Bombay High Court
Govind Jivan Gawad vs The State Of Maharashtra on 10 December, 2018
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.2304 OF 2018
Govind Jivan Gawad .. Applicant
Vs.
State of Maharashtra .. Respondent
......
Mr.Naiknavare a/w. Mr.Nilesh Shirke i/b. Mr.Satish Goud,
Advocate for the Applicant.
Ms.A.A. Takalkar, APP for the Respondent - State.
Mr.P.B. Bankar, PSI, Virar Police Station, District-Palghar,
present.
......
CORAM : PRAKASH D. NAIK, J.
DATED : DECEMBER 10, 2018.
P.C. :
This is an application for anticipatory bail in
connection with C.R.No. I-654 of 2016, registered with Virar
Police Station, District - Palghar, for the offences punishable
under Sections 420, 465, 467, 468, 471, 474 read with 34 of
Indian Penal Code ("IPC", for short), and Sections 53 and 54 of
Monopolistic and Restrictive Trade Practices Act, 1969, ("MRTP
Act", for short). FIR was lodged on 18th November, 2016.
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2 The case of the prosecution is that the applicants and
others are the owners of the disputed plot bearing Survey no.228,
Hissa No.1 situated at Virar. The accused were permitted to
construct one building of ground plus two floors containing 26
flats having carpet area 2491.67 sq. meters. Accordingly,
commencement certificate was issued by Municipal Corporation.
Applicant and accused had acted in connivance with each other.
In furtherance of their common intention, accused had forged and
fabricated commencement certificate disclosing that they are
permitted to construct total carpet area of 6954.31 square
meters. Accordingly, they have constructed the building illegally.
They have sold the flats to prospective purchasers on the basis of
forged and fabricated commencement certificate. The said fact
came to the notice of Municipal Corporation and hence FIR was
lodged on 18th November, 2016.
3 The case of the applicant is that after obtaining all
requisite permissions and commencement by requisite
authorities, the flats were sold to the purchases and they are
occupying the said premises. It is further submitted that the
brother of the applicant is one of the partner of the firm namely
G.M. Builders and Developers. They had executed an agreement
with one Sunil Laxman Tambe on 9 th November, 2008, which is
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annexed to the application and he was supposed to obtain the
requisite permissions with regards to commencement and
permission to construct etc. It is submitted that the said said
documents were obtained by him in the year 2006, and,
subsequently the construction was carried out. FIR was lodged
after a period of eight years. It is further stated that the brother
of the applicant is the partner of the said firm. He was arrested
on 9th August, 2018, and, granted bail by the Sessions Court,
Vasai on 20th August, 2018. It is further submitted that the other
accused Sunil Tambe, was also arrested and granted bail. The
applicant is senior citizen and suffering from ailments. He is
willing to cooperate with the investigation. It is also submitted
that the applicant was not absconding and was available at his
residence.
4 Learned APP submitted that the forged documents
were procured by the accused and on the basis of false and
fabricated documents, the construction was carried out. He also
sold the flats to the purchasers. It is further submitted that the
applicant in connivance of co-accused had committed the offence.
It is further submitted that the co-accused was absconding and
was not available after registration of the FIR. It is further
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submitted that the custodial interrogation of the applicant is
necessary considering the nature of crime committed by him. The
applications had preferred by applicant for anticipatory bail
which were rejected by the Sessions Court, which shows that he
was not available for investigation.
5 Having heard both the sides. I have perused the
documents on record. Apparently, the documents were procured
in the year 2008. The applicant and his brother have been
arrested. They relied upon the agreement executed in 2008 with
co-accused Sunil Tambe, who was supposed to procure the
documents, requisite permissions etc., is granted bail. On the
basis of the said documents, the construction activities were
carried out. The applicant is one of the partner. The other
partners of his brother was arrested and he has been granted bail
by the Sessions Court. It is also pertinent to note that as against
the arrested accused, the investigation is completed and charge -
sheet is already filed. While granting bail to the brother of the
applicant, the Sessions Court has observed that the said applicant
was in custody from the date of arrest and subsequently he was
remanded to judicial custody. The Court has also observed that
the brother of the applicant was the local resident of Virar and he
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is ready to abide by the conditions imposed by the Court. As all
material investigation is completed and charge - sheet is filed, no
purpose would be served by keeping the applicant behind the bar
as trial may take a reasonable time. It is necessary to note that
the role attributed to the applicant and his brother, who were
arrested and in custody for period of about one week, is identical.
He was interrogated while in custody and the charge - sheet has
been filed against him. As stated above, the Court had observed
that the investigation is completed and no purpose would be
served by keeping the brother of the applicant in jail. The FIR has
been lodged after a period of about eight years from the date of
incident. The co-accused Sunil Tambe is also granted bail, after
his arrest. Although the applicant is seeking anticipatory bail,
considering the aforesaid circumstances, I do not find that there
is necessity of custodial interrogation of the applicant. In the
circumstances, case for grant of anticipatory bail is made out.
6 Hence, I pass the following order:
:: O R D E R ::
(i) Anticipatory Bail Application No.2304 of 2018, is allowed;
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(ii) In the event of arrest of the applicant in
connection with C.R.No. I-654 of 2016,
registered with Virar Police Station, District-
Palghar, he be released on bail on his furnishing P.R. Bond in the sum of Rs.25,000/-, with one or more sureties in the like amount;
(iii) Applicant shall report investigating officer of Virar Police Station, District-Palghar, once in a week on Friday between 11:00 a.m. to 1:00, till filing of the charge-sheet;
(iv) Anticipatory Bail Application No.2304 of 2018, stands disposed of;
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