Bombay High Court
Irfanullah Habibullah Faruqi vs The State Of Maharashtra on 8 January, 2020
Author: Sandeep. K. Shinde
Bench: Sandeep. K. Shinde
1.BA.1167-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1167 OF 2019
Irfanullah Habibullah Faruqi ...Applicant
Versus
The State of Maharashtra ...Respondent
...
Mr. Akshay Bafna i/b Abdul K. Millwala,
Advocate for the Applicant.
Mr. Aabad Ponda a/w Mr. Mubin Solkar i/b Ms. Sushma
Soni, Advocate for Respondent No.2
Mrs. Sharmila Kaushik, A.P.P. for the State-
Respondent No.1.
...
CORAM : SANDEEP. K. SHINDE, J.
DATE : 08th JANUARY, 2020.
P.C.
Heard.
1. It is an application under Section 439 of Code
of Criminal Procedure, 1973.
2. Applicant is accused in Crime no. 682 / 2008
registered with Oshiwara Police Station, at the
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instance of his paternal uncle Mr. Kifayatullah
Faruqui for the alleged offences punishable under
Sections 420, 465, 467, 468, 471, 452, 427, 504 read
with 34 of the Indian Penal Code, 1860 ('IPC' for
short).
3. Dispute relates to a family
property/Bungalow, in respect of which, the
proceedings under Section 145 of the Criminal
Procedure Code, 1973 ('Cr.P.C.' for short), were
initiated, but dropped somewhere in 1992. It appears,
the applicant is claiming right over the property in
dispute, on the basis of the gift deed and the Power of
Attorney executed by Mrs. Ahmedunissah Samiullah
Faruqui, wife of his another paternal uncle, Mr.
Samiullah.
4. Be that as it may, since the applicant was
apprehending the arrest in Crime no.682/2008, he had
approached the learned Sessions Judge, who had then
granted the pre-arrest bail vide order dated
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24.03.2008 on certain terms and conditions. Relevant
terms and conditions were as under :
(i) Applicant shall attend the Oshiwara Police
Station, twice a month on 1st and 3rd Monday between
03:00 pm to 06:00 pm and co-operate with investigating
officer; (ii) he shall produce the alleged Power of
Attorney before investigating officer, who shall
seize it under the panchanama;
It may be stated, Mrs. Ahmedunissah Samiullah
Faruqui had filed an affidavit in the Anticipatory
Bail proceeding and stated that out of love and
affection, towards the applicant and his two brothers,
she had gifted, the subject property bearing unit
no.16/01 by gift deed, registered with Sub-Registrar
on 30.01.2009.
5. Kifayatullah Faruqui, complainant in Crime
no.682/2008 sought cancellation of pre-arrest Bail,
granted to the applicant. This Court cancelled the
pre-arrest bail on 15.01.2019, principally, on
following two grounds; (i) Applicant did not attend
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the Police Station as directed, while granting pre-
arrest bail ; (ii) Applicant did not produce the
alleged Power of Attorney before the investigating
officer, then directed while granting the pre-arrest
bail.
On the aforesaid premise, this Court thus
held; "conduct of the applicant reflects his
disrespect and disregard to the order of the Court".
6. In view of the order dated 15.01.2019,
applicant was committed to the custody.
7. Applicant seeks his enlargement on bail.
8. It appears, applicants' successive bail
applications were rejected by the learned
Metropolitan Magistrate Court as well by the learned
Sessions Court. It emerges from record that on
08.02.2019, the Metropolitan Magistrate Court
rejected his bail application, followed by the
rejection on 28.03.2019 by the learned Sessions Court
on the foremost ground that the possibility of
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tampering with the evidence and the witness at the
hands of the applicant cannot be ruled out.
9. Applicant thus approached this Court for bail
on 08.04.2019. Record shows pending the applications
before this Court, applicant had approached the Court
of Metropolitan Magistrate on 14.05.2019 for bail
without disclosing the pending bail application
before this Court. The bail application was rejected
on 16.05.2019. It further appears, another
application was filed before the learned Sessions
Court on 22.05.2019, which was withdrawn on
26.06.2019.
10. Mr. Ponda, learned counsel for the
complainant, has placed on record all these
applications and pointed out the incorrect statements
made therein, that "no bail applications are pending
in any other Court". In other words, the applicant did
not disclose either to the Court of Metropolitan
Magistrate or to the Court of Sessions, about this
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application, which was filed on 08.04.2019. Mr. Ponda
submits, it is a classic example of forum shopping
inasmuch as applicant had approached one Court for
relief, but since did not get the desired relief and
then approached another Court for same relief, and
that too by suppression of material fact, that
application for bail was filed for the same relief in
the High Court. Mr. Ponda submits that the applicants'
conduct is deplorable and completely unacceptable. He
thus opposed the bail, on this ground. He has placed a
reliance on judgment of the Hon'ble Apex Court in the
case of Kamini Jaiswal Vs. Union of India (2018) 1 SCC
156.
11. Mr. Ponda, learned counsel for the
complainant, opposed the bail application also on the
ground that applicant did not produce original Power
of Attorney allegedly executed by Mrs. Ahmedunissah
Samiullah Faruqui in his favour in respect of disputed
property bearing unit no. 16/01, despite the fact
that, it was one of the conditions, imposed while
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granting him pre-arrest bail. Besides, he submits,
initially, Mrs. Ahmedunissah Samiullah Faruqui
(paternal aunt of the applicant) had disowned the
power of attorney dated 18.04.2006 executed by her in
favour of the applicant on the basis of which,
applicant was claiming/asserting his rights in the
disputed property; however later, she changed her
stand and filed an affidavit in March, 2009, and
accepted the power of attorney. Submission is, this
itself, is indicative of the fact that the applicant is
influencing the prosecution witnesses. Mr. Ponda
therefore submits that the applicant may not be
enlarged on bail, at least till the prosecution
witnesses are examined.
12. Mr. Rizwan Merchant, learned counsel for the
applicant, however submits that the original Power of
Attorney was produced and submitted to the
investigating officer, as directed by the learned
Sessions Court while granting the pre-arrest bail to
the applicant. It may be stated that this fact is
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disputed by the investigating officer Mr. Khade. Mr.
Merchant submits besides the Power of Attorney, Mrs.
Ahmedunissah Samiullah Faruqui had executed a
registered gift deed on 30th January, 2009 in respect of
the disputed property in favour of the applicant and a
dispute relates to the said property is pending before
the Civil Court. Mr. Merchant has relied on the gift
deed and also on a statement dated 20.01.2014 of
Ahmedunissah, recorded under Section 161 of the Cr.
P.C. Mr. Merchant further submits, it is essentially a
family dispute over the property between three
brothers and infact Mrs. Ahmedunissah Samiullah
Faruqui had filed a complaint against Irfanullah for
forging certain documents relating to the property in
dispute. Mr. Merchant therefore, submits Civil Court
of competent jurisdiction is seized with the issue of
title relating to the disputed property. He therefore
submits that the applicant be released on bail.
13. Mr. Merchant has brought to my notice
affidavit of the applicant wherein paragraph no.15, he
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has stated thus :
Without prejudice to the above I hereby place on
record that although the original Power of
Attorney dated 7th April 2006 has been already
produced by me before the earlier I.O. Mr.
Khade, who is disputing the same, yet, without
entering into any further controversy, I am
willing and voluntarily of my own sweet will
recording herein that to prevent any prejudice
to be caused to the case of the First Informant/
Complainant, I am hereby on oath recording my
consent and permission to allow the prosecution
to use a photocopy of the Power of Attorney as "
Primary Evidence" at the trial before the trial
Court, and that I shall not object or obstruct
the production of photocopy of the said Power of
Attorney in trial as "Primary Evidence". I
undertake to proceed with the recording of
evidence including Cross Examination on the
said document on all other issues save and
except questioning the production of Photocopy
of the said Power of Attorney as primary
evidence. I say that I shall not take or attempt
to take any advantage during trial for non-
availability and/or non production of original
Power of Attorney.
14. Admittedly, it is a dispute between the family
members over the property allegedly purchased by the
complainant and his brother in the name of their wives.
Dispute also gave rise to a proceeding under Section
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145 of the Cr. P.C. The subject offence came to be
registered in the year 2008. Applicant was granted
pre-arrest bail in March, 2009; however it was
cancelled by this Court in January, 2019 and since
then, the applicant is in the custody. The
investigation in the case is over. Though the
applicant was directed to produce original power of
attorney executed by Mrs. Ahmedunnisah to the
Investigating Officer, the same has not yet been
produced. Inasmuch as Mr. Khade, Investigating
Officer, disputes production of the power of attorney
by the applicant, the fact also emerges from the record
that, Mrs. Ahmedunnisah had executed a registered gift
deed in favour of the applicant and his two brothers on
30.01.2009 and had gifted 35% of the share in the
residential unit bearing no. 16/01 (disputed
property) to the applicant and the remaining share to
Gufranullah and Shoukatullah. I am unable to
understand as to why this registered gift deed was not
produced by the applicant for the consideration, when
he was granted pre-arrest bail and subsequently when
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the bail was cancelled. It is informed from across the
bar, that the civil suit in respect of disputed
property is pending in the Court of competent
jurisdiction. In view of this fact merely because it
is alleged that the applicant did not produce the power
of attorney to the Investigating Officer, does not in
itself deter this Court from releasing the applicant
on the bail. It may be stated that the applicant has
filed an affidavit sworn on 01.08.2019 and permitted
the prosecution to use a photocopy of power of attorney
as primary evidence at the trial. I have reproduced
the relevant paragraph of the said affidavit herein
above. In view of this, the trial Court may consider as
it deems appropriate to read the photocopy of the power
of attorney in evidence. So far as successive bail
applications filed by the applicant in the respective
Courts and that too, without disclosing that the
application was filed in the High Court for a similar
enlargement on bail are concerned, the conduct of the
applicant is definitely deplorable. Though applicant
attempted to justify his conduct, the justification is
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rejected. The applicant was directed to tender an
unconditional apology which he has tendered in
paragraph no.14 of his affidavit dated 01.08.2019. It
is accepted.
15. In view of the facts of the case and for the
reasons stated; the applicant is directed to be
released on bail.
ORDER
(i) The applicant is directed to be released on bail in Crime no. 682/2008 corresponding with case no. 59/PW/2019 pending before the Metropolitan Magistrate Railway Mobile Court at Andheri on furnishing P.R. Bond in the sum of Rs.50,000/- with the one or more sureties in the like amount;
(ii) The applicant shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case, so as to dissuade him from Najeeb 12/13 ::: Uploaded on - 08/01/2020 ::: Downloaded on - 09/01/2020 05:08:24 :::
1.BA.1167-19.doc disclosing such facts to the Court or to any police officer or tamper with the evidence;
16. The application is disposed off.
17. All concerned to act on the authenticated copy of this order.
(SANDEEP. K. SHINDE, J.) Najeeb 13/13 ::: Uploaded on - 08/01/2020 ::: Downloaded on - 09/01/2020 05:08:24 :::