Gujarat High Court
Vipul Madhabhai Bhavani vs State Of Gujarat on 21 August, 2023
NEUTRAL CITATION
R/CR.MA/12597/2023 ORDER DATED: 21/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12597 of 2023
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VIPUL MADHABHAI BHAVANI
Versus
STATE OF GUJARAT
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Appearance:
MR MAULIK NANAVATI for NANAVATI & CO.(7105) for Applicant(s) No. 1
MR. L. B. DABHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/08/2023
ORAL ORDER
1. RULE. Learned APP waives service of notice of Rule on behalf of the respondent - State.
2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11214020230964 of 2023 registered with Kamrej Police Station, District Surat Rural for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471, 474, 120B and 114 of the Indian Penal Code, 1860.
3. Learned advocate Mr. Maulik Nanavati for Nanavati & Company appearing for the applicant submitted that present applicant is falsely Page 1 of 10 Downloaded on : Sun Sep 17 01:54:08 IST 2023 NEUTRAL CITATION R/CR.MA/12597/2023 ORDER DATED: 21/08/2023 undefined enroped in the offence. Applicant has nothing to do with the alleged offence. It is alleged in the complaint that one Kashiben died in the year 2005 and false and fabricated documents were brought up and based on the same counterfeit documents, alleged transaction as alleged in the complaint took place.
4. Present applicant has verified the documents and as Kashiben had been verified herself as entire transaction took place under the guise of Kashiben being alive, even if the allegation made in the complaint is taken at its face value and even though there are four persons having same name 'Kashiben' and prosecution in the complaint itself is not clear as to which Kashiben has entered the transactions. Even he has not withdrawn any amount of compensation and the order which has been passed by the revenue authority is also in his favour and particularly he has drawn attention of this Court towards the order passed by the Collector, Surat in RTS proceedings. Hence, he requests to allow the present application as there is no requirement of custodial interrogation, as the alleged transactions are in connection with public documents and all the documents are available in public domain. Hence, he requested to allow the present application.
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5. Learned APP appearing for the State has vehemently opposed the application and stated that, alleged offence in connection with Kashiben who expired in the year 2005 and there are another four Kashiben, who are involved and huge amount of compensation is also withdrawn and fraudulent transactions took place. Hence, thorough interrogation is required and even custodial interrogation is also required to unearth the truth and investigate the matter. In view of above he requested to dismiss the present application.
6. Heard learned advocates appearing for the respective parties and given thoughtful conclusion to the arguments canvassed by both sides.
7. A complaint came to be filed at the instance of one Newtonbhai Jagdishbhai Patel wherein he has stated that his aunt late Kashiben Bhagwandas Patel was the owner of agricultural land situated at Village Sekhpur, Taluka Kamrej bearing new Block No.145, Account No.210, Old Block No.119. The entire family of Bhagwandas Patel is settled in the United States of America and Kashiben died in the year 2005. It is further alleged that the same property has been transacted in the name of separate and different persons through different modes. Further, it is alleged that the present applicant and other co-accused have hatched the Page 3 of 10 Downloaded on : Sun Sep 17 01:54:08 IST 2023 NEUTRAL CITATION R/CR.MA/12597/2023 ORDER DATED: 21/08/2023 undefined conspiracy and fabricated bogus documents in the name of Kashiben in the year 2021 and based on the forged Power of Attorney entire transaction took place. Said transaction got registered in the office of the Registrar under the guise as if Kashiben is alive and she has executed the document, though Kashiben has expired in the year 2005 and another Kashiben who resides at Nava Borbhatha, Maktampur, Taluka & District Bharuch is totally different. Even, the fact of amount being paid towards land acquisition, compensation of more than Rs.95,00,000/- (Rupees Ninety Five Lacks Only) executed by impostors been withdrawn in the guise of the said fraudulent documents, is required to be thoroughly investigated and alleged offence is based on large scale conspiracy and impostors. This Court is of the considered view that the alleged Will in question is also fraudulent and it is alleged that during the course of investigation said fact is noticed. Thus, considering the allegation leveled in the complaint prima-facie it appears that present accused is involved and he has executed the sale-deed on the basis of the fraudulent documents like Aadhar Card, Pan Card and fraudulent documents of late Kashiben, as per the allegation leveled against the present applicant in the complaint and the death certificate is also forged. An amount of compensation from Government office is also withdrawn in the name of Kashiben Bhagwandas, is impostor, resides at Nava Borbhatha, Page 4 of 10 Downloaded on : Sun Sep 17 01:54:08 IST 2023 NEUTRAL CITATION R/CR.MA/12597/2023 ORDER DATED: 21/08/2023 undefined Maktampur, Taluka & District Bharuch, at the instance of present applicant. All these aspects are also required to be thoroughly investigated as the compensation paid by Government said amount is also withdrawn based on the same fraudulent documents and impostors. 7.1 Considering the aforesaid all aspects as well as the law laid down by Hon'ble Supreme Court in the case of Jayprakash vs. State of Bihar reported in (2012)4 SCC 379, parameters of grant of anticipatory bail in serious offences are required to be satisfied and further while granting such relief, the Court must record the reasons thereof. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima-facie of the view that the applicant is falsely enroped in the crime and would not misuse his liberty. Herein, no case is made out as the applicant is not falsely enroped in the offence.
7.2 Further, considering the allegation made in the complaint and aforesaid fact and for the qualitative investigation, the presence of applicant is required and custodial interrogation is necessary. Thus, prima facie it appears that accused has played active role and qualitative investigation is necessary in the matter. When serious offences are disclosed and involvement of an accused prima facie established then, the Page 5 of 10 Downloaded on : Sun Sep 17 01:54:08 IST 2023 NEUTRAL CITATION R/CR.MA/12597/2023 ORDER DATED: 21/08/2023 undefined Court would be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding considerations. The alleged offence is in nature of white collar and socio economic offence, this Court is conscious with the safeguards provided under Section 438 and concept of the personal liberty. But herein, This court is considered of view that, the present offence is committed very smartly and very planned and methodically which is not just an offence against any individual rather the largest societal interest and in such circumstances, the delicate balance is required to be maintained between two rights one against the personal liberty and second is societal interest. Arrest is part of the process of investigation and intended to secure several purposes. In which the accused may provide information, during the the discovery of material facts and to relevant information. In such circumstances, when investigation is in preliminary stage if, anticipatory bail is granted may hamper the investigation and to collect the material in the more information, and find out the involvements of another person custodial interrogation is also necessary, therefore, keeping in mind the law laid down by the Hon'ble Supreme Court in the case of (i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7) SCC 187, (ii) Adri Dharan Das V/s State of W.B. reported in 2005 (4) SCC 303 and (iii) P. Chidambaram V/s Directorate of Enforcement reported in AIR 2019 SC 4198, wherein Page 6 of 10 Downloaded on : Sun Sep 17 01:54:08 IST 2023 NEUTRAL CITATION R/CR.MA/12597/2023 ORDER DATED: 21/08/2023 undefined the Hon'ble Supreme Court has held held as follows:
"The legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. It may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In this view, it cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant/applicant under Article 21 of the Constitution of India.
Consequently, power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and Page 7 of 10 Downloaded on : Sun Sep 17 01:54:08 IST 2023 NEUTRAL CITATION R/CR.MA/12597/2023 ORDER DATED: 21/08/2023 undefined gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Anticipatory bail is to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy".
Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation".
7.3 This court has also kept in mind the law laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre V/s State of Maharashtra and Others reported in (2011) 1 SCC 694. But, going through the material very carefully available against the accused it appears that herein, no complaint has been made with view to humiliating or tarnish the image of the present applicant. Even in the case of Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379, Hon'ble Supreme Court was pleased to hold:
"Parameters for grant of anticipatory bail in a serious offenceare required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in Page 8 of 10 Downloaded on : Sun Sep 17 01:54:08 IST 2023 NEUTRAL CITATION R/CR.MA/12597/2023 ORDER DATED: 21/08/2023 undefined the crime and would not misuse his liberty."
7.4 The object of anticipatory bail is that person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. In present case, no any such sort of allegation or bias is found out it is needless to say that order under Section 438 is not a passport to the commission of trial nor a seal against any serious accusation, which adversely affects the society.
8. In the above facts and circumstances and considering the observations on the legal aspect of the matter, as applicant is actively involved in the offence therefore, this Court having absolutely no doubt that if applicant is equipped with such an order of anticipatory bail before he is interrogated by the Police, it would greatly harm and prejudice the investigation and would impede the prospects of unearthing all the ramifications involved in the conspiracy. The present applicant-accused is involved in white collar socio-economic offence which constitute a class apart and needs to be visited with a different approach. Such offences adversely affect the economic and social fabric also. In such circumstances also, grant of anticipatory bail at this stage would frustrate the very purpose of investigation.
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10. Resultantly, having considered nature and seriousness of the charge, prima facie involvement of accused and possibility of tempering with evidences, it does not appear to be just and proper to exercise the discretion in favour of the applicant and accordingly, the application for anticipatory bail is dismissed. Rule is hereby discharged.
(HASMUKH D. SUTHAR, J.) RB DESAI Page 10 of 10 Downloaded on : Sun Sep 17 01:54:08 IST 2023