Gujarat High Court
Hasmukhbhai Rambhai Patel vs State Of Gujarat on 24 August, 2020
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
R/CR.MA/11254/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11254 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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HASMUKHBHAI RAMBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
Learned Senior Counsel Shree Yatinbhai Oza with MR AM PAREKH(562) for
the Applicant(s) No. 1
MR. H K. PATEL APP for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 24/08/2020
ORAL JUDGMENT
1. This is an application filed by the applicant - Hasmukhbhai Rambhai Patel for enlarging him on anticipatory bail under Section 438 of the Code of Criminal Procedure in connection with the F.I.R. being CR. No. I- 11216008200044 of 2020 registered with Sector - 7, Police Station, Gandhinagar for the offences punishable Page 1 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code.
2. Heard learned Senior advocate Shree Yatinbhai Oza with learned Advocate Mr. A. M. Parekh for the applicant and learned APP Mr. H. K. Patel on behalf of the Respondent State of Gujarat through video conference.
3. Factual Matrix of the case:
That one Mr. Jaydepsinh Harendrasinh Vaghela has filed FIR against the present applicant and others, wherein it is alleged that accused persons on 17.10.1996 has created a forged Power of Attorney of land of Block No. 72 having Account No. 660 land situated mouje at Village: Dhanap, Taluka and District Gandhinagar, which belongs to his mother and other maternal relatives. It is also alleged that the accused persons put their thumb impressions against the name of the dead persons and said power of Attorney has utilized the same for the purpose of executing sale deed in their own names and on dated 15.03.2019 made an attempt to enter their names in the revenue records in relation to the subjected land. When the first informant has inquired about the same from his relatives, who are also signatories of the said forged instrument, they informed that they never sold the land to accused persons. It is alleged by the first informant that the accused persons by creating forged power of Attorney and by further using it as a genuine for executing the sale deed in their own name and by doing so the accused persons have tried to take away the rights and land belonging to the first informant and his relatives. It is further contended that FIR is lodged at the instance of his relatives, Page 2 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT who had put their signatures by executing the said documents of title in favour of applicant had made his best effort for the purpose of bringing their case within the domain of criminal offence may be with a view to settle their civil disputes. It is further contended that the complainant has also filed Civil Suit being Regular Suit No. 191 of 2019. Further it is contented that learned Sessions Judge has granted bail to the co-accused, therefore, also the applicant may be enlarged on anticipatory bail by this Court.
4. It is also contended in petition that the applicant has used the power of attorney of person who has expired in the year 1992 and sale deed has been executed in the year 2006, therefore, person, who is power of attorney has not challenged the sale deed for 14 years and also not disputed and not executed Power of attorney or agreement to sale by them. A copy of Sale deed is Annexure-F. It is also contended that the complainant has not explained the delay of 14 years. The applicant is aged 67 years and not having any criminal records, therefore, prayed for enlarging him on anticipatory bail.
5. This Court heard the arguments advanced by the learned advocate Mr. A. M. Parekh and also thereafter completion of the arguments of Mr. Parekh, learned Senior Counsel Shree Yatinbhai Oza has also submitted different authorities, the same would be discussed hereinafter.
6. Per contra, learned APP Mr. H. K. Patel initially argued and opposed the bail application that pursuant to FIR and other papers, the applicant has committed serious offence by utilising thumb Page 3 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT impression of dead person. By this way, the applicant has prepared power of attorney in the year 1996 and same is tried for mutating entry in the year 2019 and therefore, applicant has committed serious offence under Section 467 of the Indian Penal Code. Further, there is also some correction, made in the amount instead of Rs. 25,000/- which is written as Rs. 4,50,000/- for consideration, therefore, without taking initial (short signature) but for his own benefits and illegal gains made such transaction. Therefore, custodial interrogation is required to verify the documents and also to verify transaction and to verify the monetary benefits availed by the applicant, through such forged transaction and therefore anticipatory bail may not be granted.
7. Learned advocate Mr. Parekh on behalf of the applicant urged that there is no monetary benefit, even the land belongs to the complainant, therefore, there is no prima- facie case. Learned advocate Mr. Parekh has taken this Court towards the Civil Suit filed by the complainant against the present applicant to buttress his stand, since it is civil dispute, so anticipatory bail may be granted to the applicant. Further in his last submission that transactions of P.O.A were known to complainant in the year 2006 which is discernible from the recital of FIR and other police papers.
8. After completion of the arguments of both the sides, learned Senior Counsel Shree Yatinbhai Oza appeared on behalf of the applicant and requested this Court for submission of few different authorities in support of his case. Firstly, learned Senior Counsel Shree Oza submitted that in one identical case accused for the offence under Page 4 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT Sections 406, 420, 465, 467, 120-B and 114 of the IPC has been enlarged by Co-ordinate Bench (Coram: S. H. Vora, J) on anticipatory bail by an order dated 26.04.2017 in Criminal Misc. Application No. 8706 of 2017 on the basis of land mark decision delivered by the Hon'ble Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra 2011(1) GLH. 11 Supreme Court. Secondly, in the case of Naranbhai Amrutlal Patel vs State of Gujarat, for the offences under Sections 465, 467, 468, 471 and 120-B of the IPC has been enlarged by Co-ordinate Bench (Coram: Vipul M. Pancholi, J) on anticipatory bail by an order dated 21.01.2020 in Criminal Misc. Application No. 22866 of 2019. Further in the identical case of Vikas Ramesh More vs. State of Gujarat for the offences under Sections 406, 409, 420, 465, 467, 468, 471, 477A and 120-B of the IPC has been enlarged by Co-ordinate Bench (Coram: S.R. Brahmbhatt, J) on anticipatory bail by an order dated 30.01.2013 in Criminal Misc. Application No. 1029 of 2013. Further in the case of Rameshbhai Batubhai Dhabi Vs. State of Gujarat for the offences under Sections 376, 365, 344, 506(2) and 114 of the IPC has been enlarged by Co- ordinate Bench (Coram: Anant S. Dave, J) on bail by an order dated 11.04.2011 in Criminal Misc. Application No. 1475 of 2011, wherein it was observed that co-accused granted anticipatory bail under Section 438 of the Cr.PC by an order dated 05.08.2010 passed in Criminal Misc. Application No. 8237 of 2010 (Coram: Z. K. Saiyed, J). In such cases which are referred to the SEBI, the concerned Investigating Department seized captioned documents therefore there was no question of custodial interrogation. In the present case, also documents are seized therefore, petition may kindly be allowed. Learned Senior Counsel Shree Oza has also Page 5 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT heavily placed reliance upon land mark judgment of Hon'ble Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra 2011(1) GLH. 11 Supreme Court.
9. Learned APP Ms. Shruti Pathak for the State, at that juncture, heavily opposed that at earlier occasion on the (previous date) the arguments of both the sides were completed, therefore, no authority could be produced but this Court is of the view that in the larger interest of justice, when the order is not pronounced and only arguments are concluded upon such premises this Court has permitted learned Senior Counsel Shree Yatinbhai Oza to submit authorities / citations in support of his case.
10.Having heard the arguments advanced by both the sides, as per catena of decisions of Hon'ble Apex Court, there are mainly two factors which are required to be considered by this Court for exercising the discretion vested under Section 438 of the Cr.PC.
(i) Prima facie case, (ii) necessity of accused for the custodial interrogation.
11. In limine, pursuant to the FIR as well as pursuant to the report of the Investigating Officer, it transpires that complainant belongs to agriculture land bearing block No. 68 new Number 72 and have land by way of ancestral rights, wherein, witnesses desire to sale property therefore contacted the present applicant - Hasmukhbhai Rambhai Patel in the year 1996 and decided price of Rs. 1,40,000/- per vigha and Rs. 25,000/- was given as earnest money. The Complainant and witnesses had searched the revenue records on 15.05.2019 wherein they came to know that the present applicant Page 6 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT (Hasmukhbhai Patel) has executed power of attorney in favour of his wife and himself in the year 1996 and executed sale deed in the year 2006 in the name of his wife and son for which entries were made in the year 2019 by way of Sale deed. Especially Nathiba Bharthuji died on 21.08.1993 but her false thumb impression was made by the present applicant in the year 1996 and prepared false stamp as well as Banakhat and Power of attorney, therefore by this way the applicant has committed offence of cheating with forgery under Sections 420, 467 of the IPC. It is in the report of the Investigating Officer that two accused namely Rajendra Mehta and Laxman Varadiya were enlarged on anticipatory bail by the Sessions Court. It is also observed by the senior Police officer Mr. J.S. Singhal that present applicant (Hasmukhbhai Patel) was not present at the home and his anticipatory bail is rejected and therefore, when the power of attorney is made in the year 1996, therefore his presence is required for custodial interrogation.
12. Pursuant to the FIR and other papers including the affidavit of Investigation Officer, it transpires that prima facie the applicant has executed the document by making thumb impression of dead person, who was grand-mother of the complainant, not only that but same came to know in the year 2019, when the revenue record was searched by the complainant / witnesses. Therefore, prima facie it cannot be said that complaint is 14 years delayed, since complainant and witnesses came to know in the year 2019 while searching the revenue records and therefore, arguments advanced by the applicant side that the FIR is 14 years delay is not prima- facie justified. Further, the offence is under Section 467 of the IPC where the punishment is up to life imprisonment, therefore, it is Page 7 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT serious one not only that but when the applicant has executed sale deed in favour of his wife and son, becomes more serious for utilising land of complainant and witnesses and therefore also Investigating officer is required presence of the present applicant for custodial interrogation including to examine documents and also consideration if any received by the applicant. Further, how the said transaction was made and what was the modus operandi by the applicant for the commission of such offence, for which though the Civil Suit is also filed in the year 2019 by the holder of the ancestral property against present applicant (Hasmukhbhai Patel), and his son Ronakbhai Patel and his wife Nayanaben Patel and Rajendra Mehta and Laxmanbhai Varadiya but it appears that the present applicant has approached the Sessions Court vide Criminal Misc. Application No. 700 of 2020 and same was disallowed on 31.07.2020. But it is to be noted that learned Sessions Court has observed on 31.07.2020 that earlier the present applicant has move anticipatory bail vide Criminal Misc. Application No. 178 of 2020 which came to be rejected on the merits thereafter, successive bail application was also moved vide Criminal Misc. Application No. 700 of 2020 and same was also rejected on merits. Since there was no material change of the considered successive bail application. Therefore, facts remain the same, this Court, with respect have concurrent jurisdiction under Section 438 of the Cr.PC, further, this Court is not sitting in appeal but the facts of case remains that the applicant is registered for the offences under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code. So, when the applicant is prime facie accused who has executed the forged document by way of executing the registered sale deed in favour of his wife and son and also by way of such act, falsely the revenue Page 8 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT enteries were tried to make for his own benefit, which is serious offence for which custodial interrogation is required. Therefore, when punishment is for life imprisonment or imprisonment of 10 years under Section 467 of the IPC. Prima facie the applicant has executed forged valuable security for his own monetary benefits and therefore also though the documents may be seized but as discussed earlier for availing modus operandi, custodial interrogation is required, therefore, this is not a fit case for exercising the discretion in favour of the present applicant who has lost twice anticipatory bail before the Sessions Court.
13. Learned Senior Counsel Shree Oza has heavily placed reliance on different authorities, firstly in the case of Pushpendra Radheshyam Bansal in Criminal Misc. Application No. 8706 of 2012 wherein the co-ordinate bench has enlarged by order dated 26.04.2017 on the basis of nature and gravity of accusation, exact role of the accused must be properly comprehended before arrest is made. In the present case, with respect pursuant to the FIR and other papers including the report of the Investigating Officer, it is a strong prima facie case against the present applicant and therefore with respect fact and circumstances are different to the present case. Further, with respect it is also referred to Para 5.3 of that order that there is no bar or prohibition in the family settlement for raising financial assistance. Vide declaration dated 06.02.2012 the father of the applicant and the original complainant Mr. Radheshyam Bansal filled in format under Regulation 29(2) of the SEBI Regulation, 2011 and transferred his personal holding as promoter to the M/s. H.S. India Ltd. vide will dated 06.02.2013, deceased Mr. Radheshyam Bansal gave his shares of M/s. H. S. Indian Ltd to the Page 9 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT present applicant. The factum of will is not in dispute. It is a matter of fact that specimen signatures are obtained by the investigating officer and now, the FSL report is awaited. Further it is also observed that no reason recorded by the Investigating Officer to the effect that arrest of the applicant is necessary. Further, no grievance regarding the applicant was not co-operating and pending quashing proceedings, therefore, facts and circumstances are totally different from the present case, therefore with respect this authority is not helpful the present applicant.
14. Learned Senior Counsel Shree Oza has also placed reliance upon the order dated 21.01.2020 passed by the Co ordinate Bench in Criminal Misc. Application No. 22866 of 2019, wherein, the FIR having gross delay of 14 years in lodging the FIR, wherein in the present case, with due respect, the complainant / witnesses tried to search revenue record in the year 2019. Therefore, at that time cause of action was arised, therefore it cannot be said that FIR is 14 years delayed. Further, with profound respect, in that case upon which learned Senior Counsel Shree Oza placed reliance, wherein the age of the applicant was 82 years, however in the present case, the age of the applicant is 67 years, therefore, also in facts and circumstances are totally different, hence this authority does not support the present case.
15. Learned Senior Counsel Shree Oza has place reliance upon the case of Vikas More v/s State of Gujarat, Criminal Misc. Application No. 1029 of 2013, wherein offence was under Sections 406, 409, 420, 465, 467, 468, 471, 477A and 120-B of the IPC but with respect in that case prima facie the role attributed to that Page 10 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT applicant that he aided and abetted the offence. Role attributed to him is that one of the sale deeds dated 22.11.2010 came to be executed by him in capacity as President of Parla group in favour of Kantibhai. Further he is the near relative of the Kantibhai but prior to 2010 no role is attributed to this applicant, there is no reference of the disputed sanction order dated 14.05.2001, therefore, role attributed to the present applicant is totally different. Further in that case in Para Nos. 9 and 10 say applicant was lady wherein present case applicant is male. Therefore, this authority is not helpful to the present applicant.
16. Learned Senior Counsel Shree Oza has placed reliance upon the order dated 11.04.2011 passed in Criminal Misc. Application No. 1475 of 2011, in the case of Rameshbhai Batubhai Dhabi Vs. State of Gujarat is under 439 of the Cr.PC, whereas the present case is under Section 438 of the Cr.PC, therefore not applicable with due respect Para 6 of the order it was discussed anticipatory bail was granted by co-ordinate bench in Criminal Misc. Application 8237 of 2010 but in the present case facts and circumstances are different further in that case complaint was filed belated 12 months and it was matrimonial dispute therefore, with due respect this authority is not helpful in the present case. Further, learned Senior Counsel Shree Oza has heavily placed reliance on the decision of Hon'ble Apex Court in case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra (Supra) that personal liberty is equally important in compare to social interest, with profound respect this Court is in favour of argument with Shree Oza for the ratio and para meters laid down by the land mark decision in case of Siddharam Satlingappa Mhetre (Supra) but Page 11 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020 R/CR.MA/11254/2020 JUDGMENT with due respect in the present case as discussed earlier the role played by the applicant to have thumb impression of dead person and subsequently creating forged document for his own monetary benefits is serious one wherein the offence is under Section 467 of IPC, for which punishment is upto life imprisonment or imprisonment of 10 years and therefore, social interest (for complainant & witnesses) is jeopardised in compare to personal liberty, therefore, ratio laid down by the Hon'ble Apex Court is not helpful to the present applicant.
17. Upon the above sets of discussion, in fleri, this application is devoid of merits, hence disallowed.
18.It is made clear that trial Court shall not be influenced by observations made in anticipatory bail application which is just prima facie findings for bail purpose only.
19. Rule is discharged.
(DR. ASHOKKUMAR C. JOSHI,J) prk / Zgs Page 12 of 12 Downloaded on : Tue Aug 25 03:02:57 IST 2020