Gujarat High Court
Ramchandra Thobandas Patel vs State Of Gujarat on 19 September, 2018
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/30073/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 30073 of 2017
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RAMCHANDRA THOBANDAS PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR.N.D. NANAVATI, LD. SR. ADV. with MR MRUGEN K PUROHIT(1224) for
the PETITIONER(s) No. 1
MR. DHAVAL DAVE, LD. SR. ADV. with MR.MANAN BHATT(6535) for the
RESPONDENT(s) No. 2
MR.H.K.PATEL, APP, (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 19/09/2018
ORAL ORDER
1. This application is filed by the applicant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in connection with FIR registered at C.R. No.I-77 of 2017 with Navapura Police Station for the offence punishable under Sections 465, 467, 468, 471, 120(B) of the Indian Penal Code.
2. Learned Senior Advocate Mr. N.D.Nanavati appearing on behalf of the applicant submits that the FIR is registered is of civil nature and that the complainant as well as applicant have contested the civil cases till the Apex Court and thereafter, the complainant has filed this FIR on the ground of forgery of his father's signature in the Will. It is submitted that all throughout the litigation before the High Court as well as before the Apex Court was based on the very Will on the basis of which compensation under the Land Acquisition Act was to be appropriated.
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3. Learned senior advocate further submits that even during the litigation, the parties have sat for the settlement talks and in fact on more than one occasions, the settlements have been drafted and entered into between the parties. In fact, before the Civil Court, such settlements were the basis for drawing of decree as per the consent terms.
4. It is submitted that the Apex Court has also recognized such settlements between the parties and has therefore, made observations in its order regarding refund of the deposit after adjusting the amount between the parties. It is submitted that as per the settlement, the complainant and his family members have received payments by cheque in their account and therefore, the acceptance of the amount itself suggest that the complainant from beginning was aware of the existing of Will and right created in the property. It is submitted that the complainant is using this FIR as an arm twisting method as previously also by resorting to litigation and compelling the applicant to arrive at settlement from time to time has increased his share in the settlement amount. Lastly, the submission is made that in connection with this FIR, previously the applicant had filed an application for quashing, whereby the applicant was protected by this Court however, the said quashing petition came to be disposed of and that protection was extended for the applicant to prefer anticipatory bail and even in the anticipatory bail application before this Court, the applicant was protected by a reasoned order dated 11.12.2017 and thereafter, the applicant has been interrogated and his statement has been recorded. He submitted that considering the nature of offence, the applicant may be enlarged on anticipatory bail by imposing suitable conditions.
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5. As against this, learned Additional Public Prosecutor appearing for the respondent-State has opposed this application and granting anticipatory bail to the applicant looking to the nature and gravity of the offence. He submits that the applicant is not co-operating with the investigation. It is submitted that on several occasions though the applicant was called for the investigation, he has not remained present. It is submitted that the investigation has been carried out and prima-facie opinion is now available with the Investigating Agency in the form of expert opinion that the Will in question bears forged signature of the father of the complainant and for that purpose, the presence of the applicant would be necessary for the investigation.
6. It is also submitted that the applicant is only front face, whereas the main vital role is played by influential person behind the seen and the involvement of land grabbers/land Mafia cannot be ruled out and for that purpose, the deeper investigation is necessary.
7. Learned senior advocate Mr. Dhaval Dave appearing for respondent No.2-complainant submits that the present FIR has been registered after the intervention of this Court. It is submitted that the people involved in the entire offence are so influential that police is investigating under their influence and therefore, the complainant has moved separate petition for transfer of investigation.
8. It is also submitted that prima-facice a case of forgery of the signature of the father of complainant is made out as the handwriting expert has also opined about the forgery. It is also submitted that not only the document Will is forged, but the applicant is also involved in subsequently creating false documents to substantiate his claim under the Will. The conduct Page 3 of 9 R/CR.MA/30073/2017 ORDER of the applicant is therefore, such that at every stage, the applicant is committing offence and therefore, no discretion can be granted in favour of such accused person.
9. It is also submitted that the long litigation of civil nature is of no consequence as the Supreme Court ultimately declined to entertain the settlement between the parties otherwise, it was open for the Supreme Court to accept the settlement and dispose of the entire litigation. However, as observed by the Supreme Court in the order, all the issues are still at large before the concerned Court. It is also submitted that the applicant is known to play with the Court proceedings as in the proceedings for the probate, initially the applicant had produced original copy of the Will however, subsequently, he has, by an application, received the original copy from the record of the Civil Court from the probate proceedings. It is submitted that during the course of litigation, it is for the Court to maintain the original Copy of the Will. He further submits that the question of challenge to the Will never arise in so far as the complainant is concerned as it is settled law that the propounder of the Will has to prove the Will and so far as the present Will is concerned, the entire execution of Will proceedings are shrouded with suspicion. It is also submitted that the settlement between the parties stands on a different footing and is absolutely not concerned with the offence of committing forgery of the Will.
10. I have heard the learned advocates appearing for the respective parties, perused the investigation papers and have also taken into consideration the facts of the case, nature of allegations, role attributed to the applicant- accused. Without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. This Court has also Page 4 of 9 R/CR.MA/30073/2017 ORDER taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, reported at [2011] 1 SCC 6941, wherein the Hon'ble Apex Court has reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia and others, reported at (1980) 2 SCC 665.
Following aspects are also considered:-
(I) The offence pertains to a land dispute, wherein, under a Will in question dated 28.08.1995 of one Mahendrabhai Desai (expired on 13.10.1995), the applicant was claiming right in the property. From the record, it appears that on the basis of the Will, a probate application was filed, wherein on 18.10.2001, the complainant (son of Mahendrabhai Desai) has given acceptance to such Will and has given on objection to the grant of probate.
Thereafter, in the year 2003, the application was moved for revoking the probate. Revocation of probate was allowed in the year 2004 to which review application was filed by the applicant in the year 2006. Ultimately, in the year 2007, a compromise pursis was filed by the parties concerned which included the complainant and a decree came to be passed as per the settlement. In the meantime, the land came to be acquired by the Government and therefore, compensation proceedings were initiated, wherein, in the year 2007 other heirs of Mahendrabhai Desai filed their claim before the District Court claiming their share in the possession. Here these heirs claimed disbursement to the extent of 18.10% in favour of heirs of Mahendrabhai Desai, whereas 81.19% in favour of the applicant on the strength of the Will. Similarly, settlement was also reflected in the Page 5 of 9 R/CR.MA/30073/2017 ORDER review application filed in connection with the probate and as per the share of both the parties, probate was granted. The review application to the issue of probate also came to be settled in view of the settlement terms.
II) The Apex Court in its order dated 26.04.2017 has observed as under:-.
""....Let the suit as well as the pending reference be considered and decided expeditiously preferably within six months from the next date fixed before the civil court. Till the decision of the matters, the interim order passed by this Court on 06.04.2010, which is extracted hereunder, shall continue...."
"....In case the refund is required, the concerned incumbents shall refund the amount after adjusting the amount deposited pursuant to the order passed by this Court on 06.04.2010, within a period of three months as may be ordered by the concerned Court. In case refund is not made, it shall be treated to be violation of the directions made by this Court...."
III) In connection with the allegation of the forgery of the Will, the original Will is now in the custody of the Investigating Officer as per the directions contained in the order dated 10.07.2017 passed by this Court in Special Criminal Application No. 4390 of 2017 regarding which opinion of the FSL is also now received and the original Will has been produced by the complainant himself before the Investigating Agency.
IV) The submission on the behalf of the complainant that the issue of settlement between the parties pending the litigation has no connection with the forgery of the Will. At first glance, may appeal to the Court however, the Court cannot disregard that the applicant has based his claim only on the Will and all the civil proceedings were based Page 6 of 9 R/CR.MA/30073/2017 ORDER on that Will and in these proceedings, the complainant and his family members have participated with the settlement and therefore, this aspect would be relevant for the purpose of considering the case of the applicant at the stage of anticipatory bail.
V) Considering the long standing civil litigations between the parties, which reached even upto the Apex Court and considering the fact that during this entire litigation, time and again, the parties have settled the mater and arrived at compromise and considering the fact that Co-ordinate Bench of this Court had initially granted protection in the quashing petition and thereafter, the protection granted in this very matter which has continued till date and during which the statement of the applicant is also recorded by the Investigating Agency. Therefore, it is clear that the applicant has joined the investigation.
VII) That the role of the applicant only to be a witness in the document more over, he is aged about 80 years and reportedly suffering with Cancer.
In view of the aforesaid, the Court is inclined to consider the application for anticipatory bail.
Learned Additional Public Prosecutor under the instructions of the Investigating Officer is unable to bring on record any special circumstances against the applicant.
11. Learned Advocate for the applicant on instructions states that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to the powers of Investigating Agency to file an application before the Page 7 of 9 R/CR.MA/30073/2017 ORDER competent court for his remand. He would further submit that upon filing of such application by the Investigating Agency, the right of the applicant-accused to oppose such application on merits may be kept open.
12. In the result, the present application is allowed by directing that in the event of arrest of the applicant herein in connection with FIR registered as C.R. No.I-77 of 2017 before Navapura Police Station, the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/- (Rupees ten thousands only) with one surety of the like amount on the following conditions that he :
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 27.09.2018 between 11.00 AM and 02.00 PM;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him/them from disclosing such facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;
(e) shall, at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; and Page 8 of 9 R/CR.MA/30073/2017 ORDER
(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the same on merits;
13. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for Police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the Police custody, upon completion of such period of Police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
14. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. The application is allowed accordingly. Rule is made absolute in the aforesaid terms. Direct service is permitted.
(A.Y. KOGJE, J) Siddharth Page 9 of 9