1 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 389 OF 2010 Shekhar Narayan Shetty .. Applicant V/s State of Maharashtra .. Respondent ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. A.A. Kumbhakoni, Senior Advocate with Mr.Karan Mehta i/b Mr. V.V. Purwant for the applicant. Mr. Amit Desai with Mr. M.K. Kocharekar for the original complainant. Mr. M.R. Tidke, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 27TH JANUARY 2010 P.C. : 1. By this application, the applicant seeks pre-arrest bail in connection with C.R. No. 111/2009 registered at Malabar Hill Police Station, Mumbai. 2 2. Brief facts of the alleged offence are that the complainant is the owner/landlord and the present applicant is his tenant running a hotel business. There are disputes between the complainant and the applicant and eviction proceedings are pending before the Appellate Bench of the Small Causes Court. A false obituary was published in two newspapers about the death of the complainant though in fact he is alive. Upon investigation, the police arrested the person who had given the news about the obituary along with a xerox copy of a forged death certificate of the complainant. This person, who is an employee of the applicant, is alleged to have stated before the police that the applicant was the brain behind. The police therefore seek custody of the applicant on the ground that custodial investigation is necessary to ascertain how the forgery of the death certificate was made and where are the original seals used for the 3 purpose of preparation of the forged death certificate. 3. The learned Sessions Judge while rejecting the application for pre-arrest bail has held that offence under section 465 of the I.P.C. is a bailable offence. He has further held that forging of a death certificate, prima facie, would not attract the provisions of section 467 of the I.P.C. He has however held that prima facie an offence under section 466 of the I.P.C. was made out ad on that count rejected the bail. 4. It is true that prima facie commission of an offence punishable under section 466 of the I.P.C. is made out. However, admittedly the death certificate was not produced by the applicant but by a third person who is alleged to an employee of the applicant. On the basis of a statement of such third person – co- accused, the applicant is sought to be 4 implicated. There is no other material connecting the applicant to the crime. 5. The obituary was published on 17th September 2009. The F.I.R. was registered on 28th November 2009. The delay in lodging of the F.I.R. is not satisfactorily explained. Besides, if at all the applicant wanted to destroy the evidence of the seals used for the purpose of preparation of a forged death certificate, he had ample time it and therefore custodial investigation at such a late stage would not serve any further purpose. 6. Considering the nature of the offence, the unexplaine4d delay in lodging of the F.I.R., the time elapsed between the date of commission of the alleged offence and today and taking into consideration the totality of the circumstances, the applicant can be granted conditional pre- arrest bail. Hence, I pass the following order: 5 ORDER In the event the applicant is arrested in connection with C.R. No.111/2009 registered at Malabar Hill Police Station, Mumbai, he shall be released on bail on executing a personal bond of Rs.15,000/- with two sureties of the like amount, subject to the following conditions: (i) The applicant shall not threaten any of the prosecution witnesses nor shall he threaten the co-accused and shall not interfere with the process of investigation. (ii) The applicant shall attend the concerned police station on 1st and 2nd February 2010 between 11.00 a.m. and 5.00 p.m. and thereafter as and when summoned by the police. (iii) This order shall remain in force for a period of 2 months or till the charge-sheet is filed whichever is earlier, whereby the applicant 6 may, if he so desires, apply for regular bail to the court. It is clarified that the trial court shall not in any way be influenced by any of the observations made herein. (D.G. KARNIK, J.)