Gujarat High Court
Balubhai Ravjibhai Ahir vs State Of Gujarat on 22 March, 2018
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/5297/2018 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO.5297 of 2018
With
CRIMINAL MISC.APPLICATION NO.5306 of 2018
=========================================
BALUBHAI RAVJIBHAI AHIR Versus STATE OF GUJARAT ========================================= Appearance :
1. Criminal Misc. Application No.5297 of 2018 MR YATIN OZA, SENIOR COUNSEL ASSISTED BY MR NIRAD D BUCH for the Applicant.
MR MITESH AMIN, PUBLIC PROSECUTOR for the RESPONDENT Nos.1 & 2.
MR S.V. RAJU, SENIOR COUNSEL ASSISTED BY MR AB MUNSHI for the RESPONDENT No.3.
2. Criminal Misc. Application No.5306 of 2018 MR YATIN OZA, SENIOR COUNSEL ASSISTED BY MR P. P. MAJMUDAR for the Applicant.
MR MITESH AMIN, PUBLIC PROSECUTOR for the RESPONDENT Nos.1 & 2.
MR S.V. RAJU, SENIOR COUNSEL ASSISTED BY MR AB MUNSHI for the RESPONDENT No.3.
========================================= CORAM : HONOURABLE MR.JUSTICE A.J.DESAI Date : 22/03/2018 CAV COMMON ORDER
1. By way of the present applications preferred under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the applicants - accused in each petition have prayed to release them in the event of their arrest in connection with FIR being I C.R. No.90 of 2016 registered with Kathodara Police Station, Surat for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120-B of the Indian Penal Code as well as under the provisions of Section 3 (2) (v-a) and 3 (1) (f) (g) of the Scheduled Castes and the Scheduled Page 1 of 23 R/CR.MA/5297/2018 CAV ORDER Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Prevention of Atrocities Act').
2. Pursuant to the notice issued by this Court, the respondent Nos.1 and 2 have been represented by Mr. Mitesh Amin, learned Public Prosecutor whereas private respondent No.3 at whose instance the FIR has been lodged by respondent No.2 i.e. Police Sub-Inspector, Kathodara Police Station is represented by learned Senior Counsel Mr. S. V. Raju with learned advocate Mr. A.B. Munshi.
3. The factual matrix of the case are as under :-
3.1 That a piece of land situated at village Althan, Dist.
Surat having Survey No.96/3/2, Block No.121, admeasuring Hectare - RA - Sq. Mts. 0 - 52 - 61 (5261 Sq. Mts.) was granted by the State of Gujarat to Vijayaben @ Vijaliben Somabhai Rathod, her sons Shankar Somabhai Rathod and Budhiya Somabhai Rathod etc. being members of Schedule Casts. They were cultivating the land being the agricultural one.
3.2 Aforesaid persons submitted an application to the Commissioner of Police, City of Surat on 25.4.2011 complaining against one Dineshchandra Chandubhai Patel (applicant of Criminal Misc. Application No.5306 of 2018) that the land belonged to them which was granted by the State of Gujarat and having restrictions under Section 73AA of the Gujarat Land Revenue Code, created a forged Power of Attorney on 27.3.2001 and subsequently constructed residential Bungalows on the said land and has committed offence in connivance with powerful Builders of Surat, namely, Manharbhai Muljibhai Kakadiya and Jitu Builders and in such transactions, one Balubhai had played active role.
Page 2 of 23R/CR.MA/5297/2018 CAV ORDER 3.3 When the Investigating Agency started investigation
and recorded statements of those complainants on 27.9.2011, they declared that the land was sold to one Balubhai Ravjibhai Ahir (Applicant of Criminal Misc. Application No.5297 of 2018). Ultimately, a Memorandum of Understanding was entered into between the present applicants, said Vijayaben and her family members as well as other persons whose lands were purchased by the applicants - accused persons. The said MOU was executed before Notary on 3.2.2012, wherein the allottees declared that they had received the entire amount with regard to the value of land and further declared that they had executed a Power of Attorney on 27.3.2001.
3.4 The statements of all the persons were recorded wherein they declared about the MOU etc. and declared that no offence whatsoever either under the Indian Penal Code or under the provisions of the Prevention of Atrocities Act was committed. It was also declared that they had received the amount of consideration.
3.5 Meanwhile, the land owners had also filed an application before the District Collector, Surat about the alleged illegalities, subsequent to the aforesaid application. In connection with the application to Collector, a Special Investigation Team ('SIT' for short) was constituted headed by the District Collector for carrying out the inquiry. The allottees submitted an application on 3.5.2012 in the office of Circle Officer, City Mamlatdar office, Surat and declared that they do not want to proceed further with their complaint and accordingly, the said application was disposed of. A report was also submitted by the Police Inspector, Khatodara Police Station on 31.5.2012 about the statements given by the allottees.
3.6 One Arjunbhai son of Shankar Somabhai Rathod (one of
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the allottees) filed a writ petition being Special Criminal
Application No.200 of 2014 complaining against the Police
Authorities that though a representation / complaint was made by him, the concerned Police Station was not registering the FIR. The coordinate Bench of this Court vide order dated 3.12.2015 directed the Police Authorities to follow the decision of the Hon'ble Supreme Court and to do the needful in the matter. Accordingly, the Police Inspector of Khatodara Police Station lodged the aforesaid FIR on 6.6.2016 for the aforesaid offences.
3.7 Having come to know about lodgment of the FIR, several accused including the applicants, filed different applications being Criminal Misc. Application No.16731 of 2016 and allied matters under Section 482 of the Code for quashment of the said FIR, raising several grounds by producing documents, some of which are referred in the above paragraphs. The said applications came to be partly allowed by the coordinate Bench on 10.7.2017 and the FIR with regard to allegations made against the accused persons for the offences punishable under Sections 406, 420 and 120-B of Indian Penal Code and the offences punishable under the provisions of the Prevention of Atrocities Act came to be quashed and set aside.
3.8 The said decision by which part of the FIR was quashed was challenged by the original owners / complainants. The accused had also challenged the said judgment since some of the offences were not quashed and set aside by the said decision.
3.9 The Hon'ble Supreme Court by passing order on 5.1.2018 in Criminal Appeal No.12 of 2018 and allied matters allowed the appeal filed by the original owners (complainant side), however, rejected the appeals filed by the accused and the order dated 10.7.2017 passed by the coordinate Bench came to be Page 4 of 23 R/CR.MA/5297/2018 CAV ORDER quashed and set aside.
3.10 Since the Hon'ble Supreme Court has held that investigation is required to be carried out, apprehending their arrest, the applicants filed applications under Section 438 of the Code directly before this Court being Criminal Misc. Application No.2769 of 2018 which came to be withdrawn on 19.2.2018 with a liberty to file the same before the learned Trial Court having concurrent jurisdiction. Accordingly, applications being Criminal Misc. Application Nos.847 and 849 of 2018 were filed by the applicants under Section 438 of the Code which came to be rejected by the learned 5th Additional Sessions Judge, Surat vide order dated 1.3.2018. Hence, these applications.
4. Mr. Y.N. Oza, learned Senior Counsel assisted by Mr. N.D. Buch and Mr. P. P. Majmudar, learned advocates appearing for the applicants has vehemently submitted that none of the offences alleged in the FIR, has been committed by any of the applicants. He would submit that the land in question was granted by the State of Gujarat to Vijayaben @ Vijaliben Rathod, who is from schedule caste. Since the land had been granted to the members of schedule caste, there are certain restriction of transfer, sale or alienate such lands and unless a permission is granted by the District Magistrate, the land cannot be sold or transferred and, therefore, permission was required to be obtained from the Collector. He would further submit that since it is a restricted land, the owner of the land i.e. Vijayaben sworn an affidavit in the year 1998 on a stamp paper and declared that since the land is in residential zone, Societies are constructed surrounding the land in question and she and her family is unable to cultivate the land, she intend to sell the property in question and accordingly, an application was submitted by her under Section 73AA of Bombay Land Revenue Code. All powers to deal with the Page 5 of 23 R/CR.MA/5297/2018 CAV ORDER land was granted to Balubhai Ravjibhai Ahir (present applicant). Each family member made a statement before the Authority in the month of March, 1998 stating the same reasons declared in the aforesaid affidavit. He would further submit that since the transaction with regard to the proposed Society was not materialized, the said application was withdrawn. He would further submit that on 21.7.1998 and 30.11.1998, all the aggrieved / allottees persons made a statement before the Authority i.e. Circle Officer, City Taluka and declared that they intended to sell the property to Balabhai Ravjibhai. By taking me through several statements, he would submit that they have accepted the receipt of the amount with regard to the consideration for the land in dispute, however made a complaint in the month of April, 2011 for the first time, that too, subsequent to construction of 17 Bungalows way back in the year 2001 - 2002. He would further submit that some of the allottees are residing just 400 Meters away from the land in dispute upon which 17 Bungalows have already been constructed and sold to different persons who are residing since then. From 1998 to 2011, no point of time, any objection was raised with regard to alleged forgery or offences alleged to have been committed under the provisions of Prevention of Atrocities Act or under any other law.
4.1 He would further submit that pursuant to the application submitted by the allottees, the concerned Police Officer of Khatodara Police Station did record the statement in which they declared that they had received some money by installments and they did not know any details about the same. By taking me through the statement of Vijayaben dated 29.11.2017, he would submit that she has categorically stated that before 15 years, she had sold the land to Balubhai Ahir and had received money by installments. Similarly, complaint was made to District Collector on 23.1.2012 requesting him to appoint SIT in connection with the Page 6 of 23 R/CR.MA/5297/2018 CAV ORDER land in dispute.
4.2 He would further submit that since the applicants had paid the money to the land owners and subsequently developed the property by constructing 17 Bungalows, the applicants decided to clarify the misunderstandings amongst the allottees as well as other persons who had land in surrounding area and which were developed by the applicants themselves. Therefore, both the applicants entered into a Memorandum of Understanding on 3.2.2012 along with the allottees and all other land owners, which was notarized on the same day. By taking me through the said MOU, he would submit that they have accepted the existence of alleged forged Power of Attorney dated 27.3.2001 and receipt of money on several dates.
4.3 He would further submit that one Arjun son of Shankarbhai Somabhai (Shankarbhai is one of the signatory of different documents) filed a writ petition being Special Criminal Application No.200 of 2014 raising grievance against the Police authorities for non-registration of FIR, had suppressed the fact that he has identified the signatures of all the family members in MOU dated 3.2.2012. He would further submit that malafide intentions of the said Arjunbhai is prima facie established by his conduct making false and frivolous allegations against the applicants about the so-called forgery and cheating as well as the alleged offences under the provisions of the Prevention of Atrocities Act. His conduct of non-disclosure of all the relevant facts are malicious and criminal machinery has been put in motion to put the applicants behind the bars and/or to pressurize the applicants with ulterior motives. He would submit that when the MOU was entered into between the parties on 3.2.2012, 17 Bungalows were constructed way back in the year 2002. However, under the connivance of a lawyer and other persons, had tried to raise such disputes. He Page 7 of 23 R/CR.MA/5297/2018 CAV ORDER would submit that the application submitted before the SIT was withdrawn on 3.5.2012 in which the said Arjun has identified his family members and has put his signatures.
4.4 He would further submit that except the land owners of the land in dispute, no other person has raised any grievance about the transactions. He would further submit that one Arjunbhai S/o. Shankarbhai (respondent No.3) whose father was one of the allottees has identified the signatures / thumb impressions of all the family members and, therefore, the initiation of putting the criminal machinery at his instance is a malafide one with a view to see that the persons are sent behind bars. He would submit that subsequent to the MOU, all the family members of respondent No.3 had given their statements accepting about the MOU as well as the fact that there are construction on the land since 2002. Similarly, the allottees who had submitted an application before the SIT withdrew the application.
4.5 He would further submit that though there might be irregularities under the provisions of Section 73AA of the Bombay Land Revenue Code, however for breach of the provisions of the Act, procedure is prescribed thereunder. He would further submit that apart from the said provisions, the complainant has no right to raise such dispute when they themselves have accepted the money way back in the beginning of the year 1998 had given Power of Attorney to one of the applicants. He would submit that one of the allottees, namely, Kantibhai Chhotubhai Rathod had made a complaint in the year 2015 against two persons, namely, Sanjay Modi and Keyur Sanjay Modi, wherein reference has been made with regard to Balubhai. However, he has categorically stated that he had received an amount of Rs.40 Lacs, out of Rs.1.50 Crores which was agreed.
Page 8 of 23R/CR.MA/5297/2018 CAV ORDER 4.6 He would further submit that it is true that the order of
the coordinate Bench by which the FIR was quashed has been set aside by the Hon'ble Supreme Court, however it has been observed that further investigation is required in the matter, but the Hon'ble Supreme Court has also categorically clarified that none of the issues is decided on merits and, therefore, investigating authorities would not be influenced in any manner while investigating the case. He would further submit that the criteria of quashment of FIR at different stages are different than deciding an application either under Section 438 or 439 of the Code. He would further submit that while deciding the application under Section 438, the Hon'ble Supreme Court by catena of decisions, has laid down the principles to be kept in mind while deciding the same.
4.7 He would further submit that as far as Section 18 of the Prevention of Atrocities Act which bars granting of anticipatory bail is concerned, he would submit that if Court prima facie finds that no offence under the provisions of Prevention of Atrocities Act has been committed, Court can deal with the case accordingly. He would further submit that when the Hon'ble Supreme Court, though set aside the order of the coordinate Bench which has quashed the offence punishable under the provisions of Prevention of Atrocities Act, while dealing with an application under Section 438, Court can examine the correctness of the allegations. He would further submit that a duty is cast on the Court to verify the averments made in the complaint as far as offences under the provisions of Prevention of Atrocities Act is concerned. By taking me through the FIR, he would submit that no offence alleged under the provisions of Prevention of Atrocities Act has been prima facie made out, particularly when the applicants were aware about all the transactions and have categorically made statements before various authorities and the fact that the criminal machinery has been put to motion after a considerable long time and after Page 9 of 23 R/CR.MA/5297/2018 CAV ORDER usurping huge amount from the applicants.
4.8 Subsequent to concluding the arguments and when the matter was kept for orders, Mr. Oza has produced a copy of the judgment delivered by the Hon'ble Supreme Court in the case of Dr. Subhash Kashinath Mahajan v. The State of Maharashtra and another, Criminal Appeal No.416 of 2018 dated 20.3.2018 and submitted that the Hon'ble Supreme Court while dealing with a case under the offences punishable under the provisions of the Prevention of Atrocities Act, has laid down certain criteria which would not debar a Court from granting anticipatory bail.
4.9 In support of his submission, Mr. Oza has relied upon the decision of the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported at [2011] 1 SCC 6941. He, therefore, would submit that the present applications be allowed and the applicants may be enlarged on anticipatory bail.
5. Mr. Mitesh Amin, learned Public Prosecutor appearing for the respondent - State of Gujarat has placed numerous papers of investigation so far carried out with regard to the transactions in question, since on several occasions, dispute with regard to the transfer of lands have been raised by the original land owners. He has also supplied the copies of statements of the respondent No.3, the Notary before whom the Memorandum of Understanding dated 3.2.2012 was recorded and notarized and a copy of the alleged forged Power of Attorney dated 27.3.2001 executed in favour of Dinesh Chandubhai Patel. He would submit that it is alleged by the complainant side that on the said Power of Attorney, signatures of some of the witnesses on the complainant side are found whereas they say that they did not know how to sign since they are illiterate Page 10 of 23 R/CR.MA/5297/2018 CAV ORDER persons. He would further submit that in all other documents, the witnesses have put their thumb impressions. He would submit that since prima facie allegations are made out about the forgery, their custodial interrogation is required and, therefore, the applications may be dismissed.
6. On the other hand, Mr. S.V. Raju, learned Senior Counsel assisted by Mr. A. B. Munshi, learned advocate appearing for the complainant has vehemently opposed these applications and would submit that the applications under Section 438 of the Code are not maintainable since the applicants are facing charges for the offences punishable under the provisions of Prevention of Atrocities Act. The applicants are facing charges for the offences punishable under the provisions of Prevention of Atrocities Act. He would submit that when a prima facie case is made out against the applicants for the offences punishable under the Prevention of Atrocities Act, the Hon'ble Supreme Court has laid down a ratio that in such circumstances, the Court should not entertain an application under Section 438 of the Code. He would further submit that the coordinate Bench had quashed and set aside the FIR qua the offences punishable under Sections 406, 420 as well as offences punishable under the provisions of Prevention of Atrocities Act which has been overruled by the Hon'ble Supreme Court and, therefore, the Hon'ble Supreme Court has held that there is a prima facie case made out against the applicants and, therefore, these applications are required to be quashed and set aside.
6.1 By taking me through the alleged Power of Attorney, he would submit that on the said Power of Attorney, names of those witnesses are referred as if they have signed the documents. However, since all the witnesses are illiterate persons and used to put their thumb impressions on other documents, it is a clear case of forgery. He would further submit that as far as statements Page 11 of 23 R/CR.MA/5297/2018 CAV ORDER which have alleged to have been made by the witnesses of the complainant side are concerned, they have been made under compulsion and coerce and they were compelled to put their thumb impressions which is required to be dealt with and thereafter unless the applicants are properly interrogated, the truth will never come on surface. In support of his submissions, Mr. Raju has relied upon the decision of the Hon'ble Supreme Court in the case of Manju Devi v. Onkarjit Singh Ahluwalia @ Omkarjeet Singh, AIR 2017 SC 1583, Bachu Das v. State of Bihar, 2014 (3) SCC 471, Shakuntla Devi v. Baljinder Singh, 2014 (15) SCC 521, Vilas Pandurang Pawr v. State of Maharashtra, 2012 (8) SCC 795, Maruti Nivrutti Navale v. State of Maharashtra, 2012 (9) SCC 235, Criminal Appeal Nos.1286 to to 1289 of 2015 dated 1.10.2015, Lalit Amritraj Chowdhary v. State of Gujarat, 2017 (0) AIJEL-HC 237233.
6.2 He would further submit that the land in question is of a restricted nature and, therefore, prior permission was required to be obtained before the change of usage of the land. He would submit that the complainants were from Schedule Caste and, therefore, unless the Collector grants permission, the property cannot be transferred or alienated in any manner. He would submit that even the applicants - accused have themselves withdrawn the application under Section 73AA of the Gujarat Land Revenue Code. However, they have committed breach of the provisions and have constructed Bungalows on the same. He, therefore, would submit that the applicants have also committed fraud with those purchasers who have purchased those 17 Bungalows. He, therefore, would submit that the present applications may be rejected.
7. I have heard learned advocates appearing for the respective parties, perused several documents which are produced on record as well as statements of all witnesses recorded during Page 12 of 23 R/CR.MA/5297/2018 CAV ORDER the investigation carried out subsequent to an application submitted by the allottees in the year 2011, the papers of investigation so far carried out and observations made by the Hon'ble Supreme Court in Criminal Appeal No.14 of 2018 and allied matters by which the investigation has again put to motion directing the Officer to complete the investigation without any bias and strictly in accordance with law.
8. There are no two views that when a Court is dealing with the application under Section 438 or 439 of the Code, it has to examine various aspects which are elaborately dealt in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others (Supra) as well as other decisions by the Hon'ble Supreme Court, where an accused invoke the jurisdiction of the High Court by filing an application under Section 482 requesting to quash and set aside the FIR in toto, there would be different criteria. If no prima facie case is made out by bare reading of the FIR, the Court can exercise its inherent power and quash the FIR mainly on the ground that if the trial is permitted to be conducted, it would be a gross abuse of law.
9. While dealing with case under Section 482 of the Code, the Hon'ble Supreme Court has by relying upon the decision in the case of State of West Bengal and others v. Swapan Kumar Guha and others, AIR 1982 SC 949 found that certain prima facie cognizable offences are made out and, therefore, the order passed by the coordinate Bench was quashed and set aside. The Hon'ble Supreme Court while disposing of the above referred appeals observed in paragraph 35 as under :-
"35) On perusal of the three complaints and the FIR mentioned above, we are of the considered view that the complaint and FIR, do disclose a Page 13 of 23 R/CR.MA/5297/2018 CAV ORDER prima facie commission of various cognizable offences alleged by the complainants against the accused persons and, therefore, the High Court instead of dismissing the application filed by the accused persons in part should have dismissed the application as a whole to uphold the entire FIR in question."
10. The Hon'ble Supreme Court, however, has further observed in paragraphs 43 and 44 as under :-
"43) Since the FIR is pending for quite some time, we direct the investigating authorities to complete the investigation of the case without any bias and prejudices strictly in accordance with law and proceed ahead expeditiously.
44) Before parting, we consider it proper to clarify that this order should not be construed as having decided any issue on merits either way. The investigating authorities would not, therefore, be influenced in any manner by any of the observations made by the lower Courts and the High Court in their respective orders while investigating the matter."
10. The observations makes it clear that the Court has not decided any issue on merits either way and, therefore, the Investigating Agency was asked not to influence in any manner by any of the observations made by the orders passed by the lower Court or High Court while investigating the matter.
11. In my humble opinion, when the Hon'ble Supreme Page 14 of 23 R/CR.MA/5297/2018 CAV ORDER Court has asked the Investigating Agency not to prejudice with any observations made in its own order, a Court while exercising powers under Section 438 of the Code may consider the case of an accused as per the ratio laid down by the Hon'ble Supreme Court in various decisions.
12. Now keeping in mind the above observations, the submission made by Mr. S.V. Raju that when the Hon'ble Supreme Court has prima facie found that an offence has been committed including the offence under the provisions of Prevention of Atrocities Act, Section 18 would come into play and, therefore, anticipatory bail should not be granted, is required to be dealt with independently since the Hon'ble Supreme Court itself has observed, that too in general, that several prima facie offences have been made out.
13. The Hon'ble Supreme Court in the case of Dr. Subhash Kashinath Mahajan v. The State of Maharashtra and another (Supra) dealing with an offence registered against a Govt. Servant under the provisions of Prevention of Atrocities Act, had concluded and recorded its conclusion in paragraph 83 which reads as under :-
"Conclusions
83. Our conclusions are as follows :
i) Proceedings in the present case are clear abuse of process of court and are quashed.
ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Page 15 of 23 R/CR.MA/5297/2018 CAV ORDER Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);
iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.
The above directions are prospective."
It has been held that if the Court finds no prima facie case or where on judicial scrutiny, the complaint is found to be prima facie malafide, an accused facing charges under the provisions of Prevention of Atrocities Act would be entitled for anticipatory bail under Section 438 of the Code. In the present case, as discussed herein above, such allegations have been made by the complainant for the first time after entering into various transactions and giving their statements before the authorities and Page 16 of 23 R/CR.MA/5297/2018 CAV ORDER subsequently withdrawn by executing MOU, I prima facie find that such allegations have been made with some ulterior motive.
Hence, on this ground also, the present applications require consideration.
14. Now, the facts which are referred herein above disclose that the allottees had submitted an application under Section 73AA of the BLR Code with a request to District Magistrate to permit them to transfer the land and such an application was made in the year 1998 through one of the applicant, namely, Balubhai Ravjibhai Ahir. Their statements were also recorded before the competent authority. It is true that the said application was subsequently withdrawn and the construction of 17 Bungalows have been carried out without any sanction by the District Magistrate. However, it is pertinent to note that the building plans which were submitted by the applicants and subsequently revised plans were submitted, the Competent Authority had approved the same and accordingly, the construction was made in the year 2002.
15. It is also pertinent to note that the allottees for the first time requested the Police Commissioner in the year 2011 that a forged Power of Attorney has been created and one of the applicant, namely, Dinesh Chandubhai Patel has used abusive language. Subsequent to such application, statements of allottees are to the effect that they have accepted certain amounts in installments.
16. Since certain disputes were raised by the complainant side, the accused thought it fit to finally settle the matter and accordingly, MOU was entered into between all the parties on 3.2.2012 which was notarized. It is pertinent to note that in the said Power of Attorney, one Arjun son of Shankarbhai had identified thumb impressions of all the allottees and has put his Page 17 of 23 R/CR.MA/5297/2018 CAV ORDER signature on each page of such MOU. In the said Power of Attorney, they have accepted the existence of one Power of Attorney dated 27.3.2001 and, therefore, in my opinion, the allegations levlled against the applicants - accused with regard to the offence punishable under the provisions of Prevention of Atrocities Act are required to be dealt with accordingly. In the case of Vilas Pandurang Pawar and another v. State of Maharashtra and others, (2012) 8 SCC 795, the Hon'ble Supreme Court has held that a duty is cast on the Court to verify the averments made in the complaint and to find out whether any offence under the Prevention of Atrocities Act has been prima facie made out or not. When the allottees / complainants had alleged for the first time in the year 2011 with regard to incident took place, they had however not stated anything on what date such incident has taken place. The conduct of the complainant side is also required to be examined when they had withdrawn an application submitted to District Magistrate for constitution of a Special Investigation Team and have categorically stated that no offence as alleged under the Prevention of Atrocities Act was ever committed by any of the accused. Therefore, I am of the opinion that considering the nature of allegations, the same do not disclose any serious offence which would require custodial interrogation of the applicants.
17. As far as other offences are concerned, particularly with regard to the forged Power of Attorney dated 27.3.2001 is concerned, as stated herein above, the allottees themselves have accepted the existence of the same and that too before a Notary. I have gone through the statement of Notary who has categorically stated that Arjun son of Shankarbhai Rathod had identified all the persons and the document was notarised in his presence. Therefore, now coming before this Court that the same were under coercion or under compulsion is required to be dealt with Page 18 of 23 R/CR.MA/5297/2018 CAV ORDER accordingly. It is also pertinent to note that some of the allottees are residing only 400 Meters away from the land upon which 17 Bungalows have already been constructed and families are residing there from 2002. It is also pertinent to note that the transactions are going on between the parties since 1998 - 99 onwards. It is not the case of Investigating Agency that any of the accused persons had not cooperated with the investigation subsequent to 2011 as well as in connection with present FIR. It is also pertinent to note that one of the allottees, namely, Kantibhai has accepted in his complaint which was made against two other persons that he has received Rs.40 Lacs but had not received the remaining amount. Since the Court is dealing with an application under Section 438 of the Code, as held by the Hon'ble Supreme Court, a detailed scrutiny is not required to be made. The ratio laid down by the Hon'ble Supreme Court in the decision of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. (Supra) in paragraph 112 is reproduced as under :-
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to
flee from justice;
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iv. The possibility of the accused's
likelihood to repeat similar or the other
offences.
v. Where the accusations have been made
only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people.
vii. The courts must evaluate the entire
available material against the accused very
carefully. The court must also clearly
comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;
x. Frivolity in prosecution should
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always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
18. Considering the peculiar facts and circumstances of the case, I am of the opinion that the applications require consideration and hence, the same are allowed by directing that in the event of applicants herein being arrested pursuant to FIR registered at C.R. No. I - 90 of 2016 registered with Kathodara Police Station, Surat, the applicants shall be released on bail on furnishing a personal bond of Rs.50,000/- (Rupees Fifty Thousand only) each with one local surety of like amount each 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 26.3.2018 between 11.00 a.m. and 2.00 p.m. and shall thereafter cooperate the Investigating 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 Page 21 of 23 R/CR.MA/5297/2018 CAV ORDER 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 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;
19. 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.
20. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging Page 22 of 23 R/CR.MA/5297/2018 CAV ORDER the applicants on bail.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
Sd/-
(A.J.DESAI, J.)
21. Upon pronouncement of judgment, Mr. A. B. Munshi, learned advocate appearing for the respondent No.3 requests for stay of this judgment. Considering the facts and circumstances of the case, the said request is rejected.
Sd/-
(A.J.DESAI, J.) Savariya Page 23 of 23