Court permits anticipatory bail when physical custody isn't required for investigation, emphasizing co-operation over wrongful detention.

ORDER :

1. Criminal Application No.65 of 2022 has been filed for assist to learned APP. Said application stands allowed and disposed of.

2. The applicants in all the anticipatory bail applications apprehending their arrest in connection with Crime No.384 of 2021, registered with Pachod Police Station, District Aurangabad, for the offence punishable under Section 406 , 409, 420 read with 34 of the Indian Penal Code .

3. Applicants in Anticipatory Bail Application No.1607 of 2021 were the public servants i.e. applicant No.1 was the Talathi of village Kadethan Tq.Paithan Dist.Aurangabad around 2020. Applicant No.2 is serving as Tahsildar at Paithan. Applicant in ABA No.1609 of 2021 are the ladies in whose name the lands have been transferred by original accused No.1. Applicant No.2 in this application is the wife of applicant No.2 in Anticipatory Bail Application No.1619 of 2021.

The applicants in 1619 of 2021 are the father and sons.

4. It has been vehemently submitted on behalf of the applicants that the offence alleged by the informant depends on the documents which are already in possession of either the police officer or available with the government office and, therefore, physical custody of the applicants is not required for the purpose of investigation. First Information Report has been lodged by one Sanjay Bapurao Zirpe and in his First Information Report itself he has stated that he was the member of Meherkrupa Umasons Magarvargiya Sahakari Gruhanirman Sanstha Kadethan Budruk Tq. Paithan Dist.Aurangabad. The said institution was established around 11- 11-1987 and it is registered. It is then stated that at the time of establishment, the chairman was Lalsing Uma Chavan i.e. applicant No.1 in ABA No.1619 of 2021. He along with other office bearers have received various grants from the government and misappropriated amount around Rs.10,38,000/- as well as amount of Rs.3,50,000/- from Zilla Parishad, Aurangabad. It is then stated that with the help of Talathi, two false mutation entries bearing No.7516 and 8438 in the name of the daughters-in-law of Lalsing have been mutated. The institution was in fact established for procuring land for construction of houses of members, however, instead of fulfilling that object, even after receipt of grants, said Lalsing along with other accused persons is cultivating the land which has been procured by way of sale in the name of institution.

5. Learned Advocate for the applicants first of all submitted that in view of Section 88 of the Maharashtra Co-operative Societies Act , the proper person to have audit and then take legal course is the auditor, that too with consent of/orders of the superior or the sub- registrar. Under such circumstances, the First Information Report itself is not maintainable. As regards the applicants in ABA No.1607 of 2021 is concerned, they both were acting under the orders of Naib Tahsildar, Patihan and the orders passed under Section 155 of the Maharashtra Land Revenue Code on 17-06-2020 in respect of both the lands have been produced on record. There was no mens rea for these two applicants to commit any offence and it cannot be said that they had any kind of common intention with the other accused persons. As regards the ladies are concerned, their names are appearing, but there is nothing on record or it has not been pointed out by the informant that they had played any active role.

6. As regards applicants in ABA No.1619 of 2021 is concerned, applicant No.1 was the then chairman of the society. After the society was formed for construction of houses, the land was purchased and lay out was prepared. It