Gujarat High Court
Khushalbhai vs State on 22 July, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
Print
CR.MA/12780/2009 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12780 of 2009
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
KHUSHALBHAI
RAMABHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=====================================================
Appearance :
Mr.Y.N.Oza,learned
Senior Advocate with MR YASH N NANAVATY for
Applicant
Mr.J.K.Shah,learned ADDL.PUBLIC PROSECUTOR for
Respondents:1
Mr.H.N.Joshi for M/S THAKKAR ASSOC. for
Original-Complainant
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 22/07/2011
ORAL
JUDGMENT
1. Rule.
Mr.J.K.Shah, learned Additional Public Prosecutor, waives service of notice of Rule on behalf of the respondent State of Gujarat.
2. This application has been filed under Section 439 of the Code of Criminal Procedure, for grant of bail in connection with FIR, being C.R.No.I-2 of 2009, registered with Rander Police Station, for offences punishable under Sections 406,420, 463, 467,471,468, 120-B, and 114 of the Indian Penal Code.
3. Briefly stated, the allegations against the applicant are that he, alongwith other co-accused persons, is involved in a conspiracy in furtherance of which certain forged and fabricated documents have been created, such as the Will of the complainant, Agreement to Sell in respect of the property of the complainant, Agreement Letters etc. It is further alleged that the Power of Attorney of the complainant had been procured by making false representations and misleading the complainant, pursuant to which certain documents have been fabricated and transactions entered into, to the detriment of the complainant, and with the motive of depriving her of her movable and immovable properties.
4. Mr.Y.N.Oza, learned Senior Advocate with Mr.Yash N.Nanavaty, learned advocate for the applicant has addressed lengthy arguments, which are summarised as under:
(a) The applicant is in custody with effect from 5-1-2009, which is approximately over a period of two years. If the applicant is not released on bail, it will amount to pre-trial incarceration. Looking to the period of time spent in custody, the applicant deserves to be released on bail.
(b) The applicant has not committed any heinous offence such as rape, murder or dacoity but has been involved in a petty land dispute. There is no material on record to substantiate the allegations made against the applicant. The gravamen of the allegations against the applicant is not so serious so as to shock the conscience of the Court, therefore, it is a fit case in which discretion may be exercised.
(c) The allegations made against the applicant are baseless and rest upon conjectures and surmises. There are inherent contradictions in the version of the complainant, who is a lady, aged 80 years. The conduct of the complainant ought to be taken into consideration, as she has stated in the application that she has already sold the land and received full consideration for the same.
(d) There is no allegation against the applicant to the effect that he has forged any document or has created false documents. The only allegation against the applicant is that he has accompanied the complainant to the Bank where the complainant withdrew an amount of money, and it cannot be said that any offence is made out against the applicant.
(e) At this stage, the Court is not to weigh the evidence but to see whether the applicant, if released, is likely to tamper with evidence, influence witnesses or prove to be a risk to society. In the present case, there is no likelihood of the above.
(f) Two co-accused persons have been released on bail by this Court and the allegations attributed to them are more serious than that attributed to the applicant, therefore, on the ground of parity as well the prayers made in the application deserve to be granted.
(g) The applicant has an unmarried daughter, aged about 23 years and a son.
As both the applicant and his wife are in jail, the children of the applicant are left to fend for themselves.
(h) The case against the applicant is based upon documentary evidence, which is in the custody of the prosecution and the charge-sheet has been filed and the investigation is over. Therefore, no fruitful purpose would be served if the applicant is kept in custody, any longer.
(i) The learned Senior Advocate for the applicant has placed reliance upon the following judgments:
(1) "Common Cause", a registered Society through its Director v. Union of India, 1997(1) GLH 417 (2) Sunil K.Sinha v. State of Bihar, (1998) 5 SCC 607 (3) Jaya Simha v. State of Karnataka, (2007) 8 SCC 145 (4) Mohammed Ibrahim v. State of Bihar,(2009) 8 SCC 771 Upon the strength of the above arguments, it is prayed that bail be granted to the applicant.
5. The application has been strongly resisted by Mr.J.K.Shah, learned Additional Public Prosecutor by submitting that there is sufficient material on record to indicate the involvement of the applicant in the commission of the alleged offences. It is submitted that there is prima-facie evidence that the applicant has hatched a conspiracy with other accused persons, which involves not only creation of false and fabricated documents but also withdrawal of large amounts of money from the Bank Accounts of the complainant. This is evident from the material on record in the shape of documents that indicate the existence of a deep-rooted conspiracy in order to deprive the complainant of her movable and immovable properties. It is further contended by the learned Additional Public Prosecutor that the charge has now been framed and the trial will not take long to conclude. Looking to the seriousness of the offences alleged against the applicant and the magnitude of the conspiracy, bail may not be granted to the applicant.
6. Mr.H.N.Joshi, learned advocate for Thakkar Associates, appearing on behalf of the complainant, has opposed the grant of bail to the applicant by making the following submissions:
(a) That the applicant was serving as a Police Head Constable before his arrest and was staying very close to the house of the complainant.
The applicant and his wife, Urmilaben, who is also a co-accused person, are neighbours of the complainant and have taken undue advantage of their proximity to the complainant, by first winning over her confidence, and then, systematically duping her.
(b) The applicant, being a Government servant, was very well aware of the implications of the offences committed by him. He is one of the main persons who has hatched and executed the conspiracy and has played a key role in making his wife a beneficiary in the Will of the complainant.
(c) The applicant and his wife accompanied the complaint everywhere. The applicant has participated in the process of withdrawal of Bank Deposits by the complainant and has made endorsements on the Vouchers. He has taken the complainant to the Bank and made her withdraw money in an attempt to cheat her.
(d) The bail applications of Urmilaben, wife of the applicant and two other co-accused persons who are similarly situated have been rejected by this Court and orders of this Court have not been interfered with by the Apex Court.
(e) The roles played by the applicant and two other co-accused persons, who have been released on bail, are on a different footing, therefore, no parity can be claimed by the applicant.
(f) The applicant is fully involved in the conspiracy and is one of the masterminds behind the execution of several documents such as Will of the complainant under which his wife Urmilaben is a beneficiary. There is sufficient material on record to indicate the prima-facie involvement of the applicant in the commission of the alleged offences, therefore, the period of incarceration alone cannot be the sole ground for grant of bail.
(g) The applicant, his wife co-accused Urmilaben and his son, had earlier assaulted the complainant on one occasion, regarding which an application, in writing, had been submitted by the complainant at the Rander Police Station. If the applicant is released on bail, there is every likelihood that he would threaten and coerce the complainant and the safety of the complainant, who is an old lady, aged 80 years and that of her mentally challenged son, would be seriously endangered.
On the strength of the above submissions, it is prayed that the application may be rejected.
7. This Court has heard the learned advocates for the respective parties and perused the papers of the entire voluminous record.
8. From the material on record, the following aspects emerge for consideration and have been duly considered.
(1) The applicant and his co-accused wife were staying very close to the house of the complainant. The version of the complainant that the applicant and his wife, with a specific and well-planned design and intention, initially won over the confidence of the complainant, and then proceeded to take undue advantage of their proximity with her, is borne out from the material on record. It is the version of the complainant that she was always accompanied either by applicant or his wife, especially at times when large amounts of money were withdrawn by the complainant, from the Bank. This version is fortified by the signatures of the applicant on the Bank Vouchers.
(2) The material on record reveals that a series of inter-connected documents have been prepared and executed by the accused persons, in respect of the properties of the complainant. It appears that these documents, which pertain to the properties of the complainant, have been prepared and executed in a systematic and well-planned manner, with the intention of benefiting one or the other of the accused persons, at the cost of the complainant.
(3) It is noteworthy that co-accused Urmilaben, wife of the applicant, is one of the beneficiaries of the Will of the complainant. The documents allegedly prepared and executed, as a part of the conspiracy, bear the signatures of one or other accused, as beneficiary or witnesses.
(4) Prima-facie, the record reveals the execution of a deep-rooted conspiracy to defraud the complainant of her movable and immovable properties and extract large sums of money from her. The involvement of the applicant in the commission of the alleged offences is, prima-facie, borne out from the material on record.
(5) The charge against the applicant has been framed and the trial may not take long to conclude. The offences with which the applicant is charged are of a grave and serious nature, inviting severe punishment.
(6) The judgments relied upon by the learned Senior Advocate for the applicant have been considered. Though it is open to the Court to consider the grant of bail in cases where the period of incarceration is a long one, however, that in itself may not be the sole factor for grant of bail. Other important aspects, such as likelihood of the witnesses being tampered with, apprehension of administering threats to the complainant, prima-facie case and nature and gravity of the alleged offences, have also to be taken into consideration.
(7) The role played by the applicant stands on a different footing than the role played by the other two co-accused, who have been released on bail. Rather, the role allegedly played by the applicant in the commission of the above-mentioned offences is more at par with the role played by those co-accused, whose bail applications have been rejected by this Court. The ground of parity, therefore, would not be available to the applicant.
(8) In the present case, the complainant has filed an affidavit affirmed on 2nd of February, 2011, wherein it is stated that earlier, on one occasion, the applicant, his wife,accused Urmilaben, and his son had assaulted the complainant on 10-10-2008, in respect of which an application in writing has been submitted to the Rander Police Station and a Chapter Case No.747 of 2008 was registered. Considering this aspect, in the considered view of this Court, there is every likelihood that the applicant may threaten or coerce the complainant, who is an old lady, aged 80 years and her mentally challenged son, if released on bail. The apprehension of such a possibility cannot be said to be baseless.
(9) The conduct of the complainant, or the inconsistencies in the versions put forth by her, cannot be looked into by this Court, at this stage of grant of bail.
(10) The judgment in the case of Mohammed Ibrahim v. State of Bihar (Supra) cited by the learned Senior Advocate for the applicant would not be relevant as, at the stage of grant of bail, the Court is not required to look into the aspect whether the alleged offences are made out against the applicant, or not.
(11) The aspects that are required to be taken into consideration by the Court while deciding an application for grant of bail, have been enumerated by the Supreme Court in State of U.P. Through CBI v. Amarmani Tripathi - (2005)8 SCC 21, as below:
"The matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused." (Para 18)
9. In the considered view of this Court, the principles of law enunciated by the Supreme Court in the above-quoted judgment are squarely applicable to the facts obtaining in the present case.
10. Considering the manner in which the alleged offences have been committed, gravity of the charges alleged against the applicant, his prima-facie involvement in the commission of the alleged offences, as reflected from the record, and the assault made by the applicant on the complainant, as stated in the affidavit of the complainant, this Court does not consider it appropriate to exercise discretion, by granting bail to the applicant.
11. For the aforestated reasons, the application is rejected. Rule is discharged.
It is made clear that no observations contained in this order shall be construed as having any bearing upon the merits of the case, at the time of trial. The trial Court shall proceed, in accordance with law, unaffected and uninfluenced by any observation contained in this order. The trial Court shall endeavor to conclude the trial as expeditiously as possible, and without avoidable delay.
(Smt.Abhilasha Kumari,J) arg Top