Manohar Pamandas Jani And Ors vs The State Of Maharashtra
2021 Latest Caselaw 6380 Bom

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                                2019.odt

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
      CRIMINAL APPELLATE JURISDICTION

          ANT. BAIL APPLICATION NO.2602 OF 2019

Manohar Pamandas Jani & Ors.                          ... Applicants
     Vs
The State of Maharashtra & Anr.                      ... Respondents
                          ...

Mr. Sachinkumar P. Rajepandhare for the Applicant. Mr. Yogesh Dabke, APP for the Respondent-State. Mr. Samir Kumbhakoni for Respondent No.2.

CORAM : SANDEEP K. SHINDE J.

DATE : APRIL 9, 2021.

P.C. :

Heard learned counsel for the applicant, learned

prosecutor for the State and Mr. Kumbhakoni, learned

counsel for the Intervenor.

2 Applicants are seeking pre-arrest bail in

connection with the Crime No.0759 of 2019 registered with

Sadar Bazar Police Station, Solapur for the ofences

punishable under Sections 406, 420, 467, 468, 504, 506

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9-ABA-2602-

2019.odt and 34 of the Indian Penal Code, 1860. This Court on

December 17, 2019 granted pre-arrest protection to the

applicants. This protection is in force.

3 Complainant Tajoddin K. Kalyani @ Shaikh

instituted Special Civil Suit No.133 of 2001 in May, 2001 for

declaration and partition of the properties, bearing Survey

No.158/4B and 159/2B. He also sought a declaration that

sale deed, dated 27th May, 1998 executed by his brother in

favour of the applicants in respect of suit land 159/2B was

null and void and not binding on them. The suit was

decreed, whereunder, 35% undivided share was decreed to

elder brother of the complainant; 35% to the complainant;

12.5% to the mother and 12.5% to the sister. The Trial

Court vide judgment and decree of September, 2002 ,

declared the sale deed dated 27 th May, 1998 was not

binding on the complainant, his mother and sister to the

extent of their share in the suit land 159/2B. Decree was

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9-ABA-2602-

2019.odt confirmed in appeal upto Apex Court. It is alleged in spite

of the decree as stated above, applicants (purchasers of the

subject land) developed the entire property admeasuring

2H and 2.5R and created third party rights therein. In the

back-drop of these facts, application under Section 156(3)

of the Code of Criminal Procedure, 1983 was filed.

Whereafter the subject ofence came to be registered

against the applicants.

4 Indisputably, the decree passed in the Special

Civil Suit No.133 of 2001 is pending for execution. It is not

in dispute that the applicants have purchased undivided

interest of the complainant's brother in the suit property.

Therefore, even assuming applicants have sold out property

in excess of their rights, the aggrieved complainant and

family members may have to adopt appropriate

proceedings to protect their interest in the suit property for

which in my view their custodial interrogation is not

required.

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5               Mr. Kumbhakoni the learned counsel for the

Intervenor has relied on the judgment of the Apex Court in

the case of T. Vengama Naidu v. T. Dora Swamy Naidu

& Ors. to contend that applicants had no right in the entire

suit property, as against their limited interest therein. In the

cited judgment, facts were diferent. Therein Power of

Attorney executed in favour of the respondents, was

cancelled. Yet on the strength of cancelled power of

attorney, respondent sold the properties to the petitioner.

Though the FIR was lodged by the petitioner therein, it was

quashed by the High Court. Whereafter petitioner had filed

criminal appeal before the Hon'ble Apex Court. In the said

facts, the Apex Court has held that pending investigation, it

can not be said that there were no ingredients of the

ofence in the FIR and this was civil dispute.

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                                                                       9-ABA-2602-
                                2019.odt
6               Here, the applicants are seeking pre-arrest bail

and, therefore, the ratio in the judgment cited by Mr.

Kumbhakoni is not applicable to the facts of the case.

7 Be that as it may, in consideration of the facts of

the case stated above, in my view, custodial interrogation

of the applicants will not further the prosecution case.

8               Application is allowed.



9               In the event of arrest of the applicants in Crime

No.0759 of 2019 registered with Sadar Bazar Police Station,

Solapur, they shall be released on executing PR bond for

the sum of Rs.25,000/- each with one or more sureties in

like sum.

10 The applicants shall furnish their permanent

residential address and contact numbers to the

Investigating Ofcer forthwith.

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11                  The applicants shall not tamper with the

evidence           or     attempt          to        infuence       or      contact          the

complainant, witnesses or any person concerned with the

case.

12 The applicants shall attend concerned police

station as and when called and co-operate in the

investigation.

13 The application is accordingly allowed and

disposed of.

14 It is made clear that observations made here-in-

above be construed as expression of opinion for the

purpose of bail only and the same shall not in any way

infuence the trial in other proceedings.

                                                     (SANDEEP K. SHINDE, J.)


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