Gujarat High Court
Shantaben Wd/O Amrutbhai Patel vs State Of Gujarat on 28 August, 2023
NEUTRAL CITATION
R/CR.MA/12591/2023 ORDER DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12591 of 2023
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SHANTABEN WD/O AMRUTBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
LEARNED SENIOR COUNSEL MR JAL UNWALA assisted by MR.D
K.PUJ(3836) for the Applicant(s) No. 1
MR SAURABH J MEHTA(2170) for the Respondent(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 28/08/2023
ORAL ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release her on anticipatory bail in the event of her arrest in connection with the FIR No. 11192011230258 of 2023 with Bopal Police Station, Ahmedabad(Rural) for the offences punishable under Sections 465, 467, 468, 471 and 120B of the Indian Penal Code.
2. Learned Senior Advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. Learned Senior advocate Mr. Unwala assisted by learned advocate Mr.D.K. Puj for the applicant has submitted that applicant is falsely implicated in the said offence. It is alleged that present Page 1 of 8 Downloaded on : Sun Sep 17 02:43:02 IST 2023 NEUTRAL CITATION R/CR.MA/12591/2023 ORDER DATED: 28/08/2023 undefined applicant is director of the Company and she has sold the land by executing the sale deed in favour of one Rajeshbhai Patel and the applicant has also confirmed the said transactions. It is submitted that even complainant is a party in the said sale deed and one Bhadresbhai filed the Civil Suit, which is pending and the same is for the specific performance to the agreement to sell, which is executed by her on 23.12.2011. It is further submitted that applicant is a senior citizen and she is readily available as and when required. It is submitted that the question of title itself is pending before the Civil Court and question of forgery does not arise at this juncture, no allegation is levelled against the present applicant. Merely, she has entered into agreement to sell and executed the sale deed on behalf of the Chitrakut Pvt. Ltd. under the capacity of director. Hence, he requested to allow the present application. In view of the above, the applicant may be granted anticipatory bail.
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 would further submit that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open.
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3. Per contra, learned Additional Public Prosecutor appearing on behalf of the respondent - State and learned advocate for the original Complainant have opposed grant of anticipatory bail looking to the nature and gravity of the offence.
4. Learned APP Mr.Dabhi has stated that the accused have hatched the conspiracy and they are playing very smartly and all the applicants are in collusion. On one hand, Shantaben says that she has put her signature and on the other hand, before this Court, she has denied the signature and stated that under misconception, she has executed agreement to sell to the present applicant. This is nothing but white colour offence, which is required to be thoroughly investigated and custodial interrogation is also required. Hence, he requested to dismiss the present application. It is submitted that this is not a fit case to exercise discretionary jurisdiction at this stage and to scuttle proceedings at the very preliminary stage of investigation.
5. Learned advocate Mr.Saurabh Mehta has submitted that the original agreement to sell is yet to be recovered. As per the knowledge of the informant, different type of stand has been taken by the present application. Therefore, Custodial interrogation is required. Even there is possibility of tampering with an evidence and he has requested to dismiss the present application.
Page 3 of 8 Downloaded on : Sun Sep 17 02:43:02 IST 2023NEUTRAL CITATION R/CR.MA/12591/2023 ORDER DATED: 28/08/2023 undefined Further, he has relied upon the decision of the Hon'ble Apex Court rendered in the case of Pratibha Manchanda & Anr. Vs. State of Haryana & Anr. passed in Criminal Appeal No.1793 of 2023. Therefore, he has requested to dismiss the present application.
6. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects.
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1. Applicant being a lady and senior citizen.
2. Considering the aforesaid fact as the issue is civil in nature and the civil litigation is also pending, this Court has taken care of bail.
3. Civil litigation is pending in connection with alleged offence.
4. This Court has taken care of custodial interrogation of applicant as right to seek remand of applicant is also kept open.
7. In view of the decision of Pratibha Manchanda (supra), it is needless to say that criminal case is required to be decided on its own merits same on facts and while deciding the bail application, precedents are not blindly relied by the Court is a discretionary power in this regard reference is required to be made. In view of the decision of the Apex Court Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr. reported in (2004) 7 SCC 529, the application may be considered.
7.1 Considering the aforesaid aspects and the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Page 5 of 8 Downloaded on : Sun Sep 17 02:43:02 IST 2023 NEUTRAL CITATION R/CR.MA/12591/2023 ORDER DATED: 28/08/2023 undefined Ors. reported in (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow the present application.
8. In the result, the present application is allowed by directing that in the event of applicant herein being arrested in connection with the FIR No. 11192011230258 of 2023 with Bopal Police Station, Ahmedabad(Rural), the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that she:
(a) shall cooperate with the investigation and make herself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 11/09/2023 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant;
(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 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 Page 6 of 8 Downloaded on : Sun Sep 17 02:43:02 IST 2023 NEUTRAL CITATION R/CR.MA/12591/2023 ORDER DATED: 28/08/2023 undefined 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 Court and if having passport shall deposit the same before the Trial Court within a week; and
(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 it on merits;
9. 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. 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.
10. 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.
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11. Rule is made absolute to the aforesaid extent.
Application is disposed of accordingly. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 8 of 8 Downloaded on : Sun Sep 17 02:43:02 IST 2023