Kailas Baban Badekar vs The State Of Maharashtra
2021 Latest Caselaw 13619 Bom

                                                1/9         17-ABA-2736-19-&-ors.odt

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION

                            ANTICIPATORY BAIL APPLICATION NO.2736 OF 2019

                      Suryakant Pandharinath Pathade         .... Applicant
                           versus
                      State of Maharashtra                   .... Respondent

                                                WITH
                                 INTERIM APPLICATION NO.100 OF 2020
                                                 IN
                            ANTICIPATORY BAIL APPLICATION NO.2736 OF 2019

                      Kailas Baban Badekar                   .... Intervenor

                      IN THE MATTER BETWEEN :

                      Suryakant Pandharinath Pathade         .... Applicant
                           versus
                      State of Maharashtra                   .... Respondent

                                                WITH
                            ANTICIPATORY BAIL APPLICATION NO.2744 OF 2019

                      Shrinath Eknath Devkar & Anr.          .... Applicants
                               versus
                      State of Maharashtra                   .... Respondent

                                                WITH
                                INTERIM APPLICATION NO.1763 OF 2019
                                                 IN
                            ANTICIPATORY BAIL APPLICATION NO.2744 OF 2019

                      Kailas Baban Badekar                   .... Intervenor
MANUSHREE
V
NESARIKAR             IN THE MATTER BETWEEN :
Digitally signed by
MANUSHREE V
NESARIKAR             Shrinath Eknath Devkar & Anr.          .... Applicants
Date: 2021.09.24
17:49:13 +0530               versus
                      State of Maharashtra                   .... Respondent

                Nesarikar
                                 2/9                17-ABA-2736-19-&-ors.odt

                                   .......

•     Mr.Abhishek R. Avachat, Advocate for Applicant in ABA
      No.2736/2019.
•     Mr.Vikas B. Shivarkar, Advocate for Applicant No.ABA
      No.2744/2019.
•     Mr.Y.M. Nakhwa, APP for the State/Respondent in both ABAs.
•     Mr.Anand Jondhale a/w, Yashoda Jondhale, Rajnandini
      Jondhale a/w Ajay Jondhale i/b. Jondhale and Co. for
      Intervenor in both ABAs.

                           CORAM       : SARANG V. KOTWAL, J.

                           DATE        : 22nd SEPTEMBER, 2021

P.C. :

1. Both these application are decided by this common

order because they arise out of the same investigation and same

registered offence. For the sake of convenience, the Applicants

are referred to by their designation or by their names.

2. The Applicant Suryakant Pandharinath Pathade was the

Circle Officer at the relevant time. Today he is a Nayab Tahasildar.

The Applicants Shrinath and Sonali Devkar are the purchasers of

the property, which is the subject matter of the FIR.

3. The Applicants are seeking anticipatory bail in

connection with C.R.No.783/2019 dated 09/11/2019 registered 3/9 17-ABA-2736-19-&-ors.odt

with Loni Kalbhor Police Station, under sections 167, 193, 199,

200, 420, 468, 471 r/w 34 of the Indian Penal Code.

4. The FIR is lodged by one Kailas Baban Badekar. He has

stated that his family has an ancestral land at village Uruli

Kanchan, Taluka Haveli, Distrct-Pune, bearing Gat No.276

admeasuring 2 hector 26 R. The original owners were the

informant's grandfather Tukaram Ram Badekar and father

Baban Badekar. After their death, the informant and other family

members are the legal heirs and the land is in their possession.

Baban died on 26/04/2006 and Tukaram, the grandfather of the

informant, died on 02/09/2010. The land was categorized as

Mahar Watan and therefore regrant as well as permission for

sale was necessary for any transaction of that particular land.

The allegations are that, the accused purchasers in collusion

with each other, gave an application to the authorities for

issuing order of regrant for the said land. It is specifically alleged

that the application was not signed by the informant and other

legal heirs. The application was forged. The competent authority 4/9 17-ABA-2736-19-&-ors.odt

had passed order of regrant. There are allegations that when the

matter was sent for enquiry before the Applicant Suryakant

Pathade, as the Circle Officer, certain statements were recorded

by him. There are allegations that the informant's mother Kamal

passed away on 28/01/2007. Inspite of that, the statement in

her name was recorded on 04/05/2007. This obviously was

done by recording statement of some imposter. On these

allegations the FIR was lodged. Initially a private complaint was

lodged and order under section 156(3) was passed and pursuant

to that order, the FIR was lodged.

5. Heard Mr.Abhishek R. Avachat, learned counsel for the

Applicant in ABA No.2736/2019, learned counsel Mr.Vikas B.

Shivarkar for Applicant in ABA No.2744/2019, Mr.Anand

Jondhale, learned counsel for Intervenor and Mr.Y.M. Nakhwa,

learned APP for the State.

6. Learned counsel for the Applicant Mr.Abhishek Avachat

submitted that the Applicant Pathade is a Circle Officer and he 5/9 17-ABA-2736-19-&-ors.odt

was not knowing any of the parties personally. Therefore

whoever remains present before him with some identification,

he has to record their statement. Therefore at the highest it can

be alleged that he did not perform his duty diligently. But that

did not mean that there was criminal intention on his part or

that he colluded with others in committing that offence.

7. Learned counsel Mr.Vikas Shivalkar for the other

accused submitted that the informant's father had executed an

agreement for sale, in respect of that land in favour of these two

Applicants Shrinath and Sonali Devkar. However, further steps

were not taken by legal heirs of Baban and therefore the

Applicant Shrinath Devkar had filed Special Civil Suit

No.833/2008 in the Court of 9 th Jt. C.J.S.D. for specific

performance against the first informant and his other family

members. The suit was decreed in favour of the Applicant

Shrinath Devkar on 08/03/2010. In that judgment it was

specifically recorded that the statement of the deponents in that

suit including that of the first informant Kailas was recorded by 6/9 17-ABA-2736-19-&-ors.odt

the accused circile officer on 04/05/2007 and yet the informant

had not raised any objection about the same. The complaint is

lodged much belatedly in the year 2019. He submitted that the

Applicants Shrinath and Sonali Devkar are the bonafide

purchasers and there is a decree of competent Court running in

their favour. Inspite of that these false allegations are made

against the present Applicants. In any case, they had nothing to

do with the applications for regrant of the said land as Mahar

Watan, because as per the agreement it was the duty of the

seller to seek all the permissions from the competent authority.

The Civil Court in the operative part of the judgment had

directed the informant and others to execute a sale deed in

favour of the Applicant Shrinath. The Applicants Shrinath and

Sonali Devkar had paid Rs.5,00,000/- and about Rs.14,25,000/-

were balance, which were directed to be paid by them.

8. Learned counsel for the Intervenor submitted that on

04/05/2007 even the informant's statement was not recorded.

Even those statements are either forged or are recorded through 7/9 17-ABA-2736-19-&-ors.odt

some imposter. He submitted that allegations in the FIR are in

respect of forgery and impersonation for which the Applicants'

custody is necessary.

9. Learned APP relied on the allegations in the FIR and in

particular about the allegations of forgery of signatures and

statements made before the authorities.

10. I have considered these submissions. It is difficult to

observe with certainty that the Applicant Pathade had knowingly

recorded a statement in the name of a dead person. There is

possibility that he relied on the representation made before him

about the identity of the person whose statement he has

recorded. Therefore after more than 14 years, it would be

difficult to permit custodial interrogation of the Applicant

Pathade, who is a public servant.

11. As far as two other Applicants are concerned, they

were the purchasers of the property. As per the agreement for 8/9 17-ABA-2736-19-&-ors.odt

sale it was duty of the seller to get all the permissions. Therefore

there is some substance in the contention of Mr.Shivarkar that

they were not required to make any efforts to get the regrant or

permission from the collector as it was the duty of sellers. The

agreement for sale was executed by the father of the informant

and specific performance decree was passed against the

informant. After all this, the present FIR is filed belatedly in the

year 2019. The Applicants are on interim protection since

December 2019. There is long gap of period from alleged

commission of offence in the year 2007. Similarly there is a

long gap of period from December 2019, since when the

Applicants are on interim protection. Therefore after all these

years, in the background of above discussion, the custodial

interrogation of the Applicants would not be justified. The

questions are left open to be decided during trial. The

observations are made only for the purpose of this anticipatory

bail application. The investigation can go on. The custodial

interrogation of the Applicant is not necessary. But they will

have to cooperate with the investigation.

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12.   Hence, the following order :


                        ORDER


      (i)    In the event of their arrest in connection with

C.R.No.783/2019 dated 09/11/2019 registered with Loni Kalbhor Police Station, the Applicants in Anticipatory Application No.2736/2019 and Anticipatory Bail Application No.2744/2019 are directed to be released on bail on their furnishing PR bond in the sum of Rs.30,000/-

(Rupees Thirty Thousand Only) each, with one or two sureties each, in the like amount.

(ii) The Applicants shall attend the concerned Police Station as and when called and shall cooperate with the investigation.

(iii) Application stands disposed of accordingly.

(iv) With disposal of these Anticipatory Bail Applications, Interim Applications are also disposed of.

(SARANG V. KOTWAL, J.)