Dahyabhai Devubhai Dabhi vs The State Of Gujarat on 20 July, 2021

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Gujarat High Court

Dahyabhai Devubhai Dabhi vs The State Of Gujarat on 20 July, 2021

Bench: A.S. Supehia

      R/CR.MA/2417/2021                                   ORDER DATED: 20/07/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
               R/CRIMINAL MISC.APPLICATION NO.2417 of 2021
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                            DAHYABHAI DEVUBHAI DABHI
                                     Versus
                              THE STATE OF GUJARAT
================================================================
Appearance:
HETANG R JOSHI(9384) for the Applicant(s) No. 1,2
MR JIGNESH B SHAH(5217) for the Applicant(s) No. 1,2
MR LAXMANSINH M ZALA(5787) for the Respondent(s) No. 1
MR H K PATEL, APP for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                           Date : 20/07/2021
                            ORAL ORDER

[1] Heard the learned advocates for the respective parties by video conferencing.

[2] By way of the present application filed under Section 438 of the Code of Criminal Procedure, 1973, the applicants-accused have prayed for bail in connection with the FIR being C.R. No.11192011201021 of 2020 registered with Bopal Police Station, Ahmedabad (Rural), Dist.Ahmedabad for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code, 1860.

[3] The case of the prosecution in brief is that land bearing Revenue Survey No.28/p, admeasuring 2-47-87 Hec.-Are-Sq.mtrs. (for short "the land in question"), situated at Village Dolatpara in the Sub-District Junagadh and in the registration District Junagadh was belonging to one Taraben Kakumal Rizvani, which was allotted by the District Collector to her vide order No.A/147 dated 12.12.1967. It is further alleged that after demise of Taraben, her straight- line legal heir - sole daughter - Bhagiben Rameshbhai Page 1 of 9 Downloaded on : Sun Jan 16 01:21:43 IST 2022 R/CR.MA/2417/2021 ORDER DATED: 20/07/2021 Bhoneja had executed a registered agreement to sell in favour of - (1) Jentilal Bhavanjibhai Sanandiya and (2) Jagjivanbhai Trikambhai Payani on 21.01.2010, which was duly registered before the Registrar under Sr. No.719. It is also alleged that pursuant to the aforesaid agreement to sell, Bhagiben executed a registered Power of Attorney in favour of - (1) Bipinkumar Mansukhbhai Sanandiya and (2) Dahyabhai Devubhai Dabhi on the same day - i.e. 21.01.2010, which was duly registered before the Registrar under Sr. No.718 dated 21.01.2010. It is alleged that in the above circumstances and the documents, there was an oral agreement of partnership arrived at between applicant No.1, (1) Jentilal Bhavanjibhai Sanandiya, (2) Jagjivanbhai Trikambhai Payani and (3) Bipinkumar Mansukhbhai Sanandiya and thereby the applicants acquire the partnership rights qua the land in question by way of agreement to sell and Power of Attorney.

[3.1] It is also alleged that the revenue proceedings are pending before the District Collector, Junagadh for entering name of Bhagiben Rameshbhai Bhoneja as straight-line legal heir and, therefore, a registered sale deed cannot be executed in favour of the aforesaid partners, including applicant No.1. It is alleged that the first informant showed his interest in the transaction of the land in question and he becomes the partners of the land in question qua the rights of the applicant No.1 and in continuation of the same, a notarized partnership agreement has been Page 2 of 9 Downloaded on : Sun Jan 16 01:21:43 IST 2022 R/CR.MA/2417/2021 ORDER DATED: 20/07/2021 arrived at between the first informant and the applicants on 19.02.2013 and the first informant paid Rs.25,00,000/- by way of cheques, which were deposited by the accused in the account. It is alleged that after receiving payment from the first informant, the applicants-accused are not entering the name of the first informant for entering his name in the revenue record. Consequently, the F.I.R. has been registered against the present applicants.

[4] Learned advocate for the applicants have submitted that after filing of the F.I.R., the applicants have been called for by the investigating officer twice for recording their statements and the applicants have cooperated with the investigation and their statements have been recorded. It is also submitted that there is delay in registering the F.I.R. since the first informant has alleged that in 2013 the transaction in question is alleged to have been taken place and the F.I.R. has been registered in the year 2020. Learned advocate has further submitted that the dispute raised in the F.I.R. is purely of civil nature and instead of instituting a civil suit, the first informant is trying to give the criminal colour to resolve the civil dispute by way of abusing of process of criminal law.

[4.1] Learned advocate for the applicants has submitted that the first informant has deliberately not given a copy of the agreement dated 19.01.2013 executed between the first informant and the present Page 3 of 9 Downloaded on : Sun Jan 16 01:21:43 IST 2022 R/CR.MA/2417/2021 ORDER DATED: 20/07/2021 applicants, which shows the mala fide intention of the first informant. It is submitted that the investigating officer has already recorded statements of other persons i.e. (1) Jentilal Bhavanjibhai Sanandiya, (2) Jagjivanbhai Trikambhai Payani, (3) Bipinkumar Mansukhbhai Sanandiya as well as the original land owner had seized the original documents from them i.e. registered agreement to sell and registered Power of Attorney, etc. and the case is based on documentary evidence and, therefore, the investigation is as such almost over.

[4.2] Learned advocate for the applicants has submitted that the nature of allegations is such for which custodial interrogation of the applicants at this stage is not necessary. He has further submitted that the applicants will keep themselves available during the course of investigation, as well as in the trial also and will not flee from justice. [4.3] Learned advocate for the applicants, upon instructions, has submitted 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 has further submitted that upon filing of such application by the investigating agency, the right of the applicants accused to oppose such application on merits may be kept open. Learned advocate, therefore, has submitted that considering the above facts, the applicants may be granted anticipatory bail.

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R/CR.MA/2417/2021 ORDER DATED: 20/07/2021 [5] On the other hand, the 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.

[6] Learned advocate Mr.Zala appearing on behalf of the first informant has submitted that the first informant was making efforts since long to register the F.I.R. against the present applicants. It is submitted that the first complaint was given on 14.06.2017 before the Bopal Police Station against the applicants, but the same was filed and the applicant was accordingly informed. Thereafter, on other application filed by the first informant on 15.01.2018, the Prant Officer vide communication dated 06.05.2018 has informed him to file a complaint before police having jurisdiction. Learned advocate has further submitted that there is an observation made by Prant Officer, Junagadh that the name of applicants do not exist in the revenue records. Learned advocate Mr.Zala has submitted that lastly the first informant filed application dated 10.09.2020 before the Police Inspector, Bopal Police station, hence the present F.I.R. has been registered against the applicants.

[7] 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 Page 5 of 9 Downloaded on : Sun Jan 16 01:21:43 IST 2022 R/CR.MA/2417/2021 ORDER DATED: 20/07/2021 evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants.

[8] This Court has considered following aspects;

(a) The role attributed to the applicants;

(b) Prima facie there is delay in registering F.I.R. The dispute appears to be of the year 2013. It appears that the for the first time in the year 2017 the first informant has made a complaint which was filed. Thereafter, also vide communication dated 16.05.2018, the first informant was informed by the Prant Officer, Junagadh that he may file appropriate police complaint, despite that the F.I.R. has been registered in the year 2020;

(d) The applicants were called for recording their statements twice by the investigating officer and they have cooperated in the investigation;

(e) Considering the facts of the case, the custodial interrogation of the applicants at this stage is not necessary.

This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (NCT of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, A.I.R. 2011 S.C. 312.

[9] In the result, the present application is allowed. The applicants are ordered to be released on Page 6 of 9 Downloaded on : Sun Jan 16 01:21:43 IST 2022 R/CR.MA/2417/2021 ORDER DATED: 20/07/2021 bail in the event of their arrest in connection with FIR being C.R. No.11192011201021 of 2020 registered with Bopal Police Station, Ahmedabad (Rural), Dist.Ahmedabad on their executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) (EACH) with one surety of like amount on the following conditions that they:

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

(b) shall remain present at the concerned Police Station on 26.07.2021 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 addresses to the investigating officer and the court concerned and shall not change their residences 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 passports shall deposit the same before the concerned trial court within a week.

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R/CR.MA/2417/2021 ORDER DATED: 20/07/2021 [10] Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicants, if he considers it proper and just and the Magistrate would decide it on merits. The applicants shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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 concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

[12] The application is allowed in the aforesaid terms. RULE is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority / court through Fax message, email and/or any other suitable electronic mode.

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R/CR.MA/2417/2021 ORDER DATED: 20/07/2021 [13] Learned advocate for the applicants is also permitted to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

                                                                          Sd/-            .
                                                                (A. S. SUPEHIA, J)
NVMEWADA




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