@JUDGMENTTAG-ORDER
S.S. Nijjar, J.
This order will dispose of Criminal Application Nos. 861/98 with 945/98, 862/98, 863/98, 864/98 with 948/98, 865/98 with 949/98, 872/98, 873/98, 946/ 98, 944/98 with 947/98. The facts in all the applications are common. For the purpose of this order, the facts have been taken from Criminal Application No. 861/98.
2. One Abdul Gafoor Qureshi, the father of the applicant died some time in 1962. He died leaving behind his wife, i.e. the mother of the applicant and three sons i.e. the applicant, his brother Bakshish and one Mohammed Ayub Qureshi. The said Mohammed Ayub Qureshi was the eldest brother. After the death of the father all the three brothers were instrumental in developing the family business of beef stalls at various places in the city of Bombay. The said stalls were opened at the Municipal market and also in private properties. All the three brothers also acquired a number of properties including bunglow known as Gafoor Mahal Bunglow. The mother is a pardanaseen lady, who does not move out of the house and is stated to be 77 years old. Mohammed Ayub Qureshi, the eldest brother was mainly looking after the financial matters and the corporation papers. The actual business was carried on by the applicant and his brother Bakshish. Mohammed Ayub Qureshi was not keeping good hearth in the latter part of his life. He therefore, wanted to have a family settlement and division of the property during his life lime. A family settlement, therefore, was drawn up. This is said to be signed by the mother and all the three brothers. The other documents necessary for transferring the various properties were signed by all the parties. Mohammed Ayub Qureshi died on 20th May, 1996. After the death of Mohammed Ayub Qureshi, the applicant''s uncle and also the married sister started interfering with the family. They induced the mother to sell away some of the properties which stood in her name though the same belonged to the family and had been divided in the family arrangement. The applicant''s brother Bakshish, therefore, filed a suit on the Original Side of the High Court, Bombay, being Suit No. 4484 of 1996. Notice of Motion was taken out in the said suit for interim reliefs which was granted on 6th December, 1996. The following order was passed :
"The plaintiff and the defendants except defendant No. 1 heavily rely upon the family arrangement dated 30th April 1996 under which the entire estate is agreed to be divided in the manner indicated and provided therein. On enquiry Mr. Samdani produced the original of the Family Arrangement. The same is even attested by a Notary. On behalf of 1st defendant Mr. Rajabaly stated that the 1st defendant who was present in Court was not admitting her signature. Mr. Rajabaly on behalf of the 1st defendant stated that as far as Item No. 9 of Schedule No. 4 of Exh. A i.e. the Family Arrangement is concerned, the same has been sold. While filing the affidavit in reply the 1st defendant is directed to give particulars of this transaction. Mr. Samdani on the other hand states that in fact the plaintiffs is in possession of the same.
In view of the fact that all other beneficiaries under the family arrangement except defendant No. 1 are standing by the Family Arrangement, it is a fit case in which ad-interim relief in terms of prayer (a) is granted. Mr. Samdani on behalf of the plaintiff also undertakes that the plaintiff shall also stand by the family arrangement.
In short, it is ordered that status quo as of today as reflected in the Family Arrangement to be maintained till the Notice of Motion is disposed of."
3. Apart from the civil litigation, criminal complaints also came to be filed against the applicants which are pending in different courts in Bombay. Anticipatory bail applications were taken out in all the complaints. They have all been disposed of by a common order by the learned Sessions Judge, Greater Mumbai by his order dated 4th March, 1998.
4. Anticipatory Bail Application No. 861/98 with 945/98 arises out of a complaint filed by Abdul Rauf, the son of the deceased Mohammed Qureshi. It is alleged by the complainant that the signatures appearing on the family arrangement atleast of Jameela Khatoon and Mohammed Ayub Abdul Gafoor are forged. It is stated that the complainant''s had obtained handwriting expert''s opinion on this point and the experts have opined that the signatures of Jameela Khatoon are obviously forged. There is a dispute about the forgery by Abdul Ayub Qureshi. Jameela Khatoon has also filed a complaint in the 37th Court, Esplanade, Mumbai, being Misc. Case No. 65 of 1977 with regard to this document. Anticipatory Bail Application No. 861/98 relates to Flat No. 304 of ''A'' Block, Yari Road, Andheri (W). According to the complainant, it stood in the name of Mohammed Ayub who is the father of the complainant. It was given on leave and licence basis to one Akbar Ali Jeevabhai. After joining hands with Akbar Ali Malloob, the applicant has taken forcible possession of the same. Thus, the complaint came to be lodged on 16th January, 1997.
5. Anticipatory Bail Application No. 862 of 1998 arises out of a Case No. 30 I & R filed in the Metropolitan Magistrate, 9th Court, Bandra, Mumbai. It is subsequently filed in MECR No. 28 of 1997---General Branch C.I.D. This relates to motor car No. Mh-04-A-4198. This car is stated to be not mentioned in the family arrangement. It is alleged that after forging the necessary documents, the applicant got the car transferred in his name and took forcible possession thereof and even today he is in possession of the said car. In connection with this complaint, it is stated that in the application for transfer of the car, the address of the applicant is mentioned as Gafoor Mahal, B-22, TPS-IV, 3rd Road, Gurunanak Road, Bandra (West), Mumbai 400 050, but in the Insurance Company, it is shown as Khursheb Baug Chawl No. 11/6, 15th Rabodi, Old Slaughter House, Thane. This is stated to be not his address at all. A wholly different address is given to the T.T.O. in the insurance certificate dated 22nd October, 1996. A false affidavit is stated to have been filed to obtain the necessary transfer of the car. Certain other documents are also said to be forged.
6. Anticipatory Bail Application No. 863 of 1998 arises out of original complaint bearing Case No. 32 I & R of 1997 filed in 9th Court., Metropolitan Magistrate, Bandra and subsequently it has been numbered as 10 MECR of 1997, General Branch C.I.D. This relates to shop No. 6 situated at Khar market. This is said to be originally in the name of the deceased Mohammed Ayub Abdul Qureshi, the father of the complainant. As per the family arrangement this property is shown at page 9 Item No. 1 in Schedule 4. This property should go to Bakshish. Abdul Ayub is said to have died on 20th May, 1996. The family arrangement is dated 2nd November, 1996. A fabricated affidavit was filed on 2nd May, 1996 to get the property transferred in the name of Bakshish. Although the affidavit bears the date of 2nd May, 1996, but the attestation was done by the advocate on 2nd November, 1996. On being questioned the advocate is stated to have admitted that he was forced to change the date from 2-11-1996 to 2-5-1996. There is no noting in the Notary''s register about the same. The Notary further stated that he never met the deceased. Mohammed Ayub Abdul Qureshi and that he simply knows the applicant accused. At the relevant time, it is stated that Mohammed Ayub Abdul Qureshi was on dialysis and thus, it was impossible for him to have gone for attestation of the affidavit.
7. Anticipatory Bail Application No. 864 of 1998 with 948 of 1998 arises out of the complaint which was filed an 114 Misc. of 1997 and subsequently registered as MECR 25 of 1997, filed in the 24th Court at Borivali, Mumbai. This relates to a shop at Malad. This shop is mentioned in Schedule 3 Item No. 3 at page 7 of the family arrangement. This shop is a tenanted premises. The tenancy stands in the name of the complainant''s grand mother Jameela Khatoon whereas the licence stands in the name of the complainant. Again by forging documents, a licence of the complainant has been got transferred in favour of the applicant. This was also done somewhere on or about 15th November, 1996. All relevant documents are forged and thereafter forcible possession was taken by the applicant on 14th December, 1996.
8. Anticipatory Bail Application No. 865 of 1995 with 949 of 1998 arises out of Misc. Application/Case No. 465 of 1997 pending in the Court of learned Metropolitan Magistrate, 10th Court at Andheri. This was also sent for investigation to General Branch C.I.D and was numbered as MECR No. 26 of 1997. This relates to shop situated at Marol. This is shown in Schedule IV, Item. No. 3 at page 91 of the family arrangement. Again the same allegation is repeated about the forgery of documents.
9. Anticipatory Bail Application No. 872 of 1998 arises out of a complaint lodged as 5 I & R of 1997 filed before the Metropolitan Magistrate, 44th Court, Andheri and has been referred to G.B.C.I.D. u/s 156(3) Cr.P.C. This relates to flat No. 303 ''A'' Block at Yari Road. The allegation is that the applicant has commuted the offence of house trespass, house breaking and theft of valuables. There are allegations of forgery of a Will on the basis of which separate complaint has been filed, which is the subject matter of Anticipatory Bail Application No. 873 of 1998. In Anticipatory Bail Application No. 873 of 1998, the applicant claims to be the wife of the deceased Ayub Abdul Qureshi. The signatures on the Will are said to be forged. The opinion of the expert goes to show that the signatures are not of the deceased. The applicant in this case claims to rely on Nikahnama dated 18th August, 1994. In the Will, the date of marriage is mentioned as 23rd August, 1994.
10. Anticipatory Bail Application No. 944 of 1998 with 947 of 1988 arises out of Complaint Case No. 4/I & R/97 pending before the Metropolitan Magistrate, 44th Court at Andheri. This was also referred to General Branch C.I.D. u/s 156(3) Cr.P.C. This relates to shop No. 4, Andheri Municipal Market, which was supposed to have been allotted to the grand uncle of the complainant Shri Rakhan Nabi. Smt. Jameela Khatoon is stated to be the Constituted Attorney to the said Rakhan Nabi. The licence of the shop is in the name of Rakhan Nabi. The shop was managed by one Shami Qureshi. The licence is said to have been transferred on the basis of forged and fabricated documents.
11. Anticipatory Bail Application No. 946 of 1998 arises out of complaint bearing No. 11/I&R/97 pending before the Addl. Chief Metropolitan Magistrate, 37th Court at Esplanade. This was also referred to the General Branch C.B.C.I.D. u/s 156(3) Cr.P.C. This relates to family arrangement dated 30th April, 1996. In this, there are three separate expert opinions about the forgery of various documents. These documents were forwarded to the Chief State Examiner at Pune by order of this Court dated 30th January, 1997 passed in Original Suit No. 4484 of 1996.
12. As noticed earlier, all the anticipatory bail applications have been disposed of by a common order by the learned Sessions Judge. In paragraph 9 of the said order, the learned Sessions Judge observed as follows :
"As seen above, the various documents were created to effect the said transfers. The documents prima facie appear to be of doubtful validity and not genuine as the signatures of the deceased thereon appear to be forged. It is pointed out by the advocate for the complainant that some of the documents bearing signatures of Mohd. Abdul Ayub Qureshi are false as they were filed after six months after his death. None of these documents were filed during his lifetime, and none of the properties stood in the name of the applicants prior to the death of Mohd. Abdul Qureshi. Undoubtedly, the properties are the subject matter of litigation which is pending in the High Court. However, in view of the prima facie finding in respect of the forged documents and transactions whereby the applicants have got the properties transferred in their names after the death of Mohd. Abdul Qureshi, it is clear that the police will need to investigate into the alleged transactions and the manner in which the transfers were effected and the persons involved in the fabrication of the documents on the basis of which the properties were transferred.
13. Mr. Mundargi appearing for the applicants has vehemently submitted that there is absolutely no need for incarceration of the applicants. It is submitted that most of the evidence which is required in the case is documentary. He further submits that the various opinions of the experts are self explanatory. In any event, the authenticity or otherwise of the said opinions will have to be seen at the trial of the case. It is submitted that the prosecution has wholly failed to give any cogent reasons as to why the anticipatory bail applications should be dismissed. The learned Counsel further submits that it is a moot point as to whether or not the cognizance of these offences can be taken in view of the provisions of section 195(1)(b) of the Criminal Procedure Code. It is submitted that all the various complaints are being filed merely to avoid the partition which has already been effected on the basis of the family arrangement.
14. Mr. Mirza, learned A.P.P. vehemently submits that although the civil proceedings are pending , the offences which have been committed by the applicants are of a serious nature. They are prima facie guilty of forging various documents to gain unlawful advantage and to have the properties transferred in their name. It is further submitted that the investigation by the police cannot be completed unless and until the applicants are sent to police custody. The Counsel further submits that other persons are also involved in signing false affidavits on the basis of which valuable rights of the complainant have been affected. He, therefore, submits that the anticipatory bail applications deserve to be dismissed. In order to buttress his argument , the learned Counsel has placed on record the document which are said to be in the custody of the applicants with regard to various transaction in ail the applications.
15. I have considered the arguments put forward by the Counsel at length. After hearing the arguments. I was of the opinion that it is necessary to know as to which documents are actually in the custody of the applicants. Mr. Mundargi appearing for some of the applicants and Mr. Murthy appearing for some of the other applicants have submitted a detailed explanation as to where each and every documents can be located. The applicants had made a candid disclosure of all the documents which are in their possession and they are prepared to submit all these documents for the proper scrutiny of the Court. Thus, it would appear that the anxiety of the learned A.P.P. is not well founded. The application are directed to offer for inspection any of the document mentioned in Exhibit X which have been taken on record to the investigation agencies. However, if the said documents are required to be examined by the experts, the necessary orders shall be obtained from the Court.
16. Further more from the history as narrated above, it becomes apparent that essentially this is a family feud. It appears that both the sides are scrambling to gain as much benefit by transfer of various properties to their own names which originally belonged to the common pool. This fact has been succinctly noticed by Justice Vyas in the order dated 6th December, 1996, where my learned brother has observed that all parties except defendant No. 1 seem to be relying on the family arrangement. Relying on the said family arrangement, an order of status quo was passed. Now, it appears that all efforts are being made to somehow get out of the family arrangement. All this, of course, will have to be determined in appropriate proceedings. Essentially as noticed above, this is a family feud. It is a homely truth that the litigations between the members of a family or belonging to the same group are always the ones which are fought with the utmost amount of fervour. Therefore, all possible avenues are explored, civil as well as criminal. In these circumstances, it would be inappropriate not to exercise the powers of this Court u/s 438. The applications for anticipatory bail are not to be rejected as a measure of punishment. It is only when a reasonable case is made out by the prosecution to the effect that investigation would be hampered, if anticipatory bail is granted, that the application ought to be dismissed. As noticed above, the Counsel for the applicants have made a clean breast of all the documents which are in their possession.
17. In view of the above, I find that the applicants deserve to be granted anticipatory bail. It is, therefore, ordered that in the event of the applicants being arrested in any of the cases mentioned above, each of the applicants shall be released on bail on their furnishing PR Bond in the sum of Rs. 5,000/- in each application in which they are accused. They are also directed to co-operate with the investigation as and when required by the investigating agency. They are directed initially to join the investigation on 22nd April, 1998 between 11.00 a.m. to 2.00 p.m.
Application disposed of in the aforesaid terms.
18. Appeal allowed.
