1
MHNS010028612022
Order below Exh. 1 in Criminal Anticipatory Bail
Application No. 706/2022.
1.

This is an application for anticipatory bail under section
438 of Cr.P.C. in C.R. No. II­95/2022 registered against applicants (1)
Atharva Rahul Tiwari and (2) Shanta Ashok Tiwari at Mhasrul Police
Station for the offence punishable under sections 43 and 52 of the
Maharashtra Regional Town Planning Act.
2.

In short it is the case of the prosecution that applicants in
Survey No. 71 and 171 of Kajal Tekadi, Tiwari Farm laid 600
millimeter diameter cement pipe in three lines and thereby obstructed
the natural Nullah without permission. Hence, this complaint.
3.

The applicants sought pre­arrest bail on the count that
they are innocent. They were completely unaware of the work done.
They have not instructed any person to perform the work. Applicant
no. 2 is the lady and age 83 years suffering from various elements.
Whereas applicant no. 1 is 18 years old and taking education. They
both have nothing to do with the work. Mr. Agrawal has already
stopped the work and the laborers have restired the initial position at
the spot. They are ready to cooperate the investigation and abide by
the terms and conditions. Hence, prayed to allow the application.
4.

The Investigating Officer has objected this application on
the count that on perusing the 7/12 extract of the property it is seen
that it is in the name of Shanta Tiwari and Atharv Tiwari. Nowhere
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the name of the applicants is seen. Hence, they have to inquire about
the transaction between them.

Applicants has done the said act
without having ownership. Even after receiving notice from NMC the
applicants has conducted the said work which reflects that he has no
fear. Hence, prayed for rejection of the application.
5.

Heard Ld. Advocate for the applicants and Ld. APP for the
State in detail. Investigating Officer is present. Perused the FIR and
the case diary. Considering the facts of the case it is seen that offence
levelled against the applicants is under section 43 and 52 of the
Maharashtra Regional Town Planning Act. In short it is the case of
the prosecution that applicants was laying 600 millimeter diameter
cement pipe in three lines on the natural Nullah. It is also their case
that notice was issued yet no steps were taken. However, it is
contended by the Advocate for the applicants that after receiving the
notice immediately the pipe lines were moved they have also replied to
the notice. In support of his contention he has filed on record the
photographs as well as the reply to the notice. Case papers reflect that
spot panchnama has been prepared where reference has been made
that pipe lines may have been laid in the Nullah and later on removed
from the Nullah which is apparently seen. In such circumstances it
cannot be said that applicants have not complying with the notice.
6.

Much argument was made by the Advocate for the
applicants that sanctioned was not obtained by the complainant prior
to lodging the FIR. However, it is the part of the trial to consider the
said aspect. Mini trial is not expected at this stage. Already the pipe
lines have been removed. Nothing has to be recovered or discovered at
the instance of the applicants. The applicant no. 2 is age 83 years and
applicant no. 1 is student. The contention of the investigating officer
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that he has to inquire about the transaction between the owner of the
land and the applicants is no ground to reject the present application.
No grounds have been made for custodial interrogation of the
applicants.
7.

Thus, considering the nature of allegations, prima­facie
case is made out by applicants for grant of pre­arrest bail. Hence, I
pass the following order :
ORDER
1.

The application is hereby allowed.

2.

In the event of arrest of applicants/accused in C.R. No. II­
95/2022 registered against applicants (1) Atharva Rahul
Tiwari and (2) Shanta Ashok Tiwari at Mhasrul Police
Station for the offence punishable under sections 43 and 52
of the Maharashtra Regional Town Planning Act, they be
released on executing their P.R. Bonds of Rs.15,000/­
(Rupees Fifteen Thousand Only) each with one surety in the
like amount.

3.

The applicants/accused shall co­operate the investigating
agency as and when called at the police station.

4.

The applicants/accused shall not directly or indirectly make
any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing
such facts to the court or to any police officer or tamper with the
evidence.

5.

In the event of violation of any terms, Investigating Officer
is at liberty to take appropriate steps under section 439(2) of
Cr.P.C.

6.

Inform concerned Police Station accordingly.
Sd/­xxx
Nashik.
Date : 09/06/2022.

(V.S.Malkalpatte­Reddy)
Additional Sessions Judge,
Nashik.