Vasant Bhiku Asabe vs The State Of Maharashtra
2017 Latest Caselaw 6333 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 CRIMINAL APPELL ATE JURISDICTION

          ANTICIPATORY BAIL APPLICATION NO.1086 OF 2017
                             WITH
              CRIMINAL APPLICATION NO.679 OF 2017


      Raosaheb Namdeo Aasabe & Ors.                       ..Applicants.
                  V/s.
      The State of Maharashtra                            ..Respondent.
                  AND
      Vasant Bhiku Asabe                                  ..Intervenor.


      Mr.Kuldeep Patil i/b. Mr.Prashant S. Hagare for the Applicants.

      Mr.S.V. Gavand, APP for the Respondent-State.

      Mr.Sanjiv Kadam i/b. Mr. B.S. Shinde for intervenor.


                                       CORAM : T.V.NAL AWADE, J.

                                       DATED :      16 AUGUST 2017

      P.C.:-

This is an application for anticipatory bail in C.R.No.

566/2016 for offence punishable under section 420, 465, 471 read

with 34 of the IPC registered with Indapur police station, Pune.

Heard both the sides. The papers of investigation were made

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available for perusal.

2. The material collected shows that there was dispute over

over the common bandh, boundary between the land of the

complainant and land of the present Applicants. It appears that a

Civil Suit was filed by Respondents but they failed in the suit.

However, the Civil Court had not given any decree of recovery of

portion which was allegedly encroached by the complainant's side.

One proceeding was filed before the revenue authority raising the

boundary dispute under the Maharashtra Land Revenue Code but

no order was made by the concerned authority in favour of the

Applicants for getting possession of the portion which was allegedly

encroached by the complainant's side.

3. The allegations are made in the F.I.R. that the present

Applicants prepared and created false record of order of the revenue

authority of removal of encroachment and getting orders of police

protection for removal of encroachment and thereby they committed

the aforesaid offence.

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4. Record like application made by Applicant No.1

Raosaheb Aasabe before the Talathi on 26 May, 2016 is produced.

It can be seen that Talathi had no powers to pass any order or refer

the dispute to the Circle Officer under the provisions of the

Maharashtra Land Revenue Code. Then, there is a copy of the order

made by the Tahsildar to Indapur police station showing that the

revenue office had made the aforesaid order of removal of

encroachment of 0-43R from Gut No.115 of Vasant Bhiku Aasabe

from village Babulgaon and police were expected to give protection

for removal of this encroachment and for giving possession of the

encroached portion to Raosaheb Aasabe.

5. Learned counsel for the Applicants submitted that there

is no record of order made by the competent revenue authority of

removal of encroachment and so it cannot be said that false record or

order of the revenue authorities is created by the Applicants. This

submission is not at all acceptable. The record shows that some

proceeding was started before the Tahsildar but in that proceeding,

no order was passed by the Tahsildar. The aforesaid record is

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sufficient to show that even though there was no order of Civil Court

or competent authority for removal of encroachment, attempt was

made by Raosaheb Aasabe to take possession of the so called

encroached portion. There is a possibility that the Tahsildar was

under the influence of Raosaheb Aasabe due to which police

protection was given. The decision of the Civil Court does not show

that any counter-claim was made by Raosaheb Aasabe in the said suit

for removal of the encroached portion and so there was no question

of giving decree of such nature. Only the suit of the complainant's

side was dismissed in which the complainant had claimed that they

were owners of the property and they were challenging the

measurements made at the instance of Applicant Raosaheb Aasabe.

Thus, the material as can be seen shows that, Raosaheb Aasabe

created false records when there was no order for removal of

encroachment. This record however, does not show the involvement

of the other Applicants in the crime. In view of these circumstances,

this Court holds that no protection can be given to Applicant No.1

Raosaheb Namdeo Aasabe but relief can be given to Applicant Nos.2

and 3. In the result, the following order:-

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(i)     The application of Applicant No.1 Raosaheb Namdeo Aasabe

for anticipatory bail is rejected. Consequently, the interim

relief granted to him also stands rejected;

(ii) The application of Applicant No.2 Dashrath Namdeo Aasbe

and 3 Anil Namdeo Aasbe is allowed. Interim bail granted to

them is confirmed;

(iii) The criminal application for intervention is allowed and in

view of disposal of the main application, the same is also

disposed of.q

(T.V.NAL AWADE, J.)