by the first informant. He submitted that from time to time complaints were filed by the first informant showing as to how the atmosphere of terror was created by the accused no.1 and the anti social elements hired by him. He submitted that there is evidence on record to show that the accused no.1 has paid substantial amounts to accused no.4 and other accused Sadhana Vartak. He submitted that this is not the case where the FIR is an after-thought. He submitted that from time to time, at various stages, the first informant filed complaints with various authorities. Therefore, the aspect of delay is not relevant. He pointed out that there are other offences registered against the accused no.4 involving the allegations of land grabbing. The learned counsel for the first informant also invited my attention to the complaints filed earlier by the first informant. He submitted that the first informant was running from pillar to post for pointing out the criminal activities of accused but no 9 action was unfortunately taken by any authority. His submission is that the assertions made in the FIR cannot be said to be an after-thought. 10. I have carefully considered the submissions. It is pointed out that the two third undivided share in the property in dispute was acquired by the first accused on or before 4th February 2008 under registered sale deeds and possession of 2/3rd portion was obtained. What happened on 6th February 2008 has been set out by the first informant in the plaint which is filed on 12th February 2008. He has stated that on 6th February 2008 the accused no.1 along with 40 to 50 goondas came to the property and the accused no.1 thrusted his entry in the suit property. It was tried to submitted that the version in the FIR as regards what happened on 6th February 2008 is inconsistent with what is stated in the civil suit. However, the fact remains that as early as on 12th February 2008 in the civil suit the first informant stated about the entry of accused no.1 with 40 to 50 goondas in the property in question. In paragraph 9 of the plaint it stated that the accused no.1 took possession of that part of the property which was occupied by the other co-sharers who were defendants in the suit. 11. There is a complaint dated 29th February 2008 filed by the first informant addressed to the Commissioner of Police, Pune. The complaint narrates as to what happened on 26th February 2008. It also narrates as to what transpired on 6th February 2008 and a specific allegation is made that the persons employed by the accused no.1 were occupying the 10 property. It is stated that the said persons in the midnight of 26th February 2008 pelted liquor bottles and stones at the residential premises of the first informant. It is stated that the first informant's wife dialed 100 number and called the Police. The Police picked-up the persons who were pelting the liquor bottles and stones at the house but they were later on released. It is specifically stated that the first informant and his family members were residing in the atmosphere of terror. Along with the said complaint, a copy of the notice sent by an advocate was also forwarded to the Police Commissioner. The said notice is dated 28th February 2008 which records the incident of 26th February 2008. There is material on record to show that a copy of the said complaint was received on the same day i.e. on 29th February 2008 in the office of Commissioner of Police, Pune. Alongwith the complaint, the 1st informant forwarded photographs showing broken bottles. 12. Apart from the other complaints, there is a letter addressed by the wife of the first informant dated 6th August 2008 to the Director General of Police wherein the incident of 6th February 2008 of accused no.1 visiting the property in question with 40 to 50 goondas has also been specifically stated. It is stated that the persons brought by the accused no.1 were sitting on the property and in the garden for 24 hours. The said complaint refers to the incidents of 26th February 2008 and 28th February 2008 when the persons brought by the accused no.1 indulged in pelting liquor bottles and stones. A reference is again made to the notice dated 26th February 2008 addressed by the advocate for the first informant. It is 11 stated that her family was residing in atmosphere of terror. On 26th September 2008 there is another complaint made by the wife of the first informant addressed to the Home Minister in which all the earlier incidents have been narrated and there is a clear reference to the earlier complaints filed. It is also stated that the threats were given by the accused no.1 as the first informant was not ready to sell his share and ultimately under the terror created by the accused, the first informant was compelled to sell the property. It is stated that the amount of sale consideration is lying with the bank as it is. The wife of the first informant again filed a complaint on 13th February 2009 with the Chief Minister in which there is a specific reference to the earlier incidents. There is another complaint of 23rd February 2009 sent by the wife of the first informant to the President of India. 13. Thus, right from February 2008 there are complaints on record recording that the atmosphere of terror was created by the accused no.1 and his associates. In all these complaints various incidents which created terror including the incidents of pelting liquor bottles and stones at the house of the first informant have been set out. All these complaints clearly record that the entire family of the first informant was residing in the atmosphere of terror and threat. Therefore, what is stated in the FIR cannot be said to be an after-thought. Even the fact that the property was forced to be sold by the first informant and the amount was received by him are referred to in the said complaints and it is asserted that the amount of sale consideration has not been touched. The FIR records that 12 due to the terror created by the accused no.4 and co-accused Sadhana Vartak, the first informant was made to accept the demand draft. The material incidents which are incorporated in the FIR find place in the complaints filed by the first informant from February 2008 onwards. Only one aspect which is not stated is regarding withdrawal of the suit which finds place in the FIR.. 14. As far as involvement of accused no.4 is concerned, it is pointed out that when the sale deed was executed in February 2008 in respect of 2/3rd share of the other co-sharers, a sum of Rs.10.00 lakh was paid by the firm of the first accused which was credited to the joint account of Sadhana Vartak and accused no.4. It must be noted here that the demand draft in the sum of Rs.1.25 crores dated 7th March 2008 was deposited in the account of the first informant on the same day and the alleged sale deed was executed on 10th March 2008. It is also pertinent to note that the investigation has revealed that another firm/company of the first accused issued a cheque in the sum of Rs.15.00 lakhs on 13th March 2008 (after execution of the sale deed dated 10th March 2008) in favour of the said co-accused Sadhana Vartak and accused no.4 and on 14th March 2008 the said amount has been credited to the joint account of Sadhana Vartak and accused no.4. 15. The learned senior counsel appearing for the applicants submitted that there is no proceeding filed by the first informant for setting aside the sale deed. Right from February 2008 there are complaints filed recording 13 the atmosphere of terror created by the accused no.1 and pressure exerted due to presence of large number of persons employed by the accused no.1 in the property of the first informant. From time to time complaints have been filed and in the complaints there is a specific reference that in the atmosphere of terror they were made to execute the sale deed. Unfortunately, none of the authorities seem to have taken any action of the complaints by a retired teacher and his wife. 16. The offences alleged against the applicants have been already set out earlier. Considering all these aspects, the learned Additional Sessions Judge in the order passed by him has referred to various circumstances on record including the earlier complaints filed by the first informant. It will be necessary to refer to what is observed by the learned Sessions Judge while rejecting the application :- "... ... Needless to say that all the offences alleged against the applicants are definitely of a serious nature. One cannot say that the offence of extortion or forcing a person to sell his immovable property or subjecting such person and his family to the criminal intimidation by the act of throwing liquor bottles and pelting stones, giving him threats to cutting hands of his son, cannot be called as not grave or serious offences. They are definitely serious offences. The allegation in the complaint reflects that unlawful assembly was formed and in furtherance only of the common intention of such assembly the complainant was pressurized to sell his 1/3rd share in his property. For that purpose he and his family was subjected to all sort of harassment. There are statements of complainant's wife Sulbha and son Dhananjay recorded by police to that effect. As per statement of Dhananjay, he was even prevented from attending his college and had to confine himself to the house due to the terror created by the accused. 14 Even at this stage also, some corroboration to the complaint is coming from NC registered of the incident dated 28/2/09. There are two complaints applications sent by complainant to Police Commissioner and Chief Minister in February 2009. The fact that complainant filed civil suit on 12/2/08 within 5-6 days after the incident dt.6/2/08, seeking the injunction against Sudhir Karnataki and his other family members goes to show that some instance of pressurizing him must have occurred. The mere fact that he has sold his share in the property by accepting the demand draft does not mean that no such incidents have taken place at all. It is his very grievance that, he was forced or compelled to sign on the sale deed due to the threatening and the various instances he has cited in the complaint, he was being taken from the place to place like the house of accused Sadhana Vartak where she threatened him, then Congress Bhavan where accused Dipak Mankar made an attempt to influence and to coerce him to sell the property." 17. Thus, in substance, there are serious allegations of criminal intimidation and of coercing the first informant to sell his property. The offences of serious nature have been alleged against the applicants. Considering the nature of the offences, custodial interrogation is certainly required. The allegations in the FIR cannot be said to be an after-thought. The learned counsel for the first informant stated that the amount of Rs. 1.25 crores is not touched and has not been utilised. Considering all these aspects and especially the complaints filed from time to time by the first informant and his wife setting out the atmosphere of terror created by the first applicant, surely this is a case where custodial interrogation of the accused is required. There is material on record to support the allegation of involvement of accused no.4 in the form of receiving consideration from accused no.1. As stated earlier, the accused no.4 has been already arrested in connection with