Gujarat High Court
Dhanjibhai Thakarshibhai Anaghad ... vs State Of Gujarat on 28 April, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
R/CR.MA/5189/2022 ORDER DATED: 28/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5189 of 2022
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DHANJIBHAI THAKARSHIBHAI ANAGHAD (PATEL)
Versus
STATE OF GUJARAT
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Appearance:
MR SP KOTIA(5687) for the Applicant(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 : 28/04/2022
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.11190002211515 of 2021 registered with Botad Police Station, District Botad for the offences under Sections 465, 466, 467, 468, 471 and 474 of the Indian Penal Code, 1860 (IPC).
3. It is the case of the prosecution that in the Court of Principal Senior Civil Court, Botad during pendency of the Special Civil Suit No.10 of 2018, one application for restoration and another application for condonation of delay has preferred before the Civil Court as the suit was dismissed for default and there was a Page 1 of 8 Downloaded on : Thu Apr 28 21:23:23 IST 2022 R/CR.MA/5189/2022 ORDER DATED: 28/04/2022 considerable lapse of time in filing delay condonation application. While proceeding with above applications, certified copy of the suit was directed to be filed by the Court and while filing the certified copy of the suit in the civil proceedings, it appeared that the surname of the respondent Nos.9, 10, 11 and 12 were strucked off by using whitener and the surname, which was not there in the original civil suit, was mentioned. The respondent No.9 mentioned in Special Civil Case No.100 of 2009 (New No.10 of 2018) was originally named in the suit as Ghanshyam Kanjibhai Khachar and surname was changed from Khachar to Makwana by strucking off Khachar by whitener in the certified copy, which was produced before the Court and similarly, the surnames of other respondents with Sr.Nos.10, 11 and 12 were also changed and, therefore, the Civil Judge directed the Registry to file an F.I.R. and thus, the impugned F.I.R. was registered.
4. Learned advocate for the applicant has submitted that as per the F.I.R., the certified copy, which was produced in the civil suit was modified to the extent that the surnames of defendant Nos.9, 10, 11 and 12 were struck off and surname, which was not mentioned in the original civil suit was inserted by writing after Page 2 of 8 Downloaded on : Thu Apr 28 21:23:23 IST 2022 R/CR.MA/5189/2022 ORDER DATED: 28/04/2022 applying whitener and there will be no prejudice caused to any of the parties. It is submitted that the original name of the defendants mentioned in the certified copies were not correct and, therefore, the applicant strucked off the false name from the certified copy, applied whitener and put on the real surname of the defendant and this can be specified by seeing voter list of Election Commission, wherein the surname which are modified by the applicant can be seen. It is submitted that there was no ulterior intention of the applicant to change the surnames of the defendants and this has neither benefited him by any manner nor any prejudice have occurred to any of the parties. It is further submitted that the applicant is aged about 62 years and he has nothing to do with the said civil suit as neither he is closely associated with the plaintiff nor the defendant.
4.1 Learned advocate for the applicant submitted that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submitted that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee from justice. He further submitted that the accused No.1 advocate Mr.M.M.Chudasama has been released by the Page 3 of 8 Downloaded on : Thu Apr 28 21:23:23 IST 2022 R/CR.MA/5189/2022 ORDER DATED: 28/04/2022 District and Sessions Court vide order dated 25.01.2022 passed in Criminal Misc. application No.37 of 2022 on anticipatory bail.
4.2 Learned advocate for the applicant, on instructions, submitted 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 his remand. He further submitted 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, submitted that considering the above facts, the applicant may be granted bail.
5. 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.
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, Page 4 of 8 Downloaded on : Thu Apr 28 21:23:23 IST 2022 R/CR.MA/5189/2022 ORDER DATED: 28/04/2022 I am inclined to grant bail to the applicant.
7. This Court has considered following aspects;
(a) The applicant is not beneficiary of the alleged action;
(b) The applicant is not the party to the said suit;
(c) The accused No.1 have been enlarged on anticipatory bail by the District and Sessions Court;
(d) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage;
Looking to the over all 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 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.
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 FIR being C.R.No.11190002211515 of 2021 registered with Botad Police Station, District Botad on his executing a personal bond of Page 5 of 8 Downloaded on : Thu Apr 28 21:23:23 IST 2022 R/CR.MA/5189/2022 ORDER DATED: 28/04/2022 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 himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 05.05.2022 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 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.
10. Despite this order, it would be open for the Page 6 of 8 Downloaded on : Thu Apr 28 21:23:23 IST 2022 R/CR.MA/5189/2022 ORDER DATED: 28/04/2022 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.
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. The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of Page 7 of 8 Downloaded on : Thu Apr 28 21:23:23 IST 2022 R/CR.MA/5189/2022 ORDER DATED: 28/04/2022 this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode. Direct service is permitted.
Sd/-
(A. S. SUPEHIA, J) NVMEWADA Page 8 of 8 Downloaded on : Thu Apr 28 21:23:23 IST 2022