Gujarat High Court
Dinkarbhai Ghelabhai Patel vs State Of Gujarat on 26 April, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
R/CR.MA/9968/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 9968 of
2017
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DINKARBHAI GHELABHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR YN OZA, SR ADVOCATE WITH MR APURVA R KAPADIA, ADVOCATE
for the Applicant(s) No. 1
MR ADIL R MIRZA, ADVOCATE for the Respondent(s) No. 1
MR AMIT K DAVE, ADVOCATE for the Respondent(s) No. 1
MR RONAK RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 26/04/2017
ORAL ORDER
Rule. Learned Additional Public Prosecutor Mr.Ronak Raval waives service of notice of Rule on behalf of the respondent-State. Learned advocate Mr.Adil Mirza who appears for the original complainant, waives service of notice of Rule for original complainant.
2. It is in connection with First Information Report bearing Crime Register No.I-19 of 2017 registered on 31st March, 2017 with Dungari Police Station, Valsad against the present applicant-accused for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code, 1860, that this application under Section 438 of the Page 1 of 8 HC-NIC Page 1 of 8 Created On Wed Aug 16 02:57:27 IST 2017 R/CR.MA/9968/2017 ORDER Code of Criminal Procedure, 1973 is presented by the applicant for anticipatory bail.
3. The first informant, a power of attorney of one Jayaben widow of Harshad Ratilal Patel, is one of the four sons of Ratilal Patel. The present applicant- accused happens to be the purchaser of the land bearing Block Survey No.201 at Village Dungri. As per the allegations of the first informant, he had conversed with Jayaben Harshadbhai Patel who is in United States of America, told him that the land in question was not sold to anybody and that she was not knowing any person named as applicant herein. The first informant stated that upon inquiry he knew that Bhupatbhai Ratilal Patel alias Haribhai Hiralal Patel had sold the land survey No.201 in favour of the applicant-accused. The first informant stated that he obtained papers relating to transaction in the Mamlatdar's office and perused the revenue entries, etc. 3.1 A family arrangement was entered into on 20th October, 1985 between four sons of deceased Ratilal Patel. The four sons are (i) Bhupatbhai Ratilal Patel, (ii) Bharatbhai Ratilal Patel, (iii) Shantilal Ratilal Patel and (iv) Harshad Ratilal Patel. It appears that Harshadbhai Ratilal died on 21st June, 2003. the First Information Report alleges about some minor dispute amongst the heirs of said Ratilal Patel, whereafter on 19th April, 2005, the complaint mentions, another Deed of Family Arrangement was entered into and Entry No.9975 was mutated on the basis of the family arrangement. On 13th December, 2008 Page 2 of 8 HC-NIC Page 2 of 8 Created On Wed Aug 16 02:57:27 IST 2017 R/CR.MA/9968/2017 ORDER Bhupatbhai Patel made an affidavit that land survey Nos.204 and 283 as well as the instant survey No.201 were the land belonging to Ratilal Patel and thereafter names of four heirs of Ratilal Patel were mutated and there was no other heir.
3.2 The first allegation against the present applicant is that in the said affidavit dated 13th December, 2008 made by said Bhupatbhai, applicant signed as a person who identified the signature in capacity of advocate though he was not an advocate. The second part of the allegation is that on the basis of Will dated 29th December, 2003 shown to have been executed in favour of Bhupatbhai Patel, the present applicant purchased the land. The allegation in the F.I.R. is that the said Will was false and that Bhupatbhai was not the sole owner of the entire property as other heirs were there. The sale agreement in favour of the present applicant was registered at No.5296 on 27th October, 2014 for a consideration of Rs.20.00 lakhs. An entry was also mutated on the basis of the said registered sale transaction.
3.3 Thus, the allegations are that without knowledge of one of the heirs-owners Jayaben who was in U.S.A., the sale transaction was affected. It is further alleged that the applicant took loan from HDFC Bank, Valsad Branch and for that purpose, consent of the original land owners was shown on the basis of got up documents. The part of the allegations that the documents are fabricated with signature of the original land owners to be produced before the Bank Page 3 of 8 HC-NIC Page 3 of 8 Created On Wed Aug 16 02:57:27 IST 2017 R/CR.MA/9968/2017 ORDER could not be substantiated.
4. Heard learned senior advocate Mr.Yatin Oza with learned advocate Mr.Apurva Kapadia, learned Additional Public Prosecutor and learned advocate appearing for the private complainant.
5. As the allegation in the First Information Report noted hereinabove reflects, the dispute raised therein is of civil nature and apparently the same is taken on criminal front. No civil litigation has been initiated in respect of the issues raised by either party. Furthermore, the investigation largely and mainly depend upon the documentary material. The Will on the basis of which the ownership of the land was claimed and which land was purchased by the applicant, has been taken in custody by the police. Recovery in this regard is not needed.
5.1 From the facts and circumstances of the case and having regard to the facts alleged, need for custodial interrogation was not spelt out. Custodial investigation is not substitute for investigation. The present applicant has purchased the land by registered Deed and has paid the entire amount. He claims to be the bona fide purchaser.
6. The court also took note of the principles laid down by the Apex Court in Siddharam Satllingappa Mhetre v. State of Maharashtra [AIR 2011 SC 312] and in Jai Prakash Singh v. State of Bihar [AIR 2012 SC 1676] and other decisions in which parameters to be considered by the court for grant of anticipatory bail Page 4 of 8 HC-NIC Page 4 of 8 Created On Wed Aug 16 02:57:27 IST 2017 R/CR.MA/9968/2017 ORDER have been set out, and applied those parameters to the facts of the case. Since the court was inclined to grant anticipatory bail to the applicant-accused, even as learned Additional Public Prosecutor made submissions to object the grant of bail, he stated that he would not invite detailed reasons. Learned advocate for the applicant also did not press for reasons.
6.1 In the facts and circumstances obtained and for the reasons recorded above, personal liberty of the applicant-accused deserves to be accorded primacy over his forced arrest. The investigational needs could be balanced by imposing appropriate conditions to be observed by the applicant-accused including the condition of keeping the right of the police open to ask for remand of the applicant-accused, if required.
7. As a result of above facts and aspects, present application is allowed and it is directed that in the event of the applicant's arrest in connection with the F.I.R. bearing Crime Register No.I-19 of 2017 registered on 31st March, 2017 with Dungari Police Station, Valsad, he shall be released forthwith on condition of his execution a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand Only).
7.1 The anticipatory bail granted by this Court shall be further governed and regulated by the following conditions.
[i] The applicant shall cooperate with the
investigation. He will make himself available for
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R/CR.MA/9968/2017 ORDER
interrogation and for all investigative purposes
whenever required;
[ii] The applicant shall not obstruct the process
of investigation in any manner. He shall not directly or indirectly induce threat or extend promise to any witness so as to dissuade and prevent such witness from disclosing such facts as may be required, to the Court or Police Officer;
[iii] The applicant shall at the time of execution of bond, furnish full address of his residence and stay to the Investigating Officer as well as to the Court concerned. He shall not change the residence without prior intimation to the Court concerned during the pendency of the prosecution in the criminal case;
[iv] The applicant shall not travel beyond the territory of the State of Gujarat without prior permission of the Court concerned;
[v] The applicant shall surrender passport, if any he is holding, before the Court concerned immediately;
[vi] The applicant shall appear before the concerned Police Station on 02nd May, 2017 between 11.00 am and 02.00 pm. [vii] It shall remain open to the Investigating Officer to seek and file application for remand of the applicant, if in his discretion he considers the asking for remand of the applicant to be just and Page 6 of 8 HC-NIC Page 6 of 8 Created On Wed Aug 16 02:57:27 IST 2017 R/CR.MA/9968/2017 ORDER proper for the purpose of investigational needs. If such application for remand is made by the Investigating Officer, the learned Magistrate concern would consider the same on merits without being influenced by the anticipatory bail granted.
8. It is clarified that despite this order, the investigating agency is not precluded from applying before the competent Magistrate for police remand of the applicant. It is further provided that the applicant shall remain present before the Magistrate concerned on the first day of such application, if made, and on all such subsequent occasions as may be directed by the learned Magistrate in such proceedings. This would be sufficient to treat the accused as in judicial custody for the purpose of entertaining the application for remand by the prosecution.
8.1 The liberty available to the prosecution to seek remand shall be without prejudice to the rights of the accused to contend against or to seek stay against the remand. It is further clarified that the applicant even if remanded to the police custody, after completion of the remand period; shall be set at liberty immediately, subject to other conditions of this anticipatory bail order, to be complied with.
8.2 It is clarified that the observations made in this order are for the purpose of granting pre- arrest protection only. It is further clarified that the trial court shall not be influenced by any of the Page 7 of 8 HC-NIC Page 7 of 8 Created On Wed Aug 16 02:57:27 IST 2017 R/CR.MA/9968/2017 ORDER observations made in this order and the same shall be treated for the purpose of dealing with the present application only.
9. The present application is allowed in the aforesaid terms. Rule is made absolute.
Direct service is permitted.
(N.V.ANJARIA, J.) Anup Page 8 of 8 HC-NIC Page 8 of 8 Created On Wed Aug 16 02:57:27 IST 2017