Research › Search › Judgment

Gujarat High Court · body

2021 DIGILAW 916 (GUJ)

SALEH MASUM PATEL v. STATE OF GUJARAT

2021-10-08

SONIA GOKANI

body2021
ORDER : 1. Rule, returnable forthwith. Learned APP waives service of notice of Rule for and on behalf of the respondent-State. 2. This Court while issuing of notice passed the following order on 21.09.2021: “1. This Court on 01.06.2020 in Criminal Miscellaneous Application No.7187 of 2020 while permitting the withdrawal had passed the following order: “1. This is an application for anticipatory bail preferred in connection with FIR No.111822021200490 of 2020 registered with Navsari Rural police station for the offences punishable under sections 460, 467, 468, 471 and 120 of the Indian Penal Code. 2. Applicants herein are witnesses to the registered document alleged to have been executed in using cancelled Power of Attorney in a fraudulent manner by usurping the rights of Complainant and his family members by registering the sale deed at the SubRegistrar's Office on 17.02.2020. 3. On issuance of rule, learned Additional Public Prosecutor gathered the details from the Investigating officer and assisted the Court. This Court has heard learned advocate Mr. Panthil Majmudar for the applicant and learned Additional Public Prosecutor Ms.Shruti Pathak for the respondent-State and also had an occasion to peruse the papers relating to the said transactions in details. Learned advocate has sought withdrawal of this matter without seeking any reason from the Court. He also has further urged that the parties are attempting to compromise in relation to the document in question dated 17.02.2020, so also in connection with the amount of compensation allegedly pocketed by father of the applicants for and on behalf of the complainant and his family in the year 2008, the land acquired for national highway No.8 Block No.11, and all other disputes in relation to the lands in question. 4. Mr. Majmudar, learned advocate for the applicants, submits as an officer of the Court, he has been instructed to state that there is a likelihood of the parties arriving at a compromise in all respects and if it happens to the satisfaction of the complainant and confirmed by the Investigating Officer, present applicants who are witnesses to the document dated 17.02.2020 be permitted to once again approach this Court. 5. While permitting withdrawal and disposing of the matter, request deserves consideration, and the same is acceded to only If the tri partite compromise is arrived at within one week. Otherwise, the applicant shall surrender and shall cooperate with the Investigating Officer. 5. While permitting withdrawal and disposing of the matter, request deserves consideration, and the same is acceded to only If the tri partite compromise is arrived at within one week. Otherwise, the applicant shall surrender and shall cooperate with the Investigating Officer. This is also not to indicate that this order should be used as a tool for entering into a compromise or forcing any party to compromise nor is this any indication for the parties to so do it. It is only because learned advocate for the applicant, as an officer of the Court, has categorically stated on instruction this aspect of compromise amongst the family members any these applicants being witnesses to the documents and as according to learned advocate, the terms of compromise are likely to see the light of the day,such a request which ordinarily does not deserve any sympathetic consideration, is regarded for these two applicants which would also not have any bearing on the case of others. 6. In the event of a specific affidavit as Stated, is filed by the complainant expressing the satisfaction of ending of his grievances along with the grievances of his family members and being confirmed by the Investigating Officer,repeat application shall be permitted. 7. With this, present application stands disposed of accordingly.” 2. According to learned advocate, Mr. Zubin Bharda not only the compromise has been arrived at, but, pursuant to the said compromise, much water has flown and couple of the co-accused also have been granted anticipatory bail by this Court and the one who was arrested has been granted regular bail by the Court. 3. Issue Notice, returnable on 24.09.2021. Ms.Maithili Mehta, learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent-State.” 3. Thereafter, noticing that the applicant had not appeared before the Investigating Officer, the order was passed on 24.09.2021 as follows: “1. This Court issued the notice on 21.09.2021 and learned APP, Ms.M.D.Mehta appearing for the State has submitted that the registered document, which had been prepared has been reversed in the year 2020. She however insists that the FIR is still under the investigation and at no point of time the present applicant has appeared before the authority concerned. She also does not dispute that two of the co-accused Masum Ahmad Patel and Samiullah Masum Patel have been granted anticipatory bail by this Court. 2. She however insists that the FIR is still under the investigation and at no point of time the present applicant has appeared before the authority concerned. She also does not dispute that two of the co-accused Masum Ahmad Patel and Samiullah Masum Patel have been granted anticipatory bail by this Court. 2. While protecting the applicant for present, he is directed to appear before the concerned Investigating Officer, for him to interrogate and the matter be posted for hearing on 01.10.2021. The present applicant shall present himself before the concerned Investigating Officer on 28.09.2021. 3. Copy of this order be given to the learned APP, Ms.M.D.Mehta for onward communication with Navsari Rural Police Station in I-C.R.No.11822021200490 of 2020. 4. Over and above the regular mode of service, Direct service through e-mode is also permitted TODAY.” 4. Today, the learned APP, Ms.Maithili Mehta has submitted the report tendered by Mr.P.P.Brahambhatt, Police Inspector, Navsari Rural Police Station indicating therein as to how the applicant has remained present. He has also made a mention as to in what manner the rest of the co-accused have also been granted anticipatory bail. 5. This Court notices that the applicant has the alleged role of having signed the registered sale deed as a witness, which has allegedly been made by using the forged power of attorney document. Those, who have prepared such document and all other involved with different roles have already been granted anticipatory bail by the Coordinate Benches and the only person remained is the present applicant. With his limited role of a witness, request is made by the learned advocate, Mr.Zubin Bharda that he also should enjoy by way of the principle of parity the liberty till the trial is completed, requires to be acceded. 6. Having noticed the chronology of events and also considering the fact that the role of the present applicant is limited in this matter and the very document has been reversed by those who had created the same. The report tendered before this Court indicates that the complainant and the accused are the close relatives, they have entered into the compromise and registered sale deeds No.715 of 2020 and 716 of 2020 have been cancelled. Thereafter, document has also been prepared canceling these two sale deeds by way of registered document Nos.2042 of 2020 and 2044 of 2020 on 22.07.2020 at Sub-Registrar Office, Jalalpur. 7. Thereafter, document has also been prepared canceling these two sale deeds by way of registered document Nos.2042 of 2020 and 2044 of 2020 on 22.07.2020 at Sub-Registrar Office, Jalalpur. 7. This Court has also taken into consideration the law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors., reported in (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors., reported in (1980) 2 SCC 665 . 8. In wake of these changes, this Court is inclined to consider all aspects and allowed present application by directing that in the event of arrest of the applicant herein in connection with FIR registered at I-C.R.No.11822021200490 of 2020 before Navsari Rural Police Station, Navsari, the applicant shall be released on anticipatory bail on his furnishing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount on the following conditions that he shall: (a) cooperate with the investigation and make available for interrogation whenever required; (b) remain present at the concerned Police Station on 20.10.2021 between 11.00AM to 02.00PM; (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 from disclosing such facts to the court or to any police officer; (d) not obstruct or hamper the police investigation and shall 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 shall not change residence till the final disposal of the case till further orders without the permission of Trial Court; (f) mark presence once in month before the concerned Police Station till filing of the chargesheet; (g) not leave India without the permission of the Trial Court and if having passport, shall deposit the same before the Trial Court within a week; and (h) 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 the same on merits. 9. 9. 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. 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. 10. At the trial, the Trial Court shall not be influenced by the prima-facie observations made by this Court while enlarging the applicant on bail. Rule is made is made absolute accordingly. 11. Over and above the regular mode of service, direct service is permitted through speed post as well as e-mode.