Gujarat High Court
Savitaben Wd/O Somabhai Hathibhai ... vs The State Of Gujarat on 20 December, 2021
Author: A. C. Joshi
Bench: Ashokkumar C. Joshi
R/CR.MA/20158/2021 ORDER DATED: 20/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20158 of 2021
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SAVITABEN WD/O SOMABHAI HATHIBHAI PATEL
Versus
THE STATE OF GUJARAT
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Appearance:
A A DAUDIVHORA(7516) for the Applicant(s) No. 1,2,3,4
N J MEVADA(9058) for the Applicant(s) No. 1,2,3,4
HARSHANG H PATEL(7349) for the Respondent(s) No. 1
MS. MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 20/12/2021
ORAL ORDER
1. Heard learned Advocate Mr. A. A. Daudivhora for the Applicants and learned APP Ms. Moxa Thakkar for the Respondent - State.
2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the Applicants (all lady accused) have prayed for enlarging them on anticipatory bail in connection with the FIR N o . 11191045211594 registered with Sola High Court Police Station, Ahmedabad City for the offenses punishable under Sections 406, 420, 465, 467, 468, 471, 120B of the Indian Penal Code.
3. Learned Advocate for the Applicants has submitted that the Applicants are apprehending their arrest in connection the aforesaid FIR and in this connection the earlier application filed by the Applicants before the learned Sessions Court came to be dis-allowed. Learned Advocate for the Applicants has submitted that the present is a case of documentary evidence as it is a civil dispute pertaining to the sharing of property. Learned Advocate for the Page 1 of 7 Downloaded on : Wed Jan 12 12:06:18 IST 2022 R/CR.MA/20158/2021 ORDER DATED: 20/12/2021 Applicants has submitted that the Applicant No.1 is the widow of deceased Somabhai Hathibhai Patel who is aged 71 years and the other three are the daughters of deceased Somabhai Hathibhai Patel and are aged 50 years. It is further submitted that none of the Applicants are having any criminal antecedents.
3.1 Learned Advocate for the Applicants has further submitted that the complainant and his three brothers filed two Special Civil Suits being Special Civil Suit No. 225 of 2020 and 226 of 2020 in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural), seeking two contradictory prayers. Learned Advocate for the Applicants has submitted that a complaint is registered about alleged forgery of Will and Partition of Deed produced in the Civil Court by original defendant Nos. 5 to 10 who are heirs of one Ambalal Palel (brother of deceased Somabhai Hathibhai Patel) and the present Applicants are not the beneficiaries of such Will as 50% of shares of the land of Somabhai Hathibhai Patel is bequeathed to the heirs of Ambalal Hathibhai Patel by way of the said Will, and therefore, in fact, by such Will or Partition Deed, the 50% share in the property of the present Applicants would get bequeathed to the branch of Ambalal Hathibhai Patel.
3.2 Learned Advocate for the Applicants has further submitted that a criminal complaint is registered against the 10 accused persons, who are heirs of Somabhai Hathibhai Patel and Ambalal Hathibhai Patl. Learned Advocate for the Applicants has submitted that the learned Sessions Court has granted anticipatory bail to the other five accused persons.
3.3 Learned Advocate for the Applicants has therefore submitted that it is a case of documentary evidence produced in the Civil Court and none of the other documents are available with the present Applicants, and therefore, the Applicants are not required to be interrogated as the entire issue is pending before the Civil Court for this decision.
Page 2 of 7 Downloaded on : Wed Jan 12 12:06:18 IST 2022R/CR.MA/20158/2021 ORDER DATED: 20/12/2021 3.4 Learned Advocate for the Applicants has submitted that the
Applicants are lady accused, and therefore, some lenient view may be taken for exercising the discretion under Section 438 Cr.P.C and the present application may be allowed. He has further submitted that the applicants will keep themselves available during the course of investigation and trial also and will not flee from justice.
3.5 To support his arguments, the learned Advocate for the Applicants has referred to the following decisions:
(i) 2020(3) SCC, 794 - Rajeshbhai Muljibhai Patel v. State of Gujarat.
It is submitted by the learned Advocate for the Applicants that in this case criminal complaint is based on private handwriting expert's opinion is not maintainable and the Hon'ble Supreme Court had quashed such complaint.
(ii) Decision of this Court in Appeal from Order No. 238/2012 dated 28.1.2013.
It is submitted that private handwriting expert's opinion cannot be accepted as gospel truth, ignoring other materials.
(iii) 1993(2) GLR 1148 - Ilaben Dipakkumar Shah v. State of Gujarat.
(iv) Criminal Revision Application No. 444 of 2010 decided on 3.9.2010 - Rubabuddin Shaikh v. Amitbhai Shah.
4. Learned advocate for the applicants on instructions states that the applicants are 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 their remand. He further submit that upon filing of such application by the Investigating Agency, the right of applicants accused to oppose such application on merits may be kept Page 3 of 7 Downloaded on : Wed Jan 12 12:06:18 IST 2022 R/CR.MA/20158/2021 ORDER DATED: 20/12/2021 open. Learned advocate, therefore, submitted that considering the above facts, the applicants may be granted anticipatory bail.
5. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. Learned APP has submitted that the investigation be continued.
6. Learned Advocate for the Respondent / Original Complainant has opposed this Application for grant of anticipatory bail and has submitted that the present Application may be rejected looking to the role attributed to the Applicants. It is therefore submitted that this Hon'ble Court may not exercise discretion under Section 438 Cr.P.C. and the Application may be rejected.
7. Having heard the arguments advanced by 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 applicants. In the opinion of this court, the present Applicants being lady accused - mother aged 71 years and three daughters aged 50 years, and looking to the role attributed upon them, the custodial interrogation is not required, and therefore, this is a fit case to exercise discretion under Section 438 Cr.PC.
8. This Court has considered following aspects,
(a) It is a case of documentary evidence i.e. forged will.
(b) It is a question of trial.
(c) It is civil dispute pertaining to the sharing of property.
(d) As such there are no antecedents against the Applicants.
(d) as per catena of decisions of Hon'ble Supreme Court there are mainly two factors which are required to be considered by this court;
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(i) prima facie case
(ii) requirement of accused for custodial interrogation.
Therefore, in the facts and circumstances of the present case, this court is inclined to consider the case of the applicants.
9. 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. Further, this Court has also taken into consideration the ratio laid down in the case of Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Anr. in Special Leave Petition No. 7281- 7282/2017 dated 29.01.2020.
10. Further, by exercising the discretion under Section 438 Cr.P.C, the doors of remand by the Investigating Officer is open and therefore also this court is inclined to exercise powers under Section 438 of Cr.P.C.
11. In the result, the present application is allowed. The applicants are ordered to be released on anticipatory bail in the event of t h e i r arrest in connection with a F I R N o . 1 1 1 9 1 0 4 5 2 1 1 5 9 4 registered wit h Sola High Court Po lice Stat io n , Ahmedabad City for the offe nse s puni sha bl e unde S ec tions 406, 420, 465, 467, 468, 471, 120B of the I ndi a n Pe na l Code on executing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) each with one surety of like amount on the following conditions;
(a) shall cooperate with the investigation and make available for interrogation whenever required;
Page 5 of 7 Downloaded on : Wed Jan 12 12:06:18 IST 2022R/CR.MA/20158/2021 ORDER DATED: 20/12/2021 (b) shall remain present at concerned Police Station on 17.1.2022
between 12.00 Noon and 2.00 p.m with one lady police officer;
(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 their 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 the remand application without being influenced of the observations made by this Court;
12. The applicants 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. 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 Page 6 of 7 Downloaded on : Wed Jan 12 12:06:18 IST 2022 R/CR.MA/20158/2021 ORDER DATED: 20/12/2021 in accordance with law. It is clarified that the applicants, 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.
13. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
14. Rule is made absolute. Direct service is permitted.
(A. C. JOSHI,J) J.N.W Page 7 of 7 Downloaded on : Wed Jan 12 12:06:18 IST 2022