Gujarat High Court
Dhansukhbhai Dalubhai Patel vs State Of Gujarat on 25 February, 2020
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/22372/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22372 of 2019
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DHANSUKHBHAI DALUBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK A DAVE(3764) for the Applicant(s) No. 1
MR DAIFRAZ HAVEWALLA(3982) for the original complianant
MR L B DABHI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 25/02/2020
ORAL ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with the FIR being C.R. No. I - 191 of 2019 registered with Pandesara Police Station, Surat City for the offenses punishable under Sections 406, 420, 465, 467, 468, 471 and 120(B) of the Indian Penal Code.
2. Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, trial also and will not flee from justice.
3. Learned advocate for the applicant on instructions states that Page 1 of 6 Downloaded on : Tue Feb 25 23:29:18 IST 2020 R/CR.MA/22372/2019 ORDER 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 his remand. He 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. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.
4. Learned advocate appearing on behalf of original complainant and learned Additional Public Prosecutor appearing on behalf of the respondent - State have opposed grant of anticipatory bail looking to the nature and gravity of the offence.
5. Learned advocate for the original complainant has referred to the averments made in the affidavit-in-reply filed by the complainant, copy of which is placed on record at page 59 of the compilation. He has also referred to the documentary evidences placed on record and thereafter, contended that present applicant is the main accused, who has forged signature of dead person and even death certificate is also forged and therefore, this Court may not exercise discretion in favour of the present applicant.
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R/CR.MA/22372/2019 ORDER
6. 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 anticipatory bail to the applicant.
7. This Court has considered following aspects,
(a) It is submitted by learned advocate for the applicant that original accused no.1, who is the beneficiary, has been enlarged on anticipatory bail by this Court though, the complainant has opposed the said application. Learned advocate for the applicant has referred the said order, copy of which is placed on record at page 32 of the compilation.
(b) This Court while enlarging the co-accused on anticipatory bail has observed in para 6 as under:
(i) The FIR is registered on 19.08.2019 for the offence which is alleged to have taken place on 19.08.2019.
(ii) the applicant is a lady accused aged 80 years, the only role is that the originally immovable property was mutated in her name as legal heir as original owner;
(iii) Considering the fact that the dispute pertains to immovable property and the objectionable documents (mutation entries) has taken place way back in the year 1988;
(iv) co-accused have been enlarged on anticipatory bail hence, applying the principle of parity;"
(c) It is submitted by learned advocate for the applicant that original accused nos.5 to 10 are also enlarged on anticipatory bail either by this Court or by the concerned Sessions Court. Copy of the said orders are placed on record.
(d) It is also submitted that for the alleged transaction, Page 3 of 6 Downloaded on : Tue Feb 25 23:29:18 IST 2020 R/CR.MA/22372/2019 ORDER which has taken place prior to year 2016, FIR is lodged in August, 2019. Thus there is delay in lodging the FIR. (di) It is further submitted that prior to filing of the FIR-in-
question, complainant has already filed Special Civil Suit No.250 of 2018 before the Principal Civil Judge, Surat. Thus, it is contended that civil proceedings are pending with regard to the subject land.
(dii) It is submitted that the alleged forged Will was executed in October, 1983 in spite of that, FIR is filed in August, 2019.
(diii) I have considered submissions canvased by learned advocate for the applicant and also perused the material placed on record.
As the other co-accused have been enlarged on anticipatory bail, on the ground of parity, in the facts and circumstances of the present case, I am inclined to consider the case of the applicant.
8. This Court has also 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 Ors., reported at [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565.
9. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No. I - 191 of Page 4 of 6 Downloaded on : Tue Feb 25 23:29:18 IST 2020 R/CR.MA/22372/2019 ORDER 2019 registered with Pandesara Police Station, Surat City on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions:
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 03.03.2020 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 him 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 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 concerned trial court and if having passport shall deposit the same before the concerned 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;
10. 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 Page 5 of 6 Downloaded on : Tue Feb 25 23:29:18 IST 2020 R/CR.MA/22372/2019 ORDER 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.
11. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
12. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(VIPUL M. PANCHOLI, J) NEHA Page 6 of 6 Downloaded on : Tue Feb 25 23:29:18 IST 2020