CNR No. MHNS010018552022
Order below Exh.1 in Cri. Bail Application No. 486/2022
( Mr.Aashuthosh Raghunath Rathod and Mrs. Anjali Aashuthosh Rathod Vs. State )
This is an application, for prearrest bail u/s. 438 of the Cr.P.C. from being arrested in complaint lodged by Shubham Gautam Hiran.
2. Applicant 1 Mr.A.R. Rathod in person submits that, the complaint is lodged by Shubham Gautam Hiran with sole ill and malicious objective of giving criminal colour to the civil dispute between the parties. Facts are fabricated, concocted and without any basis. The applicants are innocent person and they have been falsely implicated. They are ready to cooperate in investigation and have got permanent
place of residence at Nashik.
3. Learned A.P.P. Mr. R.M. Baghdane, by filing pursis (Exh.6) adopted say filed by I.O. (Exh.5) and stated that no offence has been registered against the applicants.
4. To buttress his submission that, applicants be released on bail as filing of FIR is not a condition precedent to exercise of power u/s. 438 of Cr.P.C., Ld. Advocate. Mr. Rathod relies on,“Sidharam
Satlingappa Mhetre vs. State of Maharashtra, in Criminal Appeal No. 2271 of 2010(Arising out of SLP(Cri.) No. 7615 of 2009) decided on 02.12.2010, SC.” In the reported case, accused was named in the FIR alongwith his respective role. That apart, factual backgrounds in the above reported ruling are entirely different. Hence, above ruling is not applicable herein.
5.Perused record. In this application vide order passed below Exh.4 on 16.04.2022 show cause notice issued and Say of D.G.P. was called. According to learned A.P.P., offence has not been registered,
against applicants. Ld. A.P.P. on the instructions admitted that the complaint is received and inquiry is in progress, however, the decision to register the FIR is yet to be taken. Applicant 1 submits that, in the event of FIR is registered, the applicants apprehend arrest at the instance of police station. In the circumstances, this application can be disposed of by directing respondent police station that, in the event FIR is registered, and they intend to arrest the applicants, 72 hours notice in writing be issued to them. Profitable reliance can be placed upon,“Athar Badruzzama Khan vs. The State of Maharashtra, in Criminal Anticipatory Bail Application No. 1799 of 2018 dated 05.09.2018, High Court, Bombay”, wherein
respondent was directed to issue 72 hours prior notice to the applicants grating protection against arrest. Learned A.P.P. also acceded to the above principle of law to give 72 hours notice. In the result, I pass the following order.
ORDER
1.This application stands disposed of.
2.In the circumstances, the respondent police station is directed that, in the event, FIR is registered and it intends to arrest applicants (1)Mr.Aashuthosh Raghunath Rathod and (2)Mrs. Anjali Aashuthosh
Rathod, 72 hours prior notice in writing shall be issued to applicants.
3. Inform the said order to the Investigating officer of the respondent.
Date :22.04.2022.
( S.T. Tripathi) Additional Sessions Judge 7, Nashik.