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2019 DIGILAW 144 (GUJ)

Pravinbhai Manjibhai Ghoghari v. State of Gujarat

2019-02-19

VIPUL M.PANCHOLI

body2019
JUDGMENT : Vipul M Pancholi, J. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with the FIR being C.R. No. I 88/2017 registered with Limbayat Police Station, Surat City for the offenses punishable under Sections 406, 420, 467, 468, 471, 120(B), 114 and 34 of the Indian Penal Code. 2. Heard learned advocate, Mr. I.H. Syed assisted by learned advocate, Mr. Pravin Gondaliya for the applicant, learned APP Ms. Shruti Pathak for the respondent State and learned Senior Counsel, Mr. R.R. Marshal assisted by learned advocate, Mr. Daifraz Havewalla for the Original Complainant. 3. Learned advocate for the applicant has referred to the allegations made against the applicant in the FIR. Thereafter, he has referred to the order dated 04.12.2018 passed by this Court in Criminal Misc. Application No.20342/2018 in case of co-accused. Learned advocate has referred to the observations made by this Court while releasing the said accused on bail and, thereafter, he has referred to the order dated 04.12.2018 passed in case of the original accused no.1 in Criminal Misc. Application No.20751/2018, who has been released on anticipatory bail. It is contended that both the aforesaid orders were challenged by the original complainant before the Hon’ble Supreme Court, however, the Hon’ble Supreme Court has not interfered with the said orders passed by this Court. 4. Learned advocate, Mr. Syed thereafter submitted that prior to registration of the FIR, the applicant was called for giving his statement by the concerned Police authority and twice the applicant has appeared before the said authority and has given his statement. It is further submitted that even after registration of FIR, the applicant appeared before the local police twice and his statement is recorded and, thereafter, he also appeared before the present IO of CID Crime when this Court has granted protection in the present application by an order dated 17.01.2019. Learned advocate has placed on record a notice given by the IO under Section 160 as well as under Section 91 of the Criminal Procedure Code, 1973 and submitted that in pursuance to the said notices, the applicant has cooperated with the investigating agency. Learned advocate has placed on record a notice given by the IO under Section 160 as well as under Section 91 of the Criminal Procedure Code, 1973 and submitted that in pursuance to the said notices, the applicant has cooperated with the investigating agency. It is also contended that till date, no development permission has been challenged nor the order of amalgamation has been challenged and even there is no revenue proceedings initiated by the complainant. He has further submitted that the case of the prosecution depends on documentary evidence and, therefore, his custodial interrogation is not required looking to the nature of allegations. He further submits that the applicant will keep himself available during the course of investigation, trial also and will not flee from justice. 5. Learned advocate for the applicant on instructions states that the applicant is 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 his remand. He further submit that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail. 6. On the other hand, learned advocate for the original complainant has submitted that the present applicant is MLA and, therefore, the concerned Police authority has initially not registered the FIR and even after registration of the FIR, proper investigation was not carried out by the local police and, therefore, the petition was filed before this Court for transfer of investigation and this Court has transferred the investigation to CID Crime and because of the fact that the applicant is MLA, immediate steps were not taken against him. 7. Learned advocate thereafter referred to the copy of power of attorney dated 25.07.2005 produced at Page Nos.9 and 16 of the compilation. It is submitted that signature of the complainant is forged in the said document. It is thereafter contended that on the basis of the said power of attorney, the applicant has executed sale deed on 15.10.2008 in favour of ten purchasers, out of which, one of the purchasers is the father of the applicant. It is submitted that signature of the complainant is forged in the said document. It is thereafter contended that on the basis of the said power of attorney, the applicant has executed sale deed on 15.10.2008 in favour of ten purchasers, out of which, one of the purchasers is the father of the applicant. After referring to the averments made in the sale deed, it is contended that the land admeasuring 15,579 Sq.Mts is sold at a price of Rs. 8,50,000/- only. It is contended that the complainant has not received any amount from the said transaction. It is, therefore, alleged that on the basis of the forged power of attorney, the applicant has sold the land in question in favour of the concerned purchaser. 8. It is thereafter contended that the present applicant has refused to produce both the aforesaid power of attorney before the IO when he was called. At this stage, it is submitted that notice issued under Section 135D of the Bombay Land Revenue Code was also not served to the complainant. 9. Learned advocate thereafter contended that the co-accused, Champakbhai Laad was released on regular bail after his arrest, which was made in September, 2018 and, therefore, the case of the present applicant is different from the case of the said co-accused. It is further submitted that after the original accused no.1, Shantilal Madanlal Shah was released on anticipatory bail by this Court and after the SLP was dismissed by the Hon’ble Supreme Court filed by the complainant, the said co-accused has not cooperated with the IO and, therefore, the complainant has filed an application for cancellation of anticipatory bail granted to the said accused before this Court. Learned advocate also referred to the order dated 07.02.2019 passed by this Court in Criminal Misc. Application No.1/2018 in Special Criminal Application No.8662/2017, wherein this Court has observed in Para No.3 that according to the IO, the said co-accused, Shantilal Shah has not produced certain original documents and, therefore, notice under Section 91 of the Criminal Procedure Code, 1973 is issued to him for production of such documents. It is, therefore, contended that when the proceedings for cancellation of anticipatory bail is pending before this Court, the present applicant cannot claim parity. 10. Learned advocate thereafter referred to the order dated 24.04.2017 passed by this Court in Criminal Misc. It is, therefore, contended that when the proceedings for cancellation of anticipatory bail is pending before this Court, the present applicant cannot claim parity. 10. Learned advocate thereafter referred to the order dated 24.04.2017 passed by this Court in Criminal Misc. Application No.10111/2017, by which, the present applicant had withdrawn the application filed under Section 482 of the Criminal Procedure Code, 1973 for quashing of the FIR qua him. Learned advocate thereafter refereed to relevant averments made in the affidavit-in-reply, more particularly, Para No.10 of the said reply and submitted that out of total land, which was amalgamated i.e. 28,609 Sq.Mtrs., only 5231 Sq.Mtrs. is open parcel of land and inspite of that, the applicant has executed sale deed for the land admeasuring approximately 18,000 Sq.Mtrs. 11. In view of the aforesaid submissions, it is contended by learned advocate that the custodial interrogation of the applicant is required and, therefore, this Court may not entertain this application. 12. Learned APP Ms. Pathak has supported the submissions canvassed by learned advocate for the original complainant. It is further contended that when the Bank account of the complainant is verified by the IO, it is revealed that the complainant has not received any amount by way of cheque or by way of cash, which was deposited in the account of the complainant. Thus the complainant has not received any amount out of the sale transaction in question. It is further submitted that the applicant has not produced the copy of the power of attorney when he was called by the IO and, therefore, custodial interrogation of the applicant is required. She, therefore, urged that this Court may not entertain this application. 13. Having heard learned advocates for the parties and having gone through the material produced on record including the investigation papers, it is revealed that the original accused no.1 is released on anticipatory bail vide order dated 04.12.2018 in Criminal Misc. Application No.20751/2018. While granting anticipatory bail to the said co-accused, this Court has observed in Para No.7(vii) as under, (VII) An attention is drawn of this Court to the Google maps of the relevant period to suggest that even in 2010, there was complete existence of residential societies. The revenue record indicates the sub-plotting and ownership of various individuals in whose favour the sale deed is executed. The revenue record indicates the sub-plotting and ownership of various individuals in whose favour the sale deed is executed. The documents are also produced to suggest that several residential premises were in existence and occupied by various people in whose name electric connections were running and their names are also reflected in the voters card. 14. This Court has also considered the case of the another co-accused viz., Champakbhai Laad. The said co-accused has released on regular bail by an order dated 04.12.2018 passed in Criminal Misc. Application No.20342/2018. While releasing the said co-accused on regular bail, this Court has observed in Para No.6 (iii) to 6 (viii) as under, III) The dispute pertains to piece of land with survey Nos.138, 139 and 140 of village Gadodara, Surat. Apparently survey Nos.138 and 140 belong to family of accused Nos.3 to 14, whereas survey No.139 belong to family of complainant. The family names of both the families are identical (IV) From the FIR itself, the offence is narrated to have taken placed between 19.10.2001 to May-June, 2016, whereas the FIR is registered only in April, 2017. It appears that the accused No.1 is the developer on the survey Nos., 138, 139 and 140 and accused No.2 was the purchaser of the plot of land, whereas accused Nos.3 to 14 are the family members of the original land owner of survey Nos.138 and 140. (V) The Court has perused the documents produced on record to find that insofar a the survey Nos.138 and 140 are concerned, the applicant was then has authority to deal with the said survey number as the said land was an ancestral property. (VI) The Court has also observed that from the documents pertaining to development of the land, construction existed since 1990 in the form of residential societies. (VII) The complainant was barely few hundred meters away from the land, where the development has taken place for all these years and has still chosen to remain mute spectator and belatedly in the year 2017, when the agricultural lands were put to use for residential purpose and where plotting was done for putting up residential societies, in such circumstance, the case of the applicant deserves consideration. (VII) The Court has also perused the permission for construction originally issued by the Gram Panchayat which also shows that construction has come into existence in the year 1990 onwards. 15. (VII) The Court has also perused the permission for construction originally issued by the Gram Panchayat which also shows that construction has come into existence in the year 1990 onwards. 15. It is not in dispute that both the aforesaid orders were challenged by the original complainant by filing SLP before the Hon’ble Supreme Court and the Hon’ble Supreme Court has not entertained both SLPs. 16. It is required to be noted that though an application for cancellation of anticipatory bail is filed qua the accused, Shantilal Shah, till date this Court has not issued the notice. 17. The contention of learned advocate for the complainant is that because of the fact that the applicant is MLA of a party in power, appropriate investigation is not carried out by the investigating agency. However, it is required to be noted that the applicant is elected as MLA after registration of the FIR and upon making inquiry from learned APP, learned APP has informed this Court after taking instruction from the IO, who is present in the Court that the applicant has given his statement twice before the concerned local Police after registration of the FIR and even after the investigation was transferred to CID Crime, the applicant appeared twice under the protection of this Court. Thus from this fact, it is clear that the applicant has responded to the notices issued under Sections 91 and 160 of the Criminal Procedure Code, 1973 issued by the IO. Further, there is delay in registering the FIR and the case of the prosecution depends upon the documentary evidence and it is always open for the IO to ask for the remand of the applicant if further information is required. Therefore considering the above facts, I am inclined to exercise the discretion in favour of the applicant by releasing him on anticipatory bail. 18. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors. reported at, (2011) 1 SCC 694 , wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at, (1980) 2 SCC 565 . 19. In the result, the present application is allowed. State of Maharashtra and Ors. reported at, (2011) 1 SCC 694 , wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at, (1980) 2 SCC 565 . 19. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No. I 88/2017 registered with Limbayat Police Station, Surat City on his executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions: (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 26.02.2019 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 address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the Court and if having passport shall deposit the same before the Trial Court within a week; and (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits; 20. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining 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 learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, 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. 21. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 22. Rule is made absolute to the aforesaid extent. Direct service is permitted.