Bombay High Court
Ashok S/O. Shravan Patankar vs Dinkar S/O. Anant Adawadkar And ... on 7 June, 2022
Bench: V. V. Kankanwadi
{1} ACB 78 OF 2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR CANCELLATION OF BAIL NO.78 OF 2020
ASHOK S/O. SHRAVAN PATANKAR
VERSUS
DINKAR S/O. ANANT ADAWADKAR AND ANR.
...
Advocate for Applicant : Mr.Ajay G. Talhar
Advocate for Respondent No.1 : Mr.Afzal Husain M.Vakil
APP for Respondent No.2 : Mr.V.M.Kagne
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE OF RESERVING ORDER : 21st February, 2022
DATE OF PRONOUNCING ORDER : 7th June, 2022
ORDER :-
1. Present application has been fled by the original informant
under Section 439(2) of the Code of Criminal Procedure to
challenge the order dated 5th August, 2020 passed by the
learned Additional Sessions Judge, Dhule in Criminal Bail
Application No.308 of 2020, thereby granting bail to respondent
No.1 under Section 438 of the Code of Criminal Procedure, in
connection with Crime No.79 of 2020, registered with Dhule City
Police Station, for the ofence punishable under Sections 463,
464, 465, 466, 467, 468, 469, 470, 471, 474, 420, 120B read
with Section 34 of the Indian Penal Code (IPC).
{2} ACB 78 OF 2020
2. Heard Mr.A.G.Talhar, learned Advocate for the applicant,
Mr.Afzal Husain M.Vakil, learned Advocate for respondent No.1
and Mr.V.M.Kagne, learned APP for respondent no.2.
3. It has been submitted on behalf of the applicant - original
informant that the learned Additional Sessions Judge has passed
a cryptic order and had not taken into consideration the facts of
the case. Some irrelevant material appears to have been
considered. The approach of the learned Additional Sessions
Judge is very casual and technical. The complaint was fled by
the present applicant when earlier the Police had not taken
cognizance and therefore, he had to approach the learned
Judicial Magistrate First Class (JMFC) for direction under Section
156(3) of the Code of Criminal Procedure for the investigation.
Criminal Misc. Application No.323 of 2019 was fled. It came to
be allowed by the learned JMFC on 17 th March, 2020 and
thereupon the said ofence was registered vide Crime No.79 of
2020 on 20th March, 2020. In unequivocal words in the complaint
and FIR it was alleged that respondent No.1 in collusion with
accused Nos.2 and 3 had created forged and fabricated
documents and entered the name of one Snehal Gopal Kulkarni
and others in the ownership column of the property of the Trust
by the name Priyadarshini Charitable Trust. Respondent no.1 had
no authority to get efected entry in the revenue records of such
{3} ACB 78 OF 2020
a nature. It was not at all the family dispute. Infact the applicant
was the Trustee of the said Trust, which came to be registered on
18th September, 1992. It was stated that the mutation has been
carried out vide Mutation Entry No.7062 on the basis of Decree
passed in Special Civil Suit No.53 of 2003 by the learned Civil
Judge (Senior Division), Dhule on 1st August, 2018. If the said
Decree is seen, then it appears that only shares have been
demarcated, however, that Decree was not put to any execution.
Necessary notice prior to certifying to the said mutation entry
was not given to the Trust. This act would show that respondent
No.1 has intention to grab the property which belongs to the
Trust and that grabbing is on the basis of forged and fabricated
record. The custody of respondent No.1 was necessary,
however, due to the order passed under Section 438 of the Code
of Criminal Procedure, the Police will not be able to investigate
the matter properly. The impugned order, being illegal, deserves
to be set aside.
4. Per contra, the learned Advocate representing respondent
No.1 supported the reasons given by the learned Additional
Sessions Judge and reiterated that in the year 2020 itself
respondent No.1 was 80 years old Advocate. Now, he is 82 years
old person. The investigation if at all be made would be in
{4} ACB 78 OF 2020
respect of documents for which custodial interrogation is not
necessary.
5. It will have to be observed that the learned Additional
Sessions Judge, while deciding the application, has passed a
rather cryptic order. The facts of the case were not narrated at
all in the way they are required to be taking into consideration
the allegations. The objections those were fled in writing by the
present applicant have not been dealt with. Only one line is
mentioned that he has fled the written objections. Thus,
objections will have to be dealt with and reasons will have to be
assigned for not considering those objections. Passing of cryptic
order or unreasoned order is not expected from the Courts of
Law. There are catena of Judgments of the Hon'ble Apex Court as
well as this Court reiterating that every order that should be
passed by the Court of Law should be reasoned one, still such
cryptic orders are being passed. Further in catena of Judgments,
the Hon'ble Apex Court as well as this Court has stated as to
what are the factors, which required to be considered while
dealing with the application under Section 438 of the Code of
Criminal Procedure. The order that should be passed, should
refect that those factors should be considered in proper
perspective.
{5} ACB 78 OF 2020
6. No doubt 2 to 3 points those have been considered in one
line are relevant. The copy of the Judgment in Special Civil Suit
No.53 of 2003 dated 1st August, 2018 has been produced. The
said matter of the said Suit was the open vacant land ad-
measuring 1,05,100 sq.ft. of Survey Nos.42/2 and 44/7 situated
at Shamwadi, Deopur within the Municipal limits of Dhule. In
complaint that was fled by the present applicant, it is stated that
21,000 sq.ft. area from Survey Nos.42/2 + 44/7 situated at
Deopur area of Dhule Taluka is the Trust property. In the same
Decree, it has been held that the plaintifs therein as well as
Defendants have share in the said suit property. Priyadarshini
Charitable Trust appears to be not a party to the suit, however,
as aforesaid, the subject matter is the same Survey Numbers.
The Property Register Card copy, however, shows that 1/9th
share of the property stands in the name of applicant as Trustee
of the said Trust. The area is shown as (6076.00) 2300 sq.mtrs.
and the entry has been taken in respect of those plaintifs and
Defendants on 16th November, 2018 on the basis of the Decree.
How the said mutation entry can be said to be forged and
fabricated is a question when there is a Decree. If at all the
concerned Revenue Ofcer has not followed proper procedure at
the time of taking that mutation entry, then how it will amount to
a forgery by respondent No.1 is a question which will have to be
{6} ACB 78 OF 2020
proved by the prosecution at the time of trial. Defnitely taking
into consideration the documents on record, it can be said that
there is a dispute regarding the immovable property between the
families of the Plaintifs and the Defendants to the suit. Even if it
is accepted that the statement of the learned Additional
Sessions Judge that "It appears that there was Judgment of
Charity Commissioner and on the basis of that order some
entries were taken in revenue record", but it appears that due to
sleep of mind the word Charity Commissioner would have been
used when it ought to have been Civil Judge (Senior Division).
7. The facts remain that the applicant was then 80 years old
man, there was a Decree by the Civil Court in respect of the
same property and the dispute is pending with various
authorities. Under this circumstance as well as the fact that the
investigation was mainly in respect of the documents, it can be
still said that inspite of the cryptic order, the learned Additional
Sessions Judge has used the discretion under Section 438 of the
Code of Criminal Procedure properly. There is no necessity to
interfere. Application stands rejected.
( SMT. VIBHA KANKANWADI )
JUDGE
SPT
