Gujarat High Court
Manjibhai Mananbhai Dubariya Patel vs State Of Gujarat on 29 June, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/6881/2022 ORDER DATED: 29/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6881 of 2022
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MANJIBHAI MANANBHAI DUBARIYA PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR MEHUL M MEHTA(3416) for the Applicant(s) No. 1
MR RONAK RAVAL ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 29/06/2022
ORAL ORDER
1. Heard learned Advocate Mr. Mehul Mehta on behalf of the applicant and learned Additional Public Prosecutor Mr. Ronak Raval on behalf of the respondent-State.
2. Rule. Learned APP waives service of rule on behalf of the respondent-State.
3. By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - original accused prays for being released on anticipatory bail in connection with FIR No. 11993010210513 of 2021 registered with Rapar Police Station on 08.12.2021 for offences punishable under Sections 4(3), 5(c) of Gujarat Land Grabbing ( Prohibition) Act, 2020.
4. It appears that vide an order dated 06.04.2022, while learned Co- ordinate Bench of this Court had issued notice, the learned APP was directed to take appropriate instruction with regard to the concerned land as to whether the encroachment was removed or not. It further appears that vide an order dated 28.04.2022, statement of learned Advocate for the applicant had been recorded by learned Co-ordinate Bench that the applicant had already demolished the illegal constructions and whereas if there is any illegal constructions still remaining, the authorities could Page 1 of 5 Downloaded on : Thu Jun 30 22:16:23 IST 2022 R/CR.MA/6881/2022 ORDER DATED: 29/06/2022 demolish the same and whereas the applicant was ready and willing to give the cost for such demolition.
5. Learned Advocate Mr. Mehta would submit that all the illegal constructions have been demolished and whereas as of now, there is no illegal construction remaining, which would justify arrest of the present applicant under the provisions of the Gujarat Land Grabbing ( Prohibition ) Act, 2020. Learned Advocate Mr. Mehta would therefore submit that this Court may be pleased to release the present applicant on anticipatory bail.
5.1 Learned Advocate Mr. Mehta would further submit that as such while the allegations about constructions being illegal, have nothing to do with the residential premise of present applicant, yet, in view of order dated 28.04.2022, the authorities concerned have also demolished the house of the present applicant. Learned Advocate would submit that this Court may clarify that the residential premise of the present applicant was not illegal and whereas he may not be prohibited from reconstructing the same.
6. Learned Advocate Mr. Mehta for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage may not be necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. 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 his 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 Page 2 of 5 Downloaded on : Thu Jun 30 22:16:23 IST 2022 R/CR.MA/6881/2022 ORDER DATED: 29/06/2022 may be kept open.
7. This application is vehemently opposed by learned Additional Public Prosecutor Mr. Ronak Raval on behalf of respondent- State. Learned APP would submit that the fact of the present applicant having subsequently demolished illegal properties, may not be a factor which may be taken into consideration by this Court while considering an application for grant of bail to the present applicant. Learned APP to a pointed query of this Court would submit that the investigation papers would reveal that as of now there are no illegal constructions remaining.
8. Heard learned Advocates for the parties, who have not submitted anything else.
9. Having heard the learned Advocates for the parties, following aspects are considered by this Court:
[1] While the FIR under the provision of Gujarat Land Grabbing (Prohibition) Act, alleges illegal construction by the present applicant, on the common open plot, whereas as of now it appears, that there is no illegal construction whatsoever on the plot in question.
[2] That the constructions have been demolished by the applicant himself and whereas as of now there is nothing remaining to justify the arrest of the present applicant or his custodial interrogation. [3] That the applicant is stated to be a person having serious cardiac ailments, more particularly the applicant, having seven blockages in his veins.
10. Having regard to the circumstances in question, and considering the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 Page 3 of 5 Downloaded on : Thu Jun 30 22:16:23 IST 2022 R/CR.MA/6881/2022 ORDER DATED: 29/06/2022 SCC 694, this Court is inclined to consider this application.
11. Insofar as submission of learned Advocate Mr. Mehta as regards residential premise of the applicant, it is not for this Court to offer any comments on that aspect at this stage. Needless to clarify that in case the applicant wants to rebuild the same,he may apply for appropriate permission to the appropriate authority who shall consider the same objectively without in any way being influenced by the present order or order dated 28.04.2022.
12. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR No. 11993010210513 of 2021 registered with Rapar Police Station 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:
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 05.07.2022 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 or till Page 4 of 5 Downloaded on : Thu Jun 30 22:16:23 IST 2022 R/CR.MA/6881/2022 ORDER DATED: 29/06/2022 further orders;
(f) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week.
13. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. 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. 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.
14. 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. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(NIKHIL S. KARIEL,J) NIRU Page 5 of 5 Downloaded on : Thu Jun 30 22:16:23 IST 2022