2009 ALL MR (Cri) 1711
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE, J.
Sayed Furqan Ahmed Mohd. Ahmed Vs. State Of Maharashtra
Criminal Application No.1541 of 2009,Criminal Application No.1541 of 2009,Criminal Application No.1290 of 2009,Criminal Application No.1292 of 2009
1st April, 2009
Petitioner Counsel: Shri. S. R. CHITNIS
Respondent Counsel: NITIN SEJPAL , POOJA BHOJNE,Mr. D. P. ADSULE
Criminal P.C. (1973), S.438 - Grant of anticipatory bail - Application for - Dispute essentially of a civil nature pertaining to the control over the management rights - Applicants entitled to grant of anticipatory bail. (Para 5)
JUDGMENT
JUDGMENT :- Heard the learned Counsel appearing on behalf of the Applicants and the Learned APP for the State.
2. The Applicants in Application No.1292 of 2009 are having 67% share in partnership in the Profit & Loss of the Hotel Sagar and one Mehrunnisa Shaikh is having 7% share in the said hotel. It is alleged that on 5.2.2009, the Applicants along with 40/50 persons had entered the premises and tried to take over the management rights of the said hotel and assaulted the Complainant and his brothers and one of their acquaintance. FIR, however, was lodged on 15.2.2009 for the offences punishable under sections 143, 145, 147, 149, 341, 452, 323, 504 and 506 of the Indian Penal Code. The Superintendent of Police has also issued notice to the Complainant and Applicants in Application No.1292 of 2009 on 5th of February, 2009 asking to maintain peace in the premises.
3. The learned Counsel on behalf of the Applicants submits that the Applicants are the partners of the said hotel and the offence of criminal trespass under section 452 would not be attracted since they are the partners of the said hotel and have majority holding to the tune of 67% in the said hotel. Whereas the Complainant is the son of Mehrunnissa, who is having only 7% share. It is submitted that section 452 is only a non-bailable offence which is registered against the Applicants. It is submitted that the Applicants in Criminal Application No.1289 of 2009, 1290 of 2009 and 1541 of 2009 are friends and employees who had accompanied the said partners in the said offence. It is submitted that the said complaint was filed belatedly and the dispute between the Applicants and the Complainant is essentially of a civil nature and that too regarding the management rights of the said hotel.
4. The learned APP for the State submits that the other Applicants are having criminal antecedents and the Applicants in 1292 of 2009 had no business to take 40/50 persons and entered the said hotel.
5. In my view, prima facie case is made out for grant of anticipatory bail. Prima facie section 452 is the only non-bailable offence would not be attracted since the Applicants are the owners of the said hotel and the dispute is essentially of a civil nature pertaining to the control over the management rights. Admittedly, the Complainant has only 7% share in the said hotel, no order of injunction has been obtained by the Complainant, restraining the other partners from entering the said premises. Under these circumstances, therefore, prima facie the offence is of criminal trespass. Since other offences are the bailable offences, custodial interrogation of the Applicants, in my view, is not necessary. In any event, notice has been issued by the Dy. S.P. to the Complainant and the Applicants, asking them to maintain peace. The complaint also has been lodged almost after 10 days from the date of the said incident. Under all these circumstances, Applicants are entitled for the anticipatory bail.
6. The Applicants, in the event of their arrest shall be released on bail in C.R. No.47 of 2009 registered with Nagpada Police Station, in a sum of Rs.10,000/- each with one or two sureties in the like amount. The Applicants in Application Nos.1289 of 2009 and 1290 of 2009 shall not enter the hotel premises hereinafter except those Applicants who are employees viz. Haji Irafan Ismail Mitha, Abdul Rasheed Saeed Ansari, Shamsuddin Shatruddin Charonia of the said hotel.
7. No such restrictions, however, imposed on Applicants in Criminal Application no.1292 of 2009 since they are partners of the said hotel. The Applicants shall report to the concerned police station for a period of four days from 6th April, 2009 to 9th April, 2009 between 11 a.m. & 2 p.m. and, thereafter, as and when called.