Gujarat High Court
Nishaben W/O Jatinbhai Kantilal Patel vs State Of Gujarat on 7 April, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
R/CR.MA/6879/2021 ORDER DATED: 07/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6879 of 2021
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NISHABEN W/O JATINBHAI KANTILAL PATEL
Versus
STATE OF GUJARAT
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Appearance:
AADITYA D BHATT(8580) for the Applicant(s) No. 1
HARSH M KHEMKA(7880) for the Applicant(s) No. 1
MR TAPASWI P RAVAL(10534) for the Applicant(s) No. 1
MS. KRUTI M SHAH(2428) for the Respondent(s) No. 1
MR.L.B.DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 07/04/2022
ORAL ORDER
1. Heard the learned advocates for the respective parties.
2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with the FIR being C.R.No.11214020210094 of 2021 registered with Kamrej Police Station, District Surat for the offences under Sections 120(B), 420, 465, 467, 468 and 471 of the Indian Penal Code, 1860.
3. The complainant has alleged in the complaint that;
3.1 It is alleged that the complainant is the joint owner of one property being block No.2921 and Survey No.397 which is an ancestral property running. It is alleged that the complainant had received one 135(D) notice for the above mentioned Page 1 of 7 Downloaded on : Fri Apr 08 21:20:06 IST 2022 R/CR.MA/6879/2021 ORDER DATED: 07/04/2022 properties, wherein the complainant being suspicious of the notice, procured the certified papers of the above mentioned properties.
3.2 It is alleged that after procuring the documents it was found out that two power of attorneys have been executed using the forged signatures and photographs of the complainant and his wife and sister and subsequently based upon those forged power of attorney sale deed has been executed for the land in question. It is alleged that the offence has been committed by the accused No.1, who is the son of the complainant and other 10 accused.
3.3 Thus, in the complaint it is alleged by the complainant that, the accused in connivance has been forged the papers and executed forged sale deed to take away the property of the complainant. It is alleged that, thus the above mentioned FIR has been filed u/s. 120(B), 420, 465, 468 and 471 of the Indian Penal Code.
4. Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submits that the applicant will keep herself available during the course of investigation, as well as trial also and will not flee from justice.
4.1 It is submitted that the applicant was completely oblivious of the alleged transaction. It is submitted that, the applicant has only studied till 4th Standard, and does not even understand Gujarat language. It is submitted that, on Page 2 of 7 Downloaded on : Fri Apr 08 21:20:06 IST 2022 R/CR.MA/6879/2021 ORDER DATED: 07/04/2022 28.02.2021, the police had visited the applicant at her residential premises and informed that one FIR has been filed, against the husband (accused No.1) and thereafter the applicant was taken to the concerned police station and thereafter the applicant was informed of the alleged incident.
4.2 It is submitted that the role attributed to the applicant is that the applicant had signed as a witness in one declaration of the accused No.1 dated 22.10.2020 and that as alleged several transactions have taken place from the bank account of the applicant.
4.3 It is submitted the applicant was working in a dance bar in Mumbai since long, wherein in the year 2001, the applicant had come in contact with the accused No.1 and thereafter, they got married.
4.4 It is submitted that, after getting married the applicant came to know that the accused No.1 was already married at that time and was having a wife and two children. It is submitted that the accused No.1 had thereafter had taken divorce and started living with the applicant.
4.5 It is submitted that, the applicant has two bank accounts one in the joint name of applicant and accused No.1 which was operated by the accused No.1. It is submitted that so far the second bank account is concerned, though it was in the name of the applicant, the ATM Card and cheque book with signature was with the accused No.1 and the applicant was completely financially dependent on the accused No.1 husband.
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5. 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 powers of investigating agency to file an application before the competent Court for her remand. He further submits 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. Learned advocate, therefore, submits that considering the above facts, the applicant may be granted bail.
6. On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent- State has opposed grant of bail looking to the nature and gravity of the offence. It is submitted that the investigation reveals that the main perpetrator is accused No.1 who is the husband of the applicant and the role of the applicant is only confined to signing as a witness in the document dated 22.10.2020.
7. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant bail to the applicant.
8. This Court has considered following aspects;
(a) that the applicant is a lady accused and she has studied upto 4th standard.
(b) the main accused is the accused No.1. Page 4 of 7 Downloaded on : Fri Apr 08 21:20:06 IST 2022 R/CR.MA/6879/2021 ORDER DATED: 07/04/2022 (c) It appears that the applicant has been deceived by the accused No.1 by her taking
signature as a witness on the declaration dated 22.10.2020 by suppressing the correct facts.
(d) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary, at this stage;
9. This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312.
10. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of her arrest in connection with FIR being 11214020210094 of 2021 registered with Kamrej Police Station, District Surat, on her executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he :
(a) shall cooperate with the investigation and make herself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 14.04.2022 between 11.00 a.m. and 2.00 p.m.;
(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 her from disclosing such Page 5 of 7 Downloaded on : Fri Apr 08 21:20:06 IST 2022 R/CR.MA/6879/2021 ORDER DATED: 07/04/2022 facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and 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 her residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week.
11. Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide if on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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 bail order.
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12. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
13. The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent.
14. Registry is directed to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.
(A. S. SUPEHIA, J) MAHESH BHATI/55 Page 7 of 7 Downloaded on : Fri Apr 08 21:20:06 IST 2022