Laxmiben Wd/O Dhansukhbhai ... vs State Of Gujarat on 7 May, 2019

[Cites 10, Cited by 2]

Gujarat High Court

Laxmiben Wd/O Dhansukhbhai ... vs State Of Gujarat on 7 May, 2019

Bench: Vipul M. Pancholi

       R/CR.MA/6376/2019                                              ORDER



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION NO.                     6376 of 2019

=======================================================
     LAXMIBEN WD/O DHANSUKHBHAI VALLABHBHAI PATEL
                          Versus
                    STATE OF GUJARAT
=======================================================
Appearance:
MR RADHESH Y VYAS(7060) for the Applicant(s) No. 1,2
MR ASPI KAPADIA with MR KUNAL S SHAH(5282) for the
Respondent(s) No. 1
MR HIREN MODI for the Respondent(s) No. 1
MR JK SHAH APP(2) for the Respondent(s) No. 1
=======================================================

CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

                            Date : 07/05/2019
                                 ORAL ORDER

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicantsaccused have prayed for anticipatory bail in connection with the FIR being C.R. No. I- 422/2018 registered with Umra Police Station, Surat for the offenses punishable under Sections 420, 465, 467, 468, 471 and 120(B) of the Indian Penal Code and under Section 82(a)(d) of the Registration Act.

2. Learned advocate, Mr. Radesh Vyas for the applicants has placed on record affidavits filed by the applicants herein, which are taken on record and submitted that as stated in the said affidavits, the applicants are ready and willing to give their consent for quashing and setting aside the sale deed in question. It is contended that one Parashbhai Champaklal Mehta has Page 1 of 6 Downloaded on : Sun Jun 30 15:24:04 IST 2019 R/CR.MA/6376/2019 ORDER instituted suit being Special Civil Suit No.245/2009 before the concerned Court against one Thakarshibhai Karsanbhai Patel, wherein Thakarshibhai Karsanbhai Patel has also filed counter claim and the said proceedings are pending. It is further contended that during the pendency of the said suit, this Court has appointed one Police Inspector of Umara Police Station as "Receiver" of the property in question. It is alleged in the FIR in question that though the Receiver is appointed, the original accused nos.1 and 2 have executed the sale deed dated 07.04.2016 in favour of the original accused nos.3, 4 and 5, however now the applicant and other coaccused are ready and willing to give their consent in Special Civil Suit No.199/2018 filed by one Parashbhai Champaklal Mehta for quashing of the sale deed dated 07.04.2016 and the applicants and other coaccused i.e. the purchasers and the sellers are ready and willing to give their consent in the said proceedings for passing decree for setting aside the sale deed in question. Learned advocate, Mr. Radhesh Vyas, under the instructions, submits that the original accused nos.1 to 5 will file necessary purshis for passing consent decree within four weeks from today. Learned advocate, therefore, urged that when the applicants have shown willingness as stated above on affidavits, this Court may kindly consider the case of the applicants for grant of anticipatory bail.

3. Learned advocate for the applicants submits that Page 2 of 6 Downloaded on : Sun Jun 30 15:24:04 IST 2019 R/CR.MA/6376/2019 ORDER the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicants will keep themselves available during the course of investigation, trial also and will not flee from justice.

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 open. Learned advocate, therefore, submitted that considering the above facts, the applicants may be granted anticipatory bail.

5. Learned advocate, Mr. Aspi Kapadia with learned advocate, Mr. Kunal Shah appearing for one of the victims viz., Thakarshibhai Karsanbhai Patel and learned advocate, Mr. Hiren Modi appearing for one of the victims viz., Parashbhai Champaklal Mehta have no objection with regard to the aforesaid arrangement.

6. 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.

7. Having heard the learned advocates for the parties and perusing the material placed on record and Page 3 of 6 Downloaded on : Sun Jun 30 15:24:04 IST 2019 R/CR.MA/6376/2019 ORDER 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 and also in view of the settlement arrived at between the parties, without going into the merits of the case, the present application deserves to be allowed. However, it is clarified that aforesaid arrangement arrived at by and between the parties will not affect pending Special Civil Suit No.245/2009 filed by one Parashbhai Champaklal Mehta against one Thakarshibhai Karsanbhai Patel and the counter claim filed by Thakarshibhai Karsanbhai Patel and their rights will be subject to final outcome of the said suit pending before the concerned Court and this Court has not examined merits of the matter. Further as and when the purshis is filed by the concerned parties before the concerned civil court for passing compromise decree in Special Civil Suit No.199/2018, the concerned trial court shall pass appropriate orders on the same as expeditiously as possible.

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 applicants are ordered to be released on bail Page 4 of 6 Downloaded on : Sun Jun 30 15:24:04 IST 2019 R/CR.MA/6376/2019 ORDER in the event of their arrest in connection with a FIR being C.R. No. I-422/2018 registered with Umra Police Station, Surat on their executing a personal bond of Rs.10,000/ (Rupees Ten Thousand Only) each with one surety each of like amount on the following conditions:

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 14.05.2019 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 their residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the Sessions Court and if having passport shall deposit the same before the 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;

(h) shall abide by the affidavit filed before this Court and act accordingly;

Page 5 of 6 Downloaded on : Sun Jun 30 15:24:04 IST 2019

        R/CR.MA/6376/2019                                              ORDER



10.   Despite      this     order,    it        would   be     open        for      the
      Investigating         Agency    to        apply   to     the      competent

Magistrate, for police remand of the applicants. 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 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.

11. At the trial, the 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.) Gautam Page 6 of 6 Downloaded on : Sun Jun 30 15:24:04 IST 2019

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Gujarat High Court