Advocates:
['FIRDOS MIRZA', '', 'ABDUL SUBHAN', 'TEJAS S DESHPANDE', 'VIJAY NILKANTHRAO MORANDE', '', 'NEERAJ B JAWADE', 'KISHORI N JAWADE', 'FOR/R', 'APP']

APL96.15-1

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

CRIMINAL APPLICATION (APL) NO. 96 OF 2015

1.

Dr. Anil S/o. Shobha Rathod,

Aged about 35 years,

Occupation : Medical Practitioner,

R/o. Pusad, Distt. Yavatmal.

2.

Dr. Vidya W/o. Anil Rathod,

Aged about 30 years,

Occupation : Medical Practitioner,

R/o. Pusad, Distt. Yavatmal.

. . . . APPLICANTS

. . . .VERSUS. . . .

1.

The State of Maharashtra

Through P. S.O. Pusad (City) Police Station,

Tq. Pusad, Distt. Yavatmal.

2.

Dr. Pankaj S/o. Bharatlal Jaiswal,

Aged about 37 years,

Occupation : Vaidya,

R/o. Tagadpallewar Layout,

Near Rani Laxmibai School,

Motinagar, Pusad,

Tq. Pusad, Distt. Yavatmal.

. . . . NON-APPLICANTS

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Shri Firdos Mirza, Advocate for applicants.

Shri T. A. Mirza, A.P.P. for non-applicant no.1/State.

Shri V. N. Morande, Advocate for non-applicant no.2.

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CORAM : Z.A.HAQ AND

AMIT B. BORKAR, JJ.

DATE : 22.02.2021.

ORAL JUDGMENT : (PER AMIT B. BORKAR, J.)

APL96.15-1

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1.

By this application under Section 482 of the Code of

Criminal Procedure, the applicants have challenged registration of

First Information Report No.16 of 2015 dated 13.01.2015 registered

with the non-applicant no.1 - Police Station for offences punishable

under Sections 447 and 34 of Indian Penal Code.

2.

First Information Report came to be registered against

the applicants with the accusations that the applicants have

encroached plot owned by the non-applicant no.2 and have

constructed over the property of the non-applicant no.2. It is alleged

that the applicants have not carried out construction according to

the sanctioned plan. It is alleged that the applicants have carried out

construction on the service lane and have therefore, encroached on

public property.

3.

The applicants have challenged registration of the First

Information Report by way of present application. This Court on

17.02.2015 issued notice to the non-applicants and by way of ad-

interim relief, it was directed that no coercive steps be taken against

the applicants.

4.

This Court on 28.9.2015 issued Rule and continued

interim relief already granted.

APL96.15-1

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5.

The non-applicant no.1 filed reply and stated that

prima facie the land belongs to the non-applicant no.2 and the

applicants have entered into the area of the non-applicant no.2 and

illegally constructed over the plot owned by the non-applicant no.2.

It is submitted that therefore, prima facie, offence punishable under

Section 447 of the Indian Penal Code is made out against the

applicants.

6.

The non-applicant no.2 has filed his reply and written

submissions and it is stated that the original owner Deepak

Tagadpallewar trifurcated his plot into three portions; one portion

was sold to Dwarkaprasad Sharma on 11.06.2009, admeasuring

218.74 sq.mtrs., another portion was sold to one Babulal Choudhari

admeasuring 217.24 sq.mtrs and third portion admeasuring 220.62

sq.mtrs. was sold to one Suresh Paradh. The portions, which were

sold to Shri Sharma and Shri Chaudhari, were purchased by the

applicants and third portion of the plot was purchased by the non-

applicant no.2 from Suresh Paradh. It is submitted that the

applicants have agreed to sale half of the plot admeasuring 109.37

sq.mtrs. to the non-applicant no.2 but, they had shown less area in

the description of the property and, therefore, Civil Suit bearing

No.114 of 2010 came to be filed for correction of agreement, which

APL96.15-1

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was compromised by granting area of 89 sq.mtrs. to the non-

applicant no.2. It is submitted that there is no merit in the

application of the applicants.

7.

Shri Mirza, learned Advocate for the applicants,

submitted that the allegations in the First Information Report are

not sufficient to fulfill the ingredients of Sectio