Gujarat High Court
Mukeshbhai Bhaichandbhai Joshi vs State Of Gujarat on 26 August, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/2766/2020 ORDER DATED: 26/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2766 of 2020
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MUKESHBHAI BHAICHANDBHAI JOSHI
Versus
STATE OF GUJARAT
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Appearance:
MR JM PANCHAL WITH MR HARDIK H DAVE(6295) for the Applicant(s) No.
1
MR AD OZA(515) for the Respondent(s) No. 1
MR LB DABHI, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 26/08/2021
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-238 of 2019 registered with Sector 7 Police Station, Gandhinagar for the offenses punishable under Sections 406, 420, 465,466, 467, 471, 114 and 468 of the Indian Penal Code.
2. It is stated in the FIR that the applicant is one of the trustees of Prabhat Education Trust and the trust has entered into one rent agreement dated 26.6.2015 stating the common plot area has been taken on lease for the purpose of providing ground for the kids to play and on the basis of the same, the permission dated 22.2.2016 was granted. It is further stated that on inquiry, it was found that it was written as ownership plot and on physical verification of the place, a shopping centre was found to be constructed. It is stated that on further inquiry, it was found Page 1 of 6 Downloaded on : Sun Jan 16 10:36:15 IST 2022 R/CR.MA/2766/2020 ORDER DATED: 26/08/2021 that though the agreement was cancelled on 15.10.2016, the forged agreement was produced on 9.10.2017 for obtaining the permission. Accordingly, the said FIR came to be lodged.
3. Heard learned advocate Mr.J.M.Panchal assisted by learned advocate Mr.Dave for the applicant, learned advocate Mr.Oza for the original complainant and learned APP Mr.Dabhi for the respondent-State.
4. Learned advocate for the applicant has mainly contended that for the alleged incident which took place during the period between June, 2015 to December, 2018, FIR is lodged on 30.12.2019, thus, there is a delay in lodging the FIR. Learned advocate has further submitted that alleged forged document which was produced before the Gujarat Secondary and Higher Secondary Education Board is already in possession of the investigating agency and therefore custodial interrogation of the applicant is not necessary. It is further submitted that more than eight co- accused have been enlarged on anticipatory bail by this Court and on the ground of parity, the applicant may also be enlarged on anticipatory bail. It is further submitted that there is no history of past criminal antecedents against the applicant. Learned advocate has, therefore, urged that this application be allowed. He further submits that the applicant will keep himself available during the course of investigation, trial also and will not flee from justice.
5. 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 further submit that upon filing of such application by the Investigating Agency, Page 2 of 6 Downloaded on : Sun Jan 16 10:36:15 IST 2022 R/CR.MA/2766/2020 ORDER DATED: 26/08/2021 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.
6. On the other hand, learned advocate Mr.Oza for the original complainant has referred to the averments made in the affidavit-in-reply filed by Assistant Secretary of Gujarat Secondary and Higher Secondary Education Board, copy of which is placed on record at page no.61, and after referring to the said affidavit, it is submitted that the applicant is an active Trustee of Prabhat Education and Charitable Trust. The trust has applied for opening new Secondary School (English Medium) to the complainant Board. Along with the same, rent agreement dated 26.6.2015 executed between Mr.Chandrakant Babubhai and the applicant was produced. It was revealed that the plot mentioned therein was common plot and rented for the purpose of playground, however, thereafter, on the non-judicial stamp paper with the same serial number, forged document was produced wherein the plot is shown as of the ownership of the Trust. It is further submitted that during the spot inspection, certain irregularities were found and by producing forged document, the applicant has obtained the permission from the complainant board. It is, therefore, urged that looking to the facts of the present case, custodial interrogation of the applicant is required. It is further submitted that the allegations levelled against the co-accused who are enlarged on anticipatory bail are different and therefore it is not open for the applicant to claim parity with the said co- accused. It is, therefore, urged that this application be dismissed.
7. Learned Additional Public Prosecutor appearing on behalf of Page 3 of 6 Downloaded on : Sun Jan 16 10:36:15 IST 2022 R/CR.MA/2766/2020 ORDER DATED: 26/08/2021 the respondent - State has supported the contentions taken by learned advocate Mr.Oza for the complainant and urged that this application be dismissed.
8. 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.
9. This Court has considered following aspects; (a) for the alleged incident which took place during the period between June, 2015 to December, 2018, FIR is lodged on 30.12.2019, thus, there is a delay in lodging the FIR; (b) I have considered the role attributed to the applicant; (c) the alleged forged document is in the custody of the investigating agency; (d) further other co-accused against whom similar type of allegations of forgery are levelled have been enlarged on anticipatory bail by this court, copy of the said orders are placed on record during the course of hearing of this application; (e) there is no history of past criminal antecedents against the applicant.
In the facts and circumstances of the present case, since the custodial interrogation of the applicant is not required at this stage, I am inclined to consider the case of the applicant.
10. 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.
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11. 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-238 of 2019 registered with Sector 7 Police Station, Gandhinagar 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 3.9.2021 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;
12. 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 Page 5 of 6 Downloaded on : Sun Jan 16 10:36:15 IST 2022 R/CR.MA/2766/2020 ORDER DATED: 26/08/2021 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.
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 to the aforesaid extent. Direct service is permitted.
(VIPUL M. PANCHOLI, J) SRILATHA Page 6 of 6 Downloaded on : Sun Jan 16 10:36:15 IST 2022