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2 aba 2499 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.2499 OF 2023
Irfan Anis Shaikh and Ors. … Applicants
versus
State of Maharashtra … Respondent
WITH
INTERIM APPLICATION NO.3274 OF 2023
Mr. Kuldeep Patil with Mr. Rohin Chauhan i/by Mr. A.V.Konde-Deshmukh for
Applicants.
Mrs. A.S.Pai, Public Prosecutor, for State.
Mr. Aabad Ponda, Sr. Advocate with Mr. Harshad Sathe for Intervener.
CORAM: N.J.JAMADAR, J.
DATE : 7 SEPTEMBER 2023
P.C.
1. Heard the learned Counsel for the parties.
2. This is an application for pre-arrest bail in connection with C.R.No.103
of 2023 with Deccan Police Station, Pune for the offences punishable under Sections
143, 147, 149, 323, 387, 427, 452, 504, 506 of Indian Penal Code, 1860.
3. The first informant is the wife of applicant No.3. Applicant No.1 claims
to be the legal adviser of Nikita Hospitality LLP. Applicant No.2 claims to be working
as an Account Assistant in the said company of the first informant and the Applicant
No.3.
4. The first informant claims to have succeeded to ancestral business;
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‘Hotel Vaishali’. Applicant No.3 used to assist the first informant in the said business.
The first informant alleged that with a view to usurp the property, the applicant No.3
forced her to execute instruments including Gift Deed on the point of pistol. A report
was lodged by the first informant on 18 June 2023.
5. On 29 June 2023 at about 6.30 a.m., the Applicant Nos.1 and 2, one Mr.
Chaudhari and 8 to 10 unknown persons, at the behest of the Applicant No.3, barged
into the hotel premises despite resistance of the security guard, and abused and
assaulted the staff. The Applicant No.1 allegedly instigated applicant No.2 and other
unknown members of the unlawful assembly to collect the cash from the cash counter,
tear off QR Codes, remove the notice boards and instead place QR Code and board of
Applicant No.3. When the first informant rushed to the hotel, the said Chaudhari
told the first informant to mutely vacate the said property by threatening her out of her
life. The first informant, thus, lodged the report.
6. Apprehending arrest, the Applicants approached the Court of Session at
Pune. By an order dated 25 August 2023, the learned Additional Sessions Judge
declined to exercise discretion in favour of the Applicants.
7. Mr. Patil, learned Counsel for the Applicants submitted that Applicant
Nos.1 and 2 had gone to the hotel premises to serve the papers in respect of ad-interim
order dated 27 June 2023 passed by the learned Civil Judge in a suit instituted by the
Applicant No.3 against the first informant. The first informant has given an
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exaggerated account of the incident on account of the disputes that have arisen
between the first informant and the Applicant No.3. A reference was made to the FIR
lodged by the first informant against the Applicant No.3 and his relatives being FIR
No.119 of 2023 for the offences punishable under Sections 376, 377, 420, 419, 406,
498A, 323, 506(2) read with Section 34 of the Indian Penal Code and Sections 3 and
25 of the Arms Act, 1959, and the Civil Suits instituted by both the Applicant No.3
and the first informant. Mr. Patil further submitted that the first informant has been
resorting to the device of lodging reports, one after another to wreck vengeance.
8. Mrs. Patil, learned Public Prosecutor, and Mr. Ponda, learned Senior
Advocate, for the first informant resisted the prayer of pre-arrest bail.
9. It was submitted that the custodial interrogation of the applicants is
warranted to ascertain the identity of the co-accused, who were the members of the
unlawful assembly, recover the mobile phone handset on which applicant Nos.1 and 2
and their associates made the security guard to speak with the first informant and the
QR Codes which were torn off and taken away. The gravity of the offences and the
illegal manner in which the applicant Nos.1 to 3 deployed the hirelings to forcibly take
possession of the hotel, disentitles the applicants from the exercise of the discretion.
10. I have carefully perused the allegations in the FIR and the material on
record. The genesis of the offences appears to be in the dispute between the first
informant and the applicant No.3. Prima facie, it appears that the first informant and
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the Applicant No.3 have been riven asunder and the proceedings have been instituted.
Applicant No.3 has been granted pre-arrest bail by the learned Sessions Judge in
connection with C.R.No.119 of 2023. An ex-parte ad-interim injunction was granted
by the learned Civil Judge, Jr. Division, Pune in Special Civil Suit No.1472 of 2023 in
respect of the business activities of Hotel Vaishali.
11. Mr. Ponda would urge that the assertion that the Applicant Nos.1 and 2
had been to Hotel Vaishali to serve the order in the said matter is a blatant lie, as the
records indicate that the said order was uploaded by the concerned court on 3 July
2022.
12. At this stage, the fact remains that on 27 June 2023, the Civil Court had
passed an order of ex-parte interim injunction. Keeping this fact in view, if the
allegations in the FIR are perused, the gravamen of indictment seems to be that the
Applicant Nos.1 and 2 and other members of the alleged unlawful assembly barged
into the premises in assertion of the claim of the applicant No.3. One of the members
of the assembly, namely Mr. Chaudhari, allegedly put the first informant in fear of
death in order to commit extortion. The first informant alleges in the FIR that after
committing mischief and causing damages to the DVR cables, tearing the QR Code
and notice boards, applicant Nos.1 and 2 and other members of the unlawful assembly
went away.
13. Prima facie, the claims of possession and control over Hotel Vaishali are
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contentious. The Civil Court had passed an order restraining the first informant on
27 June 2023.
14. In this backdrop, if the allegations in the FIR are considered, at this
stage, a prima facie case for grant of interim protection can be said to have been made
out. The offences punishable under Sections 452 and 387 entail punishment which
may extend to 7 years. Having regard to the nature of the accusations, the custodial
interrogation of the applicants does not seem warranted to facilitate further
investigation. The possibility of fleeing away from justice also appears to be remote. I
am, therefore, persuaded to grant interim protection to the Applicants.
15. Hence, the following order :
ORDER
(i) In the event of the arrest of the Applicants – Irfan Anis Shaikh, Sushil
Sunil Sandbhor and Vishwajeet Vinayakrao Jadhav in connection with C.R.No.103 of
2023 registered with Deccan Police Station, Pune the Applicants be released on bail on
furnishing a PR bond in the sum of Rs.30,000/- each with one or two sureties in the
like amount.
(ii) The Applicants shall co-operate with the investigation and report to
Deccan Police Station, Pune on every Saturday from 10.00 a.m. to 1.00 p.m. till the
next date.
(iii) The Applicants shall not tamper with the prosecution evidence and/or
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give threat or inducement to any of the prosecution witnesses and the persons
acquainted with the facts of the case.
(iv) Stand over to 4 October 2023.
( N.J.JAMADAR, J. )
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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 08/09/2023 16:59:04