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Gujarat High Court · body

2020 DIGILAW 658 (GUJ)

Manubhai Punjabhai Bharwad v. State of Gujarat

2020-07-31

SANGEETA K.VISHEN

body2020
ORDER : 1. Heard Mr. Darshit R. Brahmbhatt, learned advocate for the applicant, Ms.Nisha Thakor, learned Additional Public Prosecutor for the respondent State and Mr.Ruturaj Nanavati, learned advocate for the private complainant, through Video Conferencing. 2. This application has been preferred under Section 438 of the Code of Criminal Procedure, 1973, for grant of anticipatory bail as the applicant apprehends his arrest in connection with the FIR being I CR No.335 of 2019 registered with Sola High Court Police Station, Ahmedabad for the offences under Sections 406, 420, 447, 465, 467, 468, 506(2), 294(a), 120B and 114 of Indian Penal Code, 1860. 3. Mr.Darshit Brahmbhatt, learned advocate for the applicant submitted that the allegations levelled in the First Information Report even if taken on their face value, do not constitute any offences inasmuch as, the sections which have been invoked, would not be applicable to the present applicant. The applicant is in no manner connected with the offences alleged under provisions of Sections 406, 420, 465, 467 and 468 of Indian Penal Code. It is submitted that the applicant has not derived any benefit from the alleged forged power of attorney, much less the agreement to sell. As regards the aspect of forgery of the power of attorney or the agreement to sell, it has submitted that there is neither any allegation alleged nor any iota of evidence against the applicant to that effect. It is submitted that in the First Information Report, it is clearly stated that the forged power of attorney was executed by taking signatures of the complainant as well as her sons by accused No.1, i.e. Dilip Sendhabhai Makwana. That the present applicant is in peaceful possession for last many years and has constructed his house on the land and is residing along with his family members; undertaking agricultural operations. As is discernible from the First Information Report, the complainant came to know about the forged power of attorney as well as the agreement to sell in the year 2016 through one land broker Ibrahim and thereafter in 2018, it came to the further knowledge of the complainant that the accused No.1 Dilip Sendhabhai Makwana is trying to dispose of the land of the complainant. Though it was within the knowledge of the complainant about the forged power of attorney and the agreement to sell, the First Information Report has been filed as late as in the year 2019. 4. It is submitted that it is the case of the complainant that the forged document has been created by accused No.1 and on the basis whereof, accused No.1 had tried to dispose of the property; however, the complainant has so far not bothered to file any suit either against accused No.1 or the applicant for getting the possession of the land. It is, thus, submitted that lodging of the First Information Report is nothing but to exert pressure on the applicant to vacate the land. 5. It is submitted that the case now rests on documentary evidence and thus, for the said purpose, custodial interrogation of the applicant is not required. Further, the applicant has no criminal antecedents. That the role of the applicant is similar to the role of accused No.3, in which case, this Court has exercised the discretion and granted anticipatory bail. Thus, applying the same principles, the present application may also be allowed and the applicant be granted anticipatory bail. It is submitted that the dispute involved in the present case is civil in nature in respect of which civil suit has been filed and the same is pending. Only with a view to giving colour of criminality to the whole incident, the present First Information Report has been filed by the complainant. It is submitted that the applicant will not flee from justice and will attend the trial and cooperate with the investigation. 6. In support of the said submissions, reliance has been placed by learned advocate for the applicant on paragraphs 16 to 19 of the judgment of the coordinate bench in the case of Bharatbhai Jayantilal Shah vs. State of Gujarat rendered in Criminal Misc. Application No.2400 of 2012. It is urged that applying the principles to the facts of the present case, this Court may exercise discretion in favour of the applicant. 7. On the other hand, Ms.Nisha Thakor, 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. It is urged that applying the principles to the facts of the present case, this Court may exercise discretion in favour of the applicant. 7. On the other hand, Ms.Nisha Thakor, 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. It is submitted that the applicant is named in the First Information Report and the offence alleged is of Section 406 of the Indian Penal Code. Moreover, the complainant and her sons are the owners of the agricultural land admeasuring 9,106 sq.mtrs. That the investigation is going on and during the course of investigation, the statements of witnesses, having the land in neighbourhood, have been recorded. Besides, in Regular Civil Suit No.449 of 2016 filed by the complainant against Kunjal Arvindbhai Patel, the Court Commissioner was appointed and during the inspection, the Court Commissioner has opined that the land is an open land. Additionally, the statement recorded of the treasury suggests that the documents are forged documents inasmuch as, the non-judicial stamp paper has been issued in the year 2010 in the name of stamp vendor Naseem Tinwala, whereas the power of attorney as well as the agreement to sell have been executed in the year 2006. The said factum is supported by the statement of one Vinod Ratilal Modi, Notary, who has denied the execution of power of attorney or agreement to sell, having signed and notarised by him. So far as accused No.1 is concerned, it is submitted that he is still absconding. Adverting to the aspect of ownership, it is submitted that though the applicant claims to be in possession of the land bearing Survey No.6/A, no documents substantiating the aspect of ownership have been produced. In absence of any documents in support of the ownership, the offence is made out. On overall appreciation of the documents, it suggests that there is commission of offences under the provisions of the Indian Penal Code, for which custodial interrogation of the applicant is necessary. When the conspiracy is alleged, it is only when the applicant is in judicial custody that truth can be ascertained, inasmuch as, the conspiracy has been hatched by all the accused named in the First Information Report. Accordingly, it is urged that the Court may not exercise discretion in favour of the applicant, granting anticipatory bail. 8. Mr. When the conspiracy is alleged, it is only when the applicant is in judicial custody that truth can be ascertained, inasmuch as, the conspiracy has been hatched by all the accused named in the First Information Report. Accordingly, it is urged that the Court may not exercise discretion in favour of the applicant, granting anticipatory bail. 8. Mr. Ruturaj Nanavati, learned advocate for the private complainant adopted the arguments advanced by learned Additional Public Prosecutor. It is submitted that so far as the aspect of delay in lodging the First Information Report is concerned, on 17.6.2018, the complainant came to know about the execution of the forged power of attorney as well as the agreement to sell and accordingly, a written complaint was made to the Investigating Officer, however, since no inquiry was done, a writ petition was filed before this Court on 27.3.2019 being Special Criminal Application No.1926 of 2019. Pursuant to the said proceedings, the Investigating Officer was directed to register the First Information Report as held by the Apex Court in the case of Lalita Kumari vs. State of U.P., reported in (2014) 2 SCC 1 and accordingly, the First Information Report came to be lodged in the month of July 2019 and hence, it cannot be said that there was a delay in lodging the First Information Report. That the First Information Report is not an encyclopedia which would cover all the aspects. The applicant in connivance with the main accused has committed the said offence which aspect can be unearthed only during the custodial interrogation. It is submitted that in Special Civil Suit No.265 of 2018 filed by the applicant, the applicant had preferred an application Exh.5, which has been rejected by the Court below. That is how there is an illegal trespass by the applicant over the land with the help of principal accused. Adverting to the aspect of grant of anticipatory bail to the accused No.3, it is stated that the role attributed to accused No.3 cannot be construed at par with the role of the applicant inasmuch as, the applicant has to produce on record documents to prove his right, title and interest over the land in question. Except electricity bill and affidavit nothing has been produced substantiating the aspect of ownership. Except electricity bill and affidavit nothing has been produced substantiating the aspect of ownership. It is submitted that without joining the complainant and her sons as party respondents, the applicant has filed the suit only with a mala fide intention to establish the ownership. In the present case, the offence committed is under Section 120B as well as Section 114 of Indian Penal Code, thus, it is urged that the truth can be ascertained by custodial interrogation. Accordingly, present being a case of forgery against the applicant and other accused, the captioned application may not be entertained. 9. Heard the learned advocates for the respective parties, perused the material placed on record, so also the investigation papers made available to the Court by the learned Additional Public Prosecutor. 10. The controversy revolves around the land bearing Survey No.6/A, situated at Mouje: Hebatpur, Taluka: Dascroi (Ghatlodia), District Ahmedabad. The First Information Report reveals that the power of attorney was executed by accused No.1, i.e. Dilip Sendhabhai Makwana by forging signatures of the complainant as well as her sons and on the basis whereof, an agreement to sell has been executed. It is the case of the original complainant that though power of attorney and the agreement to sell stated to have been signed by the complainant and her sons, in reality, the same were never signed or executed in favour of Dilip Sendhabhai Makwana, i.e. accused No.1. The main allegations are made against Dilipbhai Makwana and that too, of forging the agreement to sell as well as the power of attorney. It is also required to be noted that Special Civil Suit No.262 of 2018 filed by the applicant is not on the basis of the power of attorney or the agreement to sell, but it is filed claiming adverse possession. Further, if perused the First Information Report, the allegation which is made against the applicant, is that when the sons of the complainant visited the site, the applicant threatened them with dire consequences, using abusive language; at the most attracting the offence under Sections 447, 506 and 294 of the Indian Penal Code and in the opinion of this Court, for which custodial interrogation at this stage is not necessitated. 11. 11. Besides, the complainant came to know about the execution of the forged power of attorney as well as agreement to sell in the year 2016 through a land broker Ibrahim; however, the First Information Report has been lodged in the month of July 2019, i.e. almost after a period of three years. Pertinently, the complainant has filed a suit being Regular Civil Suit No.449 of 2016 against one Kunjal Arvindbhai Patel, who happens to be the son-in-law of the complainant; though it was within the knowledge of the complainant about execution of the forged power of attorney and the agreement to sell, no proceedings have either been initiated for cancellation of the power of attorney or for that matter the agreement to sell. From the above aspects, it prima facie appears that the dispute involved is of a civil nature. 12. Having heard learned advocates for the respective parties, perused the material placed on record; investigation papers made available during the course of hearing for the perusal of the Court and considered the facts of the case, nature of allegations, gravity of offences, role attributed to the accused and punishment prescribed for the alleged offences, without discussing the evidence in detail, this Court is inclined to grant anticipatory bail to the applicant. 8. In the result, the present application is allowed. 8. 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 FIR being I CR No.335 of 2019 registered with Sola High Court Police Station, Ahmedabad on his executing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) with one surety of like amount on the following conditions that the applicant shall – (a) cooperate with the investigation and make himself available for interrogation whenever required; (b) remain present at concerned Police Station on 10.08.2020 between 11.00 a.m. and 2.00 p.m.; (c) 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) 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) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and not change his residence till the final disposal of the case till further orders; (f) not leave India without the permission of the Court and if having passport, deposit the same before the trial Court within a week; and 9. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant, subject to the right of the applicant to take appropriate recourse against the order of 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 applicant-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 applicant-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. 10. 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. 10. It is needles to say that the observations made by this Court may not be construed as having any bearing on the merits of the case at the time of trial. The trial Court shall proceed in accordance with law, uninfluenced by any observations contained in this order. 11. Rule is made absolute to the aforesaid extent. The Registry is directed to communicate this order to the concerned Police Station through email/fax.