Gujarat High Court
Kalubhai Vahabhai Bharwad vs State Of Gujarat on 20 October, 2021
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/11457/2021 ORDER DATED: 20/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11457 of 2021
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KALUBHAI VAHABHAI BHARWAD
Versus
STATE OF GUJARAT
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Appearance:
DHRUVIK K PATEL(7769) for the Applicant(s) No. 1
MS JAYSHREE ACHARYA(5160) for the Respondent(s) No. 1
MS. BHAVNA D ACHARYA(6406) for the Respondent(s) No. 1
MS KRINA CALLA, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 20/10/2021
ORAL ORDER
1. Heard Mr. Zubin Bharda, assisted by Mr. Dhruvik Patel, learned counsel for the appellant, Ms. Krina Calla, learned APP for the respondent State and Ms. Bhavna Acharya, learned counsel for Respondent No.2.
2. By way of this successive bail application under Section 439 of the Code of Criminal Procedure Code, the applicant seeks regular bail in connection with the FIR being C.R.No. 11214023210387 of 2021 with Kadodara Police Station, Dist. Surat Rural, for the offences under Sections 447, 504, 506(2) and 114 of the Indian Penal Code, 1860 and Sections 3, 4(3), 5(b), and 5(c) of the Gujarat Land Grabbing (Prohibition) Act and other consequential proceedings arising therefrom.
3. On earlier occasion, this Court passed the following order "1. Heard Mr. Zubin Bharda, learned counsel assisted by Mr. Dhruvik Patel, learned counsel for the applicant, Ms. Krina Calla, learned APP for the Respondent State and Ms. Bhavna Acharya, learned advocate for Respondent No.2.
1) The present applicant - Kalubhai Vahabhai Bharwad has been arrested in connection with the offence registered bearing Page 1 of 4 Downloaded on : Fri Oct 22 02:36:47 IST 2021 R/CR.MA/11457/2021 ORDER DATED: 20/10/2021 C.R.No.11214023210387 of 2021 with Kadodara Police Station, Dist. Surat Rural, for the offences under Sections 447, 504, 506(2) and 114 of the Indian Penal Code, 1860 and Sections 3, 4(3), 5(b), and 5(c) of the Gujarat Land Grabbing (Prohibition) Act. Pursuant to the FIR, chargesheet has already been filed on 09.03.2021 before the Chief Judicial Magistrate, Surat.
2) Heard Mr. Zubin Bharda, learned counsel for the applicant. He submits that, after filing the present petition, there is some development, as the present applicant has decided to vacate the plots as alleged in the FIR. Thus, in order to vacate the plots, the applicant may be enlarged on temporary bail for a period of 30 days. To substantiate this contention, the learned counsel submitted an Undertaking signed by the applicant in the presence of Jailor, Lajpor Central Jail, Surat, wherein, it has been categorically stated by the applicant that within 30 days, he will vacate the plots including the constructions thereon. Undertaking is ordered to be taken on record.
3) The extract of the Undertaking filed by the applicant reads as under:-
"1. I humbly state that I have perused the memo of the captioned application and other relevant documents pertaining thereto. Thus, I am conversant with the fact and circumstances of present case.
2. I say that the offence is registered against me being CR No.I- 11214023210387 of 2021 registered before Kadodara GIDC Police Station, District Surat for the offences punishable under Sections 447, 504, 506(2) and 114 of Indian Penal Code, 1860 and Sections 3, 4(3), 5(b) and 5(c) of the Gujarat Land Grabbing (Prohibition) Act and is arrayed as accused No.2.
3. I say that it is the case of the complainant that he is the owner and the undersigned is in possession of Non-Agriculture Residential Plot A/27-28-29-30, B/25-26-27-29-30 and C/25-26- 27, Block No.123, situated at Gokul Nagar Society, Village Kadodara, Taluka Palsana, Dist. Surat. That as per the panchnama carried out by the investigating officer during the course of investigation, which is also part of Chargesheet papers, it is revealed that undersigned and his brother are in possession of Plot A/27-28-29-30, B/25-26-27-29-30 and C/25- 26-27, which I undertake to vacate the same within a period of one month from the date of my release on regular in connection to CR No.I-11214023210387 of 2021 registered before Kadodara Police Station, Dist. Surat.
4. I humbly state that vacating of the plot No.B-25-26 shall be subject to the outcome of the Regular civil Suit No.02/2016 pending before Hon'ble Principal Civil Judge, Palsana, and such vacating of the plot No.B-25-26 shall be without prejudice to the rights and contentions of the undersigned in the Regular Civil Page 2 of 4 Downloaded on : Fri Oct 22 02:36:47 IST 2021 R/CR.MA/11457/2021 ORDER DATED: 20/10/2021 Suit No.02 of 2016 pending before Hon'ble Principal Civil Judge, Palsan."
4) On the other hand, Ms. Bhavna Acharya, learned counsel for Respondent No.2 made twofold arguments namely (i) Plot No.B-28 is missing from the Undertaking and (ii) Clarification is required with regard to what is meaning of subject to outcome of the regular civil suit.
5) Having heard learned counsel for the respective parties and on perusal of the record, it appears that the Plot No.B-28 has not been mentioned in the Undertaking, which also requires to be vacated by the applicant. Undisputedly, for the plot B-25 and B-26, Regular Civil Suit No.02/2016 is pending before the Civil Court, Palsana, Dist. Surat. Thus, the right of the applicant has been reserved with respect to Plot Nos.B-25 and B-26 subject to outcome of the regular civil suit and not in the context of other plots.
6) In view of the above clarification and relying on the undertaking submitted by the applicant, case is made out for temporary bail and therefore, the applicant be enlarged on temporary bail for a period of 35 days (Thirty Five Days) from the date of his actual release on executing a personal bond of Rs.10,000/- (Rupees Ten thousands) before the Jail authority and on usual terms and conditions. The applicant shall mark his presence before the concerned Kadodara Police Station once in a week during his temporary release period and shall not leave the territory of Kadodara Police Station. The applicant shall The applicant shall surrender before the Jail Authority on completion of temporary bail period, without fail.
7) Matter be listed on 20.10.2021. Direct service is permitted."
7. Pursuant to the order passed by this Court, the applicant is released on temporary bail upto 23.10.2021.
8. Having heard learned counsel for the parties and in view of the undertaking given by the applicant before this Court, this Court is of considered view that, the appellant has made out a case for bail.
9. Hence, present application is allowed. The applicant shall surrender before Kadodara Police Station, Dist. Surat Rural on 23.10.2021. On surrendering, the applicant is ordered to be released Page 3 of 4 Downloaded on : Fri Oct 22 02:36:47 IST 2021 R/CR.MA/11457/2021 ORDER DATED: 20/10/2021 on regular bail in connection with the FIR being C.R.No. 11214023210387 of 2021 with Kadodara Police Station, Dist. Surat Rural, on executing a personal bond of Rs.10,000/- (Rupees Ten thousands only), with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;
No. Conditions
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injuries to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week;
(d) not leave India without prior permission of the Sessions Judge concerned;
(e) furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the trial Court;
10. The authorities shall release the applicant if he is not required in connection with any other offence. If breach of any above condition is committed, the Sessions Judge concerned shall take appropriate action or issue warrant against the appellant. The bail bond to be executed before the learned trial Court having jurisdiction to try the case.
11. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case. Registry to send a copy of this order to the concerned Jail Authority as well as ld. Sessions Court forthwith through fax and e-mail. Direst Service is also permitted.
(ILESH J. VORA,J) SUCHIT Page 4 of 4 Downloaded on : Fri Oct 22 02:36:47 IST 2021