Gujarat High Court
Mahesh Hirabhai Chavda vs State Of Gujarat on 22 June, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
R/CR.MA/7341/2023 ORDER DATED: 22/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7341 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 7699 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 7705 of 2023
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MAHESH HIRABHAI CHAVDA
Versus
STATE OF GUJARAT
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Appearance:
Cri. Misc. Apln. No. 7341 of 2023
MR.N.D.NANAVATY SR ADVOCATE with
MR NANDISH H THACKAR(7008) ADVOCATE for the Applicant(s) No. 1
MR R.R.MARSHALL, SR ADVOCATE with
MR DAIFRAZ HAVEWALLA(3982) for the Respondent(s) No. 1
MR MANAN MEHTA APP for the Respondent(s) No. 1
Cri. Misc. Apln. No. 7699 of 2023
MR NANDISH H THACKAR(7008) ADVOCATE for the Applicant(s) No. 1
MR R.R.MARSHALL, SR ADVOCATE with
MR DAIFRAZ HAVEWALLA(3982) for the Respondent(s) No. 1
MR MANAN MEHTA APP for the Respondent(s) No. 1
Cri. Misc. Apln. No. 7705 of 2023
MR.PREMAL RACHH for the Applicant(s) No. 1
MR R.R.MARSHALL, SR ADVOCATE with
MR DAIFRAZ HAVEWALLA(3982) for the Respondent(s) No. 1
MR MANAN MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 22/06/2023
ORAL ORDER
1. All these three matters were heard yesterday at length i.e. on 21.06.2023 and due to paucity of time, the order could not be dictated and, therefore those Page 1 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined matters were adjourned today and hence despite the fact that today learned advocate Mr.Rachh has filed leave note and on his behalf learned advocate Mr.Fenil Betiyal is present, matters were taken up today itself.
2. Heard learned senior advocate Mr.N.D.Nanavati with learned advocate Mr.Nandish Thackar in Criminal Miscellaneous Application No.7341 of 2023, learned advocate Mr.Nandish Thackar for the applicants in Criminal Miscellaneous Application No.7699 of 2023, learned advocate Mr.Premal Rachh for the applicant of Criminal Miscellaneous Application No.7705 of 2023, learned senior advocate Mr.R.R.Marshall with learned advocate Mr.Havewala for original complainant in all these three matters and learned Additional Public Prosecutor Mr.Manan Mehta for the respondent State in all these matters.
3. By way of each of this application preferred under Section 438 of the Code of Criminal Procedure, 1973 ['Cr.P.C.', for short] each of the applicant has prayed for their release on anticipatory bail in event of their Page 2 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined arrest in connection with FIR being C.R.No. I - 11210068230071 of 2023 registered with Vesu Police Station, Surat for the offences punishable under Sections 452, 447, 465, 467, 468, 471, 504, 114, 143, 147, 148, 149, 120(B) and 506(2) of the Indian Penal Code.
4.1 In the FIR registered by one Feni Erach Gulestan D/o. Rustamji Hormasji Vesuna, she has alleged that her ancestral property in the form of land is situated at Vesu Village, District Surat having old Survey No.72/1 admeasuring 1 acre and 15 Gunthas which had come under TP Scheme and accordingly was given new Block / Survey No.58/2 having total area of 0-57-01 sq mtr and another land of Mouje Vesu bearing Old Survey No.6 having new Survey No.4/4 admeasuring 00-21-0 sq mtr are of old tenure lands and n the revenue record the name of the complainant and her sister are entered. The father of the complainant died on 18.01.2004 and thereafter in the revenue record, the complainant and her sisters were shown as occupants of the land in question and they Page 3 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined have paid all the government taxes on the said lands.
4.2 As per the complaint on 04.09.2022 at around 9:00 o'clock in the morning, one Deepak Mishra came to the complainant along with Court Commissioner A.S.Rabari and informed that in respect of the aforesaid land, one Mahesh Hirabhai Chavda has preferred Civil Suit bearing No.176 of 2022 for which an appoint of Court Commissioner was to be done and, therefore panch rojkam was required to be carried out and, therefore, asked them to remain present at 10:00 at the field in the morning for carrying out panch rojkam. When the complainant along with her family members reached at their land, they found that even before they could enter the land, some unknown persons had entered the land and already applied their lock on the gate after breaking the lock the complainant had already applied. Those persons also removed names of the complainant and her sisters as owner of the land from the two notice board applying black color on each of the notice board and thrown away those boards.
Page 4 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined 4.3 The aforesaid act as per FIR was done prior to date of Court Commission had taken place and while they were leaving, accused Mahesh Chavda and his aids abused them and threatened them not to enter the land and, therefore, they called police and ultimately pach rojkam was carried out.
4.4 Accused Mahesh Chavda informed them that the land in question was purchased by one Natvarlal Devchand Kabrawala and he is the power of attorney holder of the said land and, therefore, Civil Suit No.176 of 2022 was filed in the Civil Court at Surat pursuant to which appointment of Court Commissioner was made. As per the complaint, the land in question was never sold to Natvarlal Devchand Kabrawala by father of the complainant either by any oral or any written agreement and they do not know said Natvarlal Devchand Kabrawala who claims to have purchased the said lands vide agreement to sale dated 21.08.1985 and, therefore, for preparing fraudulent documents FIR was filed. In the FIR, it is alleged that in the year 2021 some people tried to take away the land for Page 5 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined which the complaint under land grabbing was also filed by the complainant but at that time also said Natvarlal Devchand Kabrawala never claimed that he is the owner of the land. In the FIR, it is stated that all the accused persons, in connivance with each other, with a view to grab the land of the complainant illegally prepared bogus agreement to sale with possession and on the basis of that filed Special Civil Suit No.176 of 2022 before the Civil Court at Surat and in the FIR it is stated that at the time when the panch rojkam was carried out, accused Deepak Mishra and Deepak Pande got provoked, abused them and threatened them and, therefore, in all FIR registered against eight persons. Since all these four applicants have preferred anticipatory bail pursuant to the same FIR, all these matters are heard together and they are being decided by common order.
5.1 Learned senior advocate Mr.N.D.Nanavati appearing with learned advocate Mr.Nandish Thackar for applicant Mahesh Hirabhai Chavda submitted that there is no material against the present applicant Page 6 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined Mahesh Chavda as he is only the power of attorney holder who holds the power of attorney of Natvarlal Kabra who claimed to have an agreement to sale executed in the year 1985 in his favour. He has only instituted the suit in the capacity of power of attorney holder of said Natvarlal Kabrawala being Special Civil Suit No.176 of 2022 and acting in the capacity of power of attorney holder cannot be said to be an offence and, therefore, considering the fact that there is no allegation about any agreement to sale having been fabricated against the present applicant, he is required to be granted anticipatory bail.
5.2 Learned senior advocate Mr.Nanavati pointed out from the material that as such except acting as power of attorney holder of the accused Natvarlal Kabrawala, there is no material against present applicant. As the applicant was acting as Power of Attorney Holder of Natvarlal Kabrawala and he has instituted suit against the present applicant, his presence at the time of panch rojkam was required and accordingly he was present when the panch rojkam Page 7 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined was carried out. There is no past antecedent against the present applicant and, therefore, considering the totality of the facts and circumstances as there is no role attributed to the present applicant,- Mahesh Chavda except for acting as power of attorney holder of Natvarlal Devchand Kabrawala, in absence of any active role attributed to the present applicant, he should be granted anticipatory bail.
5.3 Insofar as application preferred by accused applicant Natvarlal Devchand Kabrawala is concerned, it was submitted by learned advocate Mr.Nandish Thacker that an agreement to sale was executed in the year 1985 and as the age of the present applicant is 81 years, he was not in a possession to attend the court proceedings etc. and, therefore, considering his age he had given power of attorney holder to aforesaid Mahesh Chavda. Actually agreement to sale which was executed in the year 1985 is genuine agreement to sale and, therefore, when a civil suit is preferred only on the basis of aforesaid agreement to sale document, it is only the Civil Court which can determine genuineness Page 8 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined of agreement to sale document and till the date since land has not changed the hands, no equity is created and even before Civil Court there is order of status quo and both the parties are directed to maintain status quo, and, therefore, considering the fact that this is being civil dispute, which has been given color of criminality present FIR is filed just as a counter blast of civil suit preferred by the applicant and, therefore, considering the aforesaid submissions as well as considering the fact that the applicant is aged about 81 years, he is required to be granted anticipatory bail.
5.4 Learned advocate Mr.Thacker also pointed out that the present applicant upon apprehending his arrest had preferred Special Criminal Application No.1661 of 2923 before this Court wherein while disposing of the aforesaid petition the Court passed an order directing that they should be given 15 days' prior notice in case of his arrest. Learned advocate Mr.Thacker pointed out that as application was preferred by Mahesh Chavda and Natvarlal Kabrawala both, despite aforesaid order Page 9 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined accused applicant Natvarlal Kabrawala was arrested by the police for which contempt application was preferred and in that application, after giving warning to the police authority, the matter was disposed of as the applicant Natvarlal Kabrawala was later on released on realizing mistake committed by the police authority.
5.5 Learned advocate Mr.Rachh appearing for accused applicants Deepak Mishra and Deepak Pandey submitted that looking to the FIR, their role is very limited, they are not beneficiaries of agreement to sale allegedly executed in favour of Natvarlal Kabrawala and merely their presence at the time of carrying out panch rojkam would not constitute any offence as the only allegation against them is that they were present at the time when panch rojkam was being carried out and they had abused the complainant and threatened the complainant of dire consequences and, therefore, looking to the allegations made in the FIR, the role attributed to the present applicants are very limited and they are, in no way, connected with offence in question and, therefore, they are required to be Page 10 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined granted anticipatory bail.
6.1 Learned senior advocate Mr.Marshall appearing with learned advocate Mr.Hawevala for the original complainant submitted that it is true that accused Natvarlal Kabra is aged about 81 years but at the same time even the complainant is also aged about 75 years and her four sisters are senior citizen and considering their age and the fact that their the daughters of Rustamji Hormanji Vesuna as due to their age they were not in a position to manage the property effectively, this is systematic attempt to grab their lands by creating forged documents and, therefore, as each of this applicant are conspirators in this lager conspiracy, instead of looking at individual role of each of the applicant, their collective role is required to be seen by this Court which would give a clear picture to the Court and, therefore, as each of the applicant acted in furtherance in respect of conspiracy to grab the lands of the present complainant, none of them require to be granted anticipatory bail.
6.2 Learned senior advocate Mr.Marshall also pointed Page 11 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined out that agreement to sale document which was allegedly executed in the year 1985 bears the signatures and stamp of one Executive Magistrate, Collector Office, Surat viz. (illegible) Thakore, however, upon inquiry it was found that the date on which agreement to sell was executed i.e. on 01.08.1985, no such Executive Magistrate was working with the Collector Office at Surat that prima facie indicates that entire agreement to sell document is forged and fabricated document and on the basis of aforesaid document the precious land of the complainant is now being sought to be grabbed.
6.3 Learned senior advocate Mr.Marshall submitted that though accused applicant Natvarlal Kabrawala having two sons Divyesh and Umesh, who are also co- accused in this application, the Power of Attorney was given to accused Mahesh Chavda for no reason as all the accused persons have hatched conspiracy together. Further, learned senior advocate Mr.Marshall pointed out that both Deepak Mishra and Deepak Pandey were the persons who were absolutely stranger to the entire Page 12 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined dispute as per claim of respective applicants. If that is so, their presence at the place when panch rojkam was carried out as well as the fact that they had accompanied Court Commissioner Mr.Rabari to the residence of the complainant prima facie indicates their involvement in the offence in question.
6.4 Learned senior advocate Mr.Marshall further submitted that as it is larger conspiracy, each of the applicant accused had played separate role to see that the conspiracy is executed in perfect manner and, therefore, Mahesh Chavda was given Power of Attorney by Natvarlal Kabrawala as both of them can claim to that they are not responsible for the offence in question. It is because of this conspiracy that though there is prima facie involvement of the applicant accused Mahesh Chavda, though he is pleading that he is acting as Power of Attorney Holder of Natvarlal Kabrawala, fact remains that Power of Attorney in his favour i.e. Mahesh Chavda who is nowhere related to Natvarlal Kabrawala only on 04.08.2022 whereas suit is filed on 29.08.2022 which would indicate that when Page 13 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined agreement to sell was executed on 29.08.1985 after almost 37 years the Power of Attorney was in respect of aforesaid land was given to Mahesh Chavda and within a period of one month after the Power of Attorney was given to Mahesh Chavda, he has instituted suit for specific performance in respect of the lands in question.
6.5 It was also pointed out by learned senior advocate that land in question though belongs to the complainant the accused persons have illegally occupied the land in question and had there not been an order of status quo, probably third party right would have been also created in the land in question.
6.6 By making aforesaid submissions learned senior advocate Mr.Marshall submitted that none of the applicant may grant anticipatory bail and the present application in respect of each of the applicant requires to be dismissed.
7.1 Learned Additional Public Prosecutor Mr.Manan Page 14 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined Mehta also vehemently opposed these applications for anticipatory bail preferred by each of the applicant and submitted that even as per investigation carried out by police personnel team now, it is revealed that document in the form of agreement to sell allegedly executed on 21.08.1985, when it was executed there was no executive magistrate having surname as Thakore in Collector Office at Surat which prima facie indicates that the aforesaid agreement to sell document was forged and fabricated. Further he pointed out from contents of the FIR that when in the past also while land grabbing effort was attempted in respect of this very land by some other persons, at that time though accused Natvarlal Kabrawala claims to have agreement to sell in his favour, he was absolutely silent at that point of time and, therefore, conduct of aforesaid applicant also indicates that the document i.e. agreement to sell was fabricated document.
7.2 Learned Additional Public Prosecutor Mr.Manan Mehta further pointed out that it is the claim of the present complainant that they have paid all the taxes Page 15 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined and other dues in respect of land in question which also prima facie supports the case of the prosecution that there is conspiracy designed by the present applicants to grab precious land of the senior citizen's sisters and, therefore, considering the larger picture this Court may not grant anticipatory bail to any of the applicant.
7.3 Learned Additional Public Prosecutor Mr.Manan Mehta also opposed the anticipatory bail application of each of the applicant on te ground that though if the role of the applicants are looked separately, it may not give clear picture of the offence in question, but a closer look at the role of each of the applicant if seen together, in that case, the picture would be clear that this is nothing but systematic attempt of grabbing some precious land by creating forged documents and by instituting some unnecessary litigation and, therefore, prayed that none of the applicants be granted anticipatory bail.
8.1 I have heard learned counsels for the respective Page 16 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined parties and perused the record. On perusal of the record, I have found that agreement to sale was alleged executed in the year 1985 having seal and stamp of Executive Magistrate, Collector Office at Surat. When the police investigation till now has revealed the fact that at that point of time in the year 1985 there was no Executive Magistrate at Collector Surat having surname as Thakore prima facie the document on the basis of which right over the land is claimed by accused Natvarlal Kabrawala as well as his power of attorney Mahesh Chavda seems to be based on those fabricated document. As the accused Natvarlal Kabrawala is the only beneficiary of the aforesaid alleged fraudulent document, prima facie, this Court is of the view that there is prima facie case against him and even if he is 81 years of age considering the fact that even complainant is also senior citizen having 75 years of age, if the case of Natvarlal Kabrawala is considered sympathetically in respect of age factor, in that case, it would be misplaced sympathy looking to the overall facts and circumstances. Further, all throughout it is submitted by learned senior advocate Page 17 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined Mr.Nanavati that accused Mahesh Chavda is only the power of attorney holder and he was instrumental only in instituting suit on behalf of Natvarlal Kabrawala, however, considering the role of Mahesh Chavda, as power of attorney was executed in favour of Mahesh Chavda only on 04.08.2022. Further, aforesaid power of attorney was executed in favour of Mahesh Chavda despite the fact the accused Natvarlal Kabrawala himself having two sons who are also joined as accused nos.2 and 3 viz. Divyesh and Umesh and despite that the power of attorney was given to Mahesh Chavda which prima facie creates suspicion and supports the submission of learned senior advocate Mr.Marshall that this is larger conspiracy to grab the precious land of this old aged lady.
8.2 Further, though power of attorney was given in favour of Mahesh Chavda, it is Mahesh Chavda who instituted the suit and thereafter who was present at the time when the land was allegedly encroached upon by present applicant which otherwise belongs to the complainant which also indicates that even accused Page 18 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined Mahesh Chavda also played active role in the offence in question.
8.3 As far as Deepak Mishra and Deepak Pandey is concerned, all throughout it has been canvassed that they are absolutely stranger to the offence in question and merely because they were known to main accused Natvarlal Devchand Kabrawala they have been arraigned as accused persons only because they were present at the time when panch rojkam was carried out.
8.5 Considering the fact that though the role attributed to Deepak Mishra and Deepak Pandey is limited, looking to the fact that they were not at all concerned or connected with the land in question despite that Deepak Mishra was the one who accompanied the Court Commissioner Mr.Rabari when the notice for appointment of Court Commissioner was being served to the complainant. Further when the Court Commission was being carried out at that point of time also Deepak Mishra and Deepak Pandey were present. They not only abused those elderly ladies but Page 19 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023 NEUTRAL CITATION R/CR.MA/7341/2023 ORDER DATED: 22/06/2023 undefined also threatened them and participated in encroaching the land which indicates their active role in this alleged conspiracy hatched by all these applicants together. Therefore, as there is prima facie case against each of the applicant and there is material against them I do not deem it appropriate to grant any of this applicant the anticipatory bail and, therefore, this applications are required to be dismissed.
9. For the discussion and reasons above, all these applications are dismissed. Rule, in each of application, is discharged. No order as to costs.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 20 of 20 Downloaded on : Sat Sep 16 20:30:35 IST 2023