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2019 DIGILAW 80 (GUJ)

KARSANJI BHIKHAJI THAKOR v. STATE OF GUJARAT

2019-01-31

VIPUL M.PANCHOLI

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JUDGMENT VIPUL M. PANCHOLI, J. 1. Rule. Learned APP, Ms. Shruti Pathak waives service of notice of Rule on behalf of respondent-State. 2. Heard learned advocate, Mr. Sunil Joshi for the applicant, learned APP Ms. Shruti Pathak for the respondent - State and learned advocate, Mr. Tatvam Patel for the Original Complainant, who is permitted to file his appearance. 3. 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- 384/2018 registered with Naroda Police Station, Ahmedabad City for the offenses punishable under Sections 406, 420, 467, 468, 471, 114 and 506(2) of the Indian Penal Code. 4. Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. 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. Learned Additional Public Prosecutor appearing on behalf of the respondent - State as well as learned advocate for the original complainant have vehemently opposed grant of anticipatory bail on the ground that the original land owners have executed banakhat in favour of one Amit Patel and Ramaji Thakor, wherein the applicant has signed as witness. It is further submitted that original land owners and the co-accused have executed General Power of Attorney in favour of the present applicant and Ramaji Thakor i.e. the co-accused. Thus the applicant herein is also beneficial of the transaction in question. Therefore, both learned advocates have urged that the present application may not be entertained. 7. It is further submitted that original land owners and the co-accused have executed General Power of Attorney in favour of the present applicant and Ramaji Thakor i.e. the co-accused. Thus the applicant herein is also beneficial of the transaction in question. Therefore, both learned advocates have urged that the present application may not be entertained. 7. 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 applicant. 8. This Court has considered following aspects, (a) so far as banakhat is concerned, it is not alleged that the said document is forged and only allegation against the applicant is that he has signed as witness in the said document; (b) so far as another document i.e. General Power of Attorney is concerned, the original land owners have executed the same in favour of the applicant and co-accused, which is also not forged one and thus, the allegations of forgery are not leveled against the applicant; (c) even otherwise, the case of the prosecution is rest on documentary evidence; (d) the original complainant is in possession of the land in question and, therefore, no loss is caused to the original complainant as on today; (e) even civil proceedings are pending before the concerned Court. Thus in view of the above, this Court is of the opinion that the present application deserves to be allowed. 9. 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 . 10. 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 . 10. 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-384/2018 registered with Naroda Police Station, Ahmedabad 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 07.02.2019 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; 11. 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. 12. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 13. Rule is made absolute to the aforesaid extent. Direct service is permitted.