Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 935

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Nitin W.Sambre, J.
Azam Khan – Appellant
Versus
State of Maharashtra – Respondent
Criminal Bail Application No. 3845 of 2021, .3848 of 2021
Decided On : 09-02-2023

Advocates appeared:
Anjali Patil, Advocate, Mallika Sharma, Advocate, Abdeali Kothawala, Advocate, Aamir Malik, Advocate, Zuber Chakoli, Advocate, A.R.Kapadnis, Advocate, Anand Mudaliar, Advocate

Bail Application

Headnote:
Fact of the Case:
The applicant is seeking bail in two cases registered under various sections of the Indian Penal Code, Maharashtra Ownership of Flats Act, and Maharashtra Protection of Interest Act. The prosecution alleges that the applicant accepted a large sum of money for a property development project but failed to deliver the promised property, leading to the registration of the offenses. The applicant argues that he has already served more than 50% of the maximum punishment and should be released. The applicant also claims that the project has been taken over by a co-accused and the interests of the complainants are already safeguarded. The prosecution opposes the bail application, arguing that the economic nature of the offenses requires strict consideration. The court considers the submissions and notes that the applicant has already been in custody for more than six years without the framing of charges. The court also finds that the interests of the complainants are safeguarded and that similarly placed accused have been released on bail. Therefore, the court grants bail to the applicant on certain conditions.
Finding of the Court:
Ratio Decidendi:
Result:

JUDGMENT

1. Bail Application No.3845 of 2021 is moved by the applicant seeking bail in Crime No.I-152 of 2015 registered with EOW, Palghar, Arnala Sagari Police Station, Dist. Thane for the offence punishable under Ss. 120B, 409, 406, 467, 468, 471, 420 r/w 34 of IPC and Ss. 13 and 14 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and Ss. 3 and 4 of the Maharashtra Protection of Interest (in Financial Establishment) of Depositors Act, 1999.

2. In so far as Bail Application No.3848 of 2021 is concerned, same is moved by the applicant seeking bail in Crime No.I-158 of 2015 registered with EOW, Palghar, Arnala Sagari Police Station, Dist. Thane for the offence punishable under Ss. 120B, 409, 406, 467, 468, 471, 420 r/w 34 of IPC and Ss. 13 and 14 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and Ss. 3 and 4 of the Maharashtra Protection of Interest (in Financial Establishment) of Depositors Act, 1999

3. The case of the prosecution against the applicant is that the applicant, a director in Ionic Reality accepted the hefty amount by promising delivery of developed property, however, has failed to honour the same resulting into registration of aforesaid offences.

4. The detail factual matrix is already recorded by this Court in the order dtd. 12/4/2019 while deciding Criminal Bail Application No.1414 of 2017 with Criminal Application No.163 of 2019.

5. The submissions of counsel for the applicant, Ms. Anjali Patil for seeking relief under Sec. 439 of the CrPC are that after the applicant's arrest on 7/9/2016, he has suffered incarceration for a period of more than six years. According to her, considering the maximum punishment provided in the aforesaid Sec. for which the applicant is charge-sheeted, he can be considered to have undergone more than 50% of the punishment. Relying on the provisions of Sec. 436A of the CrPC, she would urge that the applicant in the aforesaid background needs to be released.

6. Apart from above, according to her, the entire project is taken over by co-accused Mr. Vishram Sawant, who is already ordered to be released on bail by this Court in Bail Application No.1604 of 2021 decided on 28/11/2022. According to her, the property which is attached by the designated Court under the MPID Act is worth more than thousand crores and as such, interest of the persons/complainants who have booked the flats is already safeguarded. That being so, he would urge that the applicant deserves to be released.

7. While countering the aforesaid submissions, learned APP assisted by the counsel for the complainants would oppose the prayer. According to learned APP, some of the offences are punishable with life imprisonment. He would urge that the offences which are economic in nature are required to be viewed and dealt with strictly. Learned APP would urge that the other co-accused Mr. Vishram Sawant even if is ordered to be released, the fact remains that the said accused has taken over the project in the form of financial liability but not the criminal liability. As such, it is prayed that the application deserves to be rejected.

8. I have considered the above referred submissions.

9. The fact remains that the applicant has suffered the incarceration for a period of more than six years from the date of his arrest. It is not likelihood that the trial of the applicant is likely to be concluded in the recent future considering the fact that even after the lapse of six years of his arrest the charge is not framed.

10. Apart from above, this Court has called the affidavit from the competent authority under the MPID Act and the orders passed by the Special Court under the MPID Act would reflect that the interest of the complainants and the other similarly placed persons who have paid consideration is already safeguarded, as property attached is worth more than the financial liability. In

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