1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL APPLICATION NO. 1245/2009 ( Somaji Natthuji Mehar vs. State of Maharashtra) AND CRIMINAL APPLICATION NO:1265/2009 (Naeshwar Shriram Madankar vs. State) AND CRIMINAL APPLICATION NO:1273/2009 (Nemaji Ramaji Moundekar vs. State) AND CRIMINAL APPLICATION NO:1469/2009 (Jayant Bhimaji Chauvhan vs. State ) AND CRIMINAL APPLICATION NO:1131/2009 (Smt.Sheela w/o Haribhau Baseshankar & one another vs. State) WITH APPLICATION NOS. 1355 & 1380 BOTH OF 2009 --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions & Registrar's orders. .......................................................................................................................................................... Mr S P Dharmadhikari, senior counsel with S/Shri PS Tidke/ H D Dangre V R Mundra / Prakash Tiwari, / R M Patwardhan for applicants Ms. S S Wandile APP for Respondents Mr. Wathore & A.Shelat for Intervenors C ORAM : A.P. BHANGALE, J. DATED : 14 th August, 2009. Criminal Application Nos. 1355 and 1380 both of 2009 seeking intervention in the matter, are allowed. Written submissions are taken on record. 2. Heard learned counsel for respective parties. By these applications, the applicants pray for grant of anticipatory bail in connection with FIR bearing No. M-1 dated 12.10.2008, registered at Nandanvan Police Station, Nagpur for offence punishable under sections 378, 379, 380, 405, 406, 409, 411, 415, 417, 420, 425, 426, 441, 442, 445, 446, 450, 451, 464, 465, 499, 500 read with section 34 of the Indian Penal Code. The crime has been registered on the basis of information given by Arun 2 Namdeorao Akare. In the proforma which was filled in as FIR under section 154 Criminal Procedure Code ( in short “Cr.P.C.”) by PSI Mr. P.S. Sanas, also bearing the signature of the informant; although it is mentioned that the FIR was read over to informant, and admitted to be correctly recorded ; whereas the copy of the same was given to the informant free of cost. Statement of the first informant appears to have been recorded on 24.2.2009 by one Parag Pote, Assistant Police Inspector, Police Station, Nandanvan. It appears that the learned Judicial Magistrate First Class, Court No.1, Nagpur had entertained Misc. Application No. 1602/2008 which was filed under section 156(3) of the Cr.P.C., with a prayer to the learned Magistrate to send the application to Nandanvan Police Station u/s 156(3) of the Code. 3. I had queried as to how such application could have been entertained without a complaint in writing or oral. Learned APP has relied upon the ruling in Madhu Bala vs. Suresh Kumar and others reported in AIR 1997 SC 3104 to argue that whenever a Magistrate directs an investigation on a complaint,the police has to register a cognizable case on that complaint treating the same as FIR and comply with the requirements of the Police Rules. It is further observed that whenever a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under section 190(1) (a) of the Code and proceed with the same in accordance with the provisions of Chapter XV. The other option available to the Magistrate in such case is to send the complaint to the appropriate Police Station u/s 156(3) for investigation. Thus, after direction is given u/s 156 (3) the Police is required to investigate into the complaint and on completion of investigation to submit the police report. In the ruling cited it appears that the applicant in that case had filed a complaint against three respondents, namely, husband, father-in-law and mother-in-law before the Chief Judicial Magistrate alleging commission of offences u/s 498A, 406 of the IPC. On that complaint, the learned Magistrate passed an order u/s 156 (3) of the Code directing the police to register a case and investigate 3 into the same. Thus, the ruling cannot be of any help to the learned APP. She argued that application simplicitor u/s 156 (3) of the Code can be entertained without complaint accompanied thereto. 4. On behalf of the applicants, ruling in Devarapalli Lakshminarayana Reddy and others vs. Narayana Reddy and others y reported in AIR 1976 SC 1672 is pointed out to indicate that power to order police investigation u/s 156(3) of the Code is different from the power to direct investigation conferred by Section 202(1) that two acts in different spheres at different stages. The first is exercisable at the pre- cognizance stage, the second at the post-cognizable stage when the Magistrate is in seisin of the case. Prima facie, it appears that mere application for direction u/s 156 (3) Cr.P .C. cannot be registered as complaint. 5. Another ruling which is pointed out by learned APP is in the case of Brij Lal Bhar vs. State of U.P. reported in 2006 Cr.L.J. 3334 (Allahabad High Court ) in which it is mentioned in para 7 that according to the provisions of Section 154 of the Cr.P.C. Also, the case is registered on the information given to the Office in-charge of a police station, relating to the commission of a cognizable offence. In default, the first informant may move an application under section 156 (3) for passing the ‘order’ for doing investigation, it provides a right to the first informant to move an application on this analogy the first informant is also competent person to move an application under section 155(2) Cr.P.C. Be that as it may, it relates to an application which can be lodged by first informant in the case. In that context, it was held that learned Magistrate was empowered to direct the Police Station Officer concerned to investigate the matter. 6. One Arun Namdeoraji Akare made an application u/s 156 (3) of the Code and succeeded in obtaining direction from the learned Judicial Magistrate u/s 156 (3) Cr.P.C. Thus, investigation by the police had started. Grievance of said Shri Akare was that he had purchased Plot No. 1 situated at Mouza Dighori for a sum of Rs.18,600/- , an area ad- measuring 4,133 sq.ft. The society who sold the plot, agreed to 4 compensate in the area if it found subsequently more or less. It is contended that godown was constructed on certain portion of the plot as also shops in the area of around 1200 sq.ft. to be used of Akare Gas Agency and Akare Gas Marketing conducted by Shri Dinesh Wanjari. The said Dinesh Wanjari had demanded loan from Parmatma Ek Sevak Bank, which was approved by the Bank, subject to mortgage executed by said Dinesh. According to respondent, said Akare was the guarantor for the mortgage. It is alleged that the applicants /accused in conspiracy with each other, caused loss to the property of Shri Akare and the godown and shops were sealed on 7.2.2006. It is alleged that attachment was illegal and after attachment, Akare had deposited a sum of Rs.19,83,200 with Bank, however the Bank had not returned the attached goods with shops. The Bank had also attached movable property of said Dinesh Wanjari. Grievance is about the auction process initiated by the Bank for sale of godown and the land. It is alleged that accused in conspiracy with with each other, prepared false documents in the nature of sale-deed and possession was given to Dharampeth Mahila Bank in respect of the land, including the basement. It is also alleged that the accused had misappropriated the goods lying in the premises and committed criminal breach of trust. Thus, on these premises and details of allegations, direction was sought from the learned Judicial Magistrate for police investigation u/s 156 (3) Cr.P.C. According to learned APP, statement in details of Shri Arun Akare has been recorded on 24.2.2009 and statements of some more witnesses are being recorded. 7. It is also pertinent to note that Shri Arun Aakare was the Director and Chairman of Parmatma Ek Sevak Sahakari Bank, Nagpur and he was disqualified by virtue of the order dated 13.12.2004 issued by Divisional Joint Registrar, Cooperative Societies, Nagpur. The said order was challenged by him before the Hon’ble Minister concerned and the order of disqualification was set aside. My attention has been invited to the fact that litigation has been pending before various foras, such as, State Consumer Disputes Redressal Commissioner, on the complaint by Dinesh 5 Wanjari and Arun Aakare against the Parmatma Ek Sevak Bank and others since July 2009, in which some monetary reliefs have been claimed against the Bank, requiring it to make payments to the complainant before the Consumer Forum. Moreover, Special Civil Suit has been filed by Dinesh Wanjari which is also pending against M/s Gas Suvidha, Parmatka Ek Sevak Bank Limited and State of Maharashtra in the Court of Civil Judge S.D. Nagpur along with application to sue as a pauper seeking injunction against the Bank from selling the property of the guarantor of the plaintiff - Dinesh Wanjari is also claiming monetary relief against the defendant no.3 Bank. Under these circumstances, grievance that Parmatma Ek Sevak society’s Office bearers have illegally seized the property or not, can also be decided before the competent Civil Court; so also the validity of the sale transactions, exact area of the plot, constructions over the same as also what was the portion which was under encroachment. 8. Learned Advocate for the intervenor Arun Akare alleged that the applicants are habitual offenders and should not be granted protection in the nature of anticipatory bail. However to believe such statement, nothing has been pointed out to show that the applicants or any of them were convicted in the past, in any criminal case. The order dated 3.10.2008 passed by the learned JMFC Court No.1 Nagpur below application u/s 156(3) Cr.P.C. which was filed on 8.9.2008, reads thus: “On perusal of record, it appears that, non-applicants have committed cognizable offence. So before taking cognizance of the offence, an investigation as per section 156 (3) of the Cr.P.C. Is necessary. Hence the matter be sent for investigation to Nandanvan Police Station. I.O. Is directed to submit report on or before 3.11.2008:” The above order indicates and merely on the basis of application filed u/s 156 (3) Cr.P.C. the above order was passed making reference to record which was perused. It would be debatable question as to whether at the time when the above order was passed, the Magistrate had taken judicial notice of the offence and whether investigation could have been ordered u/s 156 (3) Cr.P.C. because when the Magistrate has 6 applied his mind only for ordering investigation u/s 156 (3) Cr.P.C. It is a different matter than taking cognizance of cognizable offences disclosed in the complaint. Be that as it may; initiation of criminal case purely on the basis of application u/s 156 (3) Cr.P.C. appears to be prima facie a novel procedure. In the course of proceedings, the Investigating Officer, Parag Pote, has filed an affidavit in order to submit that complainant is claiming to be in possession of Plot admeasuring 5000 sq.ft.; whereas according to the applicant ownership was only to the extent of 4113 sq.ft. Plot which was the subject-matter of mortgage and loan recovery proceedings. The map was also applied for from the Nagpur Improvement Trust, Nagpur which was furnished by NIT from which it appears that the Building Engineer NIT has had shown dimension and area as per registered sale deed dated 14.3.1995. Thus, looking to the overall contentions and pending civil disputes, in such case the applicants cannot be subjected to humiliation by putting them behind the bars merely on the basis of application u/s 156 (3) of the Cr.P.C. which is being acted upon by the police, pursuant to the direction of the learned Judicial Magistrate. Of course,the applicants will have to cooperate with the investigation that is undertaken by Nandanvan Police station pursuant to the order of learned Magistrate. Therefore, prima facie case is made out for grant conditional anticipatory bail in favour of the applicants, particularly when the applicants are claiming that they are innocent and are likely to be humiliated under the circumstances. Hence the following order: In the event of arrest of the applicants in connection with FIR No.M-1 registered at Nandanvan Police Station Nagpur for offence punishable u/ss. 378, 379, 380, 405, 406, 409, 411, 415, 417, 420, 425, 426, 441, 442, 445, 446, 450, 451, 464, 465, 499, 500 r/ws.34 of the IPC applicants be released upon executing PR bond in the sum of Rs.30,000/- each, with on or more sureties in the 7 like amount to be provided by each of them, with further directions that the applicants shall attend the Investigating Officer as and when required. They shall not tamper with the prosecution evidence and shall inform their fixed address/change in address with telephone number, if any, to the I.O. All Applications are disposed of accordingly. JUDGE. sahare