Ramdhari Devnarayan Mishra vs State Of Maharashtra And Anr.
2002 Latest Caselaw 426 Bom

ORDER

J.G. Chitre, J.

1. Shri Jha has divided his submissions on three divisions, (1) the allegations made by the complainant are of civil nature and, therefore, this is a matter pertaining to the domain of jurisdiction of Civil Court; (2) no ingredients of criminal offence has been indicated in the complaint made by the complainant; (3) the applicant has given a flat to complainant to reside and, therefore, there is no whisper of commission of criminal offence, leave aside the offence punishable under the provisions of Section 420 of IPC. He pointed out that these points have been dealt with by number of judgments of various High Courts and Supreme Court. He prayed for direction in the nature of anticipatory bail to the applicant.

2. Shri Konde Deshmukh for the prosecution submitted that the act of giving a flat to the complainant which is situated in an unauthorised zone of the building itself shows the credibility of the appellant. Shri Konde Deshmukh submitted that a case of offence punishable under the provisions of Section 420 of IPC has been spelled out and, therefore, the bail application deserves to be dismissed.

3. It is true that in cases which are revolving around the averments touching commercial transactions there is a thin line of demarcation demarcating a matter pertaining to the domain of the jurisdiction of the Civil Court and a matter pertaining to the domain of the jurisdiction of the Criminal Court. Therefore, it is necessary to enable the investigating agency to go for complete investigation. While dealing with the alleged offences punishable under the provisions of criminal or penal laws, it is true, that the Court has to consider whether the FIR or the complaint is making out a prime facie case of the ingredients of the penal sections. In this context, the words "wrongful gain", "wrongful loss", "fraudulently", "dishonestly", have to be considered. It is necessary to find out prima facie whether the alleged accused has given the promises to the complainant inducing him to do overt act which makes him to part with the property. If not, then the accused would be getting a favourable wind. Otherwise, that will have to be considered appropriately against him. Prima facie, it is to be seen whether the accused had given a promise and had induced the complainant to act on it and whether in pursuance of that promise, the complainant had acted and parted with the property. For that purpose, investigation is necessary. The judgments of which Shri Jha has said in the submissions are dealing with the decided cases. Therefore, the ratio cannot be applied to the present case as it is because this is a case in which still the investigation is to be completed and charge-sheet is yet to be filed.

4. In this context, it is to be noted that the flat which has been given to the complainant as the papers of the investigation show, happens to be on upper floor which, as per the prosecution case, is unauthorised portion of the building. Prima facie it means that the complainant would be evicted if that portion of the building stands demolished by the Corporation. Prima facie, in such eventuality where the complainant should go? This Court cannot forget this important aspect of the matter while considering the prayer for direction in the nature of anticipatory bail.

5. Shri Jha has quoted the case of Joginder Kumar v. State of U.P. . But the facts of that case were totally different. In that case a young advocate of 28 years was called in the office of the SSP and there he was arrested and, therefore, a question arose whether that was a proper arrest or whether that was violative of human rights and other auxiliary questions. Here a simple case has been projected by the prosecution that the accused gave certain promises and in pursuance of those promises the complainant parted with a big sum and now there has been a dispute between the complainant and accused and the complainant has lodged FIR with the police. Now it has gone to further development that as a matter of compromise a flat has been given by the accused to the complainant but that is in that portion of the building which is un-authorised, as prosecution case indicates.

6. While dealing with the applications. In which prayer for directions in the nature of anticipatory bail is made, the Court has to consider number of factors, such as :-

(1) The prima facie case made out by the prosecution or the complainant;

(2) Whether the prosecution of the complainant has a case to go to trial, prima facie;

(3) Whether release of an accused before trial or by directions in the nature of anticipatory bail would impair the continuous flow of investigation;

(4) Whether such release is likely to subvert the course of the investigation or the process of law;

(5) In this context, the nature of alleged offence has also to be seen;

(6) Whether the offence is of a petty nature or indicates a ghastly crime or indicates a crime which would be hampering the larger interest of the society.

(7) What impact the release of the accused on bail or by a direction in the nature of anticipatory bail is likely to create on the society.

7. After considering all these necessary facets of the matter, this Court comes to the conclusion that the applicant has not made out a prima facie case for getting directions in the nature of anticipatory bail in his favor. Thus, this repeated bail application stands dismissed.