Bombay High Court
Hiten Shantilal Shah vs State Of Maharashtra on 23 October, 2023
Author: N.J.Jamadar
Bench: N.J.Jamadar
2023:BHC-AS:31891
1 aba 2515 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.2515 OF 2023
Paras Tarachand Jain ... Applicant
versus
The State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO.3273 OF 2023
IN
ANTICIPATORY BAIL APPLICATION NO.2515 OF 2023
Hiten Shantilal Shah ... Applicant
and
Paras Tarachand Jain ... Applicant/accused
versus
The State of Maharashtra and Anr. ... Respondents
WITH
ANTICIPATORY BAIL APPLICATION NO.2517 OF 2023
Naresh Chunilal Jain ... Applicant
versus
The State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO.3292 OF 2023
IN
ANTICIPATORY BAIL APPLICATION NO.2517 OF 2023
Hiten Shantilal Shah ... Applicant
and
Paras Tarachand Jain ... Applicant/accused
versus
The State of Maharashtra and Anr. ... Respondents
WITH
ANTICIPATORY BAIL APPLICATION NO.2562 OF 2023
Pranav Virendra Mehta ... Applicant
versus
The State of Maharashtra and Anr. ... Respondents
WITH
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ANTICIPATORY BAIL APPLICATION NO.2725 OF 2023
Ashish Virendra Mehta ... Applicant
versus
The State of Maharashtra and Anr. ... Respondents
Mr. Rishi Bhuta with Mr. Ujjwal Gandhi, Ms. Mamta Singh,Ms. Risha Rathod, for
Applicant in ABA No.2515 of 2023.
Mr. Siddharth Sharma with Mr. Sandesh Kamble, for Applicant in ABA 2517 of 2023.
Mr. Satyavrat Joshi with Ish Jain and Mr. Kiran Jain, Mr. Vinayak Siruslekar, Ms.
Monika Kale i/by Kiran jain and Co., for Applicant in ABA 2725 of 2023.
Mr. Aniket Nikam with Mr. A.I.Satpute, Mr. Amit Icham, for Applicant in IA 2562 of
2023.
Smt. Ashwini A. Takalkar, APP for State.
Mr. ShanbagPathan, for Intervener in IA 3273 of 2023 and 3292 of 2023.
Mr. Atul Mali, API Dindoshi Police Station present.
CORAM: N.J.JAMADAR, J.
DATE : 23 OCTOBER 2023
P.C.
1. Heard the learned Counsel for the parties.
2. These applications for pre-arrest bail are in connection with C.R.No.889
of 2022 registered with Dindoshi Police Station for the offences punishable under
Section 420, 465, 467, 406 read with Section 34 of the Indian Penal Code and Sections
13 and 14 of the Maharashtra Ownership of Flats (Regulation of the promotion of
construction, Sale, Management and Transfer) Act, 1963.
3. The first informant, his father Shantilal and mother Jayaben had
purchased rooms in Munira Manzil, Daftary Road, Malad (East), Mumbai, from their
respective vendors. In November 2009, the original owner sold the premises to M/s.
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Navkar Leasing and Infrastructure, of which Mr. Paras Jain - Applicant in ABA 2515
of 2023 and Mr. Jaresh Jain @ Parmar - Applicant in ABA 2517 of 2023 were the
partners. Mr. Paras Jain and Naresh Jain introduced Mr. Ashish Mehta, Applicant in
ABA 2725 of 2023, and Mr. Pranav Mehta, Applicant in ABA 2562 of 2023 as the
partners of M/s. Navkar Leasing and Infrastructure. The firm was renamed as M/s.
Nine Globe Builders. In lieu of Room Nos.2, 5 and 6 which the first informant, his
father and mother were in occupation, the applicants/accused agreed to provide Flat
Nos.401, 504 and 404 by executing registered agreements, by 31 August 2015. The
first informant and his parents delivered the possession of room Nos.2, 5 and 6 to the
applicants on 10 February 2012. The first informant alleged, since the year 2015, the
applicants stopped paying the transit rent. Nor possession of the flats was delivered,
as promised. Enquires revealed that M/s. Nine Globe Builders had sold the said flats
to third parties. Upon being confronted, Mr. Ashish Mehta gave a confirmation letter
on 10 August 2018 that Flat Nos.401, 404 and 504 were not sold to third party.
4. During further enquiries, it transpired that the applicants had erected
the construction by getting the plan approved from SRA which was at variance with
the plan annexed to the registered agreements executed in favour of the first informant
and his parents. Thereupon, a notice was served on the applicants and suits also came
to be instituted in this Court. It further transpired that the applicants had entered into
development agreement and the applicants and the developers had sold more than 60
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flats by executing instruments. They had constructed duplex flats and it was not
possible to construct the number of flats for which agreements for sale were executed.
Hence, the first informant filed a complaint before the Magistrate. Pursuant to the
order passed by the learned Magistrate under Section 156(3) of the Code of Criminal
Procedure, 1973, FIR came to be registered.
5. The applicants have approached this Court with a case that in respect of
the very same project and identical allegations, FIRs were already registered and the
post completion of investigation, chargesheet has been filed indicating the complicity
of few of the applicants. In respect of self-same allegations, the applicants cannot be
deprived of their personal liberty repetitively. In any event, since the first informant
and his parents have instituted civil suits and the matter is subjudice, at this stage, the
custodial interrogation of the applicants is not warranted.
6. I have heard Mr. Rishi Bhuta, learned Counsel for Applicant in ABA
2515 of 2023, Mr. Siddharth Sharma, learned Counsel for the Applicant in ABA 2517
of 2023, Mr. Satyavrat Joshi, learned Counsel for Applicant in ABA 2725 of 2023, Mr.
Aniket Nikam, learned Counsel for the Applicant in ABA 2562 of 2023, Smt. Ashwini
Takalkar, APP for State, and Mr. Shahbag Pathan, learned Counsel for the Intervener.
7. Mr. Rishi Bhuta, learned Counsel for the Applicant - Paras Jain,
submitted that the applicant had retired from the partnership firm in the year 2012.
The applicant was not in the management of the affairs of M/s. Nine Globe
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Developers since then. It was submitted that in C.R.No.56 of 2020, post
investigation, the applicant was not sent for trial.
8. Mr. Satyavrat Joshi, learned Counsel for the Applicant - Ashish Mehta
in ABA 2725 of 2023 submitted that the applicant was arrested in connection with
C.R.No.201 of 2021 in respect of the very same project. He was released on bail by
the Supreme Court in Criminal Appeal No.140 of 2022. The Applicant was also
released on bail in Criminal Case i.e. BA No.778 of 2022 by an order dated 21 March
2022 passed by this Court. In ABA No.623 of 2023 this Court granted pre-arrest bail
to the applicant - Ashish and co-accused Pranav Mehta in C.R.No.11764 of 2022. This
is the fourth FIR in respect of one and the same project containing the same
allegations.
9. Mr. Siddharth Sharma and Mr. Aniket Nikam, learned Counsel
appearing for the Applicants in ABA 2517 of 2023 and 2562 of 2023 advanced
identical submissions. It was urged that the applicants cannot be made to suffer the
prospect of arrest in each of the FIRs which may be lodged by the owners/purchasers
of the units in the said project.
10. Smt. Takalkar, learned APP, on the other hand, submitted that the
allegations in the instant FIR are distinct. The applicants had carried out construction
not in accordance with the plan which was annexed to the registered agreements. The
applicants have accepted huge amount from the prospective purchasers who are far in
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excess of the flats constructed in the said project. It was further submitted that the
applicants would not be in a position to obtain necessary approval for erection of the
structures to meet all their contractual obligations. Since the fraud is evident, the
applicants do not deserve the exercise of discretion.
11. Mr. Pathan, learned counsel for the Intervener - first informant
strenuously urged that the first informant and his parents were induced to deliver the
rooms in the year 2012 in the sanguine hope of getting the flats in a redeveloped
building. The learned Counsel submitted that the fact that the Applicants Ashish and
Naresh were arrested, cannot be urged to insulate the applicants of every prosecution,
whatever be the nature of the accusation. Emphasis was laid on the fact that the
applicants have executed the registered instruments in favour of the first informant
and his parents by annexing the plan, in accordance with which the construction has
not been carried out at site. The flats agreed to be sold to the first informant has been
transferred to other party. In this view of the matter, the custodial interrogation of the
applicants is warranted, urged Mr. Pathan.
12. Whether the allegations in the instant FIR were subject matter of
investigation in the FIRs in which the applicants Ashish and Naresh were arrested ?
FIR No.56 of 2020 was lodged by Devidas S. Raut with the allegations that he was
induced to part with a sum of Rs.73,21,000/- by making a representation that M/s.
Nine Globe Developers and Urban One Reality, who were developing the subject
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project, would allot Flat No.602-B to him. However, the said flat was subsequently
sold to one Dharmendra Mehta.
13. Investigation in the said FIR revealed that the Applicant Naresh had
entered into an agreement in respect of Flat Nos.401, 404 and 504 with the occupant
of the room/s in Munira Manzil and those flats were not constructed and delivered.
In the final report under Section 173 of the Code lodged in C.R.No.56 of 2020, the
applicant - Paras Jain was not shown as the accused.
14. In this context, the observations in paragraph Nos.4, 5 and 7 of this
Court while granting pre-arrest bail to Applicants Ashish and Pranav in ABA No.623
of 2023 dated 8 March 2023, in connection with C.R.No.1174 of 2022 registered with
Dindoshi Police Station for the offences punishable under Sections 405, 406, 415, 418,
420 read with 34 of IPC are material and, hence, extracted below :
"4. The records reveal that the Honourable Supreme Court had granted bail
to the applicants in Crime No.201 of 2021 on similar set of allegation.
Furthermore, this Court by order dated 21 March 2021 has also released the
applicants on bail in Crime No.56 of 2020. The records reveal that
complainant Jayantilal Shah is also a witness in Crime No.56 of 2020 and his
statement has been recorded in the said crime. It is on record that the
complainant in Crime No.201 of 2021 had filed an application before the
Honourable Supreme Court for cancellation of bail, which came to be
dismissed on 5th August 2022. Subsequent to the dismissal of the said
application, these two Crime No.889 of 2022 as well as 1174 of 2022 have
been registered pursuant to the order passed by the learned Magistrate
under Section 156(3) of the Cr.P.C.
5. The records prima facie indicate that several flat purchasers have made
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allegations against applicant Ashish Mehta for having cheated them.
Separate crimes have been registered at the behest of the purchasers as well
as the tenants who had agreed to purchase the flats in the same project on
similar set of allegations. The applicants have been granted bail in crime
No.56 of 2020 and 201 of 2021 and that they are on interim bail in Crime
No.889 of 2022 pending before the learned Sessions Court, Dondoshi.
7. As regards applicant Virendra, he is father of applicants Ashish and
Pranav Mehta. There is no prima facie material on record to indicate that he
was in any manner involved in the construction of the project. Similarly,
records reveal that the applicant Pranav Mehta had also retired from the
partnership firm on 14 February 2019. Even otherwise, he has been granted
bail in Crime No.56 of 2020, wherein as stated earlier the complainant
herein is a witness. Suffice it to say that the object of bail is not punitive but
to secure the appearance at trial. In the instant case, the applicants have
already been interrogated in other crimes. There is no possibility of the
applicants absconding or thwarting the course of justice......."
15. The situation which thus, prima facie, appears that in respect of the very
same project, multiple FIRs have been registered. Two of the applicants Ashish and
Naresh were arrested and have since been released. After the release of those
applicants in C.R.No.56 of 2020 and 201 of 2021, it seems two more FIRs have been
registered being C.R.No.1174 of 2022 and 889 of 2022. The final report in C.R.No.56
of 2020 makes a reference to the subject flats, in respect of which the first informant
claims the applicants had defrauded him. Though an endeavour was made on behalf
of the prosecution and the learned Counsel for the first informant that the allegations
in the FIR are distinct, I am unable to persuade myself to agree with the said
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submissions as the substratum of the indictment against the applicants remains the
same.
16. Allegedly, the applicants constructed a building in deviation of the plan
annexed to the registered agreements, entered into agreements with the prospective
purchasers far in excess of the units available in the said building and executed
instruments in favour of the third parties, despite having executed the agreements
earlier in favour of the sitting occupants/tenants or the prospective purchasers.
17. A useful reference in this context can be made to the observations of the
Supreme Court in the case of T.T.Antony V/s. State of Kerala and Ors. 1 wherein it
was enunciated that there can be no second F.I.R. and consequently there can be no
fresh investigation on receipt of every subsequent information in respect of the same
cognizable offence or the same occurrence or incident giving rise to one or more
cognizable offences. The observations in paragraph 20 and 27 are material and hence,
extracted below :
"20. From the above discussion it follows that under the scheme of
the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of
Cr.P.C. only the earliest or the first information in regard to the commission
of a cognizable offence satisfies the requirements of Section 154 Cr.P.C.
Thus there can be no second F.I.R. and consequently there can be no fresh
investigation on receipt of every subsequent information in respect of the
same cognizable offence or the same occurrence or incident giving rise to
one or more cognizable offences. On receipt of information about a
1 (2001) 6 SCC 181
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cognizable offence or an incident giving rise to a cognizable offence or
offences and on entering the F.I.R. in the station house diary, the officer in
charge of a Police Station has to investigate not merely the cognizable
offence reported in the FIR but also other connected offences found to have
been committed in the course of the same transaction or the same
occurrence and file one or more reports as provided in Section 173 173 of
the Cr.P.C..............
27.A just balance between the fundamental rights of the citizens under
Articles 19 and 21 of the Constitution and the expansive power of the police
to investigate a cognizable offence has to be struck by the Court. There
cannot be any controversy that sub-section (8) of Section 173 Cr.P.C.
empowers the police to make further investigation, obtain further evidence
(both oral and documentary) and forward a further report or reports to the
Magistrate. In Narangs' case (supra) it was, however, observed that it would
be appropriate to conduct further investigation with the permission of the
Court. However, the sweeping power of investigation does not warrant
subjecting a citizen each time to fresh investigation by the police in respect
of the same incident, giving rise to one or more cognizable offences,
consequent upon filing of successive FIRs whether before or after filing the
final report under Section 173(2) Cr.P.C. It would clearly be beyond the
purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory
power of investigation in a given case. In our view a case of fresh
investigation based on the second or successive FIRs, not being a counter
case, filed in connection with the same or connected cognizable offence
alleged to have been committed in the course of the same transaction and in
respect of which pursuant to the first FIR either investigation is underway
or final report under Section 173(2) has been forwarded to the Magistrate,
may be a fit case for exercise of power under Section 482 Cr.P.C. or under
Article 226/227 of the Constitution."
19. In the case at hand, the fact that the Applicants Ashish and Naresh Jain
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were arrested and thoroughly investigated also renders the case for further custodial
interrogation unwarranted. The investigating agency has carried out investigation in
two FIR Nos.56 of 2020 and 201 of 2021 in respect of the same project and
substantially identical allegations. I am, therefore, persuaded to accede to the
submission on behalf of the applicants that further custodial interrogation is not
warranted. The applicants appear to have roots in society. The possibility of fleeing
away from justice also appears to be remote. I am, therefore, inclined to exercise the
discretion in favour of the applicants.
20. Hence, the following order :
ORDER
(i) In the event of the arrest of the Applicants - Paras Tarachand Jain, Naresh Chunilal Jain, Pranav Virendra Mehta and Ashish Virendra Mehta, in connection with C.R.No.889 of 2022 registered with Dindoshi Police Station, they 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 Dindoshi Police Station on 1 st, 2nd and 3rd November 2023 in between 10.00 a.m. to 1.00 p.m. and, thereafter, as and when directed by the Investigating Officer.
(iii) The Applicants shall not tamper with the prosecution evidence and/or give threat or inducement to any of the prosecution witnesses and the persons SSP 11/12 1 aba 2515 of 2023.doc acquainted with the facts of the case.
(iv) The Applicants shall regularly attend the proceedings before the jurisdictional Court.
(v) The Applications stand disposed.
(vi) In view of the disposal of the Applications, Interim Applications
also stand disposed.
(vii) It is clarified that these prima facie observations are confined to determine entitlement to pre-arrest bail only.
( N.J.JAMADAR, J. ) SSP 12/12 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 23/10/2023 21:53:24