Rupesh Tahilram Dhirwani And Anr vs The State Of Maharashtra And Ors
2023 Latest Caselaw 3044 Bom

                                                                       902-apl-312-2023.doc


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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPLICATION NO.312 OF 2023


 Rupesh Tahilram Dhirwani and Anr.                        ... Applicants
            V/s.
 The State of Maharashtra and Ors.                        ... Respondents


 Mr. A. Khan i/b G.L Bajaj, for the Applicants.
 Mr. A.R. Patil, APP for the State.



                                        CORAM       : AMIT BORKAR, J.

                                        DATED       : MARCH 28, 2023
 P.C.:

1. The challenge in this petition is to the order under Section 145 of Code of Criminal procedure, 1973. Prima facie from the First Information Report No.210 of 2021, it appears that the possession of property is with the applicant from 2013. The respondent No.2 on 24 th December 2021 lodged a First Information Report alleging encroachment by applicant over the property. Application under Section 145 of Code of Criminal Procedure, 1973 was filed on 18th January 2023. Section 145(4) proviso contemplates filing of an application within two months from the date of dispossession.

2. The first authority under Section 145 has recorded a finding of encroachment. Prima facie, the exercise of power by the authority under Section 145 causes miscarriage of justice.

902-apl-312-2023.doc

3. Therefore, in spite of alternative statutory remedy under Section 397 of Code of Criminal Procedure, 1973, in view of judgment of the Apex Court in Vijay and Anr. Vs. State of Maharashtra and Anr. reported in (2017) 13 SCC 317, issue notice to respondent No.2, returnable after 6th June 2023.

4. The petitioner has made out a case for ad-interim relief in terms of prayer clause (b). Till 6th June 2023, there shall be ad-interim relief in terms of prayer clause (b).

(AMIT BORKAR, J.)