Bombay High Court

Maula Sattar Sayyad vs The State Of Maharashtra on 22 September, 2021

Bench: S. V. Kotwal

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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                ANTICIPATORY BAIL APPLICATION NO. 2271 OF 2021

                     Maula Sattar Sayyad                           .... Applicant
                           Versus
                     The State of Maharashtra                      .... Respondent

                                                    WITH
                                ANTICIPATORY BAIL APPLICATION NO. 2226 OF 2021

                     Santosh Laxman Bhajibhakare                   .... Applicant
                           Versus
                     The State of Maharashtra                      .... Respondent
                                                ______

                     Mr. Satyavrat Joshi for Applicant in ABA/2271/2021.
                     Mr. V. V. Purvant, for Applicant in ABA/2226/2021.
                     Mr. Ajay Patil, APP for State/Respondent in both ABAs.
                                                     ______

                                                  CORAM : SARANG V. KOTWAL, J.

DATE : 22nd SEPTEMBER, 2021

P.C. :

1. Both these applications are decided by this common

order because they arise out of the same registered offence and the

same investigation. For the sake of convenience, both the

applicants are referred to by their names.

2. The Applicants are seeking anticipatory bail in Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2021.09.23 11:54:04 +0530 Gokhale 1 of 8 :2: 11 & 32-aba-2271 & 2226-21.odt

connection with C.R.No. 903 of 2019, registered at Sadar Bazar

Police Station, Solapur, on 03/12/2019, under sections 467, 468,

420 and 167 r/w. 34 of the Indian Penal Code (for short 'IPC').

3. Heard Shri. Satyavrat Joshi, learned counsel for the

applicant in A.B.A.No.2271 of 2021, Shri. Viresh Purvant, learned

counsel for the applicant in A.B.A.No.2226 of 2021 and Shri. Ajay

Patil, learned APP for the State in both applications.

4. The First Information Report (for short 'F.I.R.) is loged

on 03/12/2019 by one Santosh Tibe who was working as Assistant

Superintendent with Railway court, Daund. He was directed by the

learned Magistrate, who was conducting the case bearing

R.C.C.No.30 of 2014 on the file of Railway court, Daund; to lodge

this F.I.R.

5. The present F.I.R. is an offshoot of the earlier

investigation and trial. It started with the investigation of

C.R.No.07 of 2013 dated 28/01/2013 registered at Railway police

station, Solapur under sections 379 and 411 of the IPC. That

complaint was in respect of some theft committed in a train while

the first informant Jamir Qureshi in that case was travelling with

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his friend Hiralal Thorat. Hiralal was carrying Rs.72000/- which he

had withdrawn from his bank account. He had kept that amount in

his bag. It is not in dispute that the said amount belonged to said

Hiralal. Hiralal and Jamir boarded the train at Solapur on

27/01/2013 at about 11.30p.m. The accused in that case by name

Nitin Hosmani committed theft of that bag and took away the

money. Out of Rs.72000/-, Rs.59800/- were found from the

accused No.2 Nagesh Kasbe in that case. The amount was

deposited in the railway police station, Solapur in muddemal

section. F.I.R. in that particular offence i.e. C.R.No.7 of 2013 of

Railway police station, Solapur was lodged by the aforementioned

Jamir. During the course of investigation and trial the owner of

that amount Hiralal had passed away. Jamir gave his deposition

during the trial on 01/10/2016. He had deposed that, Hiralal had

not left any legal heir. Hiralal had a sister, but her whereabouts

were not known. The matter was kept for passing final Judgment

and order. In the meantime, the learned Magistrate decided to

verify whether the amount of Rs.59800/- was available with the

Railway police station, Solapur. Some documents in that behalf

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were produced before him mentioning that the said amount was

already returned. The F.I.R. in this case mentions that the amount

was already returned to Jamir on 09/03/2018. It was found by the

learned Magistrate that, Jamir was not entitled for that amount. It

was alleged that, the investigating officer in that case, applicant

Maula Sayyad along with other applicant Bhajibhakare were

instrumental in preparing the forged order of the court. They in

collusion with each other had returned that amount to Jamir. The

applicant Bhajibhakare was working as a Clerk at the relevant time

at Railway police station, Solapur. On this basis the F.I.R. was

lodged under sections 467, 468, 420 and 167 r/w. 34 of the IPC.

6. Both the learned counsel for the applicants invited my

attention to another order dated 09/12/2020. In that order, it was

clarified that the order directing return of the amount was

available. However, vide order dated 09/12/2020 passed in

R.C.C.No.30 of 2014 by the same learned J.M.F.C., Railway Court,

Daund, he directed the Police Inspector, Sadarbazar police station,

Solapur to record supplementary statement of Shri. S. R. Tibe i.e.

the first informant in this case and also directed to remove

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application of section 467 and 468 of IPC. Learned Magistrate vide

his another order dated 12/02/2021 passed in same R.C.C.No.30

of 2014 directed the Police Inspector investigating in C.R.No.903

of 2019 to arrest both these applicants. Therefore, both these

applicants are apprehending their arrest.

7. Both learned counsel for the applicants submitted that

the learned Magistrate has exceeded his jurisdiction in passing all

these orders. It was beyond his jurisdiction to direct the arrest of

applicants. It was prerogative of the investigating agency to

conduct the investigation in the manner which they found

convenient. They submitted that, learned Magistrate had acted in

haste in assuming that the order was not in existence. When the

order was found, he simply directed removal of sections 467 and

468 of IPC. No further reasoning was given as to how both the

applicants were responsible. They submitted that, assuming that

the aforementioned Jamir was not entitled for the amount, the

final Judgment and order in R.C.C.No.30 of 2014 could have taken

care of that situation. They submitted that the applicant Maula had

made an application before the court in routine manner and it was

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for the court to grant or reject it. Once the court has passed that

order, without the order being set aside, no fault can be found with

the applicant Maula Sayyad. Shri. Purvant, learned counsel for the

applicant Santosh submitted that, he was duty bound to follow the

directions of the court for returning the amount and also to follow

the directions of his superior Maula Sayyad. Therefore, no offence

is committed by him.

8. Learned APP submitted that, Maula Sayyad should not

have made an application before the Magistrate for directing

return of amount to Jamir who was not entitled for the same.

However, he concedes that the amount was returned only after

Jamir had executed bond to that effect.

9. I have considered these submissions. Since the bond is

already executed by Jamir, the amount was protected and the

learned Magistrate was sufficiently empowered to pass final order

in respect of said amount at the time of deciding said case. The

order under which the amount was returned was only for the

interim period. Both learned counsel submitted that the amount,

as of today, is returned to the court and, therefore, there is no loss

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caused to anybody. In any case, nobody from Hiralal's family has

claimed that amount.

10. From the history it does not appear that the applicant

Maula Sayyad had acted deliberately with dishonest intention. The

money was returned after bond was executed by Jamir. Therefore,

sufficient precaution was taken. It was always within the power of

learned Magistrate deciding the case to pass final orders. To that

extent the money was secured. Therefore, it cannot be said that

the money was already misappropriated.

11. The F.I.R. was lodged by the informant on the footing

that there was no order passed in directing return of that amount

and the order was forged. That was a serious allegation. But it

turned out to be incorrect as the order was in existence. The only

fault the learned Magistrate found with that order is that the

aforementioned Jamir was not entitled to receive that amount.

There is considerable force in the submission of learned counsel

for the applicants that the learned Magistrate has exceeded his

jurisdiction in directing arrest of the present applicants.

12. As rightly submitted by Shri. Purvant, the applicant

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Bhajibhakare had in any way no role to play because he was bound

to follow the order of the court, as well as, directions of his

superior officer. Even, so far as, applicant Maula Sayyad is

concerned, from the submissions and record of the case, it does

not appear that he had any other intentions. There were sufficient

precautions taken in the form of the bond. The money has already

come back to the court. Therefore, in this background, custodial

interrogation of both the applicants is not necessary. They can be

protected by an order of anticipatory bail.

13. Hence, the following order :

ORDER

(i) In the event of their arrest in connection with C.R.No. 903 of 2019, registered at Sadar Bazar Police Station, Solapur, the applicants are directed to be released on bail on their furnishing P. R. bonds in the sum of Rs.30,000/- each (Rupees Thirty Thousand each Only) with one or two sureties each in the like amount.