Gujarat High Court
Bhanubhai Durlabhbhai Korat vs State Of Gujarat on 9 July, 2021
Author: A. S. Supehia
Bench: A.S. Supehia
R/CR.MA/18155/2020 ORDER DATED: 09/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18155 of 2020
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BHANUBHAI DURLABHBHAI KORAT
Versus
STATE OF GUJARAT
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Appearance:
SHRENIK R JASANI(9486) for the Applicant(s) No. 1,2
MR. HIMANSHU K PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 09/07/2021
ORAL ORDER
RULE. Learned APP waives service of notice of rule for and on behalf of the respondent-State.
1) Heard the learned advocates for the respective parties through 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.11822015201692 of 2020 registered with Salabatpura Police Station, Surat City, District Surat for the offences under Sections 406, 420, 465, 467, 468, 506(2) and 120B of the Indian Penal Code, 1860 (the "IPC").
3) Learned advocate for the applicants has submitted that the applicants have wrongly roped in the offence and the applicants were only "attesting witnesses" of the registered sale deed No. Page 1 of 7 Downloaded on : Sat Jan 15 22:27:25 IST 2022 R/CR.MA/18155/2020 ORDER DATED: 09/07/2021 1629 executed by Paresh Sukhadiya i.e. accused No. 8 in favour of Viththallbhai Kadvabhai Korat i.e. accused No. 9. The allegations against the applicants are of being a "witness" to such sale deed and further no any other role assigned by the complainant. It is further submitted that the applicants as witnesses would not have any knowledge about the contents of the sale deed as they were only wintesses to the registration of the sale deeds, and hence, the present FIR is nothing but a gross abuse of process of criminal machinery.
4) Learned advocate for the applicants has submitted that the accused No. 8 and accused No. 9 have preferred applications for quashing and setting aside the present FIR being Criminal Misc. Application No. 12746 of 2020 and Criminal Misc. Application No. 14357 of 2020 respectively, and the Coordinate Bench of this Court vide order dated 07.09.2020 and 06.10.2020 respectively has issued Rule and granted interim protection to both the accused.
5) Learned advocate for the applicants has submitted that the accused No. 1 Hamid @ Amir Rana and accused No. 2 Rahul Panchani through his friend one Ratilal D Patel, who are engaged in the activity of brokerage of land dealing, had introduced the complainant to Paresh Sukhadiya i.e. accused No. 8, who is ready and willing to finance a sum of Rs.1 Crore against security of the land bearing survey No. 1605 situated at village Khadasar, Taluka:
Jalalpor, District Navsari. Thereafter, a sale deed was executed by the complainant and Renukaben in favour of the accused No. 8 in their personal capacity as well as in the capacity of power of attorney holder of other family members i.e. Pareshbhai and Page 2 of 7 Downloaded on : Sat Jan 15 22:27:25 IST 2022 R/CR.MA/18155/2020 ORDER DATED: 09/07/2021 Sumitraben, who happen to be the brother and mother of the complainant respectively, before the Sub-Registrar vide a registered sale deed No. 5368 dated 26.10.2016.
6) It is the case of the prosecution that the land bearing survey nos.
1666 and 1669 of village Khadasar, Taluka: Jalalpor, District Navsari owned and occupied by them and family members of the complainant. It is further alleged that the accused Nos. 1, 2 and 8 erased the recitals of the Memorandum of Understanding (MOU), which were written by pencil and substituted the same by converting the same as "power of attorney" in favour of one Rajendrasinh Natvarsinh Rajput for the land in question. It is further alleged that the said power of attorney, which was executed in favour of Rajendrasinh Rajput, misused the same and executed sale deed in favour of the accused No. 4 and accused No. 5.
7) It is further alleged in the complaint that though accused No. 8 was in knowledge of the fact that by virtue of the registered sale deed dated 26.10.2016, the rights, which were transferred, were only of the nature of conditional sale /mortgage and the same was not absolute sale in view of the MOU executed between the parties. They had attested as witnesses on the sale deed No. 1629 dated 20.03.2018 in favour of accused No.9. It is further alleged that the present applicants i.e. accused No.10 and 11 respectively had attested the said sale deed as witnesses and have verified the executor.
8) The learned advocate for the applicants has submitted that there is a delay in registering the FIR, as the alleged offence has been Page 3 of 7 Downloaded on : Sat Jan 15 22:27:25 IST 2022 R/CR.MA/18155/2020 ORDER DATED: 09/07/2021 occurred in the year 2016 and the FIR has been registered in the year 2020. It is further submitted by the learned advocate for the applicants that the complainant has also filed a civil suit in respect of the same land, which is pending before the concerned Civil Court. He has submitted that thus, in order to exert pressure on the accused, the complainant has filed the present FIR.
9) Learned advocate for the applicants has further submitted that the nature of allegations are such for which custodial interrogation of the applicants at this stage is not necessary. He further submits 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.
10) 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 her remand. He further submits 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, submits that considering the above facts, the applicants may be granted anticipatory bail.
11) 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. Learned APP has submitted that the present applicants, though were having knowledge that the documents were forged, put their Page 4 of 7 Downloaded on : Sat Jan 15 22:27:25 IST 2022 R/CR.MA/18155/2020 ORDER DATED: 09/07/2021 signatures on the same.
12) 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 evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants.
13) This Court has considered the following aspects;
(a) The role attributed to the applicants;
(b) There is a huge delay in registering the FIR;
(c) Prima facie the role attributed to the applicants is of
signing the sale deed, which was executed by other accused persons;
(d) Prima facie, it appears that there are no allegations against the applicants with regard to the monitory benefit or transaction;
(e) The nature of allegations are such for which custodial interrogation of the applicants at this stage is not necessary.
14) 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, AIR 2011 SC 312.
15) In the result, the present application is allowed. The applicants are ordered to be released on bail in the event of their arrest in connection with FIR being C.R.No.11822015201692 of 2020 registered with Salabatpura Police Station, Surat City, District Surat 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:
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(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 16.07.2021 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 them 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 her residence 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.
16) 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 Page 6 of 7 Downloaded on : Sat Jan 15 22:27:25 IST 2022 R/CR.MA/18155/2020 ORDER DATED: 09/07/2021 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.
17) At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
18) The application is allowed in the aforesaid terms. RULE is made absolute to the aforesaid extent.
19) Registry is directed to intimate the concerned authority/Court about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode.
20) 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.
(A. S. SUPEHIA, J) VISHAL MISHRA Page 7 of 7 Downloaded on : Sat Jan 15 22:27:25 IST 2022